                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 JAMAL J. KIFAFI, individually and on
 behalf of all others similarly situated,

        Plaintiff,

        v.                                                  Civil Action No. 98-1517 (CKK)
 HILTON HOTELS RETIREMENT PLAN,
 et al.,

        Defendants.


                                  MEMORANDUM OPINION
                                     (September 7, 2010)

       This action is brought by Plaintiff Jamal J. Kifafi, on behalf of himself and similarly

situated individuals, to recover for violations of the Employee Retirement Income Security Act of

1974, as amended (“ERISA”), 29 U.S.C. § 1001, et seq., in the Hilton Hotels Retirement Plan

(the “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”). On May 15, 2009, this Court granted-in-part Plaintiff’s motion for summary

judgment, finding that Defendants had violated ERISA’s anti-backloading provision, 29 U.S.C.

§ 1054(b)(1)(C), and had violated the Plan’s vesting provisions with respect to the rights of four

certified subclasses. See Kifafi v. Hilton Hotels Retirement Plan, 616 F. Supp. 2d 7 (D.D.C.

2009) (Kifafi III). Having found that Defendants violated ERISA, the Court requested that the

parties submit briefs regarding the equitable relief appropriate to remedy the violations. Plaintiff

filed a [211] Brief on Equitable Relief, to which Defendants filed a [219] Response Brief on

Equitable Relief, and Plaintiff filed a [223] Reply Brief on Equitable Relief. Defendants have
filed a [224] Motion for Leave to File Sur-Reply on Equitable Relief and for Expert Discovery in

Advance of Remedies Hearing, to which Plaintiff has filed an Opposition, and Defendants have

filed a Reply.

       The parties’ briefs on equitable relief reflect a number of significant disagreements about

the proper scope of equitable relief that should be ordered by the Court. The parties have filed

competing proposals to remedy the benefit accrual and vesting violations previously found by the

Court, and the parties also dispute how each party’s proposal should be applied to the certified

classes. This Memorandum Opinion sets forth the Court’s ruling as to a number of the issues

disputed by the parties. However, a final order of equitable relief cannot be issued until the

parties further confer about the proper means of implementing this Court’s rulings and a hearing

is held to resolve certain disputed factual issues.

       As explained below, the Court shall generally endorse Defendants’ proposal for

remedying the backloading violations, but the Court rejects Defendants’ contention that relief

should be limited to participants who separated from service after 1987. With respect to

Defendants’ failure to credit union service for purposes of vesting, the Court shall order

Defendants to credit union but not other non-participating service; the Court shall require Hilton

to search its corporate records for information relating to class members’ union service and

permit class members to submit claims based on union service not reflected in records. With

respect to Defendants’ violation of the 1000 hours of service standard, the Court shall adopt the

parties’ proposal to apply the 870/750 hours worked standard with hours equivalencies but reject

Plaintiff’s proposal to apply equivalencies to periods of time for which there are no records of

hours of service. With respect to Defendants’ failure to credit the first year of participation, the


                                                      2
Court shall reject Plaintiff’s proposal to credit participants with a year of service for the first year

in which there is any record of participating service. With respect to Defendants’ failure to credit

leaves of absence, the Court shall not order additional discovery of corporate records as

requested by Plaintiff. The Court declines to order additional discovery of Hilton’s records

except with respect to union service, as mentioned above. The Court also does not see the need

to appoint a class action administrator to oversee the implementation of final relief, but the

parties should develop a more limited mechanism for monitoring Hilton’s implementation of

remedies. The Court shall not approve lump sum payments in lieu of future benefits owed to

participants, nor shall it include a cy pres provision in its final order. Other disputed issues of

fact, such as the alleged application of unlawful equivalencies or elapsed time methods and

discrepancies between versions of the Plan’s database, shall be decided at a final remedies

hearing.

                                        I. BACKGROUND

        The factual and procedural history of this case was thoroughly discussed by the Court in

its Memorandum Opinion issued on May 15, 2009. See 616 F. Supp. 2d at 10-21. The Court

incorporates that discussion herein and assumes familiarity with that opinion. Nevertheless, the

Court shall briefly summarize its prior ruling and the relevant background facts.

        The Hilton Hotels Retirement Plan (the “Plan”) is a defined benefit pension plan subject

to ERISA. Benefits under the Plan accrue according to a formula based on an employee’s

average compensation and years of service, with an offset for the employee’s Social Security

benefits. See 616 F. Supp. 2d at 13-14. ERISA prevents employers from “backloading” benefits,

i.e., using a benefit accrual formula that postpones the bulk of an employee’s accrual to his later


                                                   3
years of service. Id. at 11. In order to prevent backloading, ERISA requires defined benefit

plans to satisfy one of three alternative minimum accrual rules, known as the “3% rule,” the “133

1/3% rule,” and the “fractional rule.” Id. at 11-12; see 29 U.S.C. § 1054(b)(1). Beginning in

1976 and continuing until 1999, the Plan contained an accrual schedule that was supposed to

comply with ERISA’s “133 1/3% rule.” 616 F. Supp. 2d at 14. In 1999, after this lawsuit was

filed, Hilton amended the Plan’s benefit accrual formula seeking to comply with the fractional

rule. Id. at 16. The 1999 amendment (Amendment 1999-1) also changed two unrelated aspects

of the Plan that lowered benefits for participants. Id. Following briefing on summary judgment,

this Court held that the pre-amendment Plan failed to comply with any of the three minimum

accrual rules and that the pre-amendment Plan was required to comply with the 133 1/3% rule.

Id. at 24. The Court concluded that “the Plan’s participants are entitled to receive the benefits

they would have accrued had the Plan complied with the 133 1/3% rule.” Id. at 24. The Court

also concluded that the 1999 amendment to the Plan did not moot the ERISA violation found by

the Court. Id. at 25-28. The Court’s ruling applies to a certified class of current and former

Hilton employees (the “benefit-accrual class”).1

       The Court also found that Defendants had violated ERISA with respect to the vesting of

benefits under the Plan, i.e., the time of service required for an employee to obtain a right to his


       1
           The benefit-accrual class is defined as follows:

       all former and current employees of Hilton Hotels Corporation who were employed
       by Hilton Hotels Corporation after January 1, 1976 and have, or may obtain, a vested
       right to pension benefits from the Hilton Hotels Retirement Plan, and whose Hilton
       Hotels’ pension benefits have been, or will be, reduced as a result of the Defendants’
       failure to accrue retirement benefits at the annual rates that ERISA requires.

Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (Kifafi I).

                                                   4
or her accrued benefits.2 Employees who terminated after January 1, 1989 need five years of

service to become vested; employees who terminated prior to that date needed ten years of

service. ERISA requires employers to count all of an employee’s years of service for calculating

his or her years toward vesting, even if they occur prior to participation in the retirement plan. 29

U.S.C. § 1053(b)(1); 616 F. Supp. 2d at 12. ERISA generally requires an employee with 1000

hours of service during a twelve-month period to be credited with one year of service. 29 C.F.R.

§ 2530.200b-1. In calculating the 1000 hours of service, the employer must count not only hours

worked but also hours “during which no duties are performed . . . due to vacation, holiday,

illness, incapacity . . . layoff, jury duty, military duty or leave of absence.” Id. § 2530.200b-2(a).

If an employer’s existing records do not allow it to properly calculate an employee’s hours of

service, the employer may “use a permitted equivalenc[y].” Id. § 2530.200b-3(a). One such

equivalency focuses on “hours worked,” in which an employee who works 870 hours is credited

with 1000 hours of service. Id. § 2530.200b-3(d).

       Beginning in 1976 and continuing until the Plan was amended in December 2002, Hilton

applied the 1000 hours standard for calculating employees’ years of service. 616 F. Supp. 2d at

29. By its terms, the Plan required all periods of employment between the date of hire and the

date of termination to be taken into account, including leaves of absences and union service. Id.



       2
         As the Court previously explained, vesting and accrual are distinct but related concepts.
616 F. Supp. 2d at 10. “Vesting” concerns when an employee has a right to pension, whereas
“accrual” refers to the amount of benefits to which an employee is entitled. Id. at 10-11.
“Because ‘vesting is tied to length of employment’ and the accrual of benefits ‘depends upon
participation in the plan,’ it is possible for employees to ‘earn credit toward vesting without
accumulating any pension benefits.’” Id. at 11 (quoting Holt v. Winpisinger, 811 F.2d 1532,
1537 (D.C. Cir. 1987)).


                                                  5
at 14. The Court found that Defendants had violated the Plan’s vesting provisions with respect to

four certified subclasses: (1) they failed to credit employees’ union service for purposes of

vesting3; (2) they failed to properly apply the 1000 hours standard because they kept inadequate

records; (3) they failed to credit employees’ leaves of absence; and (4) they failed to count the

year in which employees became participants in the Plan for vesting purposes. 616 F. Supp. 2d

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.

                                     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



       3
         Although there was evidence in the record to suggest that Hilton failed to credit other
types of nonparticipating service for purposes of vesting, the Court declined to expand the scope
of the subclass beyond employees’ union service for the reasons stated in that opinion. 616 F.
Supp. 2d at 30 n.18.

                                                  6
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” encompasses those categories of relief typically

available in equity, such as injunction, mandamus, and restitution, 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.”) Thus,

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).

                                       III. DISCUSSION

       The parties have each filed briefs in support of their separate proposals for remedying the

minimum accrual rate and vesting violations previously found by the Court. After Plaintiff filed

its Reply Brief on Equitable Relief, Defendants filed a Motion for Leave to File Sur-Reply on

Equitable Relief and for Expert Discovery in Advance of Remedies Hearing. Defendants ask the

Court for permission to file a Surreply, which they attached to their motion, in order to rebut

certain arguments raised by Plaintiff in his Reply regarding Defendants’ proposed remedies.

Plaintiff opposes this request, arguing that Defendants’ motion is untimely and that the Surreply

merely restates arguments that were or could have been raised in Defendants’ Response Brief on


                                                 7
Equitable Relief. While the Court notes that surreplies are generally disfavored, Plaintiff’s Reply

Brief does contain detailed criticisms of Defendants’ proposals as well as a supplemental

declaration from its expert, to which Defendants should be permitted to respond. Moreover,

Plaintiff has failed to identify any prejudice suffered by any delay in filing,4 which occurred

while the parties were in mediation. Therefore, the Court shall grant Defendants’ motion for

leave to file a Surreply, and the Court shall consider the Surreply in ruling on the appropriate

equitable relief.

        With respect to Defendants’ request for discovery in advance of a remedies hearing, the

Court agrees with Plaintiff that discovery is not warranted at this time. The Court has not yet

determined that there are material factual issues in dispute that require a remedies hearing. Cf.

United States v. Microsoft Corp., 253 F.3d 34, 101 (D.C. Cir. 2001) (holding that courts must

conduct an evidentiary hearing to resolve disputed factual issues in determining appropriate

relief). The parties have submitted separate proposals for equitable remedies that rely on the

declarations of experts who disagree about the propriety of the other party’s proposals under

ERISA. This Court shall make a legal ruling about what equitable relief is appropriate based on

its prior decision as to liability, relying on facts that are not in dispute. The Court shall then hold

a remedies hearing to resolve any factual disputes as to methodology, if necessary. Accordingly,

the Court shall deny Defendants’ motion for expert discovery.

        The parties agree that all relief should be provided in the form of benefits to be provided

from Hilton’s tax-qualified plan. However, the parties disagree regarding the benefit calculations

that should be required to remedy the minimum accrual rate and vesting violations previously


        4
            Defendants’ motion was filed 63 days after Plaintiff’s Reply Brief was filed.

                                                   8
found by the Court. The Court shall address each of their proposals below.

        A.        Remedies for the Minimum Accrual Rate Violation

        The parties agree that the cause of the unlawful “backloading” of benefits under the Plan5

is the fact that the Plan’s benefit formula includes an offset for Social Security benefits that is

disproportionately large during an employee’s early years of plan participation. Generally

speaking, the Plan’s benefit formula provides that the amount of benefits payable at retirement

age is equal to 2%6 of the employee’s average monthly compensation (as defined by the Plan)

multiplied by the number of years of service for that employee, minus an offset for “Integrated

Benefits,” which includes, inter alia, an estimate of the Social Security benefits that the worker

will receive at retirement. See Hilton Hotels Retirement Plan (As Amended and Restated

Effective January 1, 1987), Decl. of Jonathan K. Youngwood, Ex. B (“1987 Plan”)7 § 4.1.8 Thus,

the amount of benefits an employee accrues each year under the Plan depends in part on his

estimated Social Security benefits. Due to the payment structure of the Social Security program,

the Plan’s offset for Social Security payments is relatively high during an employee’s early years

and relatively low during the employee’s later years. The result is that the accrual rates during


        5
          In discussing the remedies for benefit-accrual class, the Court refers to the Plan in effect
prior to the 1999 amendment, unless otherwise noted.
        6
            The parties agree that for workers who separated from service prior to 1982, the rate is
1.5%.
        7
        The 1987 Plan was actually signed on December 29, 1994 and made effective as of
January 1, 1987.
        8
         The Plan defines “Integrated Benefits” as including 50% of the estimated primary Social
Security benefit that will be available to the employee at retirement based on the employees’
earnings. See 1987 Plan at 19. “Integrated Benefits” may also include certain amounts earned
under other pension plans or programs. See id. at 19-20.

                                                   9
the early years of the Plan are very low compared to later years, violating the 133-1/3% rule.

       The parties agree that for purposes of remedying the backloading violations in the Plan,

the maximum annual accrual rate under the Plan is 1.91% of the employee’s average monthly

compensation (“AMC”).9 To comply with the 133 1/3% rule, the annual accrual rate in any

given year cannot be more than 133 1/3% of the annual accrual rate in any previous year.

Therefore, the minimum accrual rate allowable under the Plan is 1.91% divided by 133 1/3%,

which is 1.4325%.10

       Plaintiff’s proposed remedy, stated most simply, is to increase the benefits paid to

participants so that any annual accrual rate below 1.4325% will be raised to 1.4325%, and all

annual accrual rates at or above 1.4325% remain unchanged. Plaintiff’s actuarial expert, Claude

Poulin, has calculated a schedule of revised benefits for members of the benefit-accrual class

based on this proposed remedy. Plaintiff’s proposal calls for participants to receive a “base

benefit increase” that varies based on the year the participant separated from the Plan, with

certain adjustments. See Pl.’s Br., Decl. of Claude Poulin (“Poulin Decl.”) ¶¶ 5-18. Mr. Poulin

contends that different base benefit amounts are necessary to account for changes in the Social

Security wage base and schedule each year. See Pl.’s Reply, Supp. Decl. of Claude Poulin

(“Supp. Poulin Decl.”) ¶ 23. According to Mr. Poulin’s calculations, 22,015 participants who are



       9
         The maximum accrual rate is somewhat less than 2% because the Social Security offset
will always be greater than zero (and in this case, the parties agree, it will always be at least .09%
of AMC).
       10
          For participants who separated before 1982, Defendants contend that the maximum
accrual rate was 1.41%, requiring a minimum accrual rate of 1.0575% in order to comply with
the 133 1/3% rule. Plaintiffs agree that the maximum rate is no higher than 1.5% but have not
stated whether they agree with Defendants’ 1.41% figure.

                                                 10
currently vested should receive benefit increases to remedy the backloading violation. Poulin

Decl. ¶ 22. Plaintiff relies on a complex set of schedules and adjustments to ensure that each

participant’s benefits are adjusted accordingly.

       Defendants’ proposed remedy is simpler and rather more elegant. Defendants propose

amending the benefits formula by capping the Social Security offset at .5676% of AMC, thereby

mathematically ensuring that the annual accrual rate never falls below the required minimum of

1.4325%.11 Under this approach, Plan participants will receive an increase if, as a result of the

original offset, they received a benefit that was less than what would have accrued had the Plan

ensured that the annual accrual rate could not fall below 1.4325% during the first 25 years of

service.12 Defendants propose providing these participants with “true up” payments to remedy

the deficiencies to date and increase their annuity payments going forward. However,

Defendants note that not all participants will receive an increase under their proposed remedy

because some participants would not have accrued higher benefits even if they had a minimum

annual accrual rate of 1.4325% during their first 25 years of service. See Defs.’ Br. at 9. Many

of these participants, Defendant argues, “outgrow” the backloading that occurs during their early

years of service. See id. at 14-15. Some other highly paid participants never had annual accrual

rates of less than 1.4325%. Id. at 12-14; Decl. of Ian H. Altman (“Altman Decl.”), Ex. 2 (Chart

2C).

       Although they sound similar, the parties’ proposals are distinctly different. Plaintiff’s


       11
        For participants who terminated before 1982, Defendants propose capping the offset at
.4425% of AMC.
       12
         The benefits formula changes slightly after 25 years of service, and the parties’
proposals account for this change.

                                                   11
proposal essentially freezes the Plan’s existing accrual rates and then seeks to add benefits to

early years until the minimum annual accrual rate reaches 1.4325%. By contrast, Defendants’

proposal changes the benefits formula in a way that shifts benefits accrued in later years to earlier

years. The result is that under Defendants’ plan, the annual accrual rate decreases slightly during

some later years to make up for the fact that there are higher accrual rates in early years. This

happens purely by mathematical operation of Defendants’ modified benefits formula.

       In his Reply, Plaintiff argues that Defendants’ proposed remedy does not satisfy the 133

1/3% rule because it employs an “average rate of accrual” methodology that is explicitly rejected

by ERISA regulations. See Pl.’s Reply Br. at 5-11. Plaintiff (and his expert, Mr. Poulin) point to

an example in the Treasury Regulations in which the rate of accrual is 2% for the first five years,

1% for the next five years, and 1.5% for each following year. See 26 C.F.R. § 1.411(b)-

1(b)(2)(iii) (Example 3). Although the average rate of accrual under such a scheme “is not less

rapidly than ratably,” it nevertheless fails the 133 1/3% rule because 1.5% is more than 133 1/3%

of the lowest rate, 1%. Id. However, Defendants’ proposed solution caps the Social Security

offset so as to ensure that the minimum accrual rate in any given year is never less than 1.4325%

(or 1.0575% for participants who separated before 1982). Therefore, it does not, in fact, rely on

an “average rate of accrual” methodology. Plaintiff also relies on the IRS’s Technical Advice

Memorandum (“TAM”) issued in 2002, which analyzed the Plan and found that it failed to

comply with the 133 1/3% rule because the initial rate of accrual under the Plan is generally

.71%. See Supp. Poulin Decl., Ex. 4 (TAM). Plaintiff argues that the IRS’s analysis contradicts

Defendants’ assertion that some highly paid participants never had rates of accrual below

1.4325%. See Pl.’s Reply at 8-9. However, Defendant’s expert, Ian Altman, correctly explains


                                                 12
that the IRS’s analysis was based on Social Security calculations in 1996, which cannot be

applied retroactively to prior years when determining compliance with the 133 1/3% rule. See

Supp. Expert Report of Ian Altman ¶ 5.

        Plaintiff’s criticism of Defendants’ proposal is founded on his view that because the Plan

violated the 133 1/3% rule, every Plan participant must be owed some remedy. But the

backloading violation in the Plan does not affect all participants equally. As the Court explained

in its decision on liability,

        The primary purpose of [minimum accrual rates] is to prevent attempts to defeat the
        objectives of the minimum vesting provisions by providing undue “backloading,”
        i.e., by providing inordinately low rates of accrual in the employee’s early years of
        service when he is most likely to leave the firm and by concentrating the accrual of
        benefits in the employee’s later years of service when he is most likely to remain with
        the firm until retirement.

Langman v. Laub, 328 F.3d 68, 71 (2d Cir. 2003) (quoting H.R. Rep. No. 93-807 (1974)). Thus,

by preventing the backloading of benefits, ERISA protects employees who work only a short

period from vesting with only a minimal amount of accrued benefits. See Hoover v.

Cumberland, Maryland Area Teamsters Pens. Fund, 756 F.2d 977, 982 n.10 (3d Cir. 1985). But

employees who stayed in the Plan for a longer period of time eventually accrued those benefits

that were denied to them in earlier years of service. The term “backloading” is quite appropriate

to explain this phenomenon, as the benefits that did not accrue in early years of service are

loaded into the back end of an employee’s years of service. As Hilton describes it, longer-term

employees “outgrow” the violation of the 133 1/3% rule that would have affected them if they

had separated in early years. Thus, although Hilton’s proposed remedy provides additional

benefits to workers who were shortchanged because they terminated after a relatively brief period



                                                  13
of service, it does not provide additional benefits to longer-term workers who made up any initial

deficiency through their longevity with Hilton. That is not to say that there was no ERISA

violation with respect to these longer-term workers. But those workers suffered no decrease in

benefits as a result of the violation and therefore are not entitled to equitable relief. See Mertens,

508 U.S. at 256-58 & n.8 (holding that equitable relief under ERISA does not include

compensatory damages to fully remedy all injuries). Indeed, as Hilton points out, such workers

are not even a part of the benefit-accrual class, which is limited to employees whose benefits

“have been, or will be, reduced as a result of the Defendants’ failure to accrue retirement benefits

at the annual rates that ERISA requires.” Plaintiff’s proposal improperly provides a windfall to

many of these participants whose benefits were not reduced by backloading.

       Therefore, the Court endorses Hilton’s proposed remedial benefits formula, which is

easier to implement and properly compensates individuals whose benefits were reduced as a

result of Defendants’ failure to comply with the 133 1/3% rule. The Court shall require the

parties to recalculate benefits for the benefit-accrual class based on Defendants’ formula and

attempt to resolve any disagreements about the specific amounts owed to particular class

members.

       The Court must also address Defendant’s contention that equitable relief should be

limited to Plan participants who separated from service after December 29, 1994 (or,

alternatively, January 1, 1987). Defendants argue that this is appropriate because the Plan did not

explicitly provide for compliance with the 133 1/3% rule until an amendment was signed on

December 29, 1994 (and made retroactive to January 1, 1987). In essence, then, Defendants ask

the Court to provide no remedy for 6096 participants whose benefits were calculated under an


                                                  14
unlawfully backloaded plan. That is not an equitable result. It is true that Plan participants could

not have relied on the Plan’s purported compliance with the 133 1/3% rule until the 1994

amendment was signed. However, the pre-amendment Plan did not comply with any of the three

minimum accrual tests under ERISA, and it is appropriate for the Court to reform the Plan so as

to comply with ERISA. See Carrabba v. Randalls Food Mkts., Inc., 145 F. Supp. 2d at 773

(“Due to the absence of an accrual method in the plan, the court is called upon to select for use in

the calculations of the awards to be made to the participants against defendant one that, in equity,

most appropriately recognizes the objectives of the [plan] in an ERISA context.”) The 1994

amendment explicitly adopted the 133 1/3% rule, and it did so without substantially changing the

benefits formula that existed previously.13 By contrast, when Hilton amended the Plan in 1999 to

comply with the fractional rule, it made substantial modifications to the benefits that would be

paid to participants. 616 F. Supp. 2d at 16. The parties have never urged the Court to consider

the 3% rule. Id. at 11 n.2. For these reasons and the reasons stated in the Court’s prior decision

on liability, the Court finds it is appropriate to conform the pre-amendment Plan to the 133 1/3%

rule, including participants who separated before 1987.

       B.      Remedies for Vesting Violations

       The parties have filed separate proposals to remedy the vesting violations previously

found by the Court. Unfortunately, the parties have agreed on little, and the number of disputes


       13
          The benefits formula in the 1976 Plan provided that the normal retirement benefit is
equal to 1.5% of an employee’s final average earnings multiplied by his years of service, minus
his Integrated Benefits. See Hilton Hotels Retirement Plan (As Amended and Restated Effective
January 1, 1976), Decl. of Jonathan K. Youngwood, Ex. A (“1976 Plan”) § 4.1. The benefits
formula in the 1987 Plan is virtually the same, except with a 2% rate and slightly altered
definitions for the input variables. See 1987 Plan § 4.1. By contrast, the 1999 Amendment
significantly altered this benefits formula so as to comply with the fractional rule.

                                                 15
remained to be resolved by the Court is substantial. The Court shall address what appear to be

the parties’ largest disagreements regarding vesting remedies.

                1.      Remedies for Failure to Credit Union Service

        This Court previously determined that under the terms of the Plan, Hilton was required to

credit employees’ union service for purposes of vesting, yet it failed to do so. Defendants

propose to remedy this violation by crediting any union service that is reflected in the Plan

records. Plaintiff, however, argues that Defendants should be required to credit all years of non-

participating service. Plaintiff argues that it is necessary to credit all non-participating service,

not just union service, because ERISA requires that an employer credit all years of service toward

vesting. Pl.’s Br. at 21. Accordingly, Plaintiff proposes to credit participants with vesting

service for any period of time between their original date of hire according to corporate records

and their date of hire according to Plan records. Id. at 25. Additionally, Plaintiff proposes to

credit participants with vesting service for any period of time they were employed by a

“Participating Employer” or Affiliate. Id. at 25-26.

        The Court previously ruled that it would not expand Plaintiff’s union service claim to

include all “non-participating” service because Kifafi never moved to expand the scope of the

subclass and the Court never certified a “non-participating service” subclass. 616 F. Supp. 2d at

30 n.18. Having declined to expand the claim at the liability stage, the Court will not do so now

at the remedy stage. Thus, the Court agrees with Defendants that the objective of any injunctive

relief should be to compensate individuals with vesting credit for years of union service. The

relevant question with respect to the remedy, however, is whether Hilton’s records of union

service are accurate enough to be relied upon on their own or whether non-participating service


                                                  16
should be used as a proxy for union service because the records are inadequate.

       Plaintiff claims that the Plan’s records of union service are not reliable because they are

not coded to show union service that occurred before an employee became a participant or after

an employee’s participation ended. See Pl.’s Reply, Supp. Decl. of Allison C. Pienta (“Supp.

Pienta Decl.”) ¶ 24. In other words, where Plan records indicate pre- or post-participation

service, Plaintiffs contend that there is no way to tell whether or not the employee was in a union

position. Plaintiff cites a number of examples of employees who served at unionized Hilton

properties but whose years of service are not credited in Plan records. See Supp. Pienta Decl.

¶ 25; Pl.’s Mot. for Summ. J., Ex. 54 (Supp. Decl. of Martha Anderson).14 These examples were

found by Plaintiff based on Plan participants’ responses to a questionnaire. Supp. Pienta Decl.

¶ 25. Plaintiff also cites the example of Kifafi, whose union service was not reflected in his

pension records. Plaintiff contends that “Hilton has declined to produce any corporate records

that would show whether employees were in union positions.” Pl.’s Reply at 30.

       Therefore, Plaintiff argues that there are only two viable remedial options: either (1)

count all years of non-participating service identified in the Plan’s records (which would capture

union service as well as some non-union service); or (2) establish a claims procedure to identify


       14
          Plaintiff also cites the example of Diann McKinney, whose “Service Date” is listed as
“4/13/1979” but whose participation in the Plan does not begin until 1985. See Pl.’s Mot. for
Summ. J., Ex. 66. Plaintiff argues that Ms. McKinney served in a union position from 1979 to
1985 and that this union service is not reflected in the records. See Pl.’s Reply at 29-30.
However, Ms. McKinney’s declaration actually states that she was a “full-time, non-union
employee” for Hilton from 1979 to 1986. See Pl.’s Mot. for Summ. J., Ex. 50 (Decl. of Diann
McKinney) ¶ 2. Therefore, Ms. McKinney’s example does not support Plaintiff’s position.
There appear to be other mistakes in Plaintiff’s examples, as well. For example, at least one
participant referenced in Ms. Pienta’s supplemental declaration is identified as having worked in
a non-union location. See Supp. Pienta Decl. ¶ 25; Pl.’s Mot. for Summ. J., Ex. 54 (Supp. Decl.
of Martha Anderson), Ex. E, line 12.

                                                17
individuals whose years of service were not credited by Hilton. The first option would not be

inequitable for Hilton, Plaintiff contends, because ERISA already requires all non-participating

years to be counted for vesting purposes. See Holt v. Winpisinger, 811 F.2d at 1537. Plaintiff

argues that the second option would likely result in incomplete relief for the subclass because of

the likelihood of low response rates. See Pl.’s Reply at 30.

       Although Defendants filed a surreply in order to respond to the claims raised in Plaintiff’s

reply brief, Defendants failed to directly address the adequacy of Plan records with respect to

union service in light of Plaintiff’s cited examples. Defendants’ expert, Ian Altman, contends in

his report that there are a number of reasons why the date of hire would precede the first date of

service in Plan records, such as an error in recording a hire date or a period of service for which

benefits were earned and distributed before a re-hire. See Defs.’ Br., Expert Report of Ian H.

Altman, FSA (“Altman Report”) at 22 n.3 & ¶ 56. Therefore, he argues that a discrepancy

between a hire date and service date does not support a claim for uncounted union service hours.

See Altman Report ¶ 56 (“Without evidence of hours worked as a union employee, it is

unreasonable to award vesting for phantom service.”)

       The Court does not agree with Defendants that no credit can be awarded for union service

where the records do not explicitly show that an employee had eligible union service. As the

Court noted in its decision on liability, there is evidence in the record that Hilton never “kept

track of nonparticipating properties’ employees (hours/earning) to give them vesting.” See 616

F. Supp. 2d at 19 (citing Pl.’s Ex. 27 at 4 (5/9/02 Email Exchange between V. Stoicof and G.

Trotter)). In light of this record evidence and the examples cited by Plaintiff in its Reply Brief on

Equitable Relief of employees whose union service was not reflected in the Plan’s records, the


                                                 18
Court cannot conclude that Defendants’ proposed remedy—crediting union service solely as

reflected in Plan records—is adequate to remedy the violation found by the Court.

        However, based on the present record, the Court also cannot conclude that Plaintiff’s

proposed remedy—crediting participants with vesting credit for all years of non-participating

service reflected in Plan records (which would presumably include some union service and some

other non-participating service)—is an equitable result. It is not clear to the Court, based on the

parties’ submissions, why the Plan has records of some union service but not other union service.

It is also not clear how many participants who did not have any union service would become

vested under Plaintiff’s proposed remedy, making it difficult to determine whether the benefits to

such persons would be purely incidental to relief for the subclass or constitute an end-run around

the Court’s class certification ruling.

        Because there is uncertainty about whether there are corporate records that would indicate

union service beyond what the Plan records show, the Court shall order Defendants to conduct a

search of their corporate records. Defendants shall be required to identify and produce any

records that demonstrate, with respect to the potential subclass members identified by Plaintiff,15

whether or not those subclass members had union service that is not reflected in Plan records.

Defendants shall be required to certify by affidavit that they have conducted a thorough search

for any such records. Once that search is complete, Defendants shall administer a claims

procedure that will notify all subclass members for whom union service has not been identified

that they may submit a claim if they believe they have union service that is not reflected in the


        15
          Initially, Plaintiff identified 962 participants who it believed would become vested if
union and non-participating service were credited. It appears that Defendants agree that at least
183 of these individuals should become vested. See Altman Report, Ex. 5.

                                                 19
records.16 The parties shall confer regarding the standards for claim administration and jointly

propose a procedure to be approved by the Court. Defendants shall bear the cost of

administering the claims procedure. Alternatively, if Defendants prefer to avoid the costs of

searching corporate records and establishing a claims procedure, they may agree to Plaintiff’s

proposal to credit all non-participating service.

               2.      Remedies for Violations of the 1000 Hours of Service Standard

       This Court previously determined that Hilton violated the terms of the Plan’s vesting

provisions by using a 1000 hours of service standard when it failed to maintain the records

necessary to implement it. Under ERISA regulations, when a plan fails to keep records adequate

to determine all of the hours that an employee should be credited (which includes hours for

which the employee was entitled to be paid as well as hours for vacation, holiday, illness, leave

of absence, etc.), the plan may use an “equivalency.” See 29 C.F.R. § 2530.200b-3(a). Under the

“hours worked” equivalency, an employee is credited with a year of service if he has 870 hours

worked during a twelve-month period (or 750 for a salaried employee). Id. § 2530.200b-3(d).

Alternatively, a plan may use an equivalency based on periods of employment, such that for each

month of employment in which the employee would otherwise be credited with at least one hour

of service, the employee is credited with 190 hours of service. Id. § 2530.200b-3(e)(1)(iv).

       Defendants’ proposed remedy calls for the 870/750 “hours worked” equivalency to be

applied in lieu of the 1000 hours of service standard where an employee’s records are sufficient




       16
           The Court anticipates that class counsel may seek to obtain records of union service
directly from the unions.

                                                    20
to indicate the hours worked.17 Where records of hours worked are unavailable (or where a

record indicates 500 hours of service as a placeholder18), Defendants propose to use the 190

hours of service per month equivalency, and participants whose hours are calculated under the

190-hour equivalency shall be credited with a year of service if they have 870 hours during the

year (750 for salaried employees).19 ERISA regulations permit these equivalencies to be used in

combination. See 29 C.F.R. § 2530.200b-3(e)(7). Defendants’ expert maintains that the 190-

hour equivalency may be used because the Plan has records that shows participants’ months of

service. See Altman Report ¶ 49.

       Plaintiff does not object to Defendants’ proposal in principle.20 However, Plaintiff


       17
          Effective January 1, 2003, the Plan was amended so as to enable participants to earn
years of vesting service under the 870/750 “hours worked” standard for each year in which they
are earning years of benefit service. See Pl.’s Mot. for Summ. J., Ex. 41 (Amendment 2002-04)
at 1. For periods in which participants would not be earning years of benefit service (such as
union service), the Plan amendment calls for an “elapsed time” method to applied to determine
vesting credit. Id. at 3; see 26 C.F.R. § 1.410(a)-7.
       18
          According to Defendants’ expert, Hilton recorded “500 hours” as a placeholder in 725
employees’ records to indicate that the employee was hired mid-year or left mid-year and did not
work enough hours to be credited with a year of service. See Altman Report ¶ 49. Plaintiff
disputes that those participants would not have been credited with a year of service had their
hours been properly counted. In any event, the parties now agree that because records of hours of
worked were not actually kept with respect to these participants, an equivalency must be used to
determine whether they are entitled to a year of vesting service. Accordingly, the Court expects
Hilton to apply a time-based equivalency to all entries with a “500 hours” placeholder.
       19
          As defined in the regulations, the 190 hours per month equivalency credits an employee
with hours of service rather than hours worked. However, Defendants’ proposal effectively treats
the equivalent 190 hours as hours worked, meaning that an employee needs only 870 (or 750)
hours instead of 1000 hours to earn a year of vesting credit. This is consistent with the example
described in 29 C.F.R. § 2530.200b-3(e)(8).
       20
         Although it was initially unclear as to whether Plaintiff supported the application of the
870/750 “hours worked” equivalency where existing records were sufficient to determine the
number of hours worked, Plaintiff has clarified that it does not object to this standard. See Pl.’s

                                                21
contends that the Plan’s records are inadequate or insufficient to apply Defendants’ proposal. As

with his union service claim, Plaintiff argues that if the equivalencies are applied only to the

records as they were kept by Hilton, members of the subclass will be deprived of vesting credit

for months of service for which Hilton failed to keep adequate records. Therefore, Plaintiff

proposes modifications to account for Hilton’s failure to keep proper records of participants’

service. The Court shall discuss each of Plaintiff’s specific proposals below.21

                       a.      Credit for time after the last record of service.

       There are some participants whose last record of service, i.e., the last date for which any

hours are recorded, does not match up with their date of termination of employment (“DOTE”).

For these participants, Plaintiff proposes to have the Court presume that the employee had at

least one hour of service in each month between the last record of service and the DOTE, even

though Plan records do not indicate any hours of service. If the Plan records do not indicate any

DOTE and there is no other explanation of an absence in the employee’s records, Plaintiff would

have the Court presume that the employee worked until the end of the last calendar year for

which there is any record of employment or earnings. Plaintiff would also seek an audit of

termination dates of “12/31” to determine whether they are actual termination dates or merely

placeholders in the records. See Pl.’s Br. at 24-25.

       Plaintiff provides no clear explanation as to why the Court should assume that there were


Reply at 24.
       21
          The Court notes that the parties have made it very difficult to identify the specific
points on which the parties agree or disagree. The parties’ briefs on equitable relief largely attack
each other’s proposals without setting forth with clarity why a participant should or should not be
awarded vesting credit in a particular circumstance. The Court has done its best to understand
the major points of contention and make a ruling based on the evidence in the record.

                                                 22
additional hours of service for employees between their last record of service and their date of

termination of employment. Plaintiff refers to the Plan Manual, which defines the termination

date as “the date the employee terminated from the active status (vested term, retirement, death,

etc.”; and it says that “[i]f the employee is still working, then this date is blank.” See Pl.’s Reply,

Ex. 3 (Pension Admin. Manual) at 6; Pl.’s Reply at 18. Plaintiff apparently concludes that an

employee remains on active status until the date of termination and therefore should be credited

with vesting service during that time. The relevant question, however, is not whether the

individual continued to be employed, but whether the employee had any additional hours of

service. ERISA defines an “hour of service” as “each hour for which an employee is paid, or

entitled to payment.” 29 C.F.R. § 2530.200b-2(a)(1). Thus, an employee may remain on the

payroll for a period of time without having any hours of service by, for example, taking unpaid

leave. Plaintiff has not provided the Court with any reasonable basis for presuming that an

employee worked (or was otherwise entitled to be paid) at least one hour for every month that he

was an employee.

       In his motion for summary judgment, Plaintiff argued that Hilton improperly used a 1000

hours standard “in years where its pension database contains records of hours.” See Pl.’s Mot.

for Summ. J. at 40. Plaintiff pointed to evidence in the record that Hilton had failed to credit pay

after termination, such as accrued vacation and lump sum severance payments. Id. The Court

agreed with Plaintiff in its decision on liability. See 616 F. Supp. 2d at 30. Defendants’ proposal

remedies this violation by relying instead on the 870/750 hours worked standard. Applying that

standard necessarily means that where there are no hours worked by an employee, there will be

no vesting credit awarded. In other words, Plaintiff cannot assume that wherever the Plan


                                                  23
records show no hours of service, records of hours worked are “unavailable.” Plaintiff’s

proposal to “assume” that there are hours worked until the end of employment where the Plan

records show none more closely resembles the “elapsed time” method for determining vesting

credit, which is an alternative to counting hours of service (with or without equivalencies) that

does not require plans to keep detailed records of employee hours. See 26 C.F.R. § 1.410(a)-7

(defining “elapsed time” method).

       As the Court previously explained, Hilton amended the Plan in 2002 to retroactively

apply the elapsed time method to periods of non-participating service. 616 F. Supp. 2d at 19-20.

The Court found that this amendment did not moot Plaintiff’s claim that the 1000 hours standard

had been violated because it was mathematically possible that a participant would earn more

vesting credit under an hours standard than the elapsed time method. Id. at 34. Accordingly, the

Court held that participants must be awarded vesting credit under an hours standard if it would

result in more credit awarded than under the elapsed time method. Id. Hilton has never

proposed applying the elapsed time method to periods of time when employees were

participating in the Plan (and their hours were recorded), and this Court’s rulings do not require it

to do so. Plaintiff’s proposal resembles a hybrid between the elapsed time method and the hours

worked standard, as it would require Hilton to count the hours worked (where there are hours

shown) and count at least one “presumed hour” for every other month that elapses (where there

are no hours shown). See Altman Report ¶ 44. In other words, Plaintiff is trying to get the best

of both worlds by taking the upside of each method without the downside of either. That is not

an equitable remedy.

       It is possible that the Plan failed to record hours leading up to the date of termination of


                                                 24
employment and that Plaintiff’s proposal would remedy that failure. But it is also possible (and

more likely) that Plaintiff’s proposal would drastically overcompensate members of the subclass

by awarding them vesting service for periods of time in which they performed no service. Unlike

Plaintiff’s union service claim, Plaintiff has not even proffered examples of participants who

should be entitled to this relief. Therefore, the Court declines to endorse Plaintiff’s proposal to

presume that a participant had at least one hour of service in each month before his date of

termination of employment (or, if there is no DOTE, the end of the calendar year).

                       b.      Credit for time between the initial service date and the first year of
                               participation.

       Plaintiff also contends that its presumption of at least one hour of service per month

should apply to participants whose “Service Date” reflected in the Plan records does not coincide

with the first year of participation in the Plan. See Pl.’s Reply at 24. Plaintiff wants to credit

participants with 190 hours for each month between the “Service Date” (which reflects the

beginning of an employee’s service with Hilton) and the first year of participation in the Plan.

Defendants’ expert, Ian Altman, admits that “[t]he date active service commences–the ‘service

date’ reflected on the plan records–is the correct starting point for counting service.” Supp.

Altman Report ¶ 29. However, this period of time would be non-participating service. As

explained in the previous section, the Court shall only order equitable relief with respect to

periods of union service.

                       c.      Credit for time after properties stopped reporting service to the
                               Plan when accruals were frozen in 1996.

       Plaintiff claims that “it is indisputable that the Plan’s records of hours necessarily stop

once a property stops reporting service to the Plan, even if the individual continues to be


                                                  25
employed,” and that “much of the reporting of service to the Plan stopped once benefit accruals

were frozen at the end of 1996.” Pl.’s Reply at 26. In her supplemental declaration, Allison C.

Pienta claims that there are 37 individuals who have employment termination dates after Hilton

properties stopped reporting service to the Plan. See Supp. Pienta Decl. ¶ 18. According to Ms.

Pienta, the Plan’s records for these individuals show “1000” or “500” hour entries or no entries at

all after 1996, indicating that the property was no longer actually reporting service under the

Plan. Id. However, in each of the four examples cited by Ms. Pienta in her supplemental

declaration, it appears that the participants were in fact credited with vesting service after 1996,

and they would not be entitled to any additional service if the 190-hours standard were applied

according to Plaintiff’s presumption of at least one hour each month until the date of termination.

See Supp. Pienta Decl., Ex. Grp. 1(e).

       Defendants’ expert, Ian Altman, states in his supplemental report that properties only stop

reporting service to the Plan when they become disassociated from Hilton, such as through

closure or a sale. See Supp. Altman Report ¶ 31. At that point, Mr. Altman says, employees are

no longer entitled to credit under the Plan because the property is no longer a part of Hilton. Id.

Therefore, he contends there is no reason to credit vesting service after a property stops reporting.

Id. Mr. Altman provides no evidentiary basis for this assertion, and Plaintiff did not have an

opportunity to rebut this contention, as it was raised for the first time in the supplemental report

filed with Defendants’ Surreply. Therefore, the record is unclear as to whether properties

stopped reporting service altogether after 1996 (or any other time) or whether Hilton failed to

track any vesting service during this time. Hilton’s use of “1000” and “500” hour placeholders in

the records cited by Ms. Pienta suggests that even if exact service hours were not being reported


                                                 26
after 1996, some measure of vesting service was being credited to participants.

       At this stage, because Plaintiff has failed to identify any participants who were deprived

of vesting credit to which they were entitled after 1996, the Court declines to order Defendants to

provide additional vesting credit based on hours of service after 1996.

                       d.      Credit for time between the corporate hire date and the hire date
                               reflected in the Plan’s records.

       Plaintiff proposes that participants who have earlier original dates of hire in corporate

records than Plan records receive years of service credit for the time in between the conflicting

dates, to be determined according to the agreed-upon equivalencies. See Pl.’s Reply at 25. In

other words, where corporate records show that a participant was hired on a date that is earlier

than the Plan’s hire date, Plaintiff would have the Court presume that the participant had at least

one hour of service for each month in between the conflicting dates. Plaintiff points to a Hilton

press release showing that one particular participant was hired in October 1973, but Plan records

show a hire date of September 1, 1975. See Pl.’s Reply at 25; Pl.’s Mot. for Summ. J., Ex. 45.

Plaintiff also points to a 1998 report on Plan data indicating that for a number of participants, the

date of hire is earlier than the first record of earnings. See Pl.’s Mot. for Summ. J., Ex. 52 (Data

Clean-up Project July 20, 1998) at 3. Neither party has provided an adequate explanation as to

why there would be any discrepancy in hire dates. To the extent that earlier corporate hire dates

would reflect earlier periods of non-participating service, the Court has already addressed this

issue in the context of Plaintiff’s union service claim. To the extent that an earlier corporate hire

date would reflect a period of participating service for which Hilton has failed to provide vesting

credit, that time period falls within the scope of the claim that Hilton failed to comply with the



                                                 27
1000 hours standard by failing to keep track of hours necessary to implement it.

       Plaintiff concedes that he has not made any calculations based on discrepancies between

corporate hire dates and Plan hire dates because corporate records were not produced during

discovery. See Pl.’s Reply at 25. Accordingly, Plaintiff has failed to identify any members of the

vesting class who would become vested if hours of service were presumed between the earliest

corporate hire date and the Plan’s earliest record of service. Rather, Plaintiff speculates that “the

corporate records of hire dates are, in fact, likely to show additional service.” Id. If that is the

case, it was Plaintiff’s obligation to uncover that evidence during discovery and bring it to the

Court’s attention. Plaintiff’s core claim with respect to this subclass is that Hilton improperly

used a 1000 hours service standard rather than an 870/750 hours standard; Plaintiff now seeks to

order additional discovery to find out whether Hilton failed to count any hours of participating

service that predate the Plan’s earliest record of service. Plaintiff shall not be afforded a second

bite at the apple to expand his claim. There is no evidence that participants are entitled to vesting

credit for the period between the earliest hire date in corporate records and the Plan’s hire or

service date. Therefore, the Court shall not order Hilton to provide vesting credit for this period

of time.

                       e.      Unlawful equivalencies applied to salaried employees.

       Plaintiff contends that Hilton has applied an unlawful equivalency of 36 hours per week

to certain salaried employees in order to produce years in which the hours fall short of 750, thus

depriving them of years of vesting credit. See Pl.’s Reply at 24; Supp. Pienta Decl. ¶ 7. Plaintiff

cites three examples of salaried participants who would be credited with a year of vesting if the

proper equivalency were applied (45 hours per week of service, see 29 C.F.R. § 2530.200b-


                                                  28
3(e)(1)(ii)) to the number of weeks of service indicated by Plan records. Defendants dispute this,

claiming that these three participants were credited with service based on the actual number of

hours that they worked, not based on application of an equivalency. See Defs.’ Surreply at 21 &

n.24; Supp. Altman Report ¶ 32. Defendants point out that the number of hours credited for two

of the three individuals cited by Plaintiff is not an even multiple of 36 hours, thus refuting

Plaintiff’s contention that a 36-hour equivalency was used. Defendants’ expert also cites other

examples from the database suggesting that actual hours were tracked for exempt employees.

See Supp. Altman Report ¶ 32. The parties dispute whether the Plan recorded actual hours

worked for exempt (i.e., salaried) employees. If Defendants are correct that these participants’

records show actual hours worked, it is not necessary to apply an equivalency, as urged by

Plaintiff. It is unclear why Plaintiff assumes that hours were not kept for these employees.

Nevertheless, this is a disputed issue of fact impacting methodology that the Court must resolve

at a remedies hearing.

                         f.    Records from “Services Prior” table.

       Plaintiff contends that there are 181 individuals who, according to the “Services Prior”

table in an earlier version of the database, should be vested because they have sufficient hours to

earn additional years of vesting credit. See Pienta Decl. ¶¶ 2(A), 4; Supp. Pienta Decl. ¶¶ 16-17.

Plaintiff argues that these individuals’ records of service were dropped or revised in Hilton’s

current “Services” table to show lesser years of service. Ms. Pienta states in her declaration that

there were close to three thousand downward revisions to years of benefit service22 for non-


       22
          Ms. Pienta does not state that there were downward revisions to years of vesting
service. See Pienta Decl. ¶ 5. There may have been reductions in years of benefit service
without reducing the years of vesting service.

                                                 29
vested participants between the “Services Prior” and “Services” tables. Pienta Decl. ¶ 5. In

response, Defendants do not provide an explanation for these discrepancies and state that they

need more information from Plaintiff to determine its claim. See Altman Report ¶ 54.

Defendants do state that they reviewed 80 records for participants whose sole claim is based on

“Services Prior” records and determined that 38 of those participants should be vested for a

variety of reasons. Id.

        In her supplemental declaration filed with Plaintiff’s Reply, Ms. Pienta provides

documentation for four participants who appear to have additional years of vesting service in

“Services Prior” records but which are not reflected on current Plan records. See Supp. Pienta

Decl., Grp. 1d. These years of service appear to be after dates of termination in 1996.

Defendants do not address this issue in their Surreply. Based on the records presented to the

Court, it appears that the individuals identified by Plaintiff should be entitled to additional

vesting credit. However, because there is no explanation from Defendants for the discrepancy in

the records, the Court is reluctant to make a finding with respect to these individuals. If Hilton

has made downward revisions to a participant’s years of vesting service during the pendency of

this litigation, it is required that there be a valid reason for doing so. To the extent that Plaintiff

can identify years of vesting service for participants reflected on earlier records, the Court

expects Hilton to credit the participant with those years of vesting service unless it provides a

valid explanation for any change in the records. The Court shall resolve any discrepancies during

a remedies hearing.

                          g.    Elapsed time.

        Plaintiff contends that Hilton has failed to count actual hours for certain participants,


                                                   30
relying instead on an elapsed time method that has left some participants with fractional years of

vesting service. See Pienta Decl. ¶ 2(A); Supp. Pienta Decl. ¶ 9. Plaintiff contends that there are

at least 218 participants who should be vested when their hours are counted properly with

equivalencies instead of using the elapsed time method. Defendants’ expert, Ian Altman,

reviewed the 124 participants whose sole claim was in this subclass and determined that 96

should be vested. See Altman Report ¶ 53. Thus, Defendants agree that hours should be counted

for participants. In her supplemental declaration, Ms. Pienta identifies a number of additional

participants who appear to be entitled to vesting credit See Supp. Pienta Decl., Grp. 1b.

Defendants fail to address these additional examples in their Surreply. Therefore, the Court

expects Defendants to credit participants for service based on the hours reflected in the Plan

records and the proper equivalencies, not the elapsed time method.

               3.      First Year of Participation

       Plaintiff proposes that “the first year of participation shall be counted for vesting in all

cases (even if the recorded number of hours of service is low or zero).” Pl.’s Br. at 26. As this

Court previously explained, an employee becomes a participant in the Plan only upon meeting

the Plan’s minimum eligibility requirements, which includes completing 1000 hours of service

within the 12-month period following his date of hire or during any subsequent plan year. 616 F.

Supp. 2d at 32. Accordingly, the Court found that “Hilton’s application of this first year

provision is inextricably intertwined with Hilton’s violations of the 1000 hours standard.” Id.

Because an employee does not become a Plan participant until he has obtained the necessary

hours for a year of service, Plaintiff’s request is, on its face, tautological. However, the Plan

records appear to show that some participants have low numbers of hours of service during their


                                                 31
first year of participation. These participants have less than the requisite number of hours during

the first year that is marked “P” for participating service. Plaintiff contends that there are over

1300 individuals who have not been credited with a year of vesting service for this first year of

participation and who would become vested if they were given this credit. See Pl.’s Reply at 26.

       Defendants dispute Plaintiff’s interpretation of the “P” code in Plan records, noting that

the “P” indicates only that the hours of service are participating service, not that the employee is

a participant. See Defs.’ Surreply at 22; Supp. Altman Report ¶ 34. Defendants point to the Plan

Manual, which shows that the “P” code is one of three codes used to indicate that service is

participating service. See Pl.’s Reply, Ex. 3 (Pension Admin. Manual) at 22-23. It is clear from

the Plan Manual, as well as from the Plan records that have been provided by the parties, that the

“P” code does not automatically indicate that an employee is a Plan participant. As the Court

noted in its decision on liability, an individual only becomes a participant when he has met the

minimum hours requirements for eligibility. Therefore, a participant should not automatically be

credited with a year of vesting service for the first year in which he has any hours of participating

service.

               4.      Leaves of Absence

       This Court previously found that Hilton had violated the Plan by failing to properly credit

employees’ leaves of absences for purposes of vesting. Plaintiff has identified 99 individuals

who should be vested based on leaves of absences in Plan records that were not credited, and

Defendants have agreed to vest those 99 individuals. See Defs.’ Br. at 35. However, Plaintiff

also contends that there are leaves of absence in corporate records that were not transmitted to

the Plan, and Plaintiff urges the Court to compel Defendants to disclose corporate records


                                                 32
showing leaves of absences. See Pl.’s Br. at 26-27; Pl.’s Reply at 34-35.23 The only example

cited of an individual who was not credited with vesting service for a leave of absence is Mr.

Kifafi, whose leave of absence was not reflected in Plan records. See Pl.’s Reply at 34; 616 F.

Supp. 2d at 15. Plaintiff also points to documents showing how Hilton coded various leaves of

absence in corporate records (e.g., maternity, military, disability) that are not reflected in the Plan

records. See Pl.’s Mot. for Summ. J., Ex. 29 (Decl. of Martha L. Anderson & Hilton Human

Resources Employee Master Data Dictionary).

        Defendants do not directly address Plaintiff’s claim that corporate records would show

additional leaves of absence not reflected in Plan records. However, Plaintiff has failed to

demonstrate that corporate records would be likely to show additional leaves of absence that

would result in the vesting of additional members of the subclass. As the Court noted above with

respect to alleged discrepancies between corporate hire dates and Plan hire dates, it was

Plaintiff’s obligation to obtain evidence of violations during discovery, not to merely raise the

possibility of additional violations. Defendants have conceded that it is proper, based on the

Court’s prior ruling, to credit vesting service for leaves of absences identified in Plan records. It

is too late at this stage of the litigation for Plaintiff to seek recovery for additional violations for

which it has no direct evidence.

                5.      Fixing “Revisions” to the Plan Database

        Plaintiff argues that the Court must take certain steps to “reverse Hilton’s revisions of



        23
          Plaintiff contends that “[l]eaves of absence before participation began and after it ended
are never recorded in the Plan’s records.” Pl.’s Reply at 34. However, because the Court shall
not be ordering relief with respect to non-participating service (except for union service), any
omissions during this time period are immaterial.

                                                   33
records” since 2002. See Pl.’s Br. at 27. Specifically, Plaintiff argues that Hilton has applied

forfeiture codes to individual records based on the improper application of break-in-service rules,

causing some individuals to lose credit for years of vesting service to which they are entitled. Id.

Additionally, Plaintiff contends that Hilton has mistakenly removed other years of vesting service

and misapplied the Plan’s 10-year vesting rule to participants with at least one hour of service

after 1988, when a 5-year vesting rule was adopted. Id. at 27-28. Defendants contend that

Plaintiff has failed to provide any basis for this claim and that the Court’s order does not prevent

Hilton from revising the Plan records to fix errors in the pension database. Defs.’ Br. at 31.

        The parties’ briefs on equitable relief do not provide an adequate basis for this Court to

make any ruling regarding Defendants’ changes to Plan records. It is Plaintiff’s burden to show

that the particular equitable relief it seeks is appropriate, and Plaintiff has failed to show that

Defendants have misapplied the break-in-service rules or the Plan’s vesting rules to the detriment

of any members of the vesting subclasses. Accordingly, the Court declines to adopt Plaintiff’s

proposed remedy at this time with respect to Defendants’ revisions to the Plan database.

        C.      Collection of Plan Data and Corporate Records

        Plaintiff contends that in order to remedy the violations of the Plan previously found by

the Court, the Court must order Hilton to produce additional corporate records relating to the

Plan. See Pl.’s Br. at 29-30. Specifically, Plaintiff seeks to compel the production of corporate

personnel records of (a) original dates of hire; (b) leaves of absence; (c) marital records; (d)

employment with former Participating Employers/Affiliates that participated in the Plan; and (e)

employment records for any Related Companies including “Managed Properties” that never

participated in the Plan. Id. at 30. Plaintiff contends that such production is required by


                                                  34
Magistrate Judge Alan Kay’s October 31, 2001 Order, which required production of electronic

databases and programs within 30 days. Plaintiff contends that Defendants have “never

provided” some of this information and were obliged to provide it on a continuing basis.

       Defendants argue that it is too late for Plaintiff to complain about Defendants’ alleged

failure to produce documents pursuant to Magistrate Judge Kay’s order. The parties agree that in

August 2005, Hilton provided Plaintiff with a copy of its entire pension database containing data

on over 140,000 participants. Hilton also provided an updated pension database to Plaintiff in

October 2009. The Court agrees with Defendants that Plaintiff should have sought to compel

further production during discovery or, alternatively, before the briefing on equitable relief was

completed. The Court has already addressed several aspects of Plaintiff’s request for additional

records; the Court shall not order additional production beyond what has been previously

discussed.

       D.      Appointment of a Class Action Administrator

       Plaintiff argues that the Court should appoint a Class Action Administrator to carry out

the terms of the equitable relief that will be ordered by the Court. In addition to an administrator,

Plaintiff would have the Court appoint an oversight committee. Plaintiff contends that a Class

Action Administrator is necessary to ensure that corporate records have been completely

produced and ensure that Hilton complies with the Court’s order. See Pl.’s Br. at 35-36; Pl.’s

Reply at 44-50. Defendants argue that there is no need for a Class Action Administrator because

the parties have already calculated the benefits to be paid to the class members and Hilton is

capable of implementing any remedy ordered by the Court. Defendant contends that an

administrator would be intrusive and remove authority from Hilton to administer the Plan. See


                                                 35
Defs.’ Surreply at 24.

       The Court is not inclined at this point to appoint a Class Action Administrator in this

case. The Court is not convinced that a Class Action Administrator will ultimately be necessary

to implement the equitable relief in this case, which consists primarily of recalculated benefits for

class members and reformation of the Plan. Based on the Court’s rulings, the parties should be

able to agree on the benefit calculations for each class member to be incorporated in the final

judgment. Plaintiff argues that Hilton should not be trusted to implement the remedies in this

case because of its history of violations. See Pl.’s Reply at 49. The Court shares Plaintiff’s

concern. Defendants’ proposal does not provide for this Court’s continuing jurisdiction or

establish any protocols for monitoring compliance. While Plaintiff’s proposal is too intrusive,

Defendants’ proposal is too lax. Therefore, once the remaining issues are resolved at a remedies

hearing, the Court shall urge the parties to jointly propose a more limited monitoring plan to

ensure that Defendants comply with the Court’s remedial order. This may involve regular

reporting to Class Counsel or to an independent third party monitor selected by the parties.

       E.      Payment Provisions

       Under Defendants’ proposed remedy, class members who are entitled to additional

benefits (either because of the change in benefits formula or because they are newly vested) shall

receive “true up” payments reflecting benefits owed to them to date and increased annuity

payments in the future reflecting their additional benefits. See Defs.’ Br. at 9. Plaintiff does not

disagree with these aspects of Defendants’ proposal but offers several additional proposals. For

example, Plaintiff argues that all benefit increases of less than $5 per month should be discharged

with a lump sum payment rather than a series of future benefit payments. See Pl.’s Br. at 30-32.


                                                 36
Plaintiff also proposes that prejudgment and post-judgment interest be applied at a uniform rate

of 6%. See id. at 32-33. Plaintiff also proposes a specific procedure to notify class members of

increased benefit obligations due in the future. Id. at 33-34. Defendants do not specifically

address Plaintiff’s proposals.

        With respect to Plaintiff’s suggestion that benefit increases of less than $5 per month be

discharged with a lump sum distribution, it is unclear why this would be administratively cost

effective. If a participant is entitled to monthly pension benefits, Hilton already bears the

administrative cost of distributing that benefit; it would not make sense to separate out the

“increased” benefit owed due to this litigation as a lump sum payment. There may be some

administrative savings with respect to participants who are newly vested and will receive less

than $5 per month in benefits. However, participants may prefer an annuity to a lump sum

payment, even if the monthly payment received is small; Plaintiff’s proposal does not consider

this possibility. Accordingly, the Court is not inclined to allow a lump sum payment option to

replace future periodic payments. The Court has no problem with lump sum payments for

benefits that are past due, as both parties’ proposals contemplate.

        The D.C. Circuit has held that prejudgment interest on unpaid ERISA benefits is

presumptively appropriate. Moore v. CapitalCare, Inc., 461 F.3d 1, 13 (D.C. Cir. 2006).

Accordingly, the Court agrees with Plaintiff that interest should be awarded to compensate

participants for the time value of their benefits, particularly in light of the protracted nature of

this litigation. The decision on how to calculate prejudgment interest is subject to the Court’s

discretion. Forman v. Korean Air Lines Co., 84 F.3d 446, 450 (D.C. Cir. 1996). The Court shall

not decide an appropriate interest rate without input from Defendants on this issue. Accordingly,


                                                  37
the Court shall reserve this issue for later determination.

       With respect to notice, Plaintiff proposes that participants who are not immediately due

benefits be provided with notice of the original and increased benefit obligations and how

benefits may be claimed, including return envelopes for participants to submit additional contact

information. See Pl.’s Br. at 33-34. Defendants have not raised any specific objections to these

procedures, and the Court does not foresee any problems with Plaintiff’s notice proposal.

       F.      Cy Pres Provision

       Plaintiff proposes that the Court’s remedial order include a cy pres provision to govern

the distribution of benefits to class members and beneficiaries who cannot be located within three

years. See Pl.’s Br. at 37-38. Pursuant to § 4.11 of the Plan, if a participant or beneficiary cannot

be located within three years of the date on which benefits are payable, his or her benefit is

forfeited, although it may be reinstated if a claim is later asserted by the participant or

beneficiary. See 1987 Plan § 4.11. The cy pres doctrine, as used in the class action context,

permits unclaimed funds to be distributed to the “next best” class, thus maximizing the number

of individuals compensated. See Democratic Central Comm. v. Wash. Metro. Area Transit

Comm’n, 84 F.3d 451, 455 (D.C. Cir. 1996). Generally speaking, cy pres provisions are

warranted in situations where “identifying, locating, and notifying” class members would be

difficult. See id. at 456. Here, however, the class members have all been individually identified,

and there is no evidence that Hilton will have difficulty locating them. Moreover, any benefits

forfeited under § 4.11 would remain in the Plan fund to be paid out to other participants, which is

arguably the “next best” class. This is not the type of case for which the cy pres doctrine was

intended. Therefore, the Court shall not include a cy pres provision in its order of equitable


                                                  38
relief.

          G.     Attorneys Fees and Incentive Awards

          Plaintiff indicates that he intends to apply for an incentive award of $50,000 for the

named plaintiff, Jamal Kifafi, as well as for attorneys’ fees and expenses. See Pl.’s Br. at 37-40.

The Court shall reserve any decision as to attorneys’ fees and incentive awards until after a final

judgment is entered in this case.

          H.     Further Proceedings in this Action

          Based on the Court’s rulings as stated above, the parties should confer in an effort to

determine what issues remain disputed. To the extent there are disputes remaining regarding the

proper equitable relief for the minimum accrual rate and vesting violations, the Court shall

require further briefing and hold a hearing to decide disputed issues of material fact. Plaintiff

should identify each class member whom it believes (and Defendants dispute) should be

provided with additional benefits or vesting service, and Defendants shall provide a legal and

factual basis for the benefit and vesting determinations it makes with respect to each disputed

class member’s remedy. Once the parties have filed these additional briefs and supporting

schedules, the Court shall schedule a hearing to resolve any final factual disputes. This hearing

will not consider individual class member claims but class claims and issues impacting the

methodology.

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                                                   39
                                        IV. CONCLUSION

        The Court has reviewed the parties’ submissions on remedies and made rulings on the

major issues contested by the parties. With respect to the backloading violation, the Court shall

generally adopt Defendants’ proposed revision to the benefits formula but reject Defendants’

contention that relief should only be provided to participants who separated from service after

1987. With respect to Defendants’ failure to credit union service for purposes of vesting, the

Court shall order Defendants to credit union but not other non-participating service, and the

Court shall require Hilton to search its corporate records for information relating to class

members’ union service and permit class members to submit claims based on union service not

reflected in records. With respect to Defendants’ violation of the 1000 hours of service standard,

the Court shall adopt the parties’ proposal to apply the 870/750 hours worked standard with

hours equivalencies but reject Plaintiff’s proposal to apply equivalencies to periods of time for

which there are no records of hours of service. With respect to Defendants’ failure to credit the

first year of participation, the Court shall reject Plaintiff’s proposal to credit participants with a

year of service for the first year in which there is any record of participating service. With

respect to Defendants’ failure to credit leaves of absence, the Court shall not order additional

discovery of corporate records. The Court declines to order additional discovery of Hilton’s

records except with respect to union service, as mentioned above. At this time, the Court does

not see the need to appoint a class action administrator to oversee the implementation of final

relief, but the parties should develop a more limited mechanism for monitoring Hilton’s

implementation of remedies. The Court shall not approve lump sum payments in lieu of future

benefits owed to participants, nor shall it include a cy pres provision in its final order. Other


                                                   40
disputed issues of fact, such as the alleged application of unlawful equivalencies or elapsed time

methods and discrepancies between versions of the Plan’s database, shall be decided at a final

remedies hearing. An appropriate Order accompanies this Memorandum Opinion.



Date: September 7, 2010

                                                      /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




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