Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

Document 94

Filed 04/14/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1124-JLK-OES LINDA FORGACS, et al., Plaintiffs, vs. EYE CARE CENTER OF NORTHERN COLORADO, P.C. et al., Defendants.

DEFENDANTS' SUPPLEMENT TO REPLY IN SUPPORT OF SUMMARY JUDGMENT

Defendants, through counsel, submit this Supplement to correct the evidence of record regarding Plaintiffs' 401k accounts.

D.C.COLO.LCivR 7.1 Certification Defendants' counsel certifies that I have conferred with Plaintiffs' counsel, and he does not object to the submission of this Supplement. 1. After filing Defendants' Reply Brief, the undersigned double-checked with

Denver Pension Consultants, LLC, the third party administrator of Eye Care Center's 401k Plan, about how it calculated the additional amounts Eye Care Center deposited into its employees' 401k accounts. Plaintiffs contend the calculation was incorrect, but to date have still not provided an explanation for that position or identified any error. Defendants' counsel wanted to be sure that Denver Pension had applied the formulas in 29 CFR § 2510.3-102.

Case 1:04-cv-01124-JLK-MEH

Document 94

Filed 04/14/2006

Page 2 of 4

2.

In reviewing the amounts of the contributions for the Plaintiffs and the timing of

the deposits of the original and additional amounts into their accounts for the second quarter of 2003, Denver Pension confirmed it had applied the 29 CFR § 2510.3-102 formula and that it had told Eye Care Center to deposit the higher of the two results obtained using the regulatory calculations. 3. For the first time, Denver Pension informed counsel that Eye Care Center was

required to do a follow-up calculation in 2003 of "earnings on earnings," and that Denver Pension had not done this additional calculation because it did not know the actual dates Eye Care Center had deposited the late second quarter contributions and additional amounts. 4. The spreadsheet attached to this Supplement as Exhibit A documents the earnings

on earnings calculation. 5. For example, for Plaintiff Monica Jones, $50.36 was the additional amount 29

CFR § 2510.3-102 required Eye Care Center to deposit into her 401k account based on the total contribution that should have been deposited for her in the second quarter of 2003 and the number of days the contribution deposit was late. Then, once the additional amount was deposited, an additional amount of $2.82 was owed based on how much the $50.36 would have earned if it had been deposited into Jones' account on the deadline for second quarter deposits. Since Jones' 401k account was earning less than 7% in 2003, under 29 CFR § 2510.3-102, Denver Pension used 7% as the higher of the two calculations to determine that Eye Care Center owed Jones another $2.82.

-2-

Case 1:04-cv-01124-JLK-MEH

Document 94

Filed 04/14/2006

Page 3 of 4

6.

Plaintiff Daniel Link had an additional amount of $12.37 that was deposited into

his account in 2003. Since his 401k account was earning more than 7%, Denver Pension used the account's actual earnings of 8.09% to determine that Eye Care Center owed Link another $0.80 as the earnings on earnings for the $12.37. 7. As the spreadsheet shows, $92.99 is the total additional amount the four Plaintiffs

other than Plaintiff Linda Forgacs were owed in 2003 due to the late deposits of second quarter contributions into their 401k accounts. The additional amount of "earnings on earnings" Eye Care Center has just discovered it also should have paid Plaintiffs is $5.31. Eye Care Center has paid the $5.31 into Plaintiffs' 401k accounts. Therefore, $98.30 is the total principal amount on which four Plaintiffs base that part of the first claim under ERISA (the only remaining claim on which federal jurisdiction is based) seeking "penalties . . . pursuant to 29 U.S.C. §1132" based on the late deposits into their 401k accounts. 8. Plaintiff Forgacs did not have late 401k contribution deposits because she was

terminated before the second of 2003. Wherefore, Defendants respectfully request the Court to accept this Supplement and to modify the evidence of record regarding the total amounts owed to each Plaintiff other than Forgacs due to the late deposits of 401k contributions for the second quarter of 2003.

-3-

Case 1:04-cv-01124-JLK-MEH

Document 94

Filed 04/14/2006

Page 4 of 4

Dated: April 14, 2006. Respectfully submitted, By: s/ John R. Paddock, Jr. John R. Paddock, Jr.

Attorney for Defendants

CERTIFICATE OF SERVICE I certify that on this 14th day of April 2006 copy of the foregoing Defendants' Supplement to Reply in Support of Summary Judgment Motion was served by ECF filing on the following: George Price, Esq. 1115 Grant Street, Suite 106 Denver, CO 80203 Fax: 303-484-2421 s/ Mary E. McNichols __________________________________

00286210.WPD; April 14, 2006 (3:45pm)

-4-