Free Order - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JANICE C. AMARA, individually and on behalf of others similarly situated, Plaintiff, v. CIGNA CORPORATION and CIGNA PENSION PLAN, Defendants. : : : : : : : : : : :

Case No. 3:01CV2361(MRK)

MEMORANDUM OF DECISION Since the mid-1980s, hundreds of U.S. employers have converted their traditional defined benefit pension plans into what are known as "cash balance" retirement plans. In fact, according to the Pension Benefit Guaranty Corporation, over 1,500 cash balance plans and other similar hybrid plans were in existence as of 2003, providing pension benefits to over 8 million participants, approximately one-quarter of the total employee population covered by defined benefit plans. See Pension Benefit Guaranty Corp., Pension Insurance Data Book 2004, at 59-60 (2005), available at http://www.pbgc.gov/docs/2004databook.pdf. Like many other corporations, CIGNA Corporation converted its traditional defined benefit plan to a cash balance plan, in 1998. Despite their popularity among employers, cash balance plans have spawned considerable litigation. This case is yet another in a long list of cases challenging an employer's conversion to a cash balance retirement plan under the Employee Retirement Income Security Act ("ERISA").1 See, e.g., Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007); Campbell v. BankBoston, N.A., 327 F.3d 1 (1st Cir. 2003); Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755 (7th Cir. 2003); Esden v. Bank of Boston; 229 F.3d 154 (2d Cir. 2000); Custer v. S. New Eng. Tel. Co., No. 3:05cv1444 (SRU), 2008 WL 222558 (D. Conn. Jan. 25, 2008); Finley v. Dun & Bradstreet Corp., 471 F. Supp. 2d 485 (D.N.J. 2007); Richards v. FleetBoston Fin. Corp., 427 F. Supp. 2d 150 (D. Conn. 2006); Hirt v. Equitable Ret. Plan, 441 F. Supp. 2d 516 (S.D.N.Y.
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Plaintiffs consist of a class of current and former CIGNA employees who participated in CIGNA's traditional defined benefit plan before January 1, 1998 and have participated in CIGNA's cash balance plan since that time. See Memorandum of Decision [doc. # 61]. Plaintiffs and Defendants raise numerous class, sub-class, and individual claims and defenses. See Order Under Federal Rule 23(c)(1)(B) [doc. # 241] (listing the class, sub-class, and individual claims and defenses). At the risk of over-simplification, however, the central issues in this case may generally be described as follows: whether CIGNA's cash balance plan is age discriminatory or otherwise violates certain non-forfeiture and anti-backloading rules under ERISA; whether CIGNA gave the notices and other disclosures required by ERISA; and whether the information CIGNA provided its employees about the conversion and the cash balance plan in summary plan descriptions and other materials satisfied ERISA's requirements. The questions raised in this case are vitally important to both employers and employees (and their families). Given how profoundly significant retirement plans and planning are to the great majority of Americans ­ employees and employers alike ­ this is one area where the answers should be clear, explicit, and definite. Regrettably, however, the answers to the issues raised by these parties are not entirely clear, in large measure due to the fact that ERISA, and the regulations under it, are often lamentably obscure ­ to describe them as a tangled web does not do them justice. On top of that, there are conflicting decisions around the country on identical issues, making planning for nationwide enterprises impossible. Difficult, time-consuming, and expensive litigation with

2006); In re Citigroup Pension Plan ERISA Litig., 470 F. Supp. 2d 323 (S.D.N.Y. 2006); In re J.P. Morgan Chase Cash Balance Litig., 460 F. Supp. 2d 479 (S.D.N.Y. 2006); Eaton v. Onan Corp., 117 F. Supp. 2d 812 (S.D. Ind. 2000). This is not the first case involving CIGNA's conversion. See Depenbrock v. CIGNA Corp., 389 F.3d 78 (3d Cir. 2004). 2

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uncertain results ­ such as this case represents ­ is assuredly not a sensible way to manage the Nation's retirement system for either employers or employees. Sadly, at least for now, litigation appears to be the only option available to them. In this case, the Court conducted a bench trial over seven days, hearing testimony (live and via deposition) from more than a dozen witnesses and receiving into evidence over 800 exhibits. The parties submitted detailed stipulations, proposed findings of fact and conclusions of law, and pre-trial briefs, and following trial, they submitted post-trial briefs and proposed findings of fact and conclusions of law. The Court also held a lengthy oral argument following completion of post-trial briefing. Counsel for each side distinguished themselves throughout this case by their skillful advocacy, professionalism, and civility. The Court is grateful to each of them. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law. As a preface to those findings and conclusions, the Court would note that these are close questions of law, involving complex and technical regulations, and the facts underlying this case are also complicated and extensive. Risking oversimplification, the Court can summarize as follows its general findings and conclusions to the key issues noted above: CIGNA's Plan is not age discriminatory and does not violate the non-forfeiture and anti-backloading rules under ERISA; in effectuating the conversion to the cash balance plan, CIGNA did not give a key notice to employees that is required by ERISA; and CIGNA's summary plan descriptions and other materials were inadequate under ERISA and in some instances, downright misleading. ERISA gives employers substantial leeway in designing a pension plan, and the Court believes that CIGNA's Plan complies with the relevant statutory provisions. However, ERISA also emphasizes the importance of disclosure by employers to employees regarding the 3

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details of the company's pension plan, to enable employees to plan for their retirement and to make decisions of profound importance for their lives. This is where CIGNA failed to fulfill its obligations; the company did not provide its employees with the information they needed to understand the conversion from a traditional defined benefit plan to a cash balance plan and its effect on their retirement benefits. As noted below, the Court will require further briefing on the issue of what remedies are required or appropriate in view of the Court's rulings on liability. I. Factual Background

The summary that follows, which is based upon the facts adduced at trial, is intended to provide general background information needed to understand the parties' dispute. Further facts bearing directly on certain contested issues are discussed in later sections. Background Regarding Retirement Plans. A traditional defined benefit plan

provides an eligible employee with an annuity (an annual benefit payable for the life of the employee) that is calculated as a percentage of the employee's salary multiplied by the employee's years of service. "Salary" may be defined as the highest salary the employee achieved, an average of the employee's salary over the last several years of service, or some other similar definition. For example, an employee might accrue a pension benefit beginning at age 65 of 1.5% of salary for every year of service; an employee who worked for the company for 30 years would then have an annual retirement benefit of 45% of salary. If a retirement plan defines "salary" as the employee's highest salary, then the employee's plan benefits would increase as the employee moves closer to retirement and enjoys the higher salary that typically comes with longer service. By design, participants in traditional defined benefit plans often earn most of their benefits in the last several years of service.

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Also by design, the employer bears the risk of fluctuations in interest rates or the market over the life of the retired employee. Traditional defined benefit plans often offer subsidized early retirement benefits, which encourage employees to remain with the company until the benefits are available and then to leave. A subsidized early retirement benefit is a benefit payable before normal retirement age (often as of age 55) that has an overall value that is greater than the present value of the benefit payable at normal retirement age (usually age 65). If the employee does not retire at the earliest opportunity to obtain the subsidized early retirement benefit ­ say, 55 ­ the value of that benefit diminishes with each passing year until it is completely lost as of the date of normal retirement ­ for example, by age 65. By contrast to traditional defined benefit plans, defined contribution plans do not offer fixed assurances of annual benefits for life upon retirement. Instead, the employer contributes a certain amount (for example, 10% of each year's salary) to the plan each year. Each employee is entitled to the money allocated to a separate individual retirement account, plus the upside risk of favorable investment returns. However, the employee bears the risk of fluctuations in interest rates or the market once the employer contributes the funds to the employee's retirement account. Cash balance plans "imitate some features" of defined contribution plans by referring to individual accounts and allocations, Esden v. Bank of Boston, 229 F.3d 154, 158 (2d Cir. 2000), but the accounts and allocations are only "hypothetical," not real. The "employee has no actual account, the employer makes no contributions to the employee account, and so there is no account balance to which interest might be added." Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755, 758 (7th Cir. 2003). Though they may imitate some of the features of defined contribution

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plans, cash balance plans are governed by the rules for defined benefit plans. See Esden, 229 F.3d at 158. Cash balance plans were introduced in the mid-1980s, and hundreds of employers have adopted them since then. Recent estimates are that between one-quarter and one-third of large U.S. employers sponsor a cash balance plan. See Pension Benefit Guaranty Corp., Pension Insurance Data Book 2004, at 59-60. Though Plaintiffs in this case contend that cash balance plans discriminate against older workers (an issue the Court addresses below), depending on how the plan is configured, cash balance plans may provide advantages for both employees and employers. Because employees covered by cash balance plans earn benefits more evenly throughout their careers, those plans may provide increasingly more mobile employees more benefits than they could expect to receive under a traditional defined benefit plan, where benefits accrue primarily at the end of an employee's career. The accounts are also familiar to employees who are increasingly comfortable with 401(k)-type programs. Often, cash balance plans (unlike many traditional defined benefit plans) provide for payment of a lump sum benefit, giving employees the ability to manage their funds during their retirement. For an employer, while cash balance plans are not inherently more or less costly than traditional defined benefit plans, converting to a cash balance plan can provide significant cost savings. For example, a 2004 Mellon Bank survey found that the long-term costs of plans converted to cash balance formulas were expected to decrease for 64% of plans. See Ex. 232, at 30; see also Ex. 28 (Interoffice Memo), at D12287 ("A cash balance approach allows us to provide the competitive benefit level of a defined contribution plan but reduce overall cost by earning more on our investments than we pay in the declared rate."); Ex. 31 (email from Gerry Meyn), at D029113 ("A conversion to a cash balance plan clearly reduces the ultimate benefits paid, and, of course, 6

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lowers the net pension liability . . . ."). Cash balance plans also allow employers to shed some or all of the risk of interest rate and market fluctuations during the employee's life. See Trial Tr. 1001:13 to 1002:4 (Mr. Sher, Defendants' expert, testifying that employees assume the risk of interest rate fluctuations with respect to annuities under cash balance plans). In a cash balance plan, each eligible employee has a hypothetical account that receives benefit credits. One credit is referred to as a "pay credit," and it is equal to a percentage of the employee's salary. Pay credits can be defined in a number of different ways: they may be set as a fixed percentage of pay (5% of salary); they may be integrated with Social Security (3% of pay up to the Social Security wage base and 5% over the base); or they may vary with the employee's age or service (4% each year to age 40 and 5% each year thereafter), referred to as "graded pay credits." Cash balance plans also typically provide "interest credits," determined by applying a specified interest rate to the employee's hypothetical account balance. Some plans provide that the interest credit is a floating rate that changes annually or more frequently and is tied to a market rate, such as the yield on selected U.S. Treasury securities. Others allow the interest credit rate to float subject to a maximum (say, 8%) or a minimum (say, 4%), or both. Unlike with many traditional defined benefit plans, which pay benefits as an annuity and do not include a lump sum option, benefits under a cash balance plan often are payable as either a lump sum that equals the hypothetical account balance or an annuity based upon the value of the account balance. Many cash balance plans are the result of conversions from traditional defined benefit plans, and there are a variety of ways in which employers may provide for the conversion and transition to the new plan. One approach is to freeze the benefits payable under the prior plan and at the same time provide for the employees to receive benefit credits (both pay and interest credits) under the 7

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cash balance plan going forward. The prior plan benefits continue to be paid under the terms of the prior plan and the cash balance benefits are paid under the new plan. Under this approach, the employee has essentially two separate pension benefits, with different rules, formulas, and procedures governing them. This is the so-called "A plus B" approach discussed at trial. Other employers instead provide the employee with an opening account balance. There are a variety of ways of establishing the opening account balance, though no legal requirements governing the creation of opening balances. See Ex. 13, at MER01798 (a consultant to CIGNA advised the company that opening balances "could even be zero if you wanted"); Ex. 533 (General Accounting Office Report), at 30 ("[C]urrent federal law does not govern how plan sponsors set opening hypothetical account balances for cash balance plans . . . .").2 One method of creating opening balances is to calculate the present value of the employee's normal retirement benefit (an annuity commencing at normal retirement age, usually age 65) under the prior plan as of the conversion date. Such a plan typically would also provide that each employee would in any event never receive less than the benefit earned under the prior plan as of the date of conversion under the pre-conversion benefit formula. Depending on how the employee's opening account balance and minimum benefit are calculated, the minimum benefit may be greater than the employee's account balance. This is the so-called "greater of A or B" approach referred to in the testimony. CIGNA's Traditional Defined Benefit Plan. Before January 1, 1998, CIGNA had a

traditional defined benefit plan for its employees, which will be referred to in this Opinion as "Part A." Part A provided two benefit formulas depending upon the individual's date of hire. Individuals The Pension Protection Act of 2006, Pub. L. No. 109-280, 120 Stat. 780 (2006) ("PPA"), subjects plan conversions occurring after June 29, 2005 to certain requirements, which can be found at 29 U.S.C. § 1054(b)(5)(B)(ii). 8
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hired before December 31, 1988 were known as "Tier 1 employees"; individuals hired after that date were "Tier 2 employees." Tier 1 employees received 2% of final three-year average pay for each year of service up to 30 years, less a Social Security offset. Tier 1 employees with 10 or more years of service also received a subsidized early retirement benefit; they could retire at age 55 and receive an immediate annuity benefit equal to the accrued age-65 benefit (not reflecting the Social Security offset, known as the "Social Security supplement"), reduced for early commencement by certain factors set forth in the Plan. Upon reaching age 65, the benefit would be reduced by the participant's Social Security offset. Tier 2 employees received an age-65 annuity benefit equal to 1.67% of final five-year average pay for each year of service up to 35 years, less a Social Security offset. Tier 2 employees also received subsidized early retirement benefits; a Tier 2 employee with 15 years or more of service could retire at age 55 and receive an immediate annuity benefit equal to the accrued age-65 benefit (not reflecting the Social Security offset), reduced by 5% per year if benefits began before age 65 (thus 50% for commencement at age 55). Upon reaching age 62, the benefit payable would be reduced by the Social Security offset (adjusted to age 62). Tier 1, but not Tier 2, employees also were eligible for a "Free 30%" survivor's benefit (the "Preserved Spouse's benefit"). Under this benefit, a portion of a participant's pension (generally 30%) would be payable after the participant's death for the remaining lifetime of the surviving spouse. Many plans effectively require participants to pay for the added value of the survivor's benefit, but under CIGNA's Part A, eligible Tier 1 employees received the benefit without charge.

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A participant who wanted a larger portion to go to a surviving spouse (say, 50%) would pay a charge based only on the difference between the Free 30% and the percent requested (here, 20%). CIGNA's Part A did not offer a lump sum option. Participants could elect to receive their benefits in one of several different annuity options, but they could not receive their benefits in a lump sum. Under Part A, when an employee separated from CIGNA, their plan benefit remained frozen and did not grow, because it was based on the employee's earnings at CIGNA. CIGNA's Conversion to Cash Balance Plan. During 1996 and 1997, CIGNA, along

with outside consultants such as the William Mercer Co. ("Mercer"), engaged in planning for a conversion of its defined benefit pension plan to a cash balance plan. In accordance with its conversion plan, in November 1997, CIGNA's Chief Executive Officer ("CEO") signed an amendment to CIGNA's defined benefit pension plan freezing benefit accruals for all Tier 2 employees and for all Tier 1 employees with a combined age and years of service less than 45. The plan was that Tier 1 employees who had age and service credits of 45 or more would be grandfathered under the old Plan and thus continue to accrue benefits under Part A. All other employees would be moved to the new cash balance plan. The November 1997 amendment provided in pertinent part as follows: Notwithstanding any other provision of the Plan, no Employee who, as of December 31, 1997, is a New Formula Participant or has a combined total of Years of Credited Service and age less than forty-five (45) shall accrue any additional benefits under the Plan after December 31, 1997. . . . The foregoing cessation and/or suspension in benefit accruals and exclusion from eligibility to participate in the Plan after December 31, 1997, shall remain in effect until the adoption of a subsequent amendment to the Plan, and such subsequent amendment may provide for benefit accruals under terms and conditions different from the Plan provisions in effect before 1998. No such subsequent amendment shall result in the accrued benefit of any Participant being less than such Participant's accrued benefit under the plan as of December 31, 1997. 10

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Ex. 2 (Part A), at D00132 (Amendment No. 4) (emphasis added). On December 21, 1998, CIGNA's CEO signed the plan document for the cash balance plan, Part B, as well as an updated Part A plan document. See Ex. 501 (Part A), at D10440; Ex. 1 (Part B), at D00349. Even though the cash balance plan document was not signed until the end of 1998, the cash balance plan was made retroactive to January 1, 1998 so that Part B participants received retirement pay and interest credits for the entire year of 1998. See Ex. 519. Non-grandfathered employees who were employed as of December 31, 1997 became participants in Part B. Additionally, any employees hired for the first time after January 1, 1998 automatically became participants in Part B upon their hire. These individuals are not part of the Class in this case; the Class includes only those Part B participants who previously were participants in Part A. Part B provides that grandfathered participants in Part A who left CIGNA before December 31, 1997 and were rehired after adoption of Part B would become participants in Part B upon their rehire. As a result, those former employees who rejoined CIGNA between January 1, 1998 and December 21, 1998 (when Part B was signed) were placed into Part B. However, in a lawsuit filed by one such rehire, John Depenbrock, the United States Court of Appeals for the Third Circuit held that certain rehires should have remained in Part A, because the amendment creating Part B and establishing its rule applicable to rehires was not valid until signed by CIGNA's CEO on December 21, 1998. See Depenbrock v. CIGNA Corp., 389 F.3d 78, 82-83 (3d Cir. 2004). As a result of the Depenbrock decision, other grandfathered Part A participants who were rehired between January 1, 1998 and December 21, 1998 were notified in February 2005 that their benefits would be recalculated under Part A. See Ex. 539 (Letters from plan administrator regarding Depenbrock dated 11

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February 4, 2005). There are approximately 194 employees who fall into this group. See Ex. 173, at SuppD15466.3 Opening Balances. Non-grandfathered employees who were employed by CIGNA as of

December 31, 1997 received a hypothetical opening account balance that was calculated by reference to their Part A accrued benefits. In particular, the opening account balance was calculated by taking the participant's current annual benefit at normal retirement age (age 65) and computing the actuarial value of that benefit based on a 6.05% interest rate and by using the 1983 (unisex) Group Annuity Mortality Table (GATT). A lower 5.05% interest rate was applied to the accrued benefit at age 62 for Tier 2 participants who were active employees on December 31, 1997 and whose age and service totaled 55 or greater.4 Thus, older or longer-serving employees received a more favorable opening balance calculation than similarly-situated younger or shorter-service employees. By design, therefore, for employees with identical service and compensation histories before 1998, the older employee would always receive a greater opening account balance than the similarly-situated younger employee.

Former CIGNA employees who were rehired between December 21, 1998 and December 31, 2000 became participants in Part B and had their Part A benefits converted into an opening account balance. Employees rehired after December 31, 2000 became entitled to two different benefits based on two different formulas: one based on the benefits earned under Part A before they left CIGNA and a separate benefit based on their service in Part B once they were rehired. See Ex. 504 (Amendment No. 2 to Part B), at SuppD0481-SuppD0482. Because the age-62 benefit included some of the Part A early retirement benefits, a portion of those benefits was included in these participants' opening account balances. However, the full value of those benefits was not protected, and as discussed later, CIGNA acknowledged that early retirement benefits as a rule were not included either in participants' opening account balances or, correspondingly, in the lump sums available under Part B. 12
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The opening balance did not, however, include the full value of the subsidized early retirement benefit, the Social Security supplement, or the Preserved Spouse's benefit. Also, the GATT mortality tables were used to discount the retirement benefit for pre-retirement mortality ­ that is, the likelihood that the participant would die between his or her current age and the normal retirement age of 65. Plaintiff's expert Claude Poulin explained that this pre-retirement mortality discount would be approximately 10% for a 30- or 40-year-old employee. See Trial Tr. 211:14-22. The discount was applied for purposes of determining employee opening balances, and therefore, as an employee grew older and the risk of pre-retirement mortality diminished, the employee would not recoup the amount of the discount taken in calculating the employee's opening balance. Benefit Credits. Part B participants also earn benefit credits that have both a pay and

an interest component. These benefit credits are age- and service-favored ­ that is, Part B provides a higher credit rate to older or longer-service employees than similarly-situated younger or shorterservice employees. The benefit credits are also integrated with Social Security, meaning that Part B provides a higher credit on pay over the Social Security integration level, which is defined as onehalf of the Social Security taxable wage limit each year (for example, $34,200 in 1998). Ex. 1 (Part B), at D00291; Ex. 10 (Sher Report), at 6. The following table shows Part B's pay credit rates:

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Age and Service Points Under 35 35-44 45-54 55-64 65 or More

Rate Applied to Pay Up to Integration Level 3% 4% 5% 6% 7%

Rate Applied to Pay Over Integration Level 4.5 % 5.5 % 6.5 % 7.5 % 8.5 %

Therefore, an employee whose age is 40 with 10 years of service would have age and service points of 50. Assuming a Social Security integration level of $43,500 and further assuming that the employee earned $60,000 in a particular year, the employee would receive a pay credit of $3,247.50 (5% of $43,500 plus 6.5% of $16,500). If that same employee was 60 (thus having 70 age and service points), she would receive a pay credit in that same year of $4,447.50 (7% of $43,500 plus 8.5% of $16,500). As a consequence of the Part B design, for any two participants who have the same service and compensation history, the older one will receive a pay credit for any given year that is the same or higher than the younger employee. Participants in Part B also receive interest credits quarterly on their hypothetical account balances at a floating rate that is subject to change at the beginning of each calendar year. The annualized interest rate is the yield on five-year U.S. Treasury securities in the preceding November plus 0.25%, subject to a minimum rate of 4.5% and a maximum of 9.0%. See Ex. 1 (Part B), at D00293 (§ 4.2(b)). Thus, Plan participants bear the risk of interest rate fluctuations, within the rate corridor provided by the Plan. Interest rate credits continue until the participant's account is paid out as a lump sum or annuity payments begin. In any given year, all participants earn interest at the same rate; the interest rate credit is thus the same for all participants, regardless of age or length of service.

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Under Part B, at retirement, or upon termination of employment, a participant could elect to receive benefits in the form of a lump sum. Alternatively, a participant could elect to receive benefits in one of several other forms available, including a single life annuity (stream of monthly payments payable for life) or a joint and survivor annuity (stream of monthly payments for life, with additional payments payable to a spouse for the life of the spouse). See Ex. 1 (Part B), at D00307D00309 (§ 7.2). Minimum Benefits and Wear Away. Under the terms of Part B, employees receive

the greater of a retirement benefit based on their hypothetical account balances or their minimum benefit, as defined in the Plan. The Plan defined "minimum benefit" as, "in the case of a Participant who has a Part A Accrued Benefit which is converted into an Initial Retirement Account, the Participant's Part A Accrued Benefit, expressed in the form of a single life annuity commencing at the Participant's Normal Retirement Date," "increased by the Equivalent Actuarial Value of the applicable Preserved Spouse's Benefit." Ex. 1 (Part B), at D00280 (§ 1.32). Part B also provided that these employees' Part B accrued benefit, "expressed in the form of an immediate lump sum distribution, shall in no event be less than the present Equivalent Actuarial Value (determined using the Applicable Interest Rate and the Applicable Mortality Table) of the Participant's Minimum Benefit." Ex. 1 (Part B), at D00720 (§ 1.1(c)). In effect, the minimum benefit was the participant's age-65 annuity benefit under Part A, enhanced by the Free 30% spouse's benefit if applicable. Section 7.3 of the Plan also protected the employee's right to subsidized early retirement benefits to which they were entitled under Part A, provided those benefits were taken in the form of an annuity. As a consequence of the manner in which opening balances were calculated under Part B, a participant's opening account balance was not always equivalent to the value of the participant's 15

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Part A accrued benefit. This is because the opening account balances were discounted to account for the risk of pre-retirement mortality and did not include the value of certain benefits, such as the Social Security supplement. As a result, an employee's opening account balance could be much less than the employee's Part A accrued benefit. Take Ms. Amara, for example. Under Part A, before Part B became effective, she had earned vested retirement benefits of $1,833.65 a month starting at age 55. Therefore, that was her Part A accrued benefit. However, her opening account balance under Part B was $91,124.88, which converts to an approximate age-55 annuity benefit of only $900, less than half her Part A accrued benefit. See Ex. 3 (Poulin Declaration), ¶¶ 25-26. Interest rate fluctuations also affect the relationship between an employee's minimum benefit and her account balance. Recall that within a rate corridor bounded by a minimum and a maximum, the employee bore the risk of interest rate fluctuations. Since the opening account balances were calculated by converting each participant's annuity benefit into a lump sum using a particular interest rate (6.05% or 5.05%), if interest rates dropped, the employee's minimum benefit could exceed the employee's account balance. That is just what happened at CIGNA. With one exception, interest rates dropped each year after CIGNA converted to a cash balance plan, and that exacerbated the gap between employees' opening account balances and their minimum benefits. The actual historical interest credit rates under Part B are as follows:

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Year 1998 1999 2000 2001 2002 2003 2004 2005 2006

Interest Credit Rates 6.05% 4.79% 6.22% 5.95% 4.50% 4.50% 4.50% 4.50% 4.70%

Ex. 10; Ex. 587; Ex. 588. To illustrate this point, assume that an employee aged 40 had earned a $1,000 per month annuity before 1998. That annuity would be converted to an opening account balance of approximately $27,900 using a 6% interest rate, but when interest rates dropped to 4.5%, an account balance of $45,150 would be required to purchase that same $1,000 per month annuity. See Ex. 3 (Poulin Decl.), ¶¶ 33-34; Ex. 4 (Supplemental Poulin Declaration), ¶¶ 12-14. Thus, the design of Part B, plus the drop in interest rates, led to a phenomenon that is known as "wear away" for many, though by no means all, employees. Wear away means that there are periods of time in which the employee's account balance is less than the employee's minimum benefit. What wear away means in practice is that even though an employee is continuing each year to receive pay and interest credits under Part B, and the employee's account balance may even be growing, it nonetheless remains less than the minimum benefit earned as of December 31, 1997; in effect, where there is wear away, even though the employee continues to work for CIGNA and continues to receive benefit credits, the employee's expected retirement benefits have not grown

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beyond what the employee was entitled to under Part A as of December 31, 1997. See, e.g., Ex. 40 (2002 memorandum from CIGNA's Vice President for Employee Benefits), at D028635 ("Using the present value of normal retirement age benefits results in a significant 'wear away' period during which time employees accrue no additional benefits with future service."). And, as this case illustrates, it may take years for some employees' account balances to catch up to the minimum benefit to which the employees were entitled under Part A as of December 31, 1997. Take Ms. Amara again. In her case, even though she was earning pay and interest credits every year, Plaintiff's expert Claude Poulin estimated that "it would take over 10 years for her cash balance account to exceed the value of her previously earned benefits." Ex. 4 (Supp. Poulin Decl.), ¶ 22; see also Ex. 3 (Poulin Decl.), ¶¶ 25-27; Ex. 32, at D028174, D028629. Ms. Broderick and Ms. Glanz also experienced several years of wear away, as Defendants' expert, Lawrence Sher, acknowledged. See Ex. 235. According to Plaintiffs' expert, Patricia Flannery experienced nearly six years of wear away, from October 2000 to the present. At the end of 2005, her account balance converted to an annuity benefit of $756 per month, compared to the annuity of $813 per month she had earned with her service before 1998. See Ex. 7; Ex. 156. Plaintiff sought data showing the precise number of employees who actually experienced wear away, but Defendants assert that they do not maintain data that would provide that information. According to Plaintiffs' expert, Mr. Poulin, "the overwhelming majority" of CIGNA's employees experience wear away, with the exception of short-service employees and Tier 2 employees, like Barbara Hogan and Stephen Curlee, who had more than 55 age and service points and therefore benefitted from the 5.05% interest rate used to calculate opening balances. See Trial Tr. 218:15 to 219:9; Trial Tr. 219:15 to 220:1; Ex. 4 (Supp. Poulin Decl.), ¶ 28. 18

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Defendants disagree regarding the precise amount of the wear away and the precise number of years for the catch-up period for any given employee; they also characterize that period differently from Plaintiffs. However, there is no doubt, and Defendants' expert conceded this, that wear away is a real phenomenon, that is a consequence of the design of Part B, and that many CIGNA employees experienced it. See, e.g., Ex. 27 (CIGNA's answers to interrogatories No. 8 and 10); Ex. 241 (Hodges Deposition), at 93-103. Thus, both experts essentially agreed that the reasons for wear away were a combination of the following factors: (a) CIGNA's selection of the "greater of A or B" approach rather than the "A plus B" approach; (b) the exclusion of early retirement subsidies from the opening balances; (c) the application of a pre-retirement mortality discount in determining opening balances; and (d) the effect of falling interest rates after 1997 on the annuities to which the accounts can be converted. Moreover, as Defendants' own expert acknowledged, wear away is a phenomenon that was well known and understood at the time of CIGNA's adoption of a cash balance plan. Thus, in response to the Court's questions, Mr. Sher admitted that wear away can be anticipated depending upon the design of the cash balance plan and the assumptions a company makes about interest rates: The Court: Would it be typical to expect, for a decent sized portion of an employee population, that they might go as long as five or six years before they would actually cross and get into the positive on the conversion? Mr. Sher: I think you have to, first we have to, look at each individual situation. . . . What are the causes of this phenomenon? . . . I would characterize the early retirement as sort of a byproduct, . . . that what we talked about is a natural thing for the early retirement to have that impact. Trial Tr. 1008:17-21, 1008:23 to 1009:10.

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The Court: But going into a plan like this, would you expect there to be . . . [a] reasonably significant portion of your employee population who could expect to not add to their minimum benefit for periods of between three and five years? Mr. Sher: I think it depends. I mean, the early retirement is one factor . . . . One approach is to do this grandfathering which is suggesting that CIGNA did it for a large group of people, not for everyone. So there are some people who are getting that early retirement, who could have that early retirement wearaway and that could last several years, the early retirement wearaway. Trial Tr. 1009:23 to 1010:13. The Court: In 1998, was it predictable and known to CIGNA, because of the various things we talked about ­ probably not with respect to interest rates so much but the early retirement subsidy sort of bringing that out and the preretirement mortality, in fact people's opening balances . . . would be lower than their minimum protected benefit? Mr. Sher: I think certainly benefit projections, you know, could have been done to get at your question . . . . The problem is it's hard to disregard [interest rate changes] but yes, absent that, yes. The Court: Listen, we all have to predict things. Taking normal old regular old interest rate assumptions as you are standing in 1998, you still would have known that the opening balances for some sizeable group of employees, not obviously all, would be less than their protected benefit under the old plan? You would know that because you know mathematically that you are eliminating the early retirement subsidy. Mr. Sher: Yes. Trial Tr. 1029:21 to 1030:22. The Court: [O]ne could . . . have some prediction of whether there was going to be no wearaway; that the wearaway was minimal, you know, two months for most employees; or on average, depending upon where you fell in the spectrum, it could be two to three years. That would be some quantity that might prove to be wrong but would have been at least knowable at the time, right? Mr. Sher: Yes, I think at least my experience, that's often done . . . .

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Trial Tr. 1032:19 to 1033:2; see Trial Tr. 1019:7-11 (The Court: "So in designing these plans, would it be typical that you or the consultants in the company would try to make some estimates of wearaway for the employee population and then discuss potential mitigative solutions or not?" Mr. Sher: "Yes."); Trial Tr. 1031:11-15 (Mr. Sher: "[P]eople do various kinds of analyses including projections using various assumptions as to what might happen in the future. . . . That's how they design the transition provisions essentially, by looking at the potential impact . . . ."). The Court finds that wear away should have been anticipated by CIGNA, though the precise amount of wear away or duration for any given employee could not be predicted with accuracy. As discussed later, CIGNA was aware that its Plan could result in wear away, although there is no evidence in the record that CIGNA made any estimates of the precise amount of wear away for its employee population. See Ex. 81 (Mercer materials, which do not include any calculations of wear away). CIGNA Announces and Describes Conversion to Employees. In early November 1997,

about a year before CIGNA's CEO signed the plan documents for Part B, CIGNA sent a special edition "Signature Benefits Newsletter" (the "1997 Newsletter") to all employees. Ex. 8, Tab 1; Ex 516.5 It was entitled "Introducing Your New Retirement Program," and it described not only the conversion to the cash balance plan, but also enhancements to CIGNA's Savings and Investment Plus ("SIP"), the 401(k) defined contribution plan. The 1997 Newsletter informed employees that a new retirement program was going to be introduced effective January 1, 1998:

Ex. 8, Tab 1 and Ex. 516 are identical and therefore for convenience, the Court will cite to Ex. 516. 21

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On January 1, 1998, CIGNA will introduce a new retirement program. The program includes the new CIGNA Retirement Plan, which replaces the current CIGNA Pension Plan for most employees, plus an enhanced version of Savings and Investment Plus (SIP), our 401(k) plan. Most CIGNA employees will participate in the new CIGNA Retirement Plan, although some long-service employees will remain in the current Pension Plan. . . . If you are moving to the new Retirement Plan, you will continue to earn benefits under the Pension Plan through December 31, 1997, and then transfer to the CIGNA Retirement Plan beginning in 1998. Ex. 516, at D00607 (emphasis omitted). The 1997 Newsletter stated that employees participating in the new plan would "stop earning benefits under the current Pension Plan on December 31, 1997." Id. at D00611. It also informed employees that additional information would be

forthcoming in December 1997. In an inset box on the 1997 Newsletter' s cover, a "Message from CEO Bill Taylor" states: "I am pleased to announce that, on January 1, 1998, CIGNA will significantly enhance its retirement program. . . . These enhancements will make our retirement program highly

competitive . . . ." Id. at D00607. The 1997 Newsletter tells employees that "the new plan is designed to work well for both longer- and shorter-service employees," it provides "steadier benefit growth throughout [the employee' s] career," and it "build[s] benefits faster" than the old plan. Id. at D00610. On the same page, the 1997 Newsletter tells employees that "[o]ne

advantage the company will not get from the retirement program changes is cost savings." Id. However, an internal expense projection prepared at the time showed that CIGNA anticipated a reduced cost of approximately $10 million by virtue of the conversion from a traditional defined benefit plan to a cash balance plan, though it also expected to incur an additional cost of approximately $10 million by virtue of upgrades to its SIP or 401(k) plan. See Ex. 739. The 1997 Newsletter did not discuss or even mention the phenomenon of wear away.

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The 1997 Newsletter described how employees would receive an opening account balance and benefit credits: The new CIGNA Retirement Plan is an account balance plan ­ a type of retirement plan that is becoming increasingly popular as a simpler alternative to traditional pension plans. Here's how the new plan will work: · If you are transferring from the current Pension Plan to the new plan, an account will be set up for you in January. If you earned a benefit under the current Pension Plan, the lump sum value of that benefit as of December 31, 1997, will be transferred to your account as your opening balance. Beginning in January, your Retirement Plan account will grow through two types of credits: - Benefit credits. CIGNA will make a benefit credit to your account for each year in which you work at least 1,000 hours for the company. These credits will range from 3% to 8.5% of your eligible annual earnings, depending on your age, service and earnings. - Interest Credits. CIGNA will also credit your account with interest each quarter until you receive your benefit from the plan. The annual interest rate will vary from 4.5% to 9%, depending on recent yields of 5-year Treasury Bonds. This interest rate is consistent with guidelines set by the IRS for account balance retirement plans. Ex. 516, at D00608 (emphasis omitted). The 1997 Newsletter informed employees that information concerning their account balances was forthcoming: CIGNA will begin the process of calculating final pension benefits and Retirement Plan opening balances early in 1998, after all 1997 payroll data are finalized. Benefit calculations are expected to be completed in the spring. Once balances are calculated, they will be credited to Retirement Plan accounts retroactively to January 1, 1998, so you won't lose any interest credits for the first part of 1998. You will be informed of your final Pension Plan benefit and Retirement Plan opening balance in your Total Compensation Report, scheduled to be mailed in May 1998. Id. at D00611 (emphasis omitted).

·

·

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The 1997 Newsletter also told employees about their options upon leaving CIGNA: When you retire or leave CIGNA, you will have the option to receive your vested account balance in one of two ways. You may choose an annuity (monthly payments for life), or you may take your account balance as a single lump sum payment. The lump sum option is new and resembles the SIP payment option. If you prefer, you may roll over your lump sum payment into an individual retirement account (IRA) or your new employer's qualified retirement plan. This provision allows you to assume investment control over your benefit ­ and defer income taxes on it ­ until you are ready to use it. You will also have the option to leave your account balance in the Retirement Plan, where it will continue to earn interest credits until you elect to receive your benefit. Id. at D00608. In December 1997, CIGNA sent each participant a Retirement Program Information Kit ("Retirement Kit"). Ex. 508. There were four different versions of the Retirement Kit, depending upon whether the participant was being converted to Part B or grandfathered in Part A and whether he or she participated in CIGNA's supplemental pension plan. Again, the Retirement Kit, like the 1997 Newsletter, explains that the changes were being made to "improve the competitiveness of our benefits program and thus our ability to attract and retain top talent." Ex. 508, at D00724 (emphasis omitted). The Kit states that the changes are "enhancements to the plans," and that CIGNA is not saving any money with the changes, "nor has the new program been designed to save money." Id. at D00724- D00725. The Retirement Kit explained that non-grandfathered employees would cease accruing benefits under Part A as of December 31, 1997, and would automatically become a participant in Part B "on January 1, 1998." Id. at D00726, D00718. The Retirement Kit provided greater detail than the Newsletter regarding pay and interest credits, which would be added to employees' hypothetical accounts on a quarterly basis, and payment options. It also told employees that they

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would receive periodic account statements called "Total Compensation Reports" so they could "keep track of [their] account growth." Id. at D00745. The Retirement Kit also contained detailed information about the calculation of opening balances. However, it did not state that a pre-mortality discount would be applied in calculating the opening balances. CIGNA informed employees as follows: Step 2: Converting Your Final Pension Benefit to an Opening Balance Your normal pension benefit is an annual payment made to you for life, beginning when you turn age 65. To convert that annual pension benefit into an opening balance for the new plan, a calculation has to be made to determine how much that future stream of payments is worth today. This type of calculation is called a present value calculation. The method used to calculate the present value of a pension benefit is established by law. Basically, the present value of your pension benefit equals the amount of money that someone would need to invest now to have enough money in the future to pay your annual pension benefit. This calculation is made assuming that the "invested" money would earn a moderate rate of interest (about 6.5% per year). Because of the relatively low interest rate, the amount available to you today is relatively large. In fact, to increase your opening balance, CIGNA has selected a much lower interest rate than the 7% or 8% rate adopted by most companies making similar pension plan changes. Your current age affects the present value of your pension benefit, because the closer you are to retirement age, the less time there is for the lump sum balance to grow, and therefore the more money you need to invest now. Because of this, two people who have earned the same pension benefit at age 65 will have different opening account balances if their ages are different. The older person will have the larger opening balance because there is less time for that person's account balance to grow. Table 1 shows the factors that will be used to convert final annual pension benefits to opening balances. . . . Special Conversion Formula for Older, Longer-service Employees If your age and credited service with CIGNA total 55 or more on January 1, 1998, two special procedures will be used in calculating your opening account balance:

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·

First, your opening balance will be based on the present value of your age 62 early retirement benefit, rather than on the present value of your age 65 normal retirement benefit. The age 62 benefit has a higher present value than the age 65 benefit. Second, a lower interest rate will be used in making the present value calculation (one percentage point less than the standard rule ­ for instance, 5.5% if the standard rate is 6.5%). The lower interest rate increases the size of your opening balance.

·

These special procedures have been adopted because most employees in this age and service category will have fewer years to accumulate benefits under the new Retirement Plan. CIGNA wants to ensure that these older, longer-service employees receive fair and adequate benefits at retirement. Id. at D00719-D00721 (footnote omitted). Under a heading captioned "How Your Benefit Grows," the Retirement Kit states that "[e]ach dollar's worth of credits is a dollar of retirement benefits payable to you after you are vested." Id. at D00740. It also contains examples of how a hypothetical employee's account would grow. The Retirement Kit includes this question: "Will my benefit be better under the new Retirement Plan?" The answer was as follows: The new Retirement Plan is different from the current Pension Plan, so exact comparisons of benefits that cover all possible outcomes are difficult. Generally speaking, the new Retirement Plan, in comparison with the current Pension Plan, tends to provide larger benefits for shorter-service employees and comparable benefits for longer-service employees. . . . Of course, other features of the new plan add to your benefit value as well. The lump sum distribution option can be very valuable, since it will allow you to move your benefits into other tax-deferred investments after you retire or leave CIGNA. Also, because the Retirement Plan works like a savings plan, with contributions credited to an account, you should find it easier to understand. You now have two plans that are account-based, enabling you to track your retirement benefits by looking at your statements. As a result, you will see the growth in your total retirement benefits from CIGNA every year and will be able to update your financial plans accordingly.

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Id. at D00729 (emphasis added); see also id. at D00724 ("[B]enefits will grow faster during the early part of your career."). Once again, there is no discussion of wear away. In response to the question, "Why wasn't I allowed to stay in the Pension Plan?," the Retirement Kit told participants who were being moved to the cash balance plan that "[o]ur analysis showed that, in comparison to people with a higher age and service combination, you have plenty of time to take full advantage of the many attractive features of the Retirement Plan . . . ." Id. at D00725. CIGNA did not produce any such analysis in discovery or at trial. The Retirement Kit also addressed the issue of rehired employees. It noted that they would be placed in Part B. Id. at D00739 ("If you are hired or rehired after January 1, 1998, you will become a participant in the Retirement Plan on your date of hire."). In February 1998, participants received the February 1998 Signature Benefits Newsletter, and in May 1998, participants received an additional newsletter answering frequently asked questions about Part B. See Ex. 97; Ex. 180. The February 1998 Newsletter states that employees hired before 1989 with fewer than 45 age and service points "were moved [to Part B] because they have enough time to take advantage of the new Plan provisions. They do not face the problems that those nearer retirement would face if they were suddenly moved out of the pre-1989 Plan." Ex. 97, at SuppD1330. A June 1998 Newsletter explained how to use the Total Compensation Reports. See Ex. 101. Each participant annually received a Total Compensation Report. One CIGNA employee's 1998 Report showed how the opening account balance was calculated:

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Your Highest Eligible Average Earnings Your Benefit Service Factor Years of Credited Service Your Age 62 Benefit Before Offset Your Social Security Offset (see note) plus Early Retirement Reduction Your Actual Age 62 Annual Benefit Based on average life expectancy at your age and an interest rate of 5.05% the lump sum actuarial factor is Your lump sum benefit ­ Opening Account Balance x x = = x

$143,478.96 01670 7.00 $16,772.69 $3,859.89 $12,912.80 6.0813

$78,562.55

Ex. 85, at P1801. The Report also stated that "[t]his [initial] balance represents the full value of the benefit you earned for service before 1998 payable to you at age 65. . . . This means that the lump sum growing at this rate of interest to retirement is equivalent to the value of the lifetime annuity payments you have earned." Ex. 98, at P1527 (emphasis omitted). The Report also notified employees of financial planning and retirement planning tools that CIGNA had made available to employees. All the named Plaintiffs received annual Total Compensation Reports. These annual statements list the opening balance at the beginning of each year, the new pay and interest credits earned, and the closing balance. See, e.g., Ex. 519; Ex. 520. In October 1998, CIGNA issued the Summary Plan Description ("SPD") for Part B, and a nearly identical version was re-issued in September 1999. Ex. 505 (1998 SPD); Ex. 506 (1999 SPD). The SPD contained information regarding the following topics: eligibility; how breaks in service affect eligibility; how the cash balance account grows, including how pay and interest credits accrue; when benefits are paid; how benefits are paid; how the benefit is affected by certain "life 28

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events"; administrative details concerning the operation of the Plan; minimum benefits; change of control protections; spouse's rights; the appeal process; circumstances under which the Plan can be amended or terminated; and a statement of ERISA rights. See Ex. 505 (1998 SPD); Ex. 506 (1999 SPD). It also informed employees that they could obtain a copy of the Plan from the plan administrator, and the Plan was later made available on CIGNA's intranet site. See Ex. 524. As the Retirement Kit stated, the SPD also repeats the following: "Each dollar's worth of credit is a dollar of retirement benefits payable to you after you are vested." Ex. 505 (1998 SPD), at D00828; Ex. 506 (1999 SPD), at D00624 (same). It explained that "[y]our account balance grows in two ways ­ annual benefit credits and quarterly interest credits. . . . For each year in which you earn a year of credited service, CIGNA will add benefit credits to your account equal to a percentage of your annual eligible earnings. . . . Your account also will grow through interest credits." Ex. 505 (1998 SPD), at D00828-D00829 (emphasis omitted); Ex. 506 (1999 SPD), at D00624 (same). The SPD did not mention or explain wear away, although it did state that participants would never receive less than the minimum benefit: If you participated in the Pension Plan before 1998, your old plan benefits were converted to an opening account balance in this Plan. Your final Plan benefits cannot be less than your old plan benefits on December 31, 1997. If this minimum benefits rule applies to you, you'll be notified by the Retirement Service Center when you request a distribution. Ex. 505 (1998 SPD), at D00838 (original emphasis omitted and emphasis added). The SPD provides the following information to employees who were rehired by CIGNA, and the SPD was provided in binders for new hires and rehired employees: If you were in the old Plan when you left, the pension benefits you earned will be converted to an opening account balance in the this [sic] plan when you return. The conversion formula used [to obtain the opening account balance] is based on 29

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guidelines established by the federal government for valuing pension benefits. If you have questions about the conversion formula, you may call the CIGNA Retirement Service Center at 1.800.224.4624. Ex. 505 (1998 SPD), at D00833; see also Exs. 509-12. This Lawsuit. This lawsuit was filed in 2001 by Ms. Amara and others. Judge

Dominic Squatrito, who previously presided over this case, certified it as a class action on December 20, 2002, see Mem. of Decision [doc. # 61], and additional named Plaintiffs were added on February 15, 2006. See Order [doc. # 164]. On March 12, 2007, this Court issued an order complying with the requirements of new Rule 23(c)(1)(B) [doc # 241], and that Order specifies the class, sub-class, and individual claims and defenses. The following discussion seeks to address the class and subclass issues. II. Threshold Procedural Issues

Before turning to the parties' substantive arguments, the Court will address two threshold procedural issues raised by CIGNA: The first is whether Plaintiffs' claims are time-barred; the second is whether the named Plaintiffs and thousands of other Class members waived the claims asserted in this case. Neither argument has merit. A. Statute of Limitations. Plaintiffs brought this lawsuit under section 502 of

ERISA, 29 U.S.C. § 1132, which does not contain a limitations period. Where Congress fails to provide a statute of limitations, federal courts apply the statute of limitations that governs the most closely analogous state cause of action. See Sandberg v. KPMG Peat Marwick, LLP, 111 F.3d 331, 333 (2d Cir. 1997); Miles v. N.Y. State Teamsters Conference, 698 F.2d 593, 598 (2d Cir. 1983); Chisholm v. United of Omaha Life Ins. Co., 514 F. Supp. 2d 318, 324 (D. Conn. 2007). The question in this case is which state cause of action is most closely analogous to ERISA. Plaintiffs argue for 30

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Connecticut's six-year statute of limitations for written contracts, Conn. Gen. Stat. § 52-576; CIGNA, on the other hand, contends that Connecticut's 180-day statute of limitations for age discrimination claims, Conn. Gen. Stat. § 46a-82, or its two-year statute of limitations for actions to collect wages or fringe benefits, Conn. Gen. Stat. § 52-596, is more appropriate. Every decision of the Second Circuit that the Court has found holds that the most closely analogous state statute of limitations for employee benefit claims similar to Plaintiffs' is that for written contracts.6 Courts have generally reasoned, and this Court now adopts that reasoning, that even when the claim is that a company's plan does not comply with ERISA's statutory requirements, the focus is on the adequacy and legality of the plan itself, which is a written contract between employers and their employees. In Miles, for example, the Second Circuit held that because employee benefit plans are contracts, New York's six-year statute of limitations for causes of action in contract applied to claims under ERISA to determine the employee's eligibility for pension benefits. See 698 F.2d at 598; see also Campanella v. Mason Tenders' Dist. Council Pension Plan, 299 F. Supp. 2d 274, 280 (S.D.N.Y. 2004), aff'd 132 Fed. Appx. 855 (2d Cir. 2005) (applying sixyear statute of limitations for claims of statutory violations under ERISA); Carey v. Int'l Bhd. of Elec. Workers, 201 F.3d 44, 49 (2d Cir. 1999) ("[W]e affirm the judgment of the District Court that Carey's ERISA claim is barred by the six-year statute of limitation.").7 District courts in the Second

Plaintiffs seek relief on the ground that CIGNA has failed to comply with the statutory standards established by ERISA; they have made no claim of breach of fiduciary duty. CIGNA, for its part, has made no argument that Plaintiffs' claims are equivalent to general tort claims for statute of limitations purposes, and therefore the Court expresses no view on that issue. Notably, in Sandberg, one of the few cases to apply a different statutory period, the court distinguished Mr. Sandberg's claims as "claims that an employer aborted the vesting or enjoyment of benefits," 111 F.3d at 334 (emphasis added), not claims that the plan violated ERISA's statutory standards. In such a case, the court held "the most analogous state-law cause of action under section 31
7

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Circuit have also uniformly held that New York's and Connecticut's statutes of limitations for written contracts govern actions under ERISA. See, e.g., Cole v. Travelers Ins. Co., 208 F. Supp. 2d 248, 252 (D. Conn. 2002) (applying Connecticut's six-year statute of limitations for contract actions); Venturini v. Metro. Life Ins. Co., 55 F. Supp. 2d 119, 120 (D. Conn. 1999) (same); Manginaro v. Welfare Fund of Local 771, I.A.T.S.E., 21 F. Supp. 2d 284, 293 (S.D.N.Y. 1998) (applying New York law). Indeed, colleagues in this District have expressly rejected both Connecticut's 180-day statute of limitations for age discrimination claims and its two-year statute of limitations for actions to collect on unpaid wages in favor of the six-year limit for written contracts. See Parsons v. AT&T Pension Benefit Plan, No. 3:06cv552 (JCH), 2006 WL 3826694, at *2 (D. Conn. Dec. 26, 2006) ("Contrary to Sandberg, which involved no claims related to specific benefits, this case deals with determining specific benefits, and thus is about a contract. Hence, the court finds that the most analogous state statute of limitations is six years, for breach of contract claims[, not 180 days, for age discrimination claims]."). As the court explained in Christensen v. Chesebrough-Pond's, Inc., No. 5-92-cv-727(AHN), 1993 U.S. Dist. LEXIS 21278 (D. Conn. Nov. 24, 1993) [T]his court remains unpersuaded that it should depart from the considerable weight of authority which holds that ERISA actions to recover unpaid employee welfare benefits should be governed by state statutes of limitations governing contract actions. In addition, this result is consonant with the remedial nature of ERISA, and the liberal construction traditionally given to the Act, a conclusion that other circuits apparently share. Id. at *16 (citation and quotation marks omitted). This Court agrees.

510 is 'wrongful te