Appendix — Pietrowski v. Conkright (No. 08-826)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2007

Docket No. 07-0418-cv

[Decided: July 24, 2008]

Errata October 6, 2008

PAUL J. FROMMERT, ALAN H. CLAIR, DONALD

S. FOOTE, THOMAS I. BARNES, RONALD J.

CAMPBELL, FRANK D. COMMESSO, WILLIAM

F. COONS, JAMES D. GAGNIER, BRIAN L. GAITA,

WILLIAM J. LADUE, GERALD A. LEONARDO JR.,

FRANK MAWDESLEY, HAROLD S. MITCHELL,

WALTER J. PETROFF, RICHARD C. SPRING,

PATRICIA M. JOHNSON, F. PATRICIA M. TOBIN,

NANCY A. REVELLA, ANATOLI G. PUSCHKIN,

WILLIAM R. PLUMMER, MICHAEL J. MCCoy,

LARRY J. GALLAGHER, NAPOLEON B. BARBOSA,

ALEXANDRA SPEARMAN HARRICK, JANIS A.

EDELMAN, PATRICIA H. JOHNSTON, KENNETH

P. PARNETT, JOYCE D. CATHCART, FLOYD

SWAiM, JULIE A. MCMILLIAN, DENNIS E. BAINES,

RUBY JEAN MURPHY, MATTHEW D. ALFIERI,

KATHY FAY THOMPSON, MARY BETH ALLEN,

CRAIG R. SPENCER, LINDA S. BOURQUE,

THOMAS MICHAEL VASTA, FRANK C. DARLING,

CLARK C. DINGMAN, CAROL E. GANNON, JOSEPH

IX. WRIGHT, DAVIL M. ROHAN, DAVID B.

RUDDOCK, CHARLES HOBBS, CHARLES

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ZABINSKI, CHARLES J. MADDALOZZO, JOYCE

M. PRUETT, WILLIAM A. CRAVEN, MAUREEN

A. LOUGHLIN JONES, KENNETH W.

PIETROWSKI, BONNIE COHEN, LAWRENCE

R. HOLLAND, GAIL A. NASMAN, STEVEN D.

BARLEY, DONNA S. LIPARI, ANDREW C.

MATTELIANO, MICHAEL HORROCKS,

CANDICE J. WHITE, DENNIS E. BAINS,

KATHLEEN E. HUNTER, JOHN L.

CRISAFULLI, DEBORAH J. DAVIS, BRENDA

H. MCCONNELL, KATHLEEN A. BOWEN,

ROBERT P. CARANDDO, TERENCE J. KURTZ,

WILLIAM J. CHESLOCK, THOMAS E.. DALTON,

LYNN BARNSDALE, BRUCE D. CRAIG, GARY

P. HARDIN, CLAUDETTE M. LONG, DALE

PLATTETER, MARY ANN SERGEANT, MOLLY

WHITE KEHOE, IRSHAD QUERSHI, DAVID K.

YOUNG, LESLIE ANN WUNSCH, EUGENE H.

UPDYKE, MICHAEL R. BENSON, ALVIN M.

ADAMS, RONNIE KOLNIAK, JAMES J.

FARRELL, ROBERT L. BRACKHARHN,

BENJAMIN C. ROTH, RICHARD C. CARTER,

CARMEN J. SOFIA, KATHLEEN W. LEVEA,

FREDERICK SCACCHITTI, PAUL DEFINA,

JAMES G. WALLS, GAIL J. LEVY, JOHN A.

WILLIAMS, CRYSTAL THORTON, CHARLES

R. DRANNBAUER, WILLIAM M. BURRITT,

AND JANICE ROSS HEILER,

Plaintiffs-Appellees,

SALLY L. CONKRIGHT, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, PATRICIA

M. NAZEMETZ, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, LAWRENCE

wee ee Nr er ee”

3a

M. BECKER, XEROX CORPORATION

PLAN ADMINISTRATOR, XEROX

CORPORATION RETIREMENT INCOME

GUARANTEE PLAN, AND XEROX

CORPORATION, A NEW YORK CORPORATION,

Defendants-Appellants,

XEROX CORPORATION,

Defendant.

[Argued: June 19, 2008]

Before: STRAUB and RAGGI, Circuit Judges, and

SESSIONS, District Judge.

Appeal from a January 24, 2007 order of the United

States District Court for the Western District of New

York (David G. Larimer, Judge) complying with our

January 6, 2006 decision to remand the case to the

District Court in order to craft a remedy to calculate

Plaintiffs-Appellees’ pension benefits in light of the

violations we identified of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

We conclude that the District Court crafted a remedy

consistent with our decision, applicable law, and the

terms of the pension plan at issue. However, we also

conclude that the District Court erred in refusing to

enforce the release forms’ signed by several

Plaintiffs-Appellees in this litigation.

* The Honorable William K_> Sessions Ill, Chief Judge of the

United States District Court forthe District of Vermont, sitting by

> ¢ "

desivnation

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Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this opinion.

ROBERT H. JAFFE (Mark B. Watson, Robert H.

Jaffe & Associates, Springfield, New Jersey; George A.

Schell, Schell & Schell, Fairport, New York; John A.

Strain, Rodondo Beach, California, on the brief),

Robert H. Jaffe & Associates, Springfield, New Jersey,

for Plaintiffs-Appellees.

BRENDAN S. MAHER, Stris & Maher LLP, Dallas,

Texas, for Plaintiffs-Appellees.

MARGARET A. CLEMENS, Nixon Peabody LLP,

Rochester, New York, for Defendants-Appellants.

Maria Ghazal, Business Roundtable, Washington,

D.C.; Jeffrey A. Lamken, Rachel M. McKenzie, Baker

Botts LLP, Washington, D.C.; Allyson N. Ho, Baker

Botts LLP, Dallas, Texas, for Amicus Curiae Business

Roundtable.

STRAUB, Circuit Judge:

Plaintiffs-Appellees asserted claims under the

Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001 et seq., against their

current or former employer, Xerox Corporation

(“Xerox”),' the pension plan administered for the

benefit of its employees, and various individuals

‘Early in this htigation, the District Court dismissed Xerox as a

party, and Plaintiffs-Appellees did not challenge this dismussal in

their appeal. See Frormmert v. Conkright, 433 F.3d 254, 256 n.2

(2d Cir. 2006

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associated with the administration of that plan. On

remand from our first decision in this litigation, see

Frommert v. Conkright, 433 F.3d 254 (2d Cir. 2006),

the District Court crafted a remedy to address the

ERISA violations we had identified and concluded that

the release forms’ signed by several

Plaintiffs-Appellees did not bar their ERISA claims,

see Frommert v. Conkright, 472 F. Supp. 2d 452,

456-59 (W.D.N.Y. 2007). Defendants-Appellants

challenge both aspects of the District Court’s decision.

For the reasons set forth below, we _ reject

Defendants-Appellants’ first challenge and agree with

the second. Accordingly, we vacate a portion of the

District Court’s order and remand the case to the

District Court for proceedings consistent with this

opinion.

FACTUAL AND

PROCEDURAL BACKGROUND

We presume familiarity with the facts and

procedural history of this case as set forth in our prior

decision, see Frommert, 433 F.3d at 257-62, and we

repeat them here only as relevant to the issues

presented in this appeal. In that decision, we

concluded that Defendants-Appellants had

impermissibly amended the ERISA plan at issue

through their method of determining retirement

benefits for those beneficiaries who had previously left

the company only to be rehired later. Jd. at 264-638.

When these beneficiaries left Xerox, they all received

lump-sum distributions of their then-accrued pension

benefits. Id. at 257.

The pension benefits of those who were

subsequently rehired by Xerox were governed by a set

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of ambiguous provisions in the pension plan

documents. The 1989 Xerox Retirement Income

Guarantee Plan (““RIGP” or “Plan”) provided that, “[i]n

the event any part or all of a Member’s accrued benefit

is distributed to him prior to his Normal Retirement

Date, . . . and such member at any time thereafter

recommences active participation in the Plan, the

accrued benefit of such Member based on all Years of

Participation shall be offset by the accrued benefit

attributable to such distribution.” 1989 RIGP § 9.6.

The 1997 version of the Plan previded both that “[nlo

credit shall be given (to a participating employee] for

any period with respect to which a lump sum payment

has been made .. .” and that “Credit for Years of

Participation preceding [such a payout] will be

reinstated” in the event that such an employee returns

to Xerox.” Frommert, 433 F.3d at 260. Thus, in

determining these employees’ benefits, the plan

administrator was required to account, in a manner

unspecified to employees, for both an employee’s total

years of service at Xerox and the fact that the final

benefits must be “offset by” an amount “attributable”

to a prior lump sum distribution.

The plan administrator resolved this difficulty by

utilizing a so-called “phantom account” offset

mechanism. The phrase “phantom account” refers to

the calculation of the current value of the employee’s

prior, lump-sum distribution by adjusting that amount

for “hypothetical investment yains and/or losses

attributable to the prior distribution, as if the money

had been left in [the employee’s] account|]|” instead of

being distributed to the er. ployee upon first leaving

Xerox. [d. at 259 (quoting 1995 “Benefits Update”). In

estimating the pension benefit to which that employee

would be entitled upon his or her future retirement

Ta

(and thus second separation) from Xerox employment,

the plan administrator would both account for the

employee's total years of service and deduct an amount

based on the prior, lump-sum distribution, as

augmented by the “phantom account” offset method.

See id. at 259-61.

In our first decision, we concluded that the

“phantom account” offset mechanism constituted a

“retroactive cut-back” of anticipated pension benefits

in violation of 29 U.S.C. § 1054(g), and \that

Defendants-Appellants had impermissibly amended

the ERISA Plan to include that mechanism in violation

of 29 U.S.C. § 1054(h). See id. at 266-68. We

remanded to the District Court to fashion a remedy for

these violations. See id. at 268. Specifically, we

instructed the District Court as follows:

On remand, the remedy crafted by the district

court for those employees rehired prior to 1998

should utilize an appropriate pre-amendment

calculation to determine their benefits. We

recognize the difficulty that this task poses

because of the ambiguous manner in which the

pre-amendment terms of the Plan described

how prior distributions were to be treated. As

guidance for the district court, we suggest that

it may wish to employ equitable principles when

determining the appropnate calculation and

fashioning the appropriate remedy.

Id. In addition, we recognized that the District Court

could apply the “phantom account” offset mechanism

to employees hired after the 1998 amendment to the

Plan because those individuals were on notice as to the

mechanism’s existence. /d. at 268-69. But see Miller

Sa

uv. Xerox Corp. Retirement Income Guarantee Plan, 464

F.3d 871 (9th Cir. 2006) (holding that Plan’s “phantom

account” methodology itself violates ERISA), cert.

denied, 1278S. Ct. 1829 (2007).

Acknowledging our guidance to employ “equitable

principles” and reviewing the language of the Plan

materials, the District Court concluded that the

appropriate remedy for employees hired before the

1998 amendment was to direct the plan administrator

to pay each of these individuals “a lump sum in the

amount of the difference between the amount of

benefits that [an employee] has received, and the

amount of the recalculated benefit, without any

consideration of a ‘phantom account.” Frommert, 472

F. Supp. 2d at 458 (internal quotation marks omitted).

The District Court also stated that “it would not be

unreasonable for the administrator to subtract out the

amount of the prior distribution” in order to prevent

such employees from receiving windfalls. Id.

(alterations and internal quotation marks omitted).

In addition, the District Court concluded that the

release forms signed by several Plaintiffs-Appellees in

exchange for their receiving severance pay from Xerox

did not release Defendants-Appellants from _ the

ERISA-based claims asserted in this litigation. See id.

at 460-65. Other matters addressed by the District

Court on remand are not relevant to this appeal, which

timely followed.

~The District Court presumed that the parties would be able to

agree on which employees had full notice of the “phantom account

offset” mechanism because they were rehired after the 1998

Summary Plan Description (“SPD”) had been issued See

Frommert v. Conkright, 472 F. Supp. 2d 452,459 (W._D.N_Y. 2007)

Ga

DISCUSSION

On appeal, Defendants-Appellants raise two

challenges to the District Court’s decision. First,

Defendants-Appellants argue that the District Court

fashioned an improper remedy for the ERISA violation

associated with the implementation of the “phantom

account offset” mechanism. Second, Defendants-

Appellants argue that the District Court erroneously

decided that the release forms signed by certain

Plaintiffs-Appellees did not bar their ERISA-based

claims. For the reasons that follow, we agree with

Defendants-Appellants that the release forms at issue

bar the signatories’ ERISA claims, but we will not

disturb the District Court’s chosen remedy.

I, Remedy

On appeal, Defendants-Appellants challenge the

District Court’s remedy for the ERISA violations we

identified in our prior decision, t.e., the impermissible

amendment of the ERISA plan at issue to calculate

Plaintiffs-Appellees’ pension benefits according to a

“phantom account” offset method. As discussed above,

we instructed the District Court as follows:

On remand, the remedy crafted by the district

court for those employees rehired prior to 1998

should utilize an appropriate pre-amendment

calculation to determine their benefits. We

recognize the difficulty that this task poses

because of the ambiguous manner in which the

pre-amendment terms of the Plan described

how prior distributions were to be treated. As

guidance tor the district court, we suggest that

it may wish to employ equitable principles when

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determining the appropriate calculation and

fashioning the appropriate remedy.

Frommert, 433 F.3d at 268. We review a district

court’s chosen remedy of an identified ERISA violation

for an excess of allowable discretion. See Chao v.

Merino, 452 F.3d 174, 185 (2d Cir. 2006).

Here, the Plan accounts for a retiring employee’s

total years of working at Xerox, but it also provides

that an employee’s benefits must “be offset by the

accrued benefit attributable to [a prior distribution].”

RIGP § 9.6. Plaintiffs-Appellees all received earher,

lump-sum distributions of their pension benefits when

they first left their employment at Xerox, and the basic

question presented to the District Court was how to

ensure that these individuals received their due

benefits in hght of the ambiguous non-duplication of

benefits provision. See Frommert, 472 F. Supp. 2d at

457-58 (construing and applying § 9.6 of 1989 Plan).

On remand, the District Court decided that the

appropriate remedy was to order the _ plan

administrator to recalculate the relevant

Plaintiffs-Appellees’ benefits to deduct only the

nominal value of their prior, lump-sum distributions,

l.e., Without a “phantom account” adjustment

reflecting hypothetical investment gains or,

apparently, any other adjustment to reflect the

inflationadjusted values of the prior distributions. See

id. at 458-59.

Defendants-Appellants fail to establish that the

District Court’s approach violated either the Plan

terms or any law. Although Defendants-Appellants

contend that the Distrmet Court failed to utilize

pre-1998 Plan terms, the District Court explicitly did

lla

so but simply applied those terms. to

Plaintiffs-Appellees differently than Defendants-

Appellants proposed. In advocating their proposed

“new hire” approach instead of the remedy crafted by

the District Court, Defendants-Appellants argue that

§ 1.44(f) of the 1989 Plan requires that a rehired

employee who then retires is entitled only to a pension

benefit that accounts for his or her years of service

since being rehired; the prior years of service are

relevant only for the purpose of “vesting.” However, in

advocating this “new hire” method, Defendants-

Appellants ignore the terms of the 1989 Plan, which is

silent as to prior lump-sum distributions pursuant to

§ 8.2. To the extent that the 1997 Plan applies to

certain Plaintiffs-Appellees, Defendants-Appellants

ignore the language of § 1.45(f). See Frommert, 433

F.3d at 258-60 (discussing such provisions in the

various versions of the Plan). Defendants-Appellants

have failed to demonstrate that the District Court

exceeded its allowable discretion in crafting its chosen

remedy instead of adopting DefendantsAppellants’

proposed approach.’

“ Defendants-Appellants also argue that the District Court’s

remedy confers a “windfall” on Plaintiffs-Appellees in violation of

equitable principles. See, e.g., Prudential Ins. Co. v. SS

American Lancer, 870 F.2d 867, 871 (2d Cir. 1989) (“[KJquity, we

believe, abhors a windfall.”). However, in contrast to Prudential

Insurance, we do not view the remedy crafted by the District

Court to be “wholly unjust” here because Defendants-Appellants

wrote the terms of the ERISA Plan in an ambiguous and

occasionally self-contradictory fashion. Cf Lifson v. INA Life Ins

Co. of N_Y., 333 F 3d 349, 353 (2d Cir. 2003) (per curiam) (noting

that, in interpreting an ERISA plan, a court “construe[s}

ambiguities against the drafter and in favor of the beneficiary”)

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Alternatively, Defendants-Appellants contend that

the District Court erred by fatling to adopt the remedy

proposed by the plan administrator or, at least, by

failing te remand to the administrator the task of

fashioning a remedy. Regarding the failure of the

District Court to remand to the plan administrator, it

does not appear from the record that

Defendants-Appellants actually requested such relief

from the District Court. As such, they have waived the

issue for appeal. See Allianz Ins. Co. v. Lerner, 416

F.3d 109, 114 (2d Cir. 2005) (“It is a well-established

general rule that an appellate court will not consider

an issue raised for the first time on appeal.”

(alterations and internal quotation marks omitted)).

Even if Defendants-Appellants had not waived the

remand issue, we would review the District Court’s

decision to fashion a remedy itself instead of

remanding to the plan administrator for an excess of

allowable discretion. See Zervos v. Verizon N.Y., Inc.,

277 F.3d 635, 648 (2d Cir. 2002); Kinek v. Paramount

Comme’ns, Inc., 22 F.3d 503, 508 (2d Cir. 1994). The

District Court here did not exceed its allowable

discretion in this regard. Although we did not prohibit

the District Court from remanding the case to the plen

administrator, the language in our prior opinion

presumed that the District Court would craft the

remedy itself. See Frommert, 466 F.3d at 268.

Moreover, Defendants-Appellants had ample

opportunity to explain fully the approach proposed by

the plan administrator before the District Court, and

did so, 1n their briets and at oral argument, in a sworn

affidavit from the plan administrator, and in a written

report and accompanying testimony from an

independent actuary who analyzed the plan

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administrators approach. Indeed, Defendants-

Appellants identify nothing that might have been

gained by the District Court’s remanding the matter to

the plan administrator. See Krauss v. Oxford Health

Plans, Inc., 517 F.3d 614, 630 (2d Cir. 2008) (stating

that plaintiffs were not entitled to administrative

remand where doing so would have been “futile”);

Milier v. United Welfare Fund, 72 F.3d 1066, 1071 (2d

Cir. 1995) (stating that remand to a plan

administrator is not required where such additional]

proceedings would be a “useless formality” (internal

quotation marks omitted)). In addition, we suggested,

as “guidance for the district court,” that it “may wish

to employ equitable principles.” See Frommert, 466

F.3d at 268. Defendants-Appellants identify no

equitable principles that a district court might be

employing, immediately upon remand from a circuit

court, in merely performing the ministerial function of

then remanding a ase to an ERISA plan

administrator.

Defendants-Appellants rely on Miller v. United

Welfure Fund to argue that remand is appropriate

when “reasonable minds could differ as to the outcome

of the case.” However, we directed the district court in

Miller to remand the case to the plan administrator to

permit the plan administrator to gather additional

evidence relevant to the nursing care sought by the

claimant. See id. Here, we did not anticipate any

comparable, extensive fact finding, and none occurred

on remand before the District Court. Indeed, the only

“evidence” considered by the District Court consisted

of expert testimony regarding which of various

proposed remedies was the most fair and equitable.

Given the apparent lack of anv benefit to remanding

the case to the plan administrator and the language in

l4a

our prior decision implying that the District Court

should fashion its own remedy, see id. at 268-69, we

cannot conclude that the District Court exceeded its

allowable discretion in actually doing so.

In the alternative, Defendants-Appellants argue

that the District Court erred in failing to adopt the

plan administrator’s proposed approach, or at least

consider it under a deferential standard of review. We

have held that where the ERISA plan confers upon the

plan administrator discretionary authority to

“construe the terms of the plan,” the district court

should review a decision by the plan administrator

under an excess of allowable discretion standard. See

Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 108

(2d Cir. 2005) (citing Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989)). However, the

District Court here had no decision to review because

the plan administrator never rendered any decision

other than the original benefit determinations, all of

which were premised on the now-impermissible

“phantom account” offset mechanism. See id. (“|Wle

may give deferential review only to actual exercises of

discretion.”). Defendants-Appellants have identified

no authority in support of the proposition that a

district court must afford deference to the mere

opinion of the plan administrator in a case, such as

this, where the administrator had _ previously

construed the same terms and we found such a

construction to have violated ERISA.

To the extent that Defendants-Appellants argue

that the District Court ersed by instructing the plan

administrator to calculate benefits by deducting the

nominal value of prior distributions denominated in

1980s dollars from accrued benefits denominated in

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current dollars, see Appellants’ Br. at 38—41, we reject

their argument for reasons similar to those applicable

to their arguments on behalf of their own preferred

“new hire” remedy. The District Court had discretion

to design a remedy to provide Plaintiffs-Appellees with

the proper level of pension benefits in light of the

ERISA violations we identified in our prior decision.

As Defendants-Appellants wrote a pension plan that

addresses the _ situation of a discharged-and-

then-rehired employee with what can only be described

as ambiguity, contradiction or silence, we see no

problem with the District Court’s selection of one

reasonable approach among several reasonable

alternatives. Cf Lifson v. INA Life Ins. Co. of N-Y.,

333 F.3d 349, 353 (2d Cir. 2003) (per curiam)

(instructing that a court should construe ambiguities

in plan terms against the drafter of the ERISA plan).

II. Releases of Certain Plaintiffs’ ERISA Claims

The final issue raised in this appeal is

Defendants-Appellants’ argument that the District

Court erred in ruling that the release forms signed by

several Plaintiffs-Appellees did not apply to the ERISA

claims asserted in this litigation.” The releases at

*° The District Court stated that twenty-two of the named

Plaintiffs signed release forms, but that four of these amended

their forms to carve out explicitly their claims as members of the

“Frommert lawsuit” from the universe of claims to be covered by

the release. See Frommert, 472 F. Supp. 2d at 460. On appeal,

Defendants-Appellants do not challenge the District Court’s

conclusion that these individuals’ release forms did not cover their

ERISA claims in this action. As aresult, we will not disturb the

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issue provided that the signing employee “release|[s}

Xerox from any and all claims... based on anything

that has occurred prior to the date [he or she] sign[{s}

this Release” in exchange for up to fifty-two weeks of

salary continuance. In addition, the form specifies

several potential federal claims, including those based

in ERISA, that the release covers.

As a threshold matter, Plaintiffs-Appellees argue,

for the first time in this appeal, that Defendants-

Appellants may not rely upon the release forms signed

by several PlaintiffsAppellees because Federal] Rule of

Civil Procedure 17(a) requires that an action in federal

court “be prosecuted in the name of the real party in

interest.” Although Defendants-Appellants are the

pension plan at issue in this ltigation and its

administrators, Plaintiffs-Appellees argue that only

Xerox Corporation has a “sufficient stake in reversing

the trial court’s ruling that the Xerox general release

form constitutes a waiver of ERISA claims by the

releasee.” Appellees’ Br. at 39. As noted above, the

District Court dismissed Xerox early in this litigation,

and PlaintiffsAppellees did not appeal this ruling. See

Frommert, 433 F.3d at 256 n.2. Moreover, Plaintiffs-

Appellees did not challenge the authority of

Defendants-Appellants to rely upon the releases below

and thus have waived this argument for purposes of

this appeal. See Rogers v. Samedun Oil Corp., 308

F.3d 477, 482-84 (5th Cir. 2002) (affirming district

court’s ruling that third-party defendant had waived

real-party-in-interest defense by failing to assert it

District Court’s conclusion that the release forms do not bar the

ERISA claims asserted by these four Plaintiffs-Appellees in this

litigation

17a

until the day before trial); Richardson v. Edwards, 127

F.3d 97, 99 (D.C. Cir. 1997) (deeming real-party-

in-interest defense waived when not raised until

appellate proceedings).

Even if Plaintiffs-Appellees had not waived this

argument, their real-party-in-interest argument is

meritless because the release form itself defines its

reference to “Xerox” to include “the Xerox employee

benefit plans” in which the employee had participated

or was then participating. See Frommert, 472 F. Supp.

2d at 460 n.2 (quoting release forms). Moreover,

Defendants-Appellants are not the parties prosecuting

this action; that role belongs to Plaintiffs Appellees.

See 6A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice & Procedure § 1542 (2d ed.

1990) (“[T]he real party in interest principle... directs

attention to whether [the] plaintiff has a significant

interest in the particular action he has instituted, and

Rule 17(a) is limited to plaintiffs.”). Cf Stichting Ter

Behartiging Van de Belangen Van Oudaandeelhouders

In Het Kapitaal Van Saybolt Int'l B.V. v. Schreiber,

407 F.3d 34, 49 (2d Cir. 2005) (holding that a Rule

17(a) defect may not be cured by the joinder, as

nominal defendants, of the real parties in interest to

the action where those parties have evinced no

intention of prosecuting the action). ‘Thus,

Plaintiffs-Appellees’ real-party-in-interest argument

fails.

As to the merits of Defendants-Appellants’

arguments regarding the releases, “an individual can

waive his or her right to participate in a pension plan

governed by ERISA only if ‘iis or her waiver ‘is made

knowingly and voluntarily.” Finz vu. Schlesinger, 957

I.2d 78, 82 (2d Cir. 1992) (quoting Lanitok v. Advisory

18a

Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d

1360, 1365 (2d Cir. 1991)). We have articulated

several factors as relevant to the determination of

whether such a waiver is knowing and voluntary:

1) the plaintiffs education and _ business

experience, 2) the amount of time the plaintiff

had po ion of or access to the agreement

before signing it, 3) the role of plaintiff in

deciding the terms of the agreement, 4) the

clarity of the agreement, 5) whether the

plaintiff was represented by or consulted with

an attorney, [as well as whether an employer

encouraged the employee to consult an attorney

and whether the employee had a fair

opportunity to do so] and 6) whether the

consideration given in exchange for the waiver

exceeds employee benefits to which the

employee was already entitled by contract or

law.

...{T}his hst of factors [1s] not exhaustive....

Id. (internal citation omitted). A court should consider

the “totality of the circumstances” in determining

whether a waiver of ERISA rights is knowing and

voluntary. Jd.

Despite acknowledging the explicit and broad

language in the release form, the District Court

concluded that the instant ERISA claims were not

covered due to perceived deficiencies related to “the

clarity of the release and the consideration given by

Xerox in exchange for the releases.” Frommert, 472 F.

Supp. 2d at 461-62. Specifically, the District Court

focused on one paragraph in which the. signing

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employee agrees that “the consideration set forth in

this Release is in addition to anything of value to

which I am entitled by law or Xerox policy.” The

District Court concluded that this language meant

that the employee was not waiving his or her ERISA

claim:

The import of paragraph 5 is that the salary

continuance given to the employee did not take

the place of, but was in addition to, any benefits

to which the employee was already entitled by

law or Xerox policy. This suggests that the

employee was not waiving his right to such

benefits. If he were, it would make little sense

to describe his salary continuance as being “in

addition to” such benefits.

Furthermore, while it might be argued that

there is a distinction between a right to pension

benefits in general and a “claim” seeking to

have those benefits calculated according to a

particular formula, that is a distinction without

a difference here, because the Second Circuit

has now held that, at least with respect to

employees rehired before 1998, Xerox’s

“reduction of justified expectations of benefits

[by using the phantom account] took the form of

a retroactive cut-back in violation of’ ERISA. In

other words, those employees were “entitled by

law” not simply to receive some _ pension

benefits, but to have their benefits calculated

20a

without any reduction attributable to a

“phantom” account.

Id. at 462 (footnote omitted; emphasis in original).

In reaching this conclusion, the District Court

appears to have conflated the existence of

consideration adequate to render a release enforceable

with the scope of claims thereby released.‘ The

paragraph on which the District Court focused

provided only that the consideration for the release,

t.e., the salary continuance, did not replace any

benefits, including pension benefits, to which the

employee was already entitled. However, there is no

allegation that Defendants-Appellants violated this

term of the contract by denying these Plaintiffs

Appellees any and all pension benefits to which they

* The District Court also appears to have concluded that the

releases failed to comply with a provision of the Older Workers

Benefit Protection Act (*OWBPA”), 29 U.S.C. § 626(f), and that

such noncompliance has relevance to the determination of

Whether these Plaintiffs-Appellees released Xerox from

ERISA-based claims. See Frommert, 472 F. Supp. 2d at 463 n.5.

Section 626(f) specifies several facts that must exist in order to

render waiver of claims asserted under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., both “knowing

and voluntary.” We need not and do not decide whether the

release forms complied with the requirements of the OWBPA

because such noncompliance, even if proven, is irrelevant to the

question of whether a release of non-ADEA claims was “knowing

and voluntary.” See Chaplin v. NattonsCredit Corp. , 307 F.3d 368,

375 (5th Cir, 2002) (“(T]he OWBPA |... applies only to ADEA

claims.”); see also Tung v. Texaco Inc., 150 F.3d 206, 208-09 (2d

Cir. 1998) (per curiam) (concluding that plaintiffs waiver of his

Title VIL claims was knowing and voluntary despite the

employer's noncompliance with § 636(f) requirements applicable

to his ADEA claims)

2la

would have been entitled. To the contrary, counsel for

Defendants-Appellants represented to this Court at

oral argument that several of these

Plaintiffs-Appellees had already received pension

benefits, albeit calculated under the “phantom

account” offset method.

At bottom, neither the uncertainty of such benefits

at the time of release nor the fact that hindsight has

revealed that such benefits are now worth more than

the signing Plaintiffs-Appellees likely expected at that

time can render these releases unenforceable. As the

method used to calculate pension benefits for rehired

employees was, and has continued to be, disputed

throughout this litigation, the precise amount of

benefits that an employee signing a release would have

received in the absence of such a release was always

indeterminate. Plaintiffs-Appellees who signed these

releases did so before the District Court crafted its

remedy for the ERISA violations we identified. The

mere fact that the anticipated recovery associated with

ongoing litigation is uncertain does not render an

employee’s release of claims asserted in that litigation

unenforceable. Cf. Anita Founds., Inc. v. ILQWU Nat'l

Ret. Fund, 902 F.2d 185, 189 (2d Cir. 1990) (“|AI

settlement payment, made when the law was

uncertain, cannot be successfully attacked on the basis

of any subsequent resolution of the uncertainty.”).

Applying the factors we have articulated as

relevant to the issue of whether a waiver of ERISA

rights was knowing and voluntary and reviewing the

undisputed facts pertaining to these releases under

the totality of the circumstances, see Finz, 957 F.2d at

82, we conclude that the District Court erred in

holding that the releases at tssue were unenforceable

22a

There appears to be no dispute that those

Plaintiffs-Appellees who signed these releases had

ample time (45 days) to decide whether to sign the

release, that Xerox encouraged such individuals to

consult an attorney, and that the signatories received

salary continuances in consideration of their releasing

claims. Some Plaintiffs-Appellees even modified the

terms of the release forms with which they had been

presented before signing them. As to the language of

the releases themselves, we cannot conclude, as the

District Court did, that the express terms of these

releases were “at the very least ambiguous as to what

the employee was giving up in exchange for salary

continuance.” Frommert, 472 F. Supp. 2d at 462. As

the District Court’s interpretation of the release forms

is incorrect, it cannot stand. Unless the release form

at issue specifically exempted this litigation as noted

above, the releases signed by certain

Plaint iffs-Appellees are enforceable

CONCLUSION

lor the foregoing reasons, we VACATE that portion

of the order of the District Court holding that eighteen

release forms are unenforceable, AFFIRM that portion

of the order crafting a remedy for the identified ERISA

violations, and REMAND the casc for proceedings not

inconsistent with this opinion

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

00-CV-6311L

[Dated: January 24, 2007]

PAUL J. FROMMERT. et al.,

Plaintiffs.

Vv

SALLY L. CONKRIGHT, PATRICIA M.

NAZEMETZ AND LAWRENCE M. BECKER,

XEROX CORPORATION RETIREMENT

INCOME GUARANTEE PLAN

ADMINISTRATORS AND XEROX

CORPORATION RETIREMENT

INCOME GUARANTEE PLAN,

Defendants.

DECISION AND ORDER

IN'TRODUCTION

This decision constitutes the latest chapter in a

long-running dispute between employees of Xerox

Corporation and administrators of Xerox's retirement

plan, the Xerox Corporation Ketirement Income

Cruarantee Plan (the Plan”), concerning calculation of

24a

retirement benefits. The dispute involves a relatively

small group of employees who previously left

employment at Xerox, received a lump-sum

distribution upon their initial departure, and then

were rehired by Xerox years later. Those employees

are new contemplating retirement, or have retired,

and the issue in dispute is how their present

retirement benefits should be calculated.

With respect to this group of rehired employees, the

Plan is designed so that an employee’s total years of

employment at Xerox, regardless of whether there was

a break in service, are counted in calculating the

employee’s retirement benefits. Generally, the relevant

pension calculations are based on the employee’s total!

years of employment times a percentage of the

employee’s five highest-paying calendar years with

Xerox. Both sides in this litigation agree that to avoid

duplication of benefits, some sort of offset against

current benefits is necessary to reflect the employee’s

receipt of monies at the time of the prior separation

from employment. Just how thut offset against current

benefits should be calculated, though, has been a

matter ef much dispute and has engendered a great

deal of litigation.

Familiarity with this Court’s several prior decisions

involving these parties, see 328 F.Supp.2d 420

(W.D.N.Y. 2004); 206 F.Supp.2d 435 (W.D_N_Y. 2002),

and also the Second Circuit’s decision of January 6,

2006, 433 F.3d 254 (“Second Circuit decision”) is

presumed. These decisions set out in great detail the

relevant facts and disputed issues between the parties.

There is, therefore, no need to restate those matters

here.

25a

The Second Circuit decision, which was on an

appeal from two of this Court’s prior decisions

dismissing some of plaintiffs claims and granting

summary judgment in favor of defendants on the

remaining claims, resolved many of the issues raised

between the parties. The Second Circuit affirmed in

part, reversed in part, and remanded the case to this

Court for further proceedings.

The Second Circuit held that the Plan’s use of a so-

called phantom account in determining present

benefits violated the Employee Ketirement Income

Security Act (“ERISA”), 29 U.S.C. § 1101 et segq., in

several respects. First, the Plan’s formula constituted

a “retroactive cut-back” of benefits, 433 F.3d at 268,

contrary to § 204(g) of ERISA. In addition, the court

found that employees were not given proper notice in

the Summary Plan Description (“SPD”) of the nature

and scope of the phantom account, at least prior to

1998, when the SPD was amended to include the

phantom account and describe the offset procedure. Jd.

at 263, 269.

The Second Circuit determined that employees

rehired after 1998 had sufficient notice as to the

manner by which Xerox intended to treat their

previous distribution. For those rehired prior 1998,

though, the Second Circuit remanded to this Court and

directed me to “utilize an appropriate pre-amendment

[1998] calculation,” td. at 268, without using the

“phantom account,” to determine current benefits.

Specifically, the Second Circuit directed as follows:

On remand, the remedy crafted by the district

court for those employees rehired prior to 1998

26a

should utilize an appropriate pre-amendment

calculation to determine their benefits. We

recognize che difficulty that this task poses

because of the ambiguous manner in which the

pre-amendment terms of the Plan described

how prior distributions were vo be treated. As

guidance for the Court, we suggest that it may

wish to employ equitable principles when

determining the appropriate calculation in

fashioning the appropriate remedy.

Id.

Subsequent to the Second Circuit’s decision, the

Court met with counsel to determine how best to

proceed. The parties agreed to work together to see if

they could resolve the issues remaining on remand.

Although the parties appear to have spent some time

attempting to reach a settlement, it is now apparent

that they are unable, or unwilling, to settle.

The Court conducted a two-day hearing on the

remedial issues raised by the Second Circuit and has

received both pre-hearing and _ post-hearing

memoranda from both sides. The parties have also

discussed several cases from other jurisdictions

dealing with similar issues. Having considered both

sides’ submissions and arguments, the Court now

issues this Decision and Order concerning the issues

before it on remand.

27a

DISCUSSION

I. The Appropriate Calculation of Plaintiffs’

Benefits

This Court’s task on remand is made easier in

many respects by the breadth of the Second Circuit

decision. The Circuit resolved many issues and has

clearly established the law of the case in many

respects. For example, it can no longer be disputed

that employees were not give proper notice in either

the Plan or the relevant SPD as to the nature of the

phantom account and its operation. Utilization of this

phantom account or anything similar to it has been

soundly rejected by the Court of Appeals in this case as

well as a previous case involving the same Plan,

Layaou v. Xerox Corporation, 238 F.3d 205 (2d Cir.

2001). Other courts have reached the same conclusion.

Miller v. Xerox Corp. Ret. Income Guarantee Plan, 464

F.3d 871 (9 Cir. 2006); Berger v. Xerox Corp. Ret.

Income Guarantee Plan, 338 F.3d 755 (7 Cir. 2003).

It is clear, then, that Xerox may not lawfully use the

phantom account mechanism, as to either the named

plaintiffs in this lawsuit, or anyone else who was

rehired by Xerox prior to 1998, after having previously

received a distribution of pension benefits. The Second

Circuit has addressed this issue more than once, and

Xerox may not continue to utilize this rejected formula.

The Second Circuit also rejected Xerox’s contention

that a procedure utilizing a phantom account has

always oeen a part of the Plan, even prior to 1998. 433

F.3d at 256. The Circuit determined that Xerox’s use

of the phantom account constituted a retroactive

diminution of benefits, contrary to the law. /d. at 268.

Furthermore, the Court of Appeals rejected Xerox's

28a

contention that it had properly amended the Plan and

notified the Plan’s participants concerning utilization

of the phantom account, prior to 1998. Id. at 263.

Although the Circuit clearly precluded use of the

phantom account in determining how to treat prior

distributions, it did little to elucidate what formula

should be adopted, except to suggest using an

“appropriate pre-amendment calculation” guided by

equitable principles in determining the appropriate

remedy for affected employees. Jd. at 268.

The problem is that if one removes the phantom

account mechanism, there is little else remaining. The

Circuit expressly recognized this by noting the

“difficulty” confronting the district court “because of

the ambiguous manner in which the pre-amendment

terms of the Plan described how prior distributions

were to be treated.” /d. at 268.

Describing the procedures to be utilized prior to the

1998 amendments as “ambiguous” is generous. In fact,

virtually nothing is set forth in either the Plan or the

SPD as to the precise mechanism for taking into

account a prior distribution in calculating an

employee's present benefits after a rehire.

Some testimony at the hearing before me focused

on the appropriate economic, financial and actuarial

methods for treating prior distributions. But this

Court is not charged with writing a sound retirement

plan. Rather, I must interpret the Plan as written and

consider what a reasonable employee would have

understood to be the case concerning the effect of prior

distributions. If the employee had no notice of the

“phantom account,” he also had no notice of some of

29a

the other mechanisms suggested by witnesses at the

remand hearing before me. What is “best” from a

financial or actuarial point of view is not what the

Court has been charged with determining. The Court’s

task, as directed by the Court of Appeals, is simply to

determine, based on the language of the Plan and the

SPD, what benefits are now due this group of rehired

employees.

To the extent that there is some ambiguity as to the

precise manner by which prior distributions are to be

offset from present benefits, it 1s Xerox, not the

employees, who should suffer. See Burke v. Kodak Ret.

Income Plan, 336 F.3d 103, 113 (2d Cir. 2003) (“The

consequences of an inaccurate SPD must be placed on

the employer”). It was defendants’ obligation to

provide a clear description, in the SPD and in the Plan

itself, as to how those prior distributions would be

treated. To the extent that the Plan was constituted,

at Xerox’s doing, to consider all prior years of service,

defendants had the burden of elucidating precisely

how that would be accomplished.

As noted by the Court of Appeals in this case, 433

F.3d at 258, the Plan does have a provision, § 9.6,

dealing with “nonduplication of benefits.” That section

provides as follows:

Nonduplication of Benefits. In the event any

part of or all of a Member’s accrued benefit is

distributed to him prior to his’ Normal

Retirement Date, if Section 8.8 {dealing with

incompetent beneficiaries] does not apply to

such distribution and such Member at any time

thereafter recommences active participation in

the Plan, the accrued benefit of such Member

30a

based on all Years of Participation shall be

offset by the accrued benefit attributable to

such distribution.

“Accrued benefit,” as used in § 9.6, is defined at § 1.1

as follows:

The normal retirement benefit which a Member

has earned up to any date, and which is payable

at Normal Retirement Date in an amount

computed in accordance with Section ... 4.3

[which sets forth the general method for

calculating the normal retirement benefit],

based, however, only upon Average Monthly

Compensation received and Years of

Participation rendered by a Member up to the

date as of which the Accrued Benefit is

computed ... .

As the Court of Appeals noted, there was no

description whatsoever as to the mechanics of this so-

called phantom account. 433 F.3d at 258. For that

reason, the Second Circuit and other courts rejected

the administrator’s utilization of such a mechanism in

calculating benefits.

The SPD provides even less guidance than the Plan

in this regard. As the Court of Appeals noted, the only

notice in the SPD concerning non-duplication of

benefits was the proviso that “the amount you receive

may also be reduced if you had previously left the

company and received a distribution at that time.” Jd

at 265 (citing Layaou, 238 F.3d at 210). The Court of

Appeals in both Frommert and Layaou determined

that this bare-bones notice failed to adequately apprise

employees as to the phantom account mechanism.

3la

In addition, as those and other cases make clear,

where the Plan and the SPD conflict, the SPD controls.

See Burke, 336 F.3d at 110; Frommert, 433 F.3d at

265. Accord Tocker v. Philtp Morris Companies, Inc.,

470 F.3d 481, 487-88 (2d Cir. 2006); Demtrovic uv.

Building Service 32 B-J Pension Fund, 467 F.3d 208,

210 n. 1 (2d Cir. 2006); Bouboulis v. Transport Workers

Union of America, 442 F.3d 55, 61 (2d Cir. 2006).

The question, then, 1s what, in light of these vague

provisions in the Plan and SPD, this Court should to

do to remedy the violation of ERISA. I believe that the

best course is to do what I did previously in Layaou

involving a similar remand from the Court of Appeals.

Layaou v. Xerox Corporation, 330 F.Supp.2d 297

(W.D.N.Y. 2004). In Layaou, I directed’ the

administrator “to recalculate plaintiffs retirement

benefit, ... and to pay plaintiff a lump sum in the

amount of the difference between the amount of

benefits that plaintiff has received, and the amount of

the recalculated benefit, without any consideration of

a ‘phantom account.” Jd. at 305 (footnote omitted). I

added that “{ijJt would not be unreasonable ... for the

administrator to subtract out the amount of the prior

distribution,” in order to avoid giving the plaintiff a

windfall, but left it to the Plan administrator to

perform the actual calculation ofthe plaintiffs benefits

in the first instance, stating that “{i]f plaintiff believes

that the administrator’s calculation is erroneous, and

the matter cannot be resolved between the parties, he

can seek further relief in this Court.” Jd. at 304

The same process should apply here. This process

is Straightforward, it adequately prevents employees

from receiving a windfall, and I beheve it most clearly

reflects what a reasonable employee would have

32a

anticipated based on the not-very-clear language in the

Plan and SPD. Again, if there is some doubt or

ambiguity as to this formula, it must be resolved in

favor of the employee. See Lifson v. INA Life Ins. Co. of

New York, 333 F.3d 349, 353 (2d Cir. 2003) (in reading

an ERISA plan, “[wJe construe ambiguities against the

drafter and in favor of the beneficiary”); Perreca uv.

Gluck, 295 F.3d 215, 223 (2d Cir. 2002) (“absent

evidence indicating the intention of the parties, any

ambiguity in the language used in an ERISA plan

should be construed against the interests of the party

that drafted the language”).

In so ruling, I also reject defendants’ suggestion

that the phantom account offset can properly be

applied to all employees’ accrued benefits earned after

1998, regardless of when the employees were rehired.

As defendants themselves note, the Second Circuit’s

statement that “the phantom account may not be

applied to employces rehired prior to the issuance of

the 1998 SPD,” 433 F.3d at 263, “does not expressly

contain this limitation,” Defendant’s Pre-Hearing Brief

Addressed to Remedies, Dkt. #121-1 at 23, and I

decline defendants’ invitation to infer such a limitation

from that apparently categorical statement. The Court

of Appeals gave this Court specific directives on

remand, and determining whether the phantom

account offset should apply to post-1998 earned

benefits of employees rehired prior to that date was

not among those directives.

Il. Which of the Plaintiffs Were Rehired by

Xerox after the Plan Was Amended in 1998

The Court of Appeals also directed the district court

“to determine which of the plaintiffs were rehired by

33a

Xerox after the Plan was amended to include the

phantom account and thus can be bound by its terms.”

433 F.3d at 269. This directive relates to the Second

Circuit’s holding that “for employees rehired

subsequent to the amendment of the Plan through the

1998 SPD, the phantom account is a component of the

Plan that they joined and thus may permissibly be

applied to them.” Jd. at 263. As the court explained,

le] mployees hired after this amendment to the

Plan occurred, unlike those rehired before then,

became Plan participants under the terms of

the amended Plan. As such, the phantom

account may permissibly be applied to them.

With full notice of the phantom account’s

existence, these rehired employees, unlike their

predecessors who lacked such information, had

the opportunity to make an informed decision

about taking or leaving the terms of the deal

offered to them under the Plan.

Id. at 269. That matter does not appear to be in

dispute, however, and I presume that the parties will

be able to agree on whether each employee was rehired

prior to or after the 1998 amendment date. If the

parties are unable to agree about whether a particular

employee was rehired prior to that, they may seek a

determination of that question from the Court.

Ill. Effect of the Releases Signed by Twenty-

Two Plaintiffs

On January 5, 2001, plaintiffs’ counse! filed a

motion for “emergent injunctive relief,” seeking relief

in connection with Xerox’s offer to plaintiffs to accept

the termination of their employment as part of a

34a

reduction in force (“RIF”), and to sign a general release

waiving any existing or potential claims they might

have had against Xerox—including ERISA claims—in

exchange for salary continuance, a form of severance

benefit in which the employee would continue to

receive his full, regular salary for a specified period

even after he stopped working at Xerox.

In his affidavit in support of that motion, plaintiffs’

attorney, Robert H. Jaffe, Esq., characterized Xerox’s

offer as a form of discrimination against his clients

based on their exercise of their rights under ERISA by

filing or joining this lawsuit challenging defendants’

use of the phantom account offset. Dkt. #47 7 2.

In his affidavit, Jaffe noted that the proposed

release “includes a waiver or withdrawal of any claims

that were made or could have been made by [plaintiffs]

for recalculation of retirement benefits under ERISA.”

Id. J 5. He added that “[t]he form of genera] release

which Xerox has asked at least five clients of my law

office to execute explicitly includes a release of all

claims under ERISA.” Id. J 8.

Jaffe stated that as of the date of the affidavit, five

of his clients, three of whom were then named

plaintiffs in this action, had asked him to review the

proposed release “and suggest an alternative which

would avoid a waiver of their rights under ERISA,” at

least until the Second Circuit issued a decision in

Layaou, which was then pending before the Court of

35a

Appeals.’ Id. 4 9. Jaffe stated that he had drafted a

revised release containing language “which carves out

from its scope the waiver of pending ERISA claims for

recalculation of retirement benefits.” Jd. J 10. Jaffe

said that his clients had presented the revised release

to Xerox, but were told by Xcrox that “it was

unacceptable.” Jd.

After hearing oral argument, this Court denied

plaintiffs’ motion in open court on January 11, stating

in effect that I saw no ERISA violation in an

employer’s conditioning an offer of severance benefits

on a release of ERISA claims. See Dkt. #53 at 38-42.

Twenty-two of the 104 named plaintiffs did

subsequently sign the releases and were terminated in

a RIF in exchange for salary continuance. Dkt. #133-7.

Although the exact language used varies somewhat

among the releases, in general they state that the

employee “release|s] Xerox from any and all claims,

even if [the employee] d[oes|n’t know about the claim

at this time, based on anything that has occurred prior

to the date [the employee] sign|s] this Release.”* The

releases expressly referenced a number of types of

claims covered by the release, including ERISA claims.

With certain exceptions not relevant here, the releases

also provided that the employee agreed not to “file or

1m . ‘ :

The Second Circuit’s decision remanding Layaou was issued

about two weeks after plaintiffs filed their motion, on January 18,

2001.

“Xerox” is defined by the releases to include, tater alia, “the

Xerox employee benefit plans” in which the employee was a

participant, as well as the trustees and administrators of those

plans. Dkt. #1337

36a

pursue any charge or claim with any governmental

agency or any court against Xerox based on anything

that occurred before |the employee] signed this

Release.” ld.

Each release also states that the employee

“acknowledge|(s] and agree|s] that the consideration set

forth in this Release is in addition to anything of value

to which [the employee! is entitled by law and/or Xerox

policy.” Jd. Four of the releases, however, contain

additional language carving out an exception for

plaintiffs’ claims in this action: “I acknowledge and

agree that the consideration set forth in this Release

is in addition to anything of value to which I am

entitled by law or Xerox policy, including my right to

a pension under the Xcrox Retirement Income

Guarantee Plan to which I do not release my claim as

a member of the Frommert lawsuit.” Jd. at 49, 57, 69,

85.

Plaintiffs now contend that the execution of these

releases, even the ones without a specific exclusion for

the claims in this lawsuit, does not bar any of them

from pursuing their ERISA claims in this action.

Plaintiffs contend that the releases are ambiguous in

certain respects, and therefore unenforceable.

As a preliminary matter, I note that plan

participants can waive ERISA claims, and that such

waivers will be enforced as long as they are knowing

and voluntary. See, e.g., Laniok v. Advisory Committee

of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360,

1367 (2d Cir. 1991) (“the age discrimination provision

of ERISA does not prohibit an individual waiver of

pension plan participation by an older employee, ... so

long as the waiver is Knowing and voluntary’); Mange

37a

v. Petrolite Corp., 960 F.Supp. 206, 209 (E.D.Mo. 1997)

(“Under ERISA, a _ release of claims by plan

participants is valid so long as it is knowing and

voluntary”). There is also authority that “[a]

settlement agreement that releases legal claims in

exchange for severance benefits may be enforced under

ERISA.” Seman v. FMC Corp. Ret. Plan, 334 F.3d 728,

731-32 (8 Cir. 2003); see also Smart v. Gillette Co.

Long-Term Disability Plan, 887 F.Supp. 383, 386

(D.Mass. 1995) (employee knowingly, intentionally,

and voluntarily agreed to a severance plan that

included a general release which precluded her ERISA

claim), affd, 70 F.3d 178, (1 Cir. 1995).

The Second Circuit has cautioned, however, that

“(t]he validity of an individual’s waiver of pension

benefits is subject to closer scrutiny than his or her

waiver of general contract claims.” Finz v. Schlesinger,

957 F.2d 78, 81 (2d Cir. 1992), cert. denied, 506 U.S.

822 (1992); accord Sharkey v. Ultramar Energy Ltd.,

70 F.3d 226, 231 (2d Cir. 1995). Courts should look to

the “totality of cireumstances” to determine whether a

release is knowing and voluntary. Sharkey v. Ultramar

Energy Ltd., Lasmo plc, Lasmo (AUL Ltd.), 70 F.3d

226, 231 (2d Cir. 1995).

The relevant factors to consider in this analysis

include: (1) the plaintiffs education and business

experience; (2) the amount of time the plaintiff had

possession of or access to the release before signing it;

(3) the plaintiffs role in deciding the terms of the

release; (4) the clarity of the release; (5) whether the

plaintiff was represented by or consulted an attorney;

(6) whether the consideration given in exchange for the

employee’s waiver exceeds benefits to which the

employee was already entitled by contract or law; (7)

38a

whether the employer encouraged the employee to

consult an attorney; and (8) whether the employee had

a fair opportunity to do so. Bormann v. AT & T

Communications, Inc., 875 F.2d 399, 402-03 (2d Cir.),

cert. denied, 493 U.S. 924 (1989). These factors are not

exhaustive, and all need not be satisfied before a

release is deemed enforceable. Jd.

Here, some of these factors, such as the time (45

days) that plaintiffs had to consider whether to sign

the release, and Xerox’s encouragement to them to

consult an attorney before signing, weigh in favor of

enforcement of the releases. Other factors, however,

are more troubling, particularly the clarity of the

release and the consideration given by Xerox in

exchange for the releases.

Paragraphs 3 and 4 of the releases generally

provide that the employee releases Xerox from any and

all employment-related claims.’ Paragraph 3 states

that the employee “release[s] Xerox from “any and all

claims ... based on anything that has occurred prior to

the date” on which the employee signed the release,

and paragraph 4 states that the employee “also

release|s} Xerox from claims based on [any federal,

state or local law] concerning employment %

Paragraph 3 lists ERISA claims as one of the types of

claims waived by the employee. Read literally, this

could be construed to mean that the employee was

waiving any claim under ERISA, based on anything

' These numbers refer to Xerox’s standard release form for

participation ina voluntary RIF See,eg., Dkt #133-7 at 47 The

numbering varies somewhat among the releases signed by

plaintiffs (some of whom were terminated in involuntary RIFs),

though the provisions are essentially the same

39a

that occurred prior to the date on which he signed the

release.

As stated, paragraph 5 states that the

consideration set forth in the release, t.e., Xerox’s

agreement to provide the employee with salary

continuance, is “in addition to anything of value to

which [the employee] is entitled by law and/or Xerox

policy.” This provision was presumably included in the

release in order to conform to the requirements of the

Older Workers Benefit Protection Act (““OWBPA”),

which was enacted by Congress to modify the Age

Discrimination in Employment Act (“ADEA”) in

certain respects, see Meacham v. Knolls Atomic Power

Laboratory, 461 F.3d 134, 150 (2d Cir. 2006).

The OWBPA provides in part that “[a]n individual

may not waive any right or claim under [the ADEA|

unless the waiver is knowing and voluntary,” and that

in general “a waiver may not be considered knowing

and voluntary unless at a minimum” certain conditions

are met, one of which is that “the individual waives

rights or claims only in exchange for consideration in

addition to anything of value to which the individual

already is entitled ... .° 29 U.S.C. § 626(D.

The import of paragraph 5 is that the salary

continuance given to the employee did not take the

place of, but was in addition to, any benefits to which

the employee was already entitled by law or Xerox

policy. This suggests that the employee was not

waiving his right to such benefits. If he were, it would

make little sense to describe his salary continuance as

being “in addition to” such benefits

40a

Read that way, the releases would not bar

plaintiffs’ claims here. If plaintiffs were entitled to

pension benefits under the law, 1.e., ERISA, or under

Xerox’s own policies, they did not waive their rights to

such benefits. Furthermore, while it might be argued

that there is a distinction between a right to pension

benefits in general and a “claim” seeking to have those

benefits calculated according to a particular formula,

that is a distiction without a difference here, because

the Second Circuit has now held that, at least with

respect to employees rehired before 1998, Xerox’s

“reduction of justified expectations of benefits [by

using the phantom account] took the form of a

retroactive cut-back in violation of? ERISA.* 433 F.3d

at 268. In other words, those employees were “entitled

by law” not simply to receive some pension benefits,

but to have their benefits calculated without any

reduction attributable to a “phantom” account.

Even if some other interpretations of the releases

might be plausible, the releases are at the very least

ambiguous as to what the employee was giving up in

exchange for salary continuance. Section 5 may have

been added primarily to comply with the OWBPA, but

it cannot be ignored, and when read in conjunction

with paragraphs 3 and 4, it appears to create some

doubt about whether the release truly covered all

ERISA claims, especially the proper calculation of

benefits to which the employee was entitled

*ERISA’s anti-cutback rule provides that “(t]he accrued benefit of

a participant under a plan mav not be decreased by an

amendment of the plan” 29 USC. § 1054(g)(1

I recognize that there is authority that noncompliance with the

OWRPA does not automatically invalidate a release as to non

4ia

I recognize that these releases were signed during

this litigation, and that in plaintiffs’ January 5, 2001

motion for injunctive relief, plaintiffs’ own counsel

expressed his concern that the releases would

constitute “a waiver or withdrawal of any claims that

were made or cou! | have been made by [plaintiffs] for

recalculation of retirement benefits under ERISA.”

Certainly these facts could suggest that at least some

of the parties understood the releases to cover their

claims in this lawsuit. That does not alter the fact,

though, that by its terms, the release appears to except

from the scope of the waiver any benefits to which the

employee is legally entitled. Under Xerox’s

interpretation, the Plan administrator could refuse to

pay an employee any pension and, by dint of the

release, the employee could do nothing about it. Again,

any ambiguity on that score should be resolved against

Xerox, which drafted the releases. Lifson, 333 F.3d at

353; sce also Albany Savings Bank, FSB v. Halpin, 117

F.3d 669, 674 (2d Cir. 1997) (“ambiguities in contracts

should be construed against the drafter”).

Furthermore, if it had been the parties’ mutual}

understanding that the releases covered all of

ADEA claims. See Chaplin v. Nationscredit Corp., 307 F.3d 368,

375 (5 Cir. 2002), Kaminski v. CoreStates Fin. Corp., No. CIV. A.

98-CV-1623, 1998 WL. 800536, at *3(F.D.Pa. Nav. 18, 1998) That

does not make such noncompliance irrelevant, however. The

requirements of the OWBPA were intended by Congress to ensure

that an employee's waiver of his rights be “knowing and

voluntary.” 29 U.S.C. § 626(f)1). Thus, an employer's tendering of

consideration that does not exceed the value of anything to which

the employee was already entitled is some evidence that the

employee's waiver executed in exchange for that consideration

was not knowing and voluntary

42a

plaintiffs’ claims in this litigation, it would have been

a simple enough matter for Xerox to have included

language to that effect in the releases. See, e.g., Morais

v. Central Bev. Corp. Union Employees’ Supplemental

Ret. Plan, 167 F.3d 709, 711 (1* Cir. 1999) (enforcing

settlement agreement and release that expressly

stated that plaintiff had directed his union to

withdraw his grievance and demand for arbitration

over disputed benefits). A single sentence would have

clarified the matter. That some of the plaintiffs added

language to their releases making. clear that the

releases did not cover their claims in this action

demonstrates how easy it would have been for Xerox to

insert language in the other releases to include the

employees’ claims in this particular case, which was

already in litigation.®

The omission of any mention of this lawsuit is, in

one sense, not surprising, though it is still worth

noting. On their face, these releases (other than the

ones to which some plaintiffs inserted language

expressly excepting their claims in this case from the

scope of the release) do not appear to have anything to

do with this litigation. Rather, they appear to be

standard release forms given to all employees who

choose to participate in a RIF, and are aimed at

foreclosing the possibility of the employee’s later

assertion of claims relating to his termination in the

~ One could argue, of course, that the language added by several

plaintiffs excluding their claims in Frormmert suggests that the

other releases did cover those claims. That some plaintiffs chose

to insert language clarifying what they understood to be the scope

of the release, however, sheds little hight on the meaning of the

other plaintiffs’ releases, which remain, at best, ambiguous on

that score

43a

RIF. In an effort to make them comprehensive, the

release form lists an array of statutes, including

ERISA, that it is intended to cover, but otherwise

there is no suggestion that plaintiffs’ claims in this

case, or any other particular claims, were being

waived. On the contrary, the reference to the stated

consideration being “in addition to anything of value to

which [the employee is} entitled by law or Xerox

policy” suggests that the employee did not waive any

then-pending claims alleging an entitlement to some

particular benefits.

Another factor that the Second Circuit has directed

courts to consider in deciding whether a waiver is

enforceable is whether the consideration given in

exchange for the employee's waiver exceeds benefits to

which the employee was already entitled by contract or

law. Bormann, 875 F.2d at 403. In the case at bar, it

appears that, at least with respect to some of the

plaintiffs, the consideration received by the plaintiffs,

l.e., Salary continuance, amounted to far less than they

would have received under the Plan without the

phantom account offset. In the case of plaintiff

Pietrowski, for example, it appears that his prior

lump-sum payment at the time of his first separation,

plus his severance pay at the time of his second

separation, totaled about $210,000, but that he would

have received over $832,000 as a lump-sum payment

of his standard Plan annuity. See Dkt. #130-2 Ex. D.

Defendants do not appear to dispute that the

plaintiffs in question received less than they would

have without the phantom account offset; they simply

contend that the consideration received was

substantial, and that in any event, the disparity is not

as great as plaintiffs contend because defendants’

44a

proposed remedial approach would still result in a

lesser benefit than what plaintiffs seek. Of course, I

have rejected that remedial approach.

The consideration received by plaintiffs here—in

some cases up to a year’s salary—was not insignificant.

In light of the Second Circuit decision, however, it

cannot be said that these benefits exceeded what

plaintiffs were entitled to by law, i.e., pension benefits

calculated without a phantom account offset. While it

is true that plaintiffs did not know, at the time that

they signed the releases, what the ultimate result of

this litigation would be, both they and Xerox knew

that plaintiffs were pursuing ERISA claims for

amounts far greater than what Xerox was offering

them in exchange for signing the releases.’ This at

least casts some additional doubt on whether the

releases were entered into knowingly and voluntarily

with respect to plaintiffs’ ERISA claims. See Unum

Life Ins. Co. of America v. Cappello, 278 F.Supp.2d

228, 236 (D.R.I. 2003) (value of consideration that plan

participant received, though “not an insubstantial

sum,” did not match what issuer of plan contended she

waived by entering into severance agreement, since it

was likely that amount of benefits to which she would

have been entitled would have been substantial).

‘It appears that one plaintiff, Matthew Alfieri, signed his release

on October 27, 2006, after the Second Circuit decision was issued

Dkt. #133-7 at 46. I see no reason for this Court to rule any

differently as to Alfieri, however. If anything, the Second Circuit

decision had by that point made it even clearer that Alfieri, like

the other plaintiffs, was entitled to calculation of his pension

benefit without the phantom account offset, and therefore that he

was not waiving his claim in that regard

45a

I also note that paragraph 3 only releases Xerox

from claims “based on anything that ha[d] occurred

prior to the date” on which the release was signed

Arguably, that language did not cover plaintiffs’ later

receipt of benefits, in amounts less than that to which

they claim they are entitled, due to the use of the

phantom account offset. At the time the releases were

signed, plaintiffs had not yet left Xerox’s employ, and

had only received projections of what their benefits

would be. Again, that is not the only reasonably

interpretation; one could also argue that in light of the

existence of this lawsuit challenging that very offset,

everyone involved understood the releases to cover any

claims concerning the offset. But this nonetheless adds

to the ambiguity of the scope of the release, which

should not be resoived against plaintiffs.

IV. Breach of Fiduciary Duty

In its decision in this case, the Court of Appeals

concluded that there was a triable issue of fact as to

“whether the defendants had fiduciary obligations

under ERISA and if so whether they breached them

... 433 F.3d at 271. The court stated that

[oJn remand, the district court should permit a

trier of fact. to assess (1) whether the defendants

acted in a fiduciary capacity when they

communicated with the Plan’s beneficiaries

about the implementation of the phantom

account, and (2) whether those communications

contained affirmative misrepresentations of fact

concerning the Plan or breached the defendants’

duty to deal fairly with the Plan’s beneficiaries.

46a

Id. at 271-72. The court also “directled] the district

court that if the plaintiffs prevail on this claim, it must

determine what ‘appropriate equitable relief is

necessary.” /d. at 272.

Although it might appear difficult to reconcile this

directive with the Court of Appeals’ holding that

“Iblecause adequate relief is available under

[§ 502(a)(1)(B), which allows a plan participant ‘to

recover benefits due to him under the terms of his

plan, to enforce his rights under the terms of the plan,

or to clarify his rights to future benefits under the

terms of the plan’, there is no need on the facts of this

case to also allow equitable relief under § 502(a)(3),”

433 F.3d at 270, I find it unnecessary to resolve any

apparent contradiction in that regard, since plaintiffs

do not appear to seek any equitable relief on remand,

other than relief which either this Court has effectively

granted, or which the Second Circuit has already

found to be unwarranted.

Plaintiffs do contend that the Court should rule

that the Second Circuit’s decision in this case is “class-

based,” and that it “encompasses all rehired Xerox

employee rehired prior to the publication of the

September 1998 SPD,” Dkt. #129-1, but to the extent

that plaintiffs seek some sort of declaratory or

injunctive relief in that regard, the Second Circuit has

held that this is not a proper case for such relief. As

stated, the Court of Appeals held that “the necessary

remedies can be fully provided under § 502(a)(1)(B),”

433 F.3d at 269, and concluded that “sweeping relief”

in the form of a judgment declaring that the phantom

account 1s prohibited by ERISA and enjoining its

47a

application in calculating the benefits of any Plan

participants was “not warranted,” id.®

Having said that, the rulings contained both in the

Second Circuit decision and in this Decision and Order

do seem applicable to all Xerox employees who are

similarly situated to the named plaintiffs. Leaving

aside any particularized defenses that the Plan might

have against individual employees, I do not see how

defendants could continue to utilize the phantom

account as to such employees without running afoul of

the Second Circuit’s holding that “the phantom

account may not be applied to employees rehired prior

to the issuance of the 1998 SPD.” 433 F.3d at 263. The

clear import of the Second Circuit’s decision is that

utilization of the phantom account with respect to

employees rehired before the 1998 Plan amendment

violates ERISA. But neither this Court, nor apparently

the Second Circuit, sees any basis for granting

equitable relief in that regard at this time.

I also note that the purported basis for plaintiffs’

claim for breach of fiduciary duty appears to have

shifted somewhat over the course of this litigation.

Originally, plaintiffs alleged that “defendants breached

their fiduciary duty to Plan participants by publishing

and supplying misleading information in SPDs, annual

Personal Benefits Statements and in response to the

plaintiffs’ requests for clarification of their rights

under the Plan.” 433 F.3d at 270. On remand,

"If plaintiffs’ use of the term “class-based” is meant to imply that

the Court should grant some “class”-wide relief, that request is

also denied. This is not a class action, nor have plaintiffs ever

presented it as, or sought to make tt a class action

48a

however, this claim seems to focus largely if not

entirely on the releases signed by some of the

plaintiffs. Specifically, plaintiffs now contend that

defendants breached their fiduciary obligation to

disclose to those Plan participants who signed the

release “that implementation of the phantom account

offset violates ERISA § 204(g) and ERISA § 204(h) and

further that the consideration paid for executing the

release was substantially less than the retirement

benefits to which they may be entitled to receive [sic]

if the phantom account offset was not applied.” Dkt.

#129-1 at 15.

In any event, the relief that plaintiffs now seek is

simply a ruling by this Court that the releases are

unenforceable against plaintiffs insofar as it purports

to waive claims for “enhanced” retirement benefits, i.e.,

benefits calculated without using the phantom account

offset. See id. at 19. That is essentially what the Court

has done. Plaintiffs are getting all of the relief,

equitable or otherwise, to which they are entitled.

There is no need, therefore, to rule on plaintiffs’ claim

for breach of fidudiary duty.

V. Plaintiff Holland

Plaintiff Lawrence R. Holland has at all relevant

times been an hourly (.e., non-salaried) Xerox

employee who is covered by the terms of a collective

bargaining agreement. Defendants contend that as

such, Holland has never been a participant in the

Plan, which by its terms excludes from its coverage

“falny person covered by a collective bargaining

agreement, the terms of which do not require coverage

under this Plan ... .” Dkt. #121-5 at 6. Therefore,

49a

defendants contend, Holland lacks standing to sue for

benefits under the Plan.

In response, plaintiffs do not appear to deny that

Holland is a participant in a different pension plan

from the one at issue in this case, but contend that the

plan in which he is a participant utilizes the same

phantom account offset as the Plan covering the other

plaintiffs. ‘The essence of plaintiffs’ argument seems to

be that the Court should simply allow Holland’s claims

to go forward in this case so that hourly Xerox workers

will be able to benefit from the Second Circuit's rulings

in this case and the relief ordered by this Court with

respect to the other named plaintiffs

Holland’s request must be denied. It is axiomatic

that only plan participants and beneficiaries may sue

for benefits under § 1132(a)(1)(B). See Nechis v. Oxford

Health Plans, Inc., 421 F.3d 96, 100-01 (2d Cir. 2005)

(citing Franchise Tax Board v. Construction Laborers

Vacation Trust for S. Cal., 463 U.S. 1, 27 (1983)).

Holland’s suggestion that the Court allow the

administrators of his plan to be joined as defendants in

this action is denied, as plaintiff has shown no basis

for adding additional defendants in this case at this

late date. Plaintiffs’ contention that defendants have

only recently raised the argument that Holland is not

entitled to any benefits under the Plan is contradicted

by this Court’s July 30, 2004 Decision and Order, in

which I expressly referenced (but found it unnecessary

to decide) defendants’ arguments to that effect, 32é

F Supp.2d at 439 n. 14. Furthermore, plaintiffs have

made no motion to amend the complaint to add

additional defendants, and plaintiffs’ memoranda and

50a

other papers on remand are not a proper vehicle for

making such a request.”

VI. Plaintiffs’ Motion to Amend the Complaint

On November 6, 2006, plaintiffs filed a motion for

leave to file a second amended and consolidated

complaint, adding a number of additional) plaintiffs in

this case. The gist of the motion was that following the

remand from the Second Circuit, additional Xerox

employees who had been separated from and then

rehired by Xerox prior to 1998 contacted plaintiffs’

counsel, seeking to join in or obtain the benefits of this

lawsuit. Plaintiffs’ counsel wrote to the Plan

administrator, essentially asking him to waive these

individuals’ exhaustion requirements under ERISA

and apply the rulings of this Court and the Court of

Appeals in this case and in Layaou to these additional

Plan participants. Dkt. #132-3 at 1-4. The

administrator’s response was, essentially, that until a

“final resolution” of this action, the phantom account

offset would continue to be applied to all Plan

participants, with “no exception or deviation.” Jd. at 5

To the extent that any of the proposed new

plaintiffs have not yet retired from Xerox, I sec no

basis for adding them to this lawsuit. As stated earlier,

the Second Circuit's holding that “the phantom

account may not be applied to employees rehired prior

to the issuance of the 1998 SPD,” 433 F.3d at 2635,

It would secem » be beyond dispute, though, that

‘phantom accoun manner found unlawful by

Circuit decisi viola -RISA and cannot be used by any

itor would k

5la

would certainly seem to foreclose defendants from

utilizing the phantom account in calculating “new”

retirees’ pension benefits.

At this point, however, this motion has not been

briefed by defendants, and since there may be issues

involving individualized defenses or other matters

bearing upon the motion to amend, I will not decide

the motion at this time, but will instead reserve

decision after the matter has been fully briefed, as sct

forth in the Conclusion of this Decision and Order.

CONCLUSION

Plaintiffs’ motion for a determination of the

decision of the Second Circuit Court of Appeals and for

other further relief (Dkt. #129) is granted in part and

denied in part, and defendants’ cross-motion for partial

summary judgment (Dkt. #133) is granted in part and

denied in part. Defendants are hereby directed to

recalculate plaintiffs’ retirement benefits, consistent

with the terms of this Decision and Order and the

January 6, 2006 decision of the Court of Appeals for

the Second Circuit, and to pay each plaintiff a lump

sum in the amount of the difference between the

amount of benefits that each plaintiff has received,

and the amount of the recalculated benefit, without

any consideration of a “phantom account.” Plaintiffs’

claim for breach of fiduciary duty is denied as moot

Plaintiff Lawrence Holland's claims are dismissed in

their entirety

Detendants are directed to respond to plaintiffs’

motion for an extension of time to file a second

consolidated and amended complaint (Vkt. # 132)

within thirty (30) days after the date of issuance of

52a

this Decision and Order. Plaintiffs shall file reply

papers no later than fifteen (15) days after the date

that defendants’ response is filed.

IT IS SO ORDERED.

i a

DAVID G. LARIMER

United States District Judge

Dated: Rochester, New York

January 24, 2007.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 07-0418-ev

[Filed September 25, 2008]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, onthe _____ day

of September two thousand and eight.

PAULJ. FROMMERT, ALAN H. CLAIR, DONALD

S. FOOTE, THOMAS I. BARNES, RONALD J.

CAMPBELL, FRANK D. COMMESSO, WILLIAM

F. COONS, JAMES D. GAGNIER, BRIAN L. GAITA,

WILLIAM J. LADUE, GERALD A. LEONARDO JR.,

FRANK MAWDESLEY, HAROLD S. MITCHELL,

WALTER J. PETROFF, RICHARD C. SPRING,

PATRICIA M. JOHNSON, F. PATRICIA M. TOBIN,

NANCY A. REVELLA, ANATOLI G. PUSCHKIN,

WILLIAM R. PLUMMER, MICHAEL J. MCCoy,

LARRY J. GALLAGHER, NAPOLEON B. BARBOSA,

ALEXANDRA SPEARMAN HARRICK, JANIS A

EDELMAN, PATRICIA H. JOHNSTON, KENNETH

P. PARNETT, JOYCE D. CATHCART, FLOYD

SWAIM, JULIE A. MCMILLIAN, DENNIS E. BAINES,

RUBY JEAN MURPHY, MATTHEW 1). ALFIERI,

KATHY FAY THOMPSON, MARY BETH ALLEN,

CRAIG R. SPENCER, LINDA S. BOURQUE,

54a

THOMAS MICHAEL VASTA, FRANK C. DARLING, )

CLARK C. DINGMAN, CAROL E. GANNON, JOSEPH __ )

E. WRIGHT, DAVID M. ROHAN, DAVID B. )

RUDDOCK, CHARLES HOBBS, CHARLES )

ZABINSKI, CHARLES J. MADDALOZZO, JOYCE )

M. PRUETT, WILLIAM A. CRAVEN, MAUREEN )

A. LOUGHLIN JONES, KENNETH W. )

PIETROWSKI, BONNIE COHEN, LAWRENCE )

R. HOLLAND, GAIL A. NASMAN, STEVEN D. )

BARLEY, DONNA S. LIPARI, ANDREW C. )

MATTELIANO, MICHAEL HORROCKS,

CANDICE J. WHITE, DENNIS E. BAINS,

KATHLEEN E. HUNTER, JOHN L. )

CRISAFULLI, DEBORAH J. DAVIS, BRENDA )

H. MCCONNELL, KATHLEEN A. BOWEN,

ROBERT P. CARANDDO, TERENCE J. KURTZ,

WILLIAM J. CHESLOCK, THOMAS E. DALTON,

LYNN BARNSDALE, BRUCE D. CRAIG, GARY

P. HARDIN, CLAUDETTE M. LONG, DALE

PLATTETER, MARY ANN SERGEANT, MOLLY

WHITE KEHOF, IRSHAD QUERSHI, DAVID K )

YOUNG, LESLIE ANN WUNSCH, EUGENE H. )

UPDYKE, MICHAEL R. BENSON, ALVIN M

ADAMS, RONNIE KOLNIAK, JAMES J.

FARRELL, ROBERT L. BRACKHAHN,

BENJAMIN C. ROTH, RICHARD C. CARTER,

CARMEN J. SOFIA, KATHLEEN W. LEVEA,

FREDERICK SCACCHITTI, PAUL DEFINA,

JAMES G. WALLS, GAIL J. LEVY, JOHN A

WILLIAMS, CRYSTAL THORTON, CHARLES )

R. DRANNBAUER, WILLIAM M. BURRITT, )

AND JANICE ROSS HEILER,

Plaintiffs-Appellees, )

55a

SALLY L. CONKRIGHT, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, PATRICIA

M. NAZEMETZ, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, LAWRENCE

M. BECKER, XEROX CORPORATION

PLAN ADMINISTRATOR, XEROX

CORPORATION RETIREMENT INCOME

(GUARANTEF PLAN, AND XEROX

CORPORATION, A NEW YORK CORPORATION,

Defendants-Appellants,

XEROX CORPORATION,

Defendant.

Appellees, Paul J. Frommert, Alan H. Clair, Donald 8.

Foote, et al., having filed a petition for panel

rehearing, or, in the alternative, for rehearing en banc,

and the panel that determined the appeal having

considered the request for panel rehearing, and the

active members of the Court having considered the

request for rehearing en banc,

[IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

By: /s/_ ;

Richard Alcantara, Deputy Clerk

56a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 07-0418-cv

[Filed September 25, 2008]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, onthe ____ day

of September two thousand and eight.

PAUL J. FROMMERT, ALAN H. CLAIR, DONALD

)

S. FOOTE, THOMAS I. BARNES, RONALD J. )

CAMPBELL, FRANK D. COMMESSO, WILLIAM )

F.COONS, JAMES D. GAGNIER, BRIAN L. GAITA, _ )

WILLIAM J. LADUE, GERALD A. LEONARDO JR.,

FRANK MAWDESLEY, ITAROLD S. MITCHELL,

WALTER J. PETROFF, RICHARD C. SPRING, )

PATRICIA M. JOHNSON, F. PATRICIA M. TOBIN, )

NANCY A. REVELLA, ANATOLI G. PUSCHKIN,

WILLIAM R. PLUMMER, MICHAEL J. McCoy,

LARRY J. GALLAC VER, NAPOLEON B. BARBOSA, )

ALEXANDRA SPEARMAN HARRICK, JANIS A.

EDELMAN, PATRICIA H. JOHNSTON, KENNETH )

P. PARNETT, JOYCE D. CATHCART, FLOYD )

SWAIM, JULIE A. MCMILLIAN, DENNIS E. BAINES, )

RUBY JEAN MURPHY, MATTHEW D. ALFIERI, )

KATHY FAY THOMPSON, MARY BETH ALLEN,

CRAIG R. SPENCER, LINDA S. BOURQUE,

57a

THOMAS MICHAEL VASTA, FRANK C. DARLING,

CLARK C. DINGMAN, CAROL E. GANNON, JOSEPH

E. WRIGHT, DAVID M. ROHAN, DAVID B.

RUDDOCK, CHARLES HOBBS, CHARLES

ZABINSKI, CHARLES J. MADDALOZZO, JOYCE

M. PRUETT, WILLIAM A. CRAVEN, MAUREEN

A. LOUGHLIN JONES, KENNETH W.

PIETROWSKI, BONNIE COHEN, LAWRENCE

R. HOLLAND, GAIL A. NASMAN, STEVEN D.

BARLEY, DONNA S. LIPARI, ANDREW C.

MATTELIANO, MICHAEL HORROCKS,

CANDICE J. WHITE, DENNIS E. BAINS,

KATHLEEN E. HUNTER, JOHN L.

CRISAFULLI, DEBORAH J. DAVIS, BRENDA

H. MCCONNELL, KATHLEEN A. BOWEN,

ROBERT P. CARANDDO, TERENCE J. KURTZ,

WILLIAM J. CHESLOCK, THOMAS E.. DALTON,

LYNN BARNSDALE, BRUCE D. CRAIG, GARY

P. HARDIN, CLAUDETTE M. LONG, DALE

PLATTETER, MARY ANN SERGEANT, MOLLY

WHITE KEHOE, IRSHAD QUERSHI, DAVID K.

YOUNG, LESLIE ANN WUNSCH, EUGENE H.

UPDYKE, MICHAEL R. BENSON, ALVIN M.

ADAMS, RONNIE KOLNIAK, JAMES J.

FARRELL, ROBERT L. BRACKHAHN,

BENJAMIN C. ROTH, RICHARD C. CARTER,

CARMEN J. SOFIA, KATHLEEN W. LEVEA,

FREDERICK SCACCHITTI, PAUL DEFINA,

JAMES G. WALLS, GAIL J. LEVY, JOHN A.

WILLIAMS, CRYSTAL THORTON, CHAKLES

R. DRANNBAUER, WILLIAM M. BURRITT,

AND JANICE ROSS HEILER,

Plaintiffs-Appellees,

ee Nee Neel eee Ne eee ele ee ee“ GS”

58a

SALLY L. CONKRIGHT, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, PATRICIA

M. NAZEMETZ, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, LAWRENCE

M. BECKER, XEROX CORPORATION

PLAN ADMINISTRATOR, XEROX

CORPORATION RETIREMENT INCOME

(GUARANTEE PLAN, AND XEROX

CORPORATION, A NEW YORK CORPORATION,

Defendants-Appellants,

XEROX CORPORATION,

Defendant.

Appellants, Sally L. Conkright, Xerox Corporation

Pension Plan Administrator, Patricia M. Nazemetz, et

al., having filed a petition for panel rehearing, or, in

the alternative, for rehearing en banc, and the panel

that determined the appeal having considered the

request for panel rehearing, and the active members of

the Court having considered the request for rehearing

en banc,

Iv IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

By: /s/_

Richard Alcantara, Deputy Clerk

ee ee ee ee ee a ee a ee a ee a a

59a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 07-0418-cv

[Filed September 25, 2008]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, onthe ____ day

of September two thousand and eight.

PAUL J. FROMMERT, ALAN HH. CLAIR, DONALD

S. FOOTE, THOMAS I. BARNES, RONALD J.

CAMPBELL, FRANK I). COMMESSO, WILLIAM

F. COONS, JAMES D. GAGNIER, BRIAN L. GAITA,

WILLIAM J. LADUE, GERALD A. LEONARDO JRk.,

FRANK MAWDESLEY, HAROLD S. MITCHELL,

WALTER J. PETROFF, RICHARD C. SPRING,

PATRICIA M. JOHNSON, F. PATRICIA M. TOBIN,

NANCY A. REVELLA, ANATOLI G. PUSCHKIN,

WILLIAM R. PLUMMER, MICHAEL J. McCoy,

LARRY J. GALLAGHER, NAPOLEON B. BARBOSA,

ALEXANDRA SPEARMAN HARRICK, JANIS A.

EDELMAN, PATRICIA H. JOHNSTON, KENNETH

P. PARNETT, JOYCE D. CATHCART, FLOYD

SWAIM, JULIE A. MCMILLIAN, DENNIS E. BAINES,

RUBY JEAN MURPHY, MATTHEW D. ALFIERI,

KATHY FAY THOMPSON, MARY BETH ALLEN,

CRAIG R. SPENCER, LINDA S. BOURQUE,

mee meee eee eee Se”

60a

THOMAS MICHAEL VASTA, FRANK C. DARLING,

CLARK C. DINGMAN, CAROL E. GANNON, JOSEPH

E. WRIGHT, DAVID M. ROHAN, DAVID B.

RUDDOCK, CHARLES HOBBS, CHARLES

ZABINSKI, CHARLES J. MADDALOZZO, JOYCE

M. PRUETT, WILLIAM A. CRAVEN, MAUREEN

A. LOUGHLIN JONES, KENNETH W.

PIETROWSKI, BONNIE COHEN, LAWRENCE

R. HOLLAND, GATL A. NASMAN, STEVEN D.

BARLEY, DONNA S. LIPARI, ANDREW C.

MATTELIANO, MICHAEL HORROCKS,

CANDICE J. WHITE, DENNIS E. BAINS,

KATHLEEN E. HUNTER, JOHN L.

CRISAFULLI, DEBORAH J. DAVIS, BRENDA

H. MCCONNELL, KATHLEEN A. BOWEN,

ROBERT P. CARANDDO, TERENCE J. KURTZ,

WILLIAM J. CHESLOCK, THOMAS E. DALTON,

LYNN BARNSDALE, BRUCE D. CRAIG, GARY

P. HARDIN, CLAUDETTE M. LONG, DALE

PLATTETER, MARY ANN SERGEANT, MOLLY

WHITE KEHOE, IRSHAD QUERSHI, DAVID K.

YOUNG, LESLIE ANN WUNSCH, EUGENE H.

UPDYKE, MICHAEL R. BENSON, ALVIN M.

ADAMS, RONNIE KOLNIAK, JAMES J.

FARRELL, ROBERT L. BRACKHAHN,

BENJAMIN C. ROTH, RICHARD C. CARTER,

CARMEN J. SOFIA, KATHLEEN W. LEVEA,

FREDERICK SCACCHITTI, PAUL DEFINA,

JAMES G. WALLS, GAIL J. LEVY, JOHN A.

WILLIAMS, CRYSTAL THORTON, CHARLES

R. DRANNBAUER, WILLIAM M. BURRITT,

AND JANICE ROSS HEILER,

Plaintiffs-Appellees,

Gla

SALLY L. CONKRIGHT, XEROX CORPORATION

PENSION PLAN ADMINISTRATOR, PATRICIA

M. NAZEMETZ, XEROX CORPORATION

PENSION PLAN ADMINISTRATG ., LAWRENCE

M. BECKER, XEROX CORPORATION

PLAN ADMINISTRATOR, XEROX

CORPORATION RETIREMENT INCOME

YUARANTEE PLAN, AND XEROX

CORPORATION, A NEW YORK CORPORATION,

Defendants-Appellants,

XEROX CORPORATION,

Defendant.

Nee eee eee Se”

Appellees, Kenneth W. Pietrowski, William Burritt,

William Coons, et al., having filed a petition for panel

rehearing, or, in the alternative, for rehearing en banc,

and the panel that determined the appeal having

considered the request for panel rehearing, and the

active members of the Court having considered the

request for rehearing en banc,

If IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

By: /s/_ -

Richard Alcantara, Deputy Clerk

62a

APPENDIX F

XEROX® Name: Charles Hobbs

Employee# 188766

SSN: [REDACTED]-7427

PSG

VOLUNTARY REDUCTION IN FORCE

REQUEST TO PARTICIPATE

& GENERAL RELEASE

Request to Participate

Lk. I hereby request to participate in the Voluntary

Reduction in Force Program (“VRIF”) as

described in the 2005 BGO Production Systems

Group Voluntary Reduction in Force Employee

Fact Sheet, dated October 24, 2005 (the “Fact

Sheet”). My decision to apply is voluntary and I

have not been pressured into it. I have carefully

reviewed and understand the Fact Sheet, and

agree to allits terms and conditions. I have not

relied on any oral representations, promises or

agreements of any kind in connection with my

decision to apply to participate in the VRIF.

General Release

NO

In consideration of Xerox Corporation’s

(“Xerox”) agreement. to provide me with salary

continuance (per the terms of the VRIF

Emplovee Fact Sheet provided to me) and other

63a

valuable consideration, I release Xerox from all

the claims described in this Release. For

purposes of this Release, “Xerox” includes its

employees, directors, officers, agents,

stockholders, subsidiaries, affiliates, successors,

assigns, and the Xerox employee benefit plans

in which I either am now or have been a

participant, and the trustees, administrators,

successors, agents and assigns of those plans.

3. I release Xerox from any and all claims, even if

I don’t know about the claim at this time, based

on anything that has occurred prior to the date

I sign this Release. For example, I release

Xerox from any claims based on all laws, such

as the following (all laws as_ currently

amended):

Age Discrimination and Employment Act of 1967

(ADEA)

Older Workers’s Benefits Protection Act of 1990

(OWBPA)

————— EE 4

Title VII of the Civil Rights Act of 1964

Civil Rights Acts of 1866, 1870, 1871 and 1991

Americans with Disabilities Act of 1990

Rehabilitation Act of 1973

Family and Medical Leave Act of 1993

Equal Pay Act of 1963

Fair Labor Standards Act of 1938

64a

Employee Requirement Income Security Act of

1974

Workers Adjustment and Retraining Notification

Act of 1989

Uniformed Services Reemployment Rights Act of

1994

Vietnam Era Veteran’s Readjustment Assistance

Act of 1974

4. I also release Xerox from claims based on the

laws of the state(s) where I am employed and

reside, such as state fair employment practices

laws or any other law, whether federal, state or

local, concerning employment. I release Xerox

from claims based on _ discrimination § in

employment such as claims arising out of the

offer of employment to me by Xerox, the hiring

of me by Xerox, any employment contract

between Xerox and me, any promises made by

Xerox regarding future employment, or based

on the termination of my employment. Finally,

I also release Xerox from claims under state

contract or tort law, and from all claims for

punitive or compensatory damages, costs or

attorney's fees.

5. I acknowledge and agree that the consideration

set forth in this release is in addition to

anything of value to which I am entitled by law

or Xerox policy

6. -I understand and agree that this Release and

Xerox's agreement to provide consideration to

65a

me should not be construed, in any way, as an

admission by Xerox of any wrongdoing or

hability to me.

/s/ CH

Please initial page 1 here

[Received DEC 7, 2005]

‘2

9.

I understand that nothing set forth in this

Release limits my right to file, or prevents me

from filing, a charge or complaint with the

EEOC or any comparable state agency, nor does

anything in this Release limit my right to

participate in an investigation or proceeding

conducted by the EEOC or any comparable state

apency.

I understand that nothing in this Release himits

my right to challenge this Release as not being

knowing and voluntary under the ADEA or the

OWBPA if I feel this Release does not comply

with the requirements of those statutes.

Except as provided in paragraphs 7 and &

above, however, I agree that I will not file or

pursue any charge or claim with = any

governmental agency or any court against Xcrox

based on anything that occurred before IJ signed

this Release. If I do not comply with my

obligations under this paragraph, I shall repay

to Xerox upon demand all of the monies paid to

me by Xerox as salary continuance = in

consideration for this Release, and I agree to

pay all of Xerox’s costs and expenses in

10.

as.

66a

defending the claim or action, including Xerox’s

reasonable attorney’s fees.

1 understand and acknowledge that Xerox policy

provides that for a period of one year after the

termination of my employment with Xerox, Iam

not eligible for rehire as an employee, or for

retention as a contract worker or consultant.

I acknowledge that I have been advised by

Xerox as follows:

¢ TOCONSULT WITH AN ATTORNEY OF

MY CHOOSING TO COUNSEL ME AS

TO MY RIGHTS BEFORE I SIGN THIS

RELEASE;

¢ TO TAKE SUFFICIENT TIME TO

DECIDE WHETHER TO SIGN THIS

RELEASE. I HAVE 45 DAYS FROM

THE DATE THIS RELEASE IS

PROVIDED TO ME TO CONSIDER IT

BEFORE I SIGN AND RETURN IT TO

XEROX;

¢ THAT EVEN AFTER I SIGN AND

RETURN THIS RELEASE TO XEROX, I

WILL HAVE 7 DAYS THEREAFTER TO

CHANGE MY MIND AND REVOKE MY

RELEASE BY ASKING XEROX FOR ITS

RETURN.

I understand and agree that this Release waives

all claims | may have at the time 1 sign tt,

including claims | do not then know about or

suspect. I further understand and acknowledge

that California Civil Code, Section 1542

provides: “A GENERAL RELEASE DOES NOT

67a

EXTEND TO CLAIMS WHICH THE

CREDITOR DOES NOT KNOW OR SUSPECT

EXIST IN HIS FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM MUST HAVE MATERIALLY

AFFECTED HIS SETTLEMENT WITH THE

DEBTOR.” I waive any rights I may have under

that Code section, if applicable, or any other

similar state or federal statute or common law

principle of similar effect.

Date Release provided to employee: October 24, 2005

Date signed and returned to Xerox: Dec. 7, 2005.

By: /s/ Charles Hobbs

Employee signature

Charles Hobbs ae

Employee Name (Please print)

_ iss

Xerox Employee Number

General Release

Revised August 23, 2005

68a

APPENDIX G

XEROX® Name: Charles Zabinski

Employee# 973201 re

SSN: (REDACTED]-1328 |

PS&SCO

VOLUNTARY REDUCTION IN FORCE

REQUEST TO PARTICIPATE

& GENERAL RELEASE

Request to Participate

:. I hereby request to participate in the Voluntary

Reduction in Force Program (“VRIF”) as

described in the 2005 BGO Paper, Supplies &

Supply Chain Operations Voluntary Reduction

in Force employee Fact Sheet, dated August,

2005 (the “Fact Sheet”). My decision to apply is

voluntary and I have not been pressured into it.

I have carefully reviewed and understand the

Fact Sheet, and agree to all its terms and

conditions. J have not relied on any oral

representations, promises or agreements of any

kind in connection with my decision to apply to

participate in the VRIF.

General Release

In consideration of Xerox Corporation’s

(“Xerox”) agreement to provide me with salary

continuance (per the terms of the VRIF

N

69a

Employee Fact Sheet provided to me) and other

valuable consideration, I release Xerox from all

the claims described in this Release. For

purposes of this Release, “Xerox” includes its

employees, directors, officers, agents,

stockholders, subsidiaries, affiliates, successors,

assigns, and the Xerox employee benefit plans

in which I either am now or have been a

participant, and the trustees, administrators,

successors, agents and assigns of those plans.

2. I release Xerox from any and ali claims, even if

I don’t know about the claim at this time, based

on anything that has occurred prior to the date

I sign this Release. For example, I release

Xerox from any claims based on all laws, such

as the following (all laws as_ currently

amended):

Age Discrimination and Employment Act of 1967

(ADEA)

Older Workers’s Benefits Protection Act of 1990

(OWBPA)

Title VII of the Civil Rights Act of 1964

Civil Rights Acts of 1866, 1870, 1871 and 1991

Americans with Disabilities Act of 1990

Rehabihtation Act of 1973

Family and Medical Leave Act of 1993

Kqual Pay Act of 1963

— ——‘~+

Fair Labor Standards Act of 1938

70a

Employee Requirement Income Security Act of

1974

Workers Adjustment and Retraining Notification

Act of 1989

Uniformed Services Reemployment Rights Act of

1994

Vietnam Era Veteran’s Readjustment Assistance

Act of 1974

4. I also release Xerox from claims based on the

laws of the state(s) where I am employed and

reside, such as state fair employment practices

laws or any other law, whether federal, state or

local, concerning employment. I release Xerox

from claims based on discrimination in

employment such as claims arising out of the

offer of employment to me by Xerox, the hiring

of me by Xerox, any employment contract

between Xerox and me, any promises made by

Xerox regarding future employment, or based

on the termination of my employment. Finally,

I also release Xerox from claims under state

contract or tort law, and from all claims for

punitive or compensatory damages, costs or

attorneys fees

D. I acknowledge and agree that the consideration

set. forth in this release is in addition to

anything of value to which I am entitled by law

or Xerox policy, including my right to a pension

under the Xerox Retirement Income Guarantee

Plan to which I do not release my claim as a

member of the Frommert lawsuit.

Vla

I understand and agree that this Release and

Xerox’s agreement to provide consideration to

me should not be construed, in any way, as an

admission by Xerox of any wrongdoing or

liability to me.

/s/ CZ

Please initial page 1 here

I understand that nothing set forth in this

Release limits my right to file, or prevents me

from filing, a charge or complaint with the

EEOC or any comparable state agency, nor does

anything in this Release limit my right to

participate in an investigation or proceeding

conducted by the EEOC oranycomparable state

agency.

I understand that nothing in this Release limits

my right to challenge this Release as not being

knowing and voluntary under the ADEA or the

OWBPA if I feel this Release does not comply

with the requirements of those statutes.

Except as provided in paragraphs 7 and 8

above, however, I agree that | will not file or

pursue any charge or claim with any

governmental agency or any court against Xerox

based on anything that occurred before I signed

this Release. If I do not comply with my

obhgations under this paragraph, I shall repay

to Xerox upon demand all of the monies paid to

me by Xerox as salary continuance in

consideration for this Release, and I agree to

pay all of Xerox’s costs and expenses in

T2a

defending the claim or action, including Xerox’s

reasonable attorney’s fees.

I understand and acknowledge that Xerox policy

provides that for a period of one year after the

termination of my employment with Xerox, lam

not eligible for rehire as an employee, or for

retention as a contract worker or consultant.

I acknowledge that I have been advised by

Xerox as follows:

TO CONSULT WITH AN ATTORNEY OF

MY CHOOSING TO COUNSEL ME AS

TO MY RIGHTS BEFORE I SIGN THIS

RELEASE;

TO TAKE SUFFICIENT TIME TO

DECIDE WHETHER TO SIGN THIS

RELEASE. I HAVE 45 DAYS FROM

THE DATE THIS RELEASE IS

PROVIDED TO ME TO CONSIDER fT

BEFORE I SIGN AND RETURN IT TO

XEROX;

THAT EVEN AFTER I SIGN AND

RETURN THIS RELEASE TO XEROX, I

WILL HAVE 7 DAYS THEREAFTER TO

CHANGE MY MIND AND REVOKE MY

RELEASE BY ASKING XEROX FOR ITS

RETURN.

| understand and agree that this Release waives

all claims I may have at the time I sign it,

including claims I do not then know about or

suspect. I further understand and acknowledge

that California Civil Code, Section 1542

provides: “A GENERAL RELEASE DOES NOT

73a

EXTEND TO CLAIMS WHICH THE

CREDITOR DOES NOT KNOW OR SUSPECT

EXIST IN HIS FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM MUST HAVE MATERIALLY

AFFECTED HIS SETTLEMENT WITH THE

DEBTOR.” [ waive any rights I may have under

that Code section, if applicable, or any other

similar state or federal statute or common law

principle of similar effect.

Date Release provided to employee: August 25, 2005

Date Signed and returned to Xerox: September 14,

2005.

By: /s/ Charles Zabinski

Employee signature

__Charles Zabinski

Employee Name (Please print)

oi;

Xerox Employee Number

74a

APPENDIX H

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

00-CV-6311(L)

[Filed November 10, 2006]

PAUL J. FROMMERT, et al.,

Plaintiffs,

Vie

SALLY L. CONKRIGHT, PATRICIA M.

NAZEMETZ AND LAWRENCE M.

BECKER, XEROX CORPORATION

RETIREMENT INCOME GUARANTEE

PLAN ADMINISTRATORS and XEROX

CORPORATION RETIREMENT INCOME

GUARANTEE PLAN,

Defendants.

eee eee eee eee”

DEFENDANTS’ STATEMENT OF

MATERIAL FACTS

DEFENDANTS’ LOCAL RULE 56 STATEMENT

OF MATERIAL FACTS AS TO WHICH THERE

IS NO GENUINE ISSUE TO BE TRIED

Pursuant to Local Rule 56, defendants the following

material facts are not in genuine dispute:

75a

1. Defendant Xerox Corporation Retirement Income

Guarantee Plan (the “RIGP”) was and is an ERISA-

covered employee pension benefit plan. (See, e.g., First

Consolidated and Amended Complaint { 1; 1989 Plan

documents attached as Exhibit A to Kaster Aff.).

2. The RIGP was at all relevant times governed by

a plan document, which was amended and restated

from time to time. (See 1989 RIGP attached as Exhibit

A to Kaster Aff.).

3. The RIGP provides retirement benefits only to

eligible employees, who are defined to exclude “lalny

person covered by a collective bargaining agreement

whose terms do not require coverage under this Plan.”

(Kaster Aff., Ex. A, section 1.14; see also Jaffe Aff.,

sworn to November 15, 2006, Exhibit A, relevant

portions of the Summary Plan Description (“SPD”)

stating that the retirement plan is “for exempt and

non-exempt salaried employees (employees who are

not covered by a collective bargaining agreement.).”

4. Xerox Corporation also maintains a separate

retirement plan for its union employees entitled,

“Retirement Income Guarantee Plan of Xerox

Corporation and the Xerographic Division, UNITE

HERE” (hereinafter referred to as the “RJGP UNITE

HERE”). (See Exhibit B to the Kaster Aff.).

5. The Plan Administrator for the RIGP for Union

Employees is the Joint Administrative Board. (See

Exhibit B to the Kaster Aff., Article 10, section 10.1).

6. Plaintiff Lawrence Holland is a member of a

union which represents hourly workers at Xerox. (First

Consolidated and Amended Complaint J 11).

16a

7. Holland’s retirement benefits are determined by

the terms of the RIGP UNITE HERE, and he is not

entitled to any benefits under the terms of the

defendant RIGP. Kaster Aff. {{ 3-8 and its Ex. A and

B.

8. Defendants Conkright, Nazemetz, and Becker

have served as the RIGP’s Plan Administrator. (First

Consolidated and Amended Complaint {J 13-15).

9. On or about January, 4, 2001, plaintiffs filed a

motion for emergent injunctive relief requesting that

Xerox be enjoined from conditioning the offer of a

Voluntary Reduction in Force (“VRIF”) package upon

the waiver of plaintiffs’ claims for in this suit for a

recalculation of their retirement benefits under

ERISA. In support of that motion, plaintiffs submitted

an affidavit from Robert Jaffe, sworn to January 4,

2001, with attached exhibits and a Memorandum of

Law.

10. Opposing counsel stated in his January 4, 2001

Affidavit submitted in support of plaintiffs’ prior

motion for emergent relief that “my clients have been

asked to sign a general release which includes a

waiver or withdrawal of any claims that were made or

could have been made by them for a recalculation of

retirement benefits under ERISA.” (Jaffe January 4,

2001 Aff. 7 5. Opposing counsel further states that at

least five of his clients have been asked to execute a

general release which “explicitly includes a release of

all claims under ERISA.” (Ja. at J 8). Opposing counsel

further acknowledges in that January 4, 2001 Affidavit

that the form of the yeneral release recommends to

Xerox employees considering the VRIF to consult with

an attorney before signing a release and he further

Tla

avers that several employees who he represents have

followed this recommendation and sought his advice.

Ud. at | 9). These individuals were: William Coons,

Gerald Leonardo, Walter Petroff, Richard Spring, and

Thomas Vasta. (/d.).

11. Xerox Corporation (“Xerox”) from time to time

has announced voluntary reduction in force (“VRIF”)

programs or involuntary reduction in force (“IRIF”)

actions. Xerox has a policy covering which provides for

the payment of salary continuance, and may include

additional incentives, in consideration for the

employee signing a general release of claims, which

includes up to 52 weeks of salary continuance

(depending on their length of service). See Kaster Aff.,

Exhibit C.

12. The RIGP Plan Administrators did not have

any involvement in Xerox’ establishing or

implementing the VRIF or IRIF policies, including the

conditioning the payment ofa salary continuance upon

the signing ofa general release. Kaster Aff., Ex. C; and

Ex. <A, RIG? § section 10.5, Duties of Plan

Administrator.

13. Twenty-two individual plaintiffs have executed

general releases as part of either a VRIF or IRIF,

including Mathew Alfieri; William Burritt (December

1, 2005); Frank Commesso (September 22, 2005);

William Coons (August 6, 2002), Bruce Craig (January

1 2003); Richard Crater (December 7, 2005); Frank

Darling (November 27, 2005); John Crisafulli (August

31, 2004); Deborah Davis (January 15, 2004); Charles

Drannbauer (November 10, 2002); Carol Gannon ((May

24, 2001); James Garnier (September 30, 2005), Larry

Gallagher (December 5, 2005); Janice Heller (June 11,

78a

2002); Charles Hobbs (December 7, 2005); Gerald

Leonardo (December 18, 2002); Charles Maddalozzc

(June 17, 2003); Walter Petroff,(September 2, 2004-);

Kenneth Pietrowski (November 5, 2005); Irshad

Qureshi (February 23, 2001); Charles Williams

(November 2, 2002); and Charles Zabinski (September

14, 2005). Kaster Aff., Exhibit D).

14. Fach of these individuals identified above are

educated and worked in salaried positions at Xerox for

many years. Using opposing counsel’s own example,

Plaintiff Pietrowski has a college degree, was

employed in an engineering position in Xerox’s

Innovation Group, and admittedly signed a General

Release on November 23, 2005.

i5. The Releases signed by the above individual

plaintiffs expressly provide, in pertinent part, that

employee releases “Xerox from any and all claims,

based upon anything that has occurred prior to the

date I signed the release,” including claims under

ERISA. For purposes of the release, “Xerox” is defined

to include, not only the company, but any of its

employees, and agents, and employee benefit plans in

which the plaintiff participates or participated. In

signing the release, each employee acknowledges that

he or she did so voluntarily and was not pressured

into it. Kaster Aff. Ex. D.

16. The Releases signed by the above individual

plaintiffs also expressly advised plaintiffs: “TO

CONSULT WITH AN ATTORNEY OF MY

CHOOSING TO COUNSEL ME AS TO MY

RIGHTS BEFORE SIGNING THIS RELEASE; TO

TAKE SUFFICIENT TIME TO DECIDE

794

WHETHER TO SIGN THE RELEASE.” Kaster Aff

Ex. D.

17. The Release signed by the above individual

plaintiffs further informed plaintiffs that them had 45

days to consider the release before returning it and

that they had an additional 7 days to change their

mind and revoke their decision. (Exhibit C, p. 2 to the

Jaffe Aff.; Kaster Aff. Ex. D).

18. In signing the Release, the above individual

plaintiffs further agreed not to file or pursue any

claim or action with any court against the releasecs for

events which took place prior to the date of the release

and agreed to pay all of the releasees’ costs and

expenses in defending against a claim, including

reasonably attorney’s fees, should he act contrary to

the terms of the Release. Kaster Aff. Ex. D

19. The above individual plaintiffs were paid or will

be paid by the end of their salary continuance period

up to 52 weeks of salary continuance. Kaster Aff. Ex.

D.

20. Plaintiff Pietrowski was_ paid — salary

continuance totaling $130,971 in exchange for signing

a Release. See page 10 of Plaintiffs’ Memorandum of

Law submitted in support of their motion, which states

the amount Pietrowski was paid

21. At the time that the above individual plaintiffs

signed the releases, they were represented by counsel,

and their ERISA claims were in dispute. See dates on

the releases attached as Ex. ID to the Kaster Aff

$O0a

22. At the time Pietrowski executed his Release,

this Court had granted summary judgment dismissing

plaintiffs’ claims, and the matter was on appeal. See

date on Pietrowski release, contained in Kaster Aff.

Ex. D.

23. Each of the above individual plaintiffs was

given 45 days within which to consider whether or not

to sign the release. Moreover, pursuant to the terms of

their releases, each plaintiff was given seven

additional days within which to revoke his or her

decision. Kaster Aff. Ex. D.

Dated: November 10, 2006

Respectfully submitted,

NIXON PEABODY LLP

Attorneys for Defendants

By: /s/ Margaret A. Clemens

Margaret A. Clemens, Esq.

Clinton Square

P.O. Box 31051

Rochester, New York 14608-1051

(585) 263-1000

{[A-1045 — A-1050]