                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


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

    Plaintiff,
                                                         Civil Action No. 98-1517 (CKK)
        v.

 HILTON HOTELS RETIREMENT PLAN,
 et al.,

    Defendants.


                                 MEMORANDUM OPINION
                                    (February 4, 2015)

       This action was 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

(“ERISA”) of 1974, as amended, 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), 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). On August 31, 2011, the Court issued a final remedial Order requiring Defendants to

amend the Plan to remedy the backloading and vesting violations and commence awarding back

payments and increased benefits to class members. See generally Order (Aug. 31, 2011), ECF

No. [258]. The Court stayed its August 31, 2011, Order pending the United States Court of
Appeals for the District of Columbia Circuit’s resolution of the parties’ appeal of the Court’s

liability and remedial orders. Mem. Op. & Order (Jan. 19, 2012), ECF No. [313], at 10–11. The

Court granted the stay contingent upon Defendants posting a supersedeas bond in the amount of

$75.8 million to secure the judgment. Id. at 11. Presently before the Court is Defendants’

Motion to Release the Supersedeas Bond. Also before the Court are Plaintiff’s Motion for Post-

Judgment Discovery and Motion to Modify the Judgment in Aid of Enforcement, which Plaintiff

effectively filed in opposition to Defendants’ Motion. Upon consideration of the pleadings,1 the

relevant legal authorities, and the record as a whole, the Court finds that Defendants have

satisfied the terms of the Court’s judgment. Accordingly, Defendants’ Motion to Release the

Supersedeas Bond is GRANTED and Plaintiff’s Motion for Post-Judgment Discovery and

Motion to Modify the Judgment in Aid of Enforcement are DENIED.

                                     I.     BACKGROUND

   A. Procedural History

       The history of the case is thoroughly laid out in the Court’s prior opinions, most

significantly its opinion on summary judgment, see Kifafi v. Hilton Hotels Retirement Plan, 616

F. Supp. 2d 7 (D.D.C. 2009), and its opinions regarding equitable remedies, see Kifafi v. Hilton

Hotels Retirement Plan, 736 F. Supp. 2d 64 (D.D.C. 2010) (initial remedial order); Kifafi v.

Hilton Hotels Retirement Plan, 826 F. Supp. 2d 25 (D.D.C. 2011) (final remedial order); Kifafi v.

       1
          Defendants’ Motion to Release the Supersedeas Bond Obligation (“Defs.’ Mot.”), ECF
No. [382]; Plaintiff’s Response to Defendants’ Motion to Release Bond and in Support of
Discovery and Modification to Secure Complete Relief (“Pl.’s Opp’n”), ECF No. [385];
Defendants’ Reply Memorandum in Support of Defendants’ Motion to Release the Supersedeas
Bond (“Defs.’ Reply”), ECF No. [386]; Plaintiff’s Motion for Post-Judgment Discovery and
Modification in Aid of Enforcement (“Pl.’s Mot.”), ECF No. [384]; Defendants’ Opposition to
Plaintiff’s Motion for Post-Judgment Discovery and Modification in Aid of Enforcement
(“Defs.’ Opp’n”), ECF No. [387]; Plaintiff’s Reply in Support of Motion for Post-Judgment
Discovery and Modification in Aid of Enforcement (“Pl.’s Reply”), ECF No. [388].
                                              2
Hilton Hotels Retirement Plan, 825 F. Supp. 2d 298 (D.D.C. 2011) (order on amendments to

remedial plan). The Court assumes familiarity with these opinions. Nevertheless, the Court shall

review the facts of this case insofar as they are relevant to the issues discussed herein.

        On August 31, 2011, the Court issued its final remedial Order requiring Defendants to (1)

amend the Plan’s benefit accrual formula to remedy the backloading violation; (2) administer a

claim procedure for crediting participants’ years of union service for vesting purposes; (3) award

back payments for increased benefits that should have been paid in the past; and (4) commence

increased benefits for all class members by no later than January 1, 2012. Order (Aug. 31,

2011), at 7, 9. The Court retained “continuing and exclusive jurisdiction over the parties and

over the administration and enforcement of this Order for a period of two (2) years.” Id. at 10–

11.

        Defendants and Plaintiff appealed the Court’s liability and remedial orders to the United

States Court of Appeals for the District of Columbia Circuit and Defendants sought a stay

pending appeal, which the Court granted “until thirty days after the exhaustion of Defendants’

appeal to the United States Court of Appeals for the District of Columbia Circuit.” Mem. Op. &

Order (Jan. 19, 2012), at 11. As Defendants asserted that they were only appealing the Court’s

rulings as to the backloading class, the Court granted the stay of the August 31, 2011, Order “to

the extent it requires Defendants to amend the Plan or pay out benefits as part of the backloading

remedy.” Id. The Court still required Hilton to begin the process of paying out original benefits

to newly vested participants. Id. at 10-11. The Court’s granting of the stay was contingent upon

Defendants posting a bond in the amount of $75.8 million, “Hilton’s undisputed estimate of the

increased liability the Plan faces under the Court’s judgment in 2012, in order to secure

Plaintiff’s interest in the judgment.” Id. at 9.

                                                   3
       On December 14, 2012, the Court of Appeals affirmed the Court’s liability and remedial

orders. See Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718 (D.C. Cir. 2012). The Court

of Appeals mandate was issued on January 23, 2013. See Ct. of Appeals Mandate, ECF No.

[340]. Accordingly, the stay of the Court’s final remedial order, which had been stayed until

thirty days after the resolution of the parties’ appeal, was lifted and the Court’s two-year

continuing and exclusive jurisdiction over the parties and over the administration and

enforcement of its final remedial order began to run on February 22, 2013.           The Court’s

jurisdiction over the parties and the administration and enforcement of the August 31, 2011, final

remedial Order terminates on February 23, 2015.

       Following the Court of Appeals’ mandate, Defendants filed a Motion for Clarification,

which the Court granted in part, clarifying that Defendants were not required to enact and

implement the Plan amendment until after the Court’s resolution of Plaintiff’s motion for

attorney’s fees. Order (Oct. 11, 2013), ECF No. [366], at 4–5. The Court ordered Defendants to

“amend the Plan within seven days of the Court’s final order on the Plaintiff’s motion for

attorney’s fees.” Id. at 5–6. In turn, the Plan amendment required that the amendment “be

implemented as soon as administratively feasible, but no later than 90 days from date of Court’s

final order resolving the Plaintiff’s motion for attorney’s fees, with respect to any payment

required, or required to be increased.” See id. at 7 (internal brackets omitted).

       On November 18, 2013, the Court entered its final order on Plaintiff’s Motion for

Attorney’s Fees. Order (Nov. 18, 2013), ECF No. [375]. Accordingly, Hilton was required to

amend the Plan by no later than November 25, 2013, and implement the amendment by no later

than February 16, 2014.



                                                  4
   B. Hilton’s Efforts to Satisfy the Court’s Judgment

       As evidence of the efforts they have made to satisfy the Court’s August 31, 2011,

judgment, Defendants present sworn declarations from Javier Hernandez, Principal and

consulting actuary with Aon Hewitt, the firm Hilton hired to provide recordkeeping and other

consulting services in support of Hilton’s administration of the Plan;2 from Michael W. Duffy,

Senior Vice President—Corporate Accounting of Hilton Worldwide, Inc.;3 and from Ted Nelson,

Vice President Benefits Americas of Hilton Worldwide, Inc.4 These sworn declarations detail

the efforts Defendants have made to comply with the Court’s judgment.

       Plaintiff has challenged Defendants’ reliance on these declarations, arguing that they are

“conclusory” and not sufficiently detailed to establish Defendants’ compliance or substantial

compliance. Pl.’s Opp’n at 6. Plaintiff contends that Defendants cannot simply rely on summary

declarations or exhibits, but must provide the actual records supporting those exhibits. Id. at 7.

In support of his argument, Plaintiff relies on this Court’s ruling in SEC v. Kenton Capital, Ltd.,

983 F.Supp. 13 (D.D.C. 1997), where this Court rejected defendant’s “bald and conclusory

statements in his affidavit” supporting his contention that he was unable to satisfy an order of

disgorgement because he had repaid several loans.         983 F.Supp. at 15.     The Court finds

Plaintiff’s reliance on Kenton Capital unavailing because that case involved the defendant

himself simply averring that he could not satisfy a court order because he had repaid several

loans. Id. Moreover, it was clear to the Court that the defendant had more than sufficient assets



       2
         Declaration of Javier Hernandez (“Hernandez Decl.”), ECF No. [382-2]; Supplemental
Declaration of Javier Hernandez (“Hernandez Suppl. Decl.”), ECF No. [386-2].
       3
           Declaration of Michael W. Duffy (“Duffy Decl.”), ECF No. [382-3].
       4
           Declaration of Ted Nelson (“Nelson Decl.”), ECF No. [386-3].
                                               5
to make the required payment. Id. at 16. Here, by contrast, Defendants have provided sworn

declarations from Hilton officials intimately involved with the benefits process and from an

official from the accounting firm responsible for administrating the Plan, all attesting in great

detail how Defendants have complied with the Court’s judgment. Defendants also provided

directly to Plaintiff’s counsel a summary categorization spreadsheet, “detailing participant-by-

participant, which class members had been paid increased benefits or sent notices of increased

benefits, including how much was paid to each participant.”        Defs.’ Opp’n at 5-6 (citing

Declaration of Jonathan K. Youngwood, ECF No. [386-1], Ex. C; Declaration of Allison C.

Pienta (“Pienta Decl.”), ECF No. [385-5], Ex. 4, at 3). Defendants’ declarations do not make

“bald and conclusory” assertions that the judgment has been satisfied, but break the class

members down into different categories and detail the efforts they have made to satisfy the

judgment as to each category and sub-category of class members. Most importantly, through the

briefing of these two motions, Plaintiff has had the opportunity to challenge Defendants’

representations in their declarations. The Court engages with each of those challenges in this

Memorandum Opinion. Although the Court shall order Defendants to provide limited additional

information regarding their efforts to locate class members as discussed below, Plaintiff’s

challenges do not put into question the Court’s reliance on Defendants’ declarations.

Accordingly, the Court finds that Defendants’ declarations provide sufficiently detailed and

reliable evidence for the Court to rely on these declarations in evaluating whether Defendants

have complied with the Court’s August 31, 2011, judgment.

       The declarations supporting Defendants’ Motion to Release the Supersedeas Bond

Obligation present the following information regarding Defendants’ compliance with the Court’s

August 31, 2011, judgment.     Defendants state that three days after the Court’s attorney’s fees

                                               6
order, Hilton executed the Plan amendment pursuant to the Court’s August 31, 2011, and

October 13, 2013, orders. See Duffy Decl. ¶ 7. In addition, Defendants sent notices of increased

benefits to approximately 20,000 class members. Hernandez Decl. ¶ 6. Of these class members,

Hilton has paid lump sum payments or increased annuities to more than 11,000 class members

totaling $33.3 million. Hernandez Suppl. Decl. ¶ 4. Hilton has provided notice of increased

benefits to another approximately 5,600 class members who are not currently in pay status or

have chosen not to begin their benefits yet. Hernandez Decl. ¶ 8. As to these approximately

16,600 class members, Defendants contend that they have fully satisfied the Court’s judgment

because these class members have received the full benefit they are due from the Court’s

judgment at this point. Defs.’ Reply at 8.

       As for the remaining class members, Hilton contends that they are class members whom

“neither Defendants nor Plaintiff have, after significant efforts, been able to locate or from whom

Defendants require information from the class member before Defendants can process the

payment.” Id. at 7. Specifically, Defendants aver that 1,847 Plan participants or their survivors

have not responded to the notice of benefit increases or have had their notices returned as a “bad

address” by the United States Postal Service. Hernandez Decl. ¶ 7. Defendants have not

identified any address for another 149 participants who are eligible for a benefit increase. Id.

Approximately 1,400 class members have not received any payment because they have not

responded to benefit communications seeking information necessary to pay their benefits. Id.

Finally, Hilton is presently taking steps to confirm that 135 claimants of deceased participants’

benefits are in fact the appropriate payee. Id.

       Defendants note that Hilton enlisted a search firm, Pension Benefit Information

Participant Research Services (“PBI”), which was approved by the Court, to search for and

                                                  7
update the addresses of Plan participants so that they could be notified of their benefit increases

and paid. Id. ¶ 4. Hilton has also used information provided by Plaintiff about Plan participants’

addresses in its efforts to locate all Plan participants. Id. ¶¶ 4, 7.

        Finally, Defendants aver that they have paid Plaintiff’s counsel $21,738,000 in attorney’s

fees and expenses pursuant to the Court’s final attorney’s fees order and sent Plaintiff’s counsel

the $50,000 incentive award due Mr. Kifafi. Duffy Decl. ¶ 9.

                                      II.     LEGAL STANDARD

        A. Supersedeas Bond

        Under Federal Rule of Civil Procedure 62(d), an appellant may obtain a stay of a

judgment pending appeal by posting a supersedeas bond. Fed. R. Civ. P. 62(d). “The purpose of

a supersedeas bond is to preserve the status quo while protecting the non-appealing party’s

rights pending appeal.” Halliburton Energy Services, Inc. v. NL Industries, 703 F. Supp. 2d 666,

669 (S.D. Tex. 2010) (quoting Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart,

Inc., 600 F.2d 1189, 1190–91 (5th Cir. 1979)). Typically, “[c]ourts release supersedeas bonds

when the bond has served its purpose and no outstanding judgment remains.” Goss Int'l Corp. v.

Tokyo Kikai Seisakusho, Ltd., No. 00–CV–35–LRR, 2006 WL 4757279, at *3 (N.D. Iowa Aug.

9, 2006) (citations omitted). “A supersedeas bond posted for a stay of execution of judgment

should be released once all appeals are exhausted, the stay has been lifted and full payment has

been made.” Id. (citation omitted). In certain circumstances, however, courts will release the

supersedeas bond even though the judgment award has not yet been fully paid. See, e.g.,

Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic

Defense System, Inc., No. 98–CV–1165–B, 2012 WL 2152068, at *3 (S.D. Cal. June 12, 2012)

(entering an order of satisfaction stating that Defendant “paid the bulk of the judgment but that it

                                                    8
may also be liable for attorney’s fees and pre-judgment interest”); Halliburton Energy Services,

Inc., 703 F. Supp. 2d at 670 (releasing the bond where the “outstanding exposures at the Site

[were] either nearly resolved or beyond the scope of the monetary award that the bond is

securing” and defendant had “indicated that it will pay the outstanding amounts . . . within the

next two weeks.”).

       B. Post-Judgment Discovery

       “A court’s powers to enforce its own injunction by issuing additional orders is broad,

particularly where the enjoined party has not fully complied with the court’s earlier orders.”

National Law Center on Homelessness & Poverty v. U.S. Veterans Admin., 98 F.Supp.2d 25, 26-

27 (D.D.C. 2000)); see also Mass. Union of Public Housing Tenants v. Pierce, No. 78–1895,

1983 WL 150, at *4 (D.D.C. Jan. 17, 1984) (“It is undisputed that a Court has the power to

enforce its orders, . . . and that in addition, a court has the authority to inquire whether there has

been any disobedience of its orders.” (citing Shillitani v. United States, 384 U.S. 364, 370

(1965); In re Debs, 158 U.S. 564, 595 (1895); and In re Williams, 306 F. Supp. 617 (D.D.C.

1969))). However, “before a court . . . permits extensive discovery of suspected violations of its

judgment, there should be at least a prima facie showing by the aggrieved party of disobedience

of the order.” 800 Adept, Inc. v. Murex Sec., Ltd., No. 6:02-cv-1354-ORL-19DAB, 2007 WL

2826247, at *2 (M.D. Fla. Sept. 25, 2007) (quoting N.W. Controls, Inc. v. Outboard Marine

Corp., 349 F. Supp. 1254 (D. Del. 1972)); see also Pierce, 1983 WL 150, at *4 (concluding that

“since plaintiffs have failed to present a prima facie case for non-compliance with the final

judgment of the Court, no further discovery will be allowed.”). A court may find that a party

moving for post-judgment discovery failed to meet its burden based on the nonmoving party’s

evidence of compliance with the court’s judgment. See Cent. Soya Co. v. Geo. A. Hormel & Co.,

                                                  9
515 F. Supp. 798, 800 (W.D. Okla. 1980) (finding plaintiff not entitled to post-judgment

discovery based on defendant’s affidavit evidencing its compliance with court’s judgment); see

also Pierce, 1983 WL 150, at *4 (finding plaintiff “failed to present a prima facie case for non-

compliance” given defendant’s evidence of compliance).

                                       III.    DISCUSSION

       The Court’s main task for resolving both motions before the Court is the same: determine

to what extent Defendants have complied with the Court’s August 31, 2011, judgment. Plaintiff

proposes two different ways to measure Defendants’ compliance. First, Plaintiff asks the Court

to look at the numbers; specifically, the dollar amount Defendants estimated they would spend

satisfying the judgment in its first year as compared to the dollar amount Defendants have

actually spent implementing the judgment in its first year. Second, Plaintiff asks the Court to

consider the class members to whom Defendants have paid their portion of the judgment.

According to Plaintiff, Defendants have not complied with the Court’s judgment under either

measure.

       The Court notes at the outset that it is not inclined to measure Defendants’ compliance

based on the estimated and actual dollar amounts spent on the judgment. Defendants assert that

they have paid approximately $33.3 million in increased benefits to class members. Plaintiff

notes that this number is substantially lower than the $75.8 million in judgment liabilities Hilton

estimated it would incur in the first year of implementing the judgment when the Court set the

bond in 2012. Pl.’s Opp’n at 41. Plaintiff also notes that it is lower than the $87 million in

benefits which Hilton stated in its 2014 10-K report that it expected the Plan would pay out in its

first year of implementing the judgment. Id. at 24.     The Court will not measure Defendants’

compliance based on how close Defendants have come to paying out $75.8 or $87 million or any

                                                10
other estimated amount in judgment liabilities because these amounts were clearly and simply

estimates. As Hilton’s Vice President Benefits Americas notes in his sworn declaration, the $87

million estimate is “an upper boundary on the amount that could be paid during 2014.” Nelson

Decl. ¶ 5. It “is calculated based on certain assumptions, including, but not limited to, that

participants not yet receiving benefits will generally choose to receive their benefits at age 61 . . .

and that all participants, surviving spouses, and heirs can and will be identified and located

during 2014.” Id. Similarly, the other dollar amounts by which Plaintiff seeks to measure

Defendants’ compliance are broad estimates liable to constant change given the many factors

that determine when and whether a Plan participant or beneficiary will ultimately receive a

retirement benefit. See Pl.’s Reply at 10-11. The fact that Defendants have not paid out an

amount close to the amounts they estimated they would pay does not mean Defendants have

been doing something wrong and are not compliant with the Court’s judgment. As such, the fact

that Defendants have not paid out the amount they broadly estimated they would pay in

satisfying the Court’s judgment is not by itself significant. What is significant to measuring

compliance are Defendants efforts to remit payments to class members. Indeed, Plaintiff himself

appears to recognize that this is the most appropriate measure of Defendants’ compliance

because the majority of Plaintiff’s briefing is focused on critiques of Hilton’s efforts to locate

and pay all class members.

       Accordingly, in evaluating Defendants’ compliance with the Court’s judgment, the Court

will consider the efforts Hilton has made to reach and pay all class members and the number of

class members Hilton has paid or for whom Hilton has otherwise satisfied the judgment. The

Court accepts Defendants’ representations that they have paid benefit increases to more than

11,000 class members and notified of their benefit increase approximately 5,600 class members

                                                  11
who are not currently in pay status or have chosen not to begin their benefits yet. The Court

finds that Defendants’ have satisfied the judgment as to these approximately 16,600 class

members. The only remaining question before the Court then is whether Defendants can be

considered in compliance with the Court’s judgment in light of their efforts to locate and pay the

remaining class members.

        The Court recognizes that Defendants are attempting to implement a judgment that is not

static or sum certain. The provision of retirement benefits is a constantly evolving process as the

status of Plan participants and benefits due is perpetually changing. Consequently, in evaluating

whether Defendants have complied with the judgment, the Court is looking for systemic

problems or failures in Defendants’ implementation of the judgment. While refinements and

adjustments to Defendants’ efforts to implement the judgment might be appropriate, the

propriety of such improvements would not undermine the Court’s finding that Defendants have

complied overall with the judgment. The Court shall address in turn below each of Plaintiff’s

arguments that Defendants are not in compliance with the Court’s judgment. Ultimately, the

Court finds that Defendants are in compliance such that they satisfied the terms of the Court’s

judgment. Accordingly, the Court shall grant Defendants’ request to release the supersedeas

bond.

   A. Compliance with the Judgment

          i.   Class Members Listed as “No Benefit Increase Due”

        Plaintiff’s first category of arguments relates to class members whom Plaintiff alleges

have not been paid benefits which they are due. Specifically, Plaintiff argues that Hilton’s most

recent summary categorization spreadsheet inaccurately categorizes 663 individuals as “No



                                                12
Benefit Increase Due” when they are due a 1999-1 Amendment5 benefit or a 1999-1 Amendment

benefit and a backloading benefit. Pl.’s Opp’n at 26. Plaintiff also argues that Retirement

Calculator records provided by Hilton in October 2009 show that “at least 1,082 individuals are

due 1999-1 benefit increases that have not been paid.” Id. at 26-27.

       In their Reply, Defendants argue that Plaintiff’s concerns about payments of the 1999-1

Amendment benefits are irrelevant to Defendants’ compliance with the Court’s August 31, 2011,

judgment because the 1999-1 Amendment was outside the scope of this case. Defendants clarify

that the spreadsheet they provided Plaintiff only reflects “payments to class members who are

due a backloading Plan amendment benefit increase”—it does not reflect “payments due only a

1999-1 Amendment because the 1999-1 Amendment was not implemented under the Court’s

order . . . .” Defs.’ Reply at 12 (citing Hernandez Suppl. Dec. ¶ 5). Thus, “No Benefit Increase

Due” means that no benefit increase is due under the backloading Plan amendment alone. Id. at

12. Defendants explain that, accordingly, 487 of the participants on the spreadsheet are listed as

“No Benefit Increase Due” because they are due only a 1999-1 Amendment benefit. Id. (citing

Hernandez Suppl. Decl. ¶ 6).       Defendants provide four alternative reasons for why the

participants whom Plaintiff has identified as due both a 1999-1 Amendment benefit and a

backloading benefit are listed as “No Benefit Increase Due.” Id. at 12-13.

       The Court agrees with Defendants that payment of the 1999-1 Amendment benefits is

outside the scope of this case. Indeed, the Court explicitly stated in its December 28, 2011,

Order that “the payment of benefits under the 1999-1 Amendment are outside the scope of this



       5
          Shortly after Plaintiff moved for class certification in November 1998, Hilton amended
the Plan’s benefit accrual formula. The 1999 amendment (“1999-1 Amendment”) sought to
comply with ERISA’s fractional rule and changed two unrelated aspects of the Plan that lowered
benefits for participants. See Kifafi, 616 F. Supp. 2d at 16.
                                                 13
case. The Plaintiff never challenged the Amendment, and the Court has never ruled on its

validity except to say that it did not moot the class’ backloading claims.” Order (Dec. 28, 2011),

ECF No. [304], at 8; see also Kifafi v. Hilton Hotels Retirement Plan, 999 F.Supp.2d 88, 98 n. 5

(D.D.C. 2013) (“payment of the baseline benefits under the 1999-1 Amendment and the

Amendment’s validity has always been outside the scope of this case . . . .”). Accordingly, to the

extent that Plaintiff has concerns about the payment of 1999-1 Amendment benefits from the

information provided in the summary categorization spreadsheet6 or Hilton’s Retirement

Calculator,7 these concerns have no bearing on Defendant’s compliance with the Court’s August

31, 2011, judgment and are not appropriately raised in this forum. The more appropriate forum

would be Hilton’s own claims appeals process. See Order (Dec. 28, 2011), at 8 (“If a participant

believes they have not received the ‘baseline’ benefits owed under the Plan generally or as a

result of intervening amendments, the administrative appeals process is the proper forum for that

dispute.”).

       Hilton’s own claims appeals process is also the most appropriate forum for Plaintiff’s

challenge to Defendants classifying as “No Benefit Increase Due” approximately 250

participants who Plaintiff alleges are due both a 1999-1 Amendment benefit and a backloading

benefit. Defendants provide four reasons for why a participant in this category might not be due
       6
          Defendants have clearly explained why participants due only a 1999-1 Amendment
benefit are listed as “No Benefit Increase Due” on the summary categorization spreadsheet and
explained that, of those participants, 374 are in pay status and have been paid their 1999-1
Amendment benefit, and 113 are not yet in pay status, but will be paid their benefit when they
enter pay status. Defs.’ Reply at 12 (citing Hernandez Suppl. Decl. ¶ 6).
       7
         The Court notes that even though Plaintiff’s arguments about Defendants’ payment of
the 1999-1 Amendment benefits are outside the scope of this case, Defendants nevertheless
investigated Plaintiff’s claim that 1,082 individuals have not been paid their 1999-1 Amendment
benefit per the Retirement Calculator records. Defendants provided an explanation for why these
individuals have not been paid and have been working to provide corrective payments for the
affected participants. See Defs.’ Reply at 14-15 (citing Hernandez Suppl. Dec. ¶ 12).
                                                 14
a backloading benefit increase based on that participant’s particular life or payment history. See

Defs.’ Reply at 12-13. Plaintiff’s challenge to the non-payment of these individuals is more

appropriately characterized as a challenge to the denial of an individual claim as opposed to a

broader challenge to Defendants’ overall compliance with the Court’s judgment. To the extent

Plaintiff’s counsel identifies individuals in this category who believe they are owed a benefit

payment, Hilton’s claims appeals process is the most proper forum for Plaintiff’s counsel to

address that complaint.     While Plaintiff may have identified instances where individual

adjustments for individual class members need to be made through Hilton’s claims appeals

process, these individual claims do not affect Defendants’ overall compliance with the judgment

nor evidence a systemic failure in the implementation.       Accordingly, the Court finds that

Plaintiff’s concerns about the payment of benefits to these categories of participants have no

bearing on Defendants’ overall compliance with the Court’s August 31, 2011, judgment.

         ii.    Adequacy of Efforts to Confirm Class Members’ Addresses

       Plaintiff’s second category of arguments relates to Defendants’ efforts to locate class

members.       Plaintiff argues that Defendants are mailing notices of benefit increases to

unconfirmed addresses, but are not doing any follow-up for 4,121 notices sent when there has

been no response to the notice or the mail is returned as undeliverable. Pl.’s Opp’n at 32.

Plaintiff also argues that Defendants have prematurely ended efforts to locate 149 individuals

with “no addresses.” Id. at 33. Plaintiff contends that, through their own efforts, they have been

able to locate alternative addresses for each of the 149 “bad address” class members. Id.

       Defendants contend that they are making sufficient efforts to locate and follow-up with

class members whose addresses are unconfirmed. Defendants explain that they have used PBI—

the search firm approved by the Court—to locate class members and that the Court did not order

                                               15
that they make any additional efforts to locate class members. Defs.’ Reply at 22. Defendants

further explain that when a notice addressed to a “bad address” is returned, “Defendants review

their files for any additional addresses, including any provided by Plaintiff. A mailing is then

sent to the address believed to be the next best address.” Id. at 21-22 (citing Hernandez Suppl.

Decl. ¶ 27).

          Defendants are correct that the Court has “decline[d] to order Hilton to take additional

steps beyond utilizing PBI to locate” class members.           Kifafi, 826 F. Supp. 2d at 44.

Nevertheless, the robustness of Defendants’ efforts to locate class members has been a

continuous complaint on Plaintiff’s part. Accordingly, the Court shall order Hilton and PBI to

place on the public record a sworn declaration regarding their search efforts in order to resolve

this issue prior to the expiration of the Court’s jurisdiction on February 23, 2015. Specifically,

the Court shall order Defendants to provide a sworn declaration to the Court averring as to

whether they have verified that the addresses located by Plaintiff for the 149 “bad address” class

members are indeed correct addresses. The Court shall also order PBI to provide in this sworn

declaration a description of their efforts undertaken to locate class members and, specifically, to

follow up when no response is received or a notice is returned as undeliverable or as addressed to

a bad address. PBI shall also indicate whether they have taken all steps to locate class members

in conformance with prevailing industry practices. If PBI is making all efforts to locate class

members in conformance with prevailing industry practices, the Court, in turn, will be satisfied

that Defendants are making all efforts to locate class members in compliance with the Court’s

orders.     While it is possible that the declaration provided by Hilton and PBI will reveal

improvements that could be made to Defendants’ efforts to locate class members, the Court

nevertheless finds that any room for improvement does not undermine the conclusion that

                                                 16
Defendants’ efforts to locate class members are in compliance with the Court’s judgment.

         iii.   Adequacy of Efforts to Distribute Payments to Located Class Members

       Plaintiff’s third category of arguments revolves around the notices and information forms

Defendants sent to class members to obtain information necessary to pay each class member his

or her benefits. Plaintiff contends that the inefficiencies in these forms and the manner in which

they are sent out keep class members from obtaining their benefits. Specifically, Plaintiff takes

issue with the fact that Defendants do not send a “form for early or normal retirement” along

with the notice of benefit increase when the notice is sent to a class member. Pl.’s Opp’n at 30.

Plaintiff also challenges the Information Form that Defendants send to surviving spouses and

non-spouse beneficiaries. Plaintiff claims it is not necessary for these forms to request Death

Certificates, information about all of the decedent’s marriages and the decedent’s creditors, nor

is it necessary to request the form be notarized. Id. at 28. Within the same category of

complaints, Plaintiff contends that he has received three reports that the call center Defendants

established to answer inquiries about increased benefits is providing incorrect information to

class members “including information discouraging class members from pursuing their rights to

benefits.” Id. at 35.

       Defendants explain that they do not send retirement forms along with the initial notice of

increased benefits because they do not want to send “highly personal and sensitive benefit

information” to a class member before receiving that class member’s confirmation, in response

to the notice, that Defendants are contacting the class member at the correct address. Defs.’

Reply at 20 (citing Hernandez Suppl. Decl. ¶ 26). As for the information requested on the

Information Form, Defendants argue that they are taking reasonable steps to ensure that

payments are made to the proper payees and to determine the value of any benefit due. Id. at 15-

                                               17
16 (citing Hernandez Suppl. Decl. ¶¶ 14, 15). Finally, Defendants argue that three reports that

the call center provided class members incorrect information is not evidence that Defendants are

noncompliant with the Court’s judgment order. Id. at 25. Defendants emphasize that they

regularly “provide[] re-training to the entire call center team,” they “conduct[] monthly random

call audits to monitor customer service quality and the accuracy of the information provided by

representatives,” and “when any quality or accuracy issues are uncovered, they are immediately

addressed and re-training conducted as necessary to correct them.” Id. at 25 (citing Hernandez

Suppl. Decl. ¶ 34).

       After reviewing all notices and information and retirement forms provided by the parties

as exhibits to their briefs, the Court finds that Defendants are generally taking reasonable steps to

ensure that the most class members receive their benefits while also protecting privacy concerns

and ensuring that benefits are actually dispersed to the proper payee. The Court agrees with

Defendants that it is in all parties’ interest for Defendants to first ensure that they have the

correct address for a class member before sending that class member their retirement forms.

However, if PBI or Defendants have confirmed the class member’s address, the Court finds there

is no reason for Defendants not to send the increased benefits notice and retirement forms to the

class member in the same mailing.

       The Court finds that Defendants have provided reasonable explanations as to why the

information they are requesting of surviving spouses and non-spouse beneficiaries on the

Information Form is needed. The Court does not find it unduly burdensome to require the

completed Information Form to be notarized. The Court does agree with Plaintiff, however, that

Defendants should use the Social Security Master Death Index instead of requesting Death

Certificates of class members since such a request is unnecessarily burdensome given that

                                                 18
Defendants can efficiently learn of a participant’s date of death through the Master Death Index.

While the Court understands that requiring Defendants to search the Social Security Master

Death Index instead of waiting for the class member to produce a Death Certificate will result in

additional work for Defendants, unless there are grounds to assert that the Social Security Master

Death Index is an unreliable source, the Court finds that eliminating the Death Certificate

requirement will cut down on additional paperwork that beneficiaries need to gather. Assuming

the Social Security Master Death Index is reliable, Defendants shall eliminate the request for

Death Certificates from the Information Form sent to class members going forward.

Furthermore, the Court understands that the Information Form now sent to class members

replaces a more ad hoc method of requesting information that Defendants employed when they

first began implementing the Court’s judgment. If Defendants did not receive the information

they needed from this earlier ad hoc method, Defendants should send the new Information Form

to the class members from whom they have not received the requested information.8 The

modifications the Court is requiring to Defendants’ notice and information-gathering system

should not be viewed as evidence that Defendants have not complied with the Court’s overall

judgment, but should be viewed simply as certain improvements the Court is requiring be made

       8
          Defendants developed the Information Form as a more comprehensive and systematic
method of collecting information from beneficiaries. Defs.’ Reply at 15 (citing Hernandez
Suppl. Decl. ¶ 14). When they initially began implementing the Court’s judgment, Defendants
had been collecting the information they needed through ad hoc requests on benefit increase
notices and were requiring documents such as birth certificates, letter testamentary, and letters of
administration. Id. Plaintiff challenges these requirements as unnecessary and unduly
burdensome in his briefing. See Pl.’s Opp’n at 27-28. However, since Defendants no longer
require these documents in the new Information Form, the Court need not address Plaintiff’s
arguments. See Pienta Suppl. Decl. ¶ 33. To the extent that these requirements in Defendants’
initial notice letter created a barrier to class members obtaining their benefits, the Court seeks to
remedy such a barrier by requiring Defendants to send the new Information Form to class
members from whom Defendants never received the necessary information for dispersing their
benefits.
                                                   19
to Defendants’ system for implementing the judgment.	

       Finally, the Court agrees with Defendants that they are taking all reasonable steps to

ensure that the information provided to class members by the call center is accurate. Evidence

that three class members allegedly received inaccurate information does not support a finding

that Defendants have not complied overall with the Court’s judgment. In sum, the Court finds

that Defendants are generally taking reasonable steps to ensure that the most class members

receive their benefits.

         iv.   Progress with Newly Vested Class Members and Vesting Service Claimants

       Plaintiff’s fourth category of complaints is that Defendants have not paid benefits to a

sufficient number of newly vested participants or vested a sufficient number of “union service”

claimants for the Court to view the judgment as satisfied. Specifically, Plaintiff complains that

only 212 of the 713 newly vested participants have been paid according to Defendant’s summary

categorization spreadsheet. Pl.’s Opp’n at 29. Of the 2,612 class members who were selected to

receive union service claim noticing, Plaintiff complains that only 551 vesting claims have been

received and only 165 of those claims have resulted in vesting. Id. Plaintiff alleges that class

members who contacted the call center were discouraged from filing claims unless they were

positive they had union service. Pienta Suppl. Decl. ¶ 48. In regards to the union service vesting

claims, Plaintiff also argues that Defendants’ letters denying vesting claims do not comply with

the requirement set out in ERISA, and mirrored in the Plan itself, that all denials of claims shall

set forth “the specific reason or reasons for the adverse determination” and describe the

procedures for reviewing the adverse determination. Pl.’s Opp’n at 29-30 (quoting The Plan,

ECF No. [341-2], Ex. C, at § 7.2).

       Defendants respond that 588 participants have been paid or are deferred vested and have

                                                20
been noticed their entire benefit, and another 68 were paid their original and 1999-1 Amendment

benefit. Defs.’ Reply at 18 (citing Hernandez Decl. ¶¶ 20-22). Defendants explain that “[a]s is

true for all participants due a true up, the only participants who remain unpaid are participants

that have not been located by any party or for whom information is needed from the participant

to complete payment.” Id. at 18. Defendants contend that Plaintiff’s argument that Defendants

have made little progress in paying these participants is based on a misinterpretation of the

benefits reflected in Defendants’ summary categorization spreadsheet as discussed in Part III.A.i.

Id. at 17. As for union service claims, Defendants respond that while the claims evaluation

process was “slowed by the [Social Security Administration] giving conflicting advice on

whether it would accept the form approved by the Court,” Defendants “properly administered the

union service claims process” ordered by the Court, determined all union service claims that

were received, mailed notices to claimants informing them if they were vested with the claimed

service credited, and have paid 100 of the 166 individuals who were vested. Id. at 18-19 (citing

Hernandez Suppl. Decl. ¶¶ 23-25). Of the remaining participants, 48 are deferred vested and not

yet in pay status, three are deceased and in the claims review process, one has a bad address and

has not been located, and 14 have been sent the paperwork to start their benefit, but have not yet

responded.9 Id. at 20 (citing Hernandez Suppl. Decl. ¶ 24).

       The Court finds that Defendants have made sufficient efforts towards satisfying the

Court’s judgment for these class members. This category of complaint is in essence a complaint

that Defendants have not paid benefits to enough class members in these two categories.



       9
         As of Defendants’ February 2, 2015, Status Report on the Mailing of Union Service
Notice and Claim Forms, 552 individuals have returned union service claim forms or a Social
Security Earnings Request form and Defendants have vested 171 participants who are due a
benefit. Status Report (Feb. 2, 2015), ECF No. [398], at 4.
                                              21
However, as was made clear in the discussion relating to Plaintiff’s second and third category of

complaints, payment to all class members is not necessarily immediately feasible or immediately

due or, in the case of union service claimant class members, ever due. Consequently, the

dispositive question is whether Defendants have made reasonable efforts to comply with the

judgment and pay those who are due benefits and whether they will continue to make such

efforts. In regards to these specific categories of class members, Plaintiff does not offer any new

argument concerning Defendants’ compliance efforts that has not been addressed by the Court in

relation to Plaintiff’s previous two categories of complaints.         The Court has found that

Defendants are making reasonable efforts to comply with the Court’s judgment and shall order

Defendants to provide the information and make the changes discussed above to assure the Court

that the maximum number of class members receives the benefits they are due. To the extent

that Plaintiff uses this category of arguments to challenge the denial of vesting for specific

individuals, the Court reiterates that Hilton’s claims appeals process is the proper forum for these

individual complaints.

       The Court does, however, share some of Plaintiff’s concern with Defendants’ letter

denying vesting claims. Having reviewed the letter Defendants sent to class members who

“could be eligible to claim additional vesting credit,” the Court finds that it is most appropriately

characterized as a hybrid acceptance/denial letter. See Pl.’s Opp’n, Ex. 12. In the letter,

Defendants explain that they are accepting the class member’s claim to additional years of

service, but then indicate that the class member “did not qualify for benefits under the Plan.” Id.

Pursuant to 29 U.S.C. § 1133 of ERISA “any participant or beneficiary whose claim for benefits

under the plan has been denied” must receive “adequate notice in writing” “setting forth the

specific reasons for such denial” and “a reasonable opportunity” “for a full and fair review by the

                                                 22
appropriate named fiduciary of the decision denying the claim.” The Plan parrots this language

and more explicitly requires the “claimant’s right to a review” be explained in the denial letter.

See The Plan, Ex. C, at § 7.2. While the Court finds that the letter sufficiently explains the basis

for the denial of benefits—“with the additional service, you did not qualify for benefits under the

Plan”—the letter does not meet Plan requirements because it does not provide an explanation of

the procedures for reviewing adverse determinations. Pl.’s Opp’n, Ex. 12 (emphasis added).

Accordingly, Defendants shall amend the “denial letter” to provide notice of the claimant’s right

to review if his or her claim to additional vesting service does not result in a benefit under the

Plan. Changing the letter does not change the outcome that a class member did not qualify for

benefits, but it does provide the class member notice of how to challenge the outcome.

Defendants shall also send the amended “denial letter” to those claimants who already received a

“denial letter” without the notice of the claimant’s right to review.

         v.    Other Compliance Concerns

                     a.        Notice to Social Security Administration

       Among Plaintiff’s final complaints, Plaintiff argues that Defendants are not fully

compliant with the Court’s judgment because they have not provided notice of the increased

deferred vested benefits to the Social Security Administration (“SSA”) as required by 26 U.S.C.

§ 6507(a). Pl.’s Opp’n at 31-32. The provision of such notices to the SSA was not part of this

Court’s judgment. These notices are required by statute and the Court assumes that Defendants

will follow the statute. Accordingly, Plaintiff’s complaint regarding SSA notices has no bearing

on the Court’s evaluation of Defendants’ compliance with the Court’s judgment.

                     b.        Default Presumptions

       Likewise, Plaintiff’s argument that Defendants are not using defaults to process payments

                                                 23
fails to establish that Defendants are not complying with the Court’s judgment. Id. at 33-34.

None of the Court’s orders have required the use of presumptions in paying benefits to class

members. Indeed, in the Court’s August 31, 2011, final remedial Order, the Court specifically

rejected the use of presumptions similar to those which Plaintiff is presently arguing Defendants

should employ. See Kifafi, 826 F. Supp. 2d at 41-42, 43-44. Accordingly, Plaintiff’s complaint

regarding default presumptions has no bearing on the Court’s evaluation of Defendants’

compliance with the Court’s judgment.

        vi.   Release of the Supersedeas Bond

       Having made the above findings regarding Defendants’ compliance with the Court’s

August 31, 2011, judgment, the Court concludes that Defendants are in compliance such that the

judgment is satisfied. In sum, the Court finds that Defendants have paid increased benefits to

approximately 11,000 of the approximately 20,000 class members, and sent notices of benefit

increases to approximately 5,600 class members who are not yet in pay status and due a benefit.

Defendants have unquestionably satisfied the Court’s judgment as to these approximately 16,600

class members—a proportion far greater than the 50% satisfaction rate alleged by Plaintiff. As

for those class members who are due a payment, but have not yet received their payments, the

Court finds that Defendants are making reasonable efforts, in compliance with the Court’s

orders, to locate these individuals and to provide them their payment. The Court finds the fact

that Defendants have not yet been able to locate or pay all of these remaining individuals is not

evidence of noncompliance with the Court’s judgment. Defendants have indicated that they are

steadily continuing to locate and pay outstanding class members and the Court finds that the

improvements ordered by the Court as detailed above will facilitate the prompt payment of

benefits to these class members. Accordingly, the Court shall release the supersedeas bond. See

                                               24
Halliburton Energy Services, Inc., 703 F. Supp. 2d at 670 (releasing the bond where the

“outstanding exposures at the Site [were] . . . nearly resolved” and defendant had “indicated that

it will pay the outstanding amounts . . . within the next two weeks.”)

   B. Discovery and Judgment Compliance Plan

       In Plaintiff’s Opposition to Defendants’ Motion to Release Supersedeas Bond and in

Plaintiff’s Motion for Post-Judgment Discovery, Plaintiff contends that Defendants should

provide to Plaintiff’s counsel the algorithms, calculation results, and mailing or payment records

for the approximately 20,000 class members in this case. Plaintiff presents Defendants’ failure

to provide this information as both evidence of non-compliance with the Court’s judgment, and

evidence of the need for post-judgment discovery to determine Defendants’ compliance with the

Court’s August 31, 2011, judgment. The Court finds that there is no evidence to support either

of these conclusions. The Court has required Defendants to provide the calculation of the

monthly annuity benefit, see Order (Aug. 31, 2011), at 8, and certain union service documents,

Kifafi, 736 F.Supp.2d at 75, but has not required Defendants to provide any of the information

Plaintiff now requests. Accordingly, Defendants’ refusal to provide Plaintiff’s counsel with this

information is not evidence that Defendants have not complied with the Court’s judgment.

       The Court further finds that Plaintiff has not met his burden of showing that he is entitled

to post-judgment discovery. As discussed at length in Part A, Plaintiff has not made a prima

facie showing that Defendants have been non-compliant with the Court’s order. See 800 Adept,

Inc., 2007 WL 2826247, at *2 (“[B]efore a court . . . permits extensive discovery of suspected

violations of its judgment, there should be at least a prima facie showing by the aggrieved party

of disobedience of the order.”); Mass. Union of Public Housing Tenants, 83 WL 150, at *4

(concluding that “since plaintiffs have failed to present a prima facie case for non-compliance

                                                25
with the final judgment of the Court, no further discovery will be allowed”).            Moreover,

Defendants have provided Plaintiff with spreadsheets detailing participant-by-participant how

much Defendants have paid in the form of lump sums and the amount that participants’ monthly

annuities have been increased. Defendants have also provided Plaintiff’s counsel with “a copy

of the executed backloading Plan amendment, the latest Actuarial Valuation Report, copies of

letters to union service claimants who were not vested, and additional detail on bad addresses,

union service claims, and current status of participants who have not responded to mailings.”

Defs.’ Reply at 24. As the Court discussed at the outset of this Memorandum Opinion, this

documentation is sufficient for the Court to evaluate Defendants’ compliance with the Court’s

judgment. In his briefing, Plaintiff raised an extensive number of potential problems with

Defendants’ compliance, however, Defendants have either resolved these issues, provided an

acceptable explanation for the issue, or the issue was outside the scope of this case.

Accordingly, the Court finds that there is no need for discovery into Defendants’ compliance

with the Court’s judgment.

       In requesting post-judgment discovery and a detailed compliance plan, Plaintiff’s counsel

is effectively requesting to be made a special monitor of the administration of the Plan.

Plaintiff’s counsel has made three previous attempts—in September 2009, April 2011, and

February 2013—to obtain a monitoring position over the administration of the Plan through the

appointment of a third party monitor or the appointment of Plaintiff’s counsel himself as

monitor. See Pl.’s Br. on Equitable Relief, ECF No. [211], at 9-13, 35-36; Pl.’s Proposed Order,

ECF No. [242-8], at 22-23; Pl.’s Class’ Response to Hilton’s Motion for Clarification and

Correction, ECF No. [343], at 18-20. The Court has not accepted any of these attempts. See

Kifafi, 736 F. Supp. 2d at 84-85 (denying Plaintiff’s monitoring plan as too intrusive); Kifafi, 826

                                                26
F. Supp. 2d at 37 (providing mechanism to present vesting and benefit disputes involving issues

decided by the Court to the magistrate judge, but rejecting proposal that Court appoint a special

master); Order (Oct. 11, 2013), at 6 (denying Plaintiff’s request for a monitoring plan). In its

Reply in Support of its Motion to Release Supersedeas Bond, Hilton submitted a sworn

declaration from Ted Nelson, Hilton’s Vice President Benefits Americas, averring that

       Hilton is committed to complying with the Court’s orders in the Kifafi . . .
       litigation. Hilton has been and will continue to take all reasonable steps within its
       power to comply with the Court’s orders, including working with Aon Hewitt, the
       Plan administrator, to pay all located participants who have provided information
       necessary to calculate the benefit and determine the appropriate payee, sending
       notices of benefit increases to located class members, promptly pay class
       members who provide information needed to determine the proper benefit amount
       and payee, and locate participants using PBI. To that end, Hilton, including
       myself, is supervising Aon Hewitt's administration of the Plan to ensure that Aon
       Hewitt also takes all reasonable steps within its power to comply with the Court's
       order.

Nelson Decl. ¶¶ 3-4. The Court finds that Mr. Nelson is a Hilton official of sufficient authority

and familiarity with the administration of the Plan and, thus, the Court shall hold Defendants

accountable based on Mr. Nelson’s commitment to complying with the judgment. Accordingly,

the Court denies both Plaintiff’s request for post-judgment discovery and request for a detailed

compliance plan.

                                      IV. CONCLUSION

       For the foregoing reasons, the Court concludes that Defendants are in compliance such

that they satisfied the terms of the Court’s August 31, 2011, judgment. Taking into account the

constantly evolving nature of providing retirement benefits, the Court is satisfied that there are

no systemic problems or failures in Defendants implementation of the judgment, only a few

refinements to Defendants’ forms and procedures that will further facilitate Defendants

reasonable efforts to implement the judgment. Accordingly, the Court GRANTS Defendants’

                                                27
Motion for Release of Bond Obligation and DENIES Plaintiff’s Motion for Post-Judgment

Discovery and Motion to Modify the Judgment in Aid of Enforcement.

       The Court’s jurisdiction over the implementation of the judgment in this case expires on

February 23, 2015. Prior to the expiration of the Court’s jurisdiction, Defendants shall aver in a

sworn declaration as to whether they have verified that the addresses located by Plaintiff for the

149 “bad address” class members are indeed correct addresses; whether PBI has taken all steps

to locate class members in conformance with prevailing industry practices; and the efforts PBI

has undertaken to locate class members and to follow-up when no response is received or a

notice is returned as undeliverable or as addressed to a bad address. Defendants shall file this

declaration with the Court by no later than February 18, 2015.

       In addition, Defendants shall amend the “denial letter” sent to union service vesting

claimants to provide notice of the claimant’s right to review if his or her claim to additional

vesting service does not result in a benefit under the Plan. Defendants shall also send the

amended “denial letter” to those claimants who already received a “denial letter” without the

notice of the claimant’s right to review.

       Assuming the Social Security Master Death Index is a reliable database, Defendants shall

also eliminate the request for Death Certificates from the Information Form sent to class

members going forward.

       In addition to sending the newly amended Information Form to class members going

forward, if Defendants have not received the information requested of a surviving beneficiary

through Defendants’ prior ad hoc system for requesting such information, Defendants shall send

the amended Information Form to the surviving beneficiary from whom Defendants have yet to

receive the necessary requested information.

                                               28
       Finally, if PBI or Defendants have confirmed a class member’s address, Defendants shall

send the increased benefits notice and retirement forms to the class member in the same mailing.

       Defendants shall file a Notice with the Court by no later than February 18, 2015

indicating that Defendants’ forms and procedures have been modified in conformance with the

Court’s orders outlined above and indicating that Defendants are in the process of sending the

amended “denial letter,” the amended Information Form, and retirement forms to class members

as outlined above.

       An appropriate Order accompanies this Memorandum Opinion.



                                                       /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




                                               29
