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Jamal J. Kifafi, Individually and On Behalf of All Others Similarly Situated v. Hilton Hotels Retirement Plan

November 21, 2011

JAMAL J. KIFAFI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED PLAINTIFF,
v.
HILTON HOTELS RETIREMENT PLAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Jamal J. Kifafi brought this action on behalf of himself and similarly situated individuals for violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended 29 U.S.C. §§ 1001 et seq., in the Hilton Hotels Retirement Plan. Defendants are the Plan, the individual members of the Committee of the Plan, the Hilton Hotels Corporation, and individual Hilton officers or directors (collectively, "Defendants" or "Hilton"). Presently before the Court is Defendants' [259] Motion for Clarification or in the Alternative Reconsideration, seeking reconsideration of the Court's August 31, 2011 remedial Order. Upon review of the parties' submissions, the relevant legal authorities, and the record as a whole,*fn1 for the reasons stated below, Defendants' motion, is GRANTED IN PART and DENIED IN PART. Defendants' Motion is GRANTED to the extent that Defendants are not required to send union service notice and claim forms to the 478 individuals Defendants identified would not vest even with union service credit. Defendants' motion, to the extent it seeks to limit the recipients of the notice and claim forms based on the gap between hire/service date and the "first record of service" in the Plan, is DENIED AS MOOT.

I. BACKGROUND

The history of this case is thoroughly discussed in the Court's prior opinions, notably the Court's memorandum opinion on summary judgment, see Kifafi v. Hilton Hotels Retirement Plan, 616 F. Supp. 2d 7 (D.D.C. 2009), as well as the Court's opinions regarding equitable remedies, see Kifafi v. Hilton Hotels Retirement Plan, 736 F. Supp. 2d 64 (D.D.C. 2010); Kifafi v. Hilton Hotels Retirement Plan, No. 98-1517, 2011 WL 3836455 (D.D.C. Aug. 31, 2011). The Court assumes familiarity with these opinions, but shall review the facts insofar as they are relevant to the issues discussed herein.

On May 15, 2009, the Court granted in part Plaintiff's motion for summary judgment. See Kifafi v. Hilton Hotels Retirement Plan, 616 F. Supp. 2d 7 (D.D.C. 2009). In relevant part, the Court found that Defendants had violated ERISA with respect to vesting of benefits under the Plan, that is, the time of service required for an employee to obtain a right to his or her accrued benefits. Under the Plan, employees who terminated after January 1, 1989 required five years of service to become vested; employees terminated prior to that date needed ten years of service. By its terms, the Plan required all periods of employment between the date of hire and the date of termination be taken into account, including leaves of absence and union service. Id. at 29. The Court found that Defendants had violated the Plan's vesting provisions with respect to the rights of four certified subclasses (1) employees who did not receive credit for union service for purposes of vesting (the class relevant to Defendants' present motion); (2) employees to whom the 1000 hours standard was not properly applied because of inadequate record keeping; (3) employees who did not receive credit for leaves of absence; and (4) employees who did not receive credit for the year in which they became participants in the Plan for vesting purposes. Id. at 29-32. Accordingly, the Court ruled that the members of these vesting subclasses should be awarded the vesting credit to which they are entitled.

The Court then ordered the parties to submit briefing regarding the equitable relief appropriate to remedy the vesting violations. The Court's September 7, 2010 ruling addressed the parties' proposed remedies. See Kifafi v. Hilton Hotels Retirement Plan, 736 F. Supp. 2d 64 (D.D.C. 2010). The Court rejected the Plaintiff's proposal to count all periods of non-participating service as union service, and the Court likewise rejected Defendants' proposal to credit union service only where Plan records indicate union service. 616 F. Supp. 2d at 30. Instead, the Court ordered Hilton to search its corporate records for information relating to certain union service for 962 subclass members identified by Plaintiff, which must be credited for vesting purposes, and ordered the parties to develop a joint proposal for the claims procedure to be administered by Defendants to the remaining subclass members whose union service was not confirmed by a search of Defendants' records. See 736 F. Supp. 2d at 75-76.

The Court held a hearing on July 28 and 29, 2011 to address the outstanding remedial issues, including the number of individuals to receive claim notices, and the contents of the claim form itself. See 07/28/2011 Tr. at 81-105. While Plaintiff objected to the extent of Hilton's record searches, the Court found Hilton had sufficiently searched the relevant records likely to contain information regrading class members' union service. 2011 WL 3836455 , at *5-6. Plaintiff also asked the Court to order Hilton to subpoena records from the unions to indicate whether class members had union service, but the Court concluded that obtaining the information directly from the class members was the preferred course of action. Id. at *6. As for the individuals to receive the notice, Plaintiffs proposed that rather than limiting the subclass of recipients of notice and claim forms to the 962 individuals previously identified, Hilton should be required to sends notices to all individuals with hire or service dates that pre-date the first year of participation in the plan, roughly 10,000 people. 07/28/11 Tr. at 81:13-82:4. Defendants objected that many of these individuals could not possibly become vested because they did not have sufficient years of service even if credited with union service. Id. at 93:7-11. Because Defendants failed to keep adequate records of union service, the Court held that "Defendants shall send a notice and claim form to members of the subclass whose records show a service date or a hire date that precedes the first year of participation in the Plan and who may become vested if such additional service is credited." 08/31/2011 Order at 7. Plaintiffs were ordered to identify the participants who should receive notice (later estimated at the hearing to be 9,700 individuals), and provide that information to Hilton, which would distribute the notice and claim forms. The Court entered the final remedial Order on August 31, 2011, and Defendants filed the present motion for reconsideration on September 28, 2011.

II. LEGAL STANDARD

Section 502(a)(1)(B) of ERISA allows a participant or beneficiary to bring a civil action "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." 29 U.S.C. § 1132(a)(1)(B). Pursuant to this provision, the Court may order that participants' benefits be recalculated consistent with the terms of the Plan. See Frommert v. Conkright, 433 F.3d 254, 270 (2d Cir. 2006) ("The relief that the plaintiffs seek, recalculation of their benefits consistent with the terms of the Plan, falls comfortably within the scope of § 502(a)(1)(B).").

ERISA also has a "catchall" provision, Section 502(a)(3), which allows a participant, beneficiary, or fiduciary to "(A) enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 507, 511 (1996). Where relief is otherwise available under Section 502(a)(1)(B), equitable relief under Section 502(a)(3) will not be "appropriate." Varity Corp., 516 U.S. at 515. However, where a plan does not conform with the requirements of ERISA, relief under the catchall provision may be appropriate. The phrase "appropriate equitable relief" includes types of relief typically available in equity, but it does not include compensatory or punitive damages. See Mertens v. Hewitt Assocs., 508 U.S. 248, 256-58 & n.8 (1993); id. at 258 n.8 ("'Equitable' relief must mean something less than all relief."). Courts have found that equitable relief is appropriate in ERISA cases where it places participants "in basically the same financial position in which they would be if the employer had complied with the minimum requirements necessary for the [plan] to satisfy the accrual and vesting provisions of ERISA." Carrabba v. Randalls Food Markets, Inc., 145 F. Supp. 2d 763, 770-71 (N.D. Tex. 2000), aff'd, 252 F.3d 721 (5th Cir. 2001) (per curiam).

Federal Rule of Civil Procedure 52(b) provides that "[o]n a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings-or make additional findings-and may amend the judgment accordingly." Fed. R. Civ. P. 52(b). Rule 59(e) states that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). "A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.1996) (per curiam) (internal quotation marks omitted). A motion to reconsider under Rule 59(e) "is [neither] ... an opportunity to reargue facts and theories upon which a court has already ruled nor a vehicle for presenting theories or arguments that could have been advanced earlier." SEC v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C.2010) (internal quotation marks and citations omitted).

III. DISCUSSION

Defendants file the present motion asking the Court to clarify or reconsider the scope of individuals that must receive notice and claim forms as part of the union service subclass. Defendants' motion initially sought to reduce its obligation from the 9,736 individuals identified by Plaintiff as having a hire or service date that preceded the first year of participation in the Plan, to the 962 individuals identified by Plaintiff during the first and second rounds of briefing on remedial issues. Defs.' Mot. at 7. In his opposition, Plaintiff reduced the list of recipients from 9,736 to 3,129. See Pl.'s Opp'n, Ex. A to Decl. of Allison Pienta. Defendants' Reply took issue with sending notices to 39 individuals whom Hilton has already agreed to vest, and 478 individuals who could not become vested even if they had uncredited union service. Defs.'

Reply at 4-5.*fn2 The Court ordered a Sur-Reply from Plaintiff, to determine Plaintiff's position regarding Defendants' objections to the revised list. 11/07/11 Minute Order. Plaintiff agreed that the 39 individuals Defendants previously agreed to vest do not need to receive claim forms, but disputed Hilton's assertion that the group of 478 individuals should not receive notice and claim forms. On November 15, 2011, Defendants mailed the union service notice and claim forms to all but the 478 individuals still in dispute and 49 individuals for whom Hilton has not yet identified a valid address. Defs.' Status Report on Mailing of Union Serv. Notice and Claim Forms, ECF No. [275], at 2. Thus the only issue remaining before the Court on Defendants' motion is whether Hilton is required to send notice and claim forms to the 478 individuals Hilton identified as having ...


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