Jensen v. Solvay Chemicals, Inc.

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH September 7, 2010
Elisabeth A. Shumaker
U N IT E D ST A T E S C O U R T O F A PP E A L S Clerk of Court

T E N T H C IR C U IT

W ADE JEN SEN ; DONALD D. GOFF,
individually and on behalf of all others
similarly situated ,

Plaintiffs - Appellants ,

v. No. 09-8082

SOLVAY CHEM ICALS, IN C.;
SO LV A Y A ME RIC A, IN C.; SOLVAY
A M ER ICA C OM PA N IES PEN SION
PLA N ,

Defendants - Appellees .

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E D IST R IC T O F W Y O M IN G
(D .C . N O . 2:06-C V -00273-A B J )

Stephen R. Bruce, Stephen R. Bruce Law Offices, W ashington, D.C., (Allison C.
Pienta, Stephen R. Bruce Law Offices, and Richard Honaker, Honaker Law
Offices, LC, Rock Springs, W yoming, with him on the brief), for Plaintiffs -
Appellants .

J. Richard Hammett, Baker & M cKenzie LLP, Houston, Texas, (Scott M . Nelson,
Baker & M cKenzie LLP; Paul J. Hickey and O’Kelley H. Pearson, Hickey &
Evans, LLP, Cheyenne, W yoming, with him on the brief), for Defendants -
Appellees .

Before H A R T Z, H O L LO W A Y , and G O R SU C H , Circuit Judges.
H A R T Z, Circuit Judge.

W ade E. Jensen and Donald D. Goff (Plaintiffs) represent themselves and a

class of current and former employees of subsidiaries of Solvay America, Inc.

who are at least 40 years old, participated in the Solvay America Companies’

Pension Plan before January 1, 2005 (the old plan), and since that date have been

subject to the plan’s Retirement Account Balance Formula (the new plan), a type

of formula known as a cash-balance formula. 1 Plaintiffs sued Solvay (the plan

sponsor and administrator) in the United States District Court for the District of

W yoming, claiming that Solvay’s conversion to the cash-balance formula violated

the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L.

No. 93-406, 88 Stat. 829 (codified in 29 U.S.C. §§ 1001–1461, and in various

sections of Title 26) and the Age Discrimination in Employment Act of 1967

(ADEA), 29 U.S.C. §§ 621–634. Under ERISA they sought the benefits to which

they would have been entitled if the old plan had continued. See 29 U.S.C.

§ 1054(h)(6)(A). U nder the ADEA they sought double damages. See id.

§§ 216(b), 626(b).

1
Solvay Chemicals, Inc., is a subsidiary of Solvay America, Inc. W e will
refer to both companies and the Solvay America Companies Pension Plan,
individually and collectively, as Solvay.

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 The district court granted Solvay’s m otion for summary judgment on all

claims. Plaintiffs appeal, arguing (1) that the court improperly adopted verbatim

the findings and analysis proposed by Solvay; (2) that Solvay violated ERISA by

not properly disclosing the extent to which conversion to the cash-balance

formula reduced benefits; and (3) that Solvay’s actions in converting to the new

plan violated the ADEA by negatively impacting older workers more than younger

ones.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm on all but one

issue. W e reject the challenge to the district court’s use of Solvay’s proposed

findings and conclusions. W e hold that Solvay’s notices to employees were

adequate under ERISA except that they failed to explain how early-retirement

benefits were calculated under the old plan. And we reject the ADEA claim

because it was undisputed that the new plan conforms to the requirements of

ADEA § 4(i), and under § 4(i)(4) the plan is therefore protected against Plaintiffs’

challenge.

I. BACKGROUND

A. Solvay’s Pension Plans

Before 2005, Solvay’s pension plan determined the annual retirement

benefit for an employee retiring at 65 (the normal retirement age) by multiplying

the employee’s years of qualified service by a percentage of the employee’s

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highest average five-year compensation 2 (plus a smaller percentage of the portion

of that compensation exceeding the “Covered Compensation” for persons of that

age in the current IRS table, see, e.g., Rev. Rul. 98-53, 1998-2 C.B. 630 (1999

Covered Compensation Tables)). If the employee took retirement benefits before

age 65, benefits were reduced based on age, though there was no reduction for

those retiring after reaching age 55 whose age plus service years totaled at least

85.

On January 1, 2005, Solvay’s plan switched to a new method of calculating

benefits, a cash-balance formula. 3 Under the new plan each employee has a

hypothetical retirement account, which is credited every quarter w ith a pay credit

(based on compensation for that quarter and the sum of age and years of service)

and an interest credit (equal to the account balance multiplied by the interest rate

on 30-year Treasury securities). The employee may take the account balance as a

single lump-sum payment; or the employee may take the balance as a monthly

2
M ore precisely, the compensation figure is the average annual
compensation received during the 60 highest-paid consecutive calendar months
out of the 120 months before retirement.
3
The parties do not challenge the district court’s conclusion that the new
plan, like the old, is a defined-benefit plan. In a defined-benefit plan, participants
“have no claim to any particular asset that composes a part of the plan’s general
asset pool, but, instead, receive an annuity based on the retiree’s earnings history,
usually the most recent or highest paid years, and the number of completed years
of service to the company.” Register v. PNC Fin. Servs. Group, Inc., 477 F.3d
56, 62 (3d Cir. 2007) (internal quotation marks omitted).

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annuity whose value is the actuarial equivalent of the account balance when the

annuity begins, whatever the employee’s age at that time. To calculate the

actuarial equivalence, the plan uses the mortality table prescribed by the Secretary

of the Treasury and an annual discount rate, which may change over the history of

the plan but was assumed to be 5% when the plan conversion occurred.

The calculation under the new plan is somewhat more complicated for

employees who had worked for Solvay while the old plan was in effect and

continued to work for Solvay after December 31, 2004, under the new plan. 4 The

opening balance of their hypothetical accounts is the actuarial equivalent of their

normal-retirement benefit (which is, essentially, the monthly pension available if

the employee begins receiving benefits at age 65) accrued under the old plan as of

December 31, 2004. That is, roughly speaking, the opening balance would be a

sum that could purchase an annuity that would pay the same monthly benefit as

the already vested age-65 pension. Also, when an employee takes early

retirement (before age 65), if the monthly benefit under the cash-balance formula

is less than the monthly benefit that the employee had accrued under the old plan

by December 31, 2004, the employee receives the monthly benefit accrued under

the old plan.

4
Not all employees who had previously worked for Solvay switched to the
new plan. Employees were permitted to remain under the old plan if they had
completed 10 years of service and were 50 years old by January 1, 2005.

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 Plaintiffs’ concerns relate to two consequences of the conversion to the

new plan. First, employees who continued to work for Solvay would not receive

as large a pension as they would have if Solvay had retained the old plan.

Second, employees who continued to work for Solvay might have to work several

years before their early-retirement benefit increased beyond what had vested on

the date of the plan conversion. Plaintiffs refer to the second consequence as a

wear-away of benefits. They assert that both negative consequences affect older

employees (those in Plaintiffs’ class for this litigation) more than younger

employees. It is worth taking a moment to explain both consequences.

To begin with, we describe how the benefits under the new plan would be

less than what employees would have received if they had continued to be covered

by the old plan as they worked for Solvay after December 31, 2004. Because of

additional complexities that arise with respect to early-retirement

benefits— complexities that we w ill address in the upcoming discussion of w ear-

aways— we will consider only the benefit that an employee would receive if the

employee waited until age 65 to start taking benefits (although the employee may

have ceased working for Solvay years earlier). On the first day under the new

plan, the employee was entitled to the same age-65 retirement benefit as the

employee would have received under the old plan. This result follows from the

method by which the employee’s initial cash-balance account w as calculated.

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That initial balance was the actuarial equivalent of the value of the age-65

pension. In other words, if on December 31, 2004, the employee had a vested

benefit under the old plan of $1,000 a month when the employee reaches age 65,

then the employee’s initial cash balance under the new plan would have been the

amount of money it would take to buy an annuity that would pay the employee

$1,000 a month once the employee turns 65. 5

From that date on, however, the benefits under the old and new plans

diverge. Under the new plan the employee’s age-65 pension benefit would

increase every quarter because pay and interest credits are added to the cash-

balance account. This increase, however, would not be as rapid as the benefit

increase would have been under the old plan. As a result, if the employee

continued working until age 65, the pension would be significantly less than it

would have been if the old plan had continued, sometimes less than half as much.

This is the first consequence that Plaintiffs have concerns about.

The description of the second consequence— wear-aways— is more

complex. As we shall see, wear-aways result from Solvay’s subsidy for early-

5
This statement is not precisely accurate. Because of the way that mortality
rates factor into computations under the new plan, the age-65 annuity may be
slightly less than it would have been under the old plan. If so, the employee
would receive the old-plan benefit. According to Plaintiffs’ expert, however, the
new-plan age-65 annuity would usually exceed the benefit vested under the old
plan after the employee had worked under the new plan for about a year.

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retirement benefits (received after reaching age 55 but before age 65) under the

old plan, a subsidy that was not continued under the new plan. 6 W e have already

noted that on the day of conversion from the old plan to the new plan, the cash-

balance-account pension at age 65 would be the same as the age-65 pension under

the old plan. But the pension that the employee would receive upon retirement at

an earlier age (say, age 55) would be more under the old plan than would be

calculated under the cash-balance method. Under the old plan, an employee who

decides to take early retirement would receive a monthly benefit equal to the

benefit that the employee would receive at age 65, less a percentage of that

amount for every year early the pension starts (unless one has reached age 55 and

one’s age plus service years equals at least 85, in which case there is no

reduction). The annual percentage reduction is 3% if the employee had reached

age 55 before leaving Solvay employment; otherwise it is 4% per year. Thus, one

who leaves Solvay at age 55 and immediately begins to take retirement benefits

will receive a monthly benefit that is 30% (10 x 3% ) less than she would have

received if she left work at age 55 but deferred receiving benefits until age 65. If

6
As stated in the previous footnote, there could also be wear-aways caused
by the use of mortality rates in new-plan computations. But we will ignore them,
because the analysis in this opinion would not be affected by those less
significant wear-aways, which are not a focus of Plaintiffs’ claims.

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the employee would have received $1,000 a month at age 65, the employee would

receive $700 a month at age 55.

Under the new plan the early-retirement benefit is calculated differently.

Just as the age-65 retirement benefit is determined by calculating the monthly

annuity at age 65 that is actuarially equivalent to the hypothetical cash-balance

account, the early-retirement annuity (say, at age 55) is also actuarially equivalent

to the amount in the cash-balance account. If the cash-balance account is large

enough at one point that it could purchase a $1,000 monthly annuity beginning at

age 65, it could purchase a monthly annuity of something less than $500

beginning at age 55. (The new plan assumes an annual discount rate of 5% , so

the reduction for taking retirement 10 years earlier would be more than 50% .)

The important point is that interest rates and mortality rates are such that the ratio

of the early-retirement monthly annuity at age 55 to the monthly annuity for an

age-65 pension will be less under the new plan than under the old plan. If the

employee w ould receive an age-65 monthly annuity of $1,000 under both plans,

the age-55 monthly annuity would be $700 under the old plan (70% of the age-65

annuity) and less than $500 under the cash-balance formula (less than 50% of the

age-65 annuity). To describe this from another perspective, for the early-

retirement annuity to be actuarially equivalent to the age-65 annuity, the early-

retirement benefit would need to be reduced by significantly more than 3% for

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each year before age 65 that the employee begins receiving benefits. It cost the

old plan much more when an employee decided to receive benefits before age 65

than if the employee deferred receipt until age 65. That is, the old plan

subsidized early-retirement benefits. The new plan does not.

The reason for the wear-away effect is that even after conversion to the

new plan, the employee is entitled to at least as high a benefit as the employee

had accrued under the old plan before the conversion. An example w ill illustrate

the point. Assume as before that at the time of conversion to the new plan, the

employee’s vested benefit would be a monthly annuity of $1,000 beginning at age

65. Because the opening cash balance under the new plan would be actuarially

equivalent to that annuity, the employee would receive the same age-65 monthly

annuity under the cash-balance calculation. But, as just explained, the early-

retirement annuities under the two plans could be quite different. Under the old

plan, the employee would be entitled to a monthly pension of $700 beginning at

age 55 ($1,000 – (10 x 3% x $1,000)). In contrast, under the cash-balance plan

the amount in the employee’s account would pay for only a monthly annuity of

less than $500 beginning at age 55. The employee, however, is entitled to the

benefit that he had accrued under the old plan before the conversion, so the

employee would receive $700 a month if he chose to begin receiving benefits at

age 55. How then would things look after the employee works another year for

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Solvay under the new plan? Although the employee’s cash-balance account will

have grown because of pay and interest credits, it is unlikely to grow enough to

purchase a $700 monthly annuity at age 55. The employee is still entitled to a

$700 monthly annuity beginning at age 55 (because that benefit had accrued under

the old plan), but that is the same early-retirement benefit that the employee had

been entitled to a year earlier. The extra year’s work did not increase that benefit.

(W e should point out, though, that the age-65 annuity would always increase;

there is no wear-away period with respect to that benefit (except as noted in

footnotes 5 and 6) because the hypothetical-account balance increases each year

and the initial balance was calculated as the amount that would pay for the age-65

annuity that had already accrued under the old plan.) This could go on for several

years. The number of years of work it takes before the employee’s early-

retirement benefit under the cash-balance formula exceeds the vested benefit

under the old plan is called the wear-away period. According to Plaintiffs’

actuarial expert, M r. Jensen’s wear-away period would be 4.9 years and M r.

Goff’s, 11.4 years.

B. N otice to E m ployees

In September 2004 Solvay sent materials about the plan change to its

employees. The materials included a document called “204(h) Notice for

Participants of the Solvay America Companies’ Pension Plan,” J. App., Vol. II at

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342; a brochure on the FutureChoice program, which included the new cash-

balance plan and an optional savings plan that enhanced previous benefits; and a

personalized statement of estimated opening account balances. Between

September and October, Solvay also hosted employee meetings to discuss

FutureChoice and compare it to the prior plan.

Of particular importance to this appeal is the § 204(h) notice. The first

detailed description in the notice is a section called “Summary of Plan Formula

Changes.” As set forth in the footnote, it describes benefit formulas under the old

plan and the new plan. 7 The results of the conversion are later illustrated in a

7
The section states:
Under the current plan, you earn a life annuity comm encing at
age 65 equal to a percentage of average earnings prior to retirement
for each year of service (1.1% of average earnings plus 0.6% of
average earnings in excess of Social Security covered compensation).
Generally, this benefit cannot be taken as a lump sum. The current
plan also allows you to retire as early as age 55 and receive a life
annuity commencing on your early retirement date but reduced to
reflect the earlier commencement. The current plan formula includes
an early retirement subsidy.

Under the new Retirement Account Balance Plan, your benefit
is described in terms of an account balance, which you will be able to
receive either as a lump sum or a life annuity. Your account grows
each year with interest as w ell as pay credits. Interest credits vary
each year depending on the prevailing yields on 30-year Treasury
Bonds. The pay credits vary depending on your age and service as
follow s.

(continued...)

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section entitled “Benefit Examples for Sample Employees,” which we have also

7
(...continued)

The benefit you have earned or accrued as of December 31,
2004 under the current plan will be converted to your starting
account balance under the new plan by taking the actuarial present
value of your accrued benefit based on a 5% discount rate. Early
retirement factors are not considered in this calculation. The present
value calculation assumes that you do not retire until age 65.
Therefore, the starting account balance does not include the value of
the early retirement subsidy.

You can always elect to receive your account balance in the
form of a life annuity under the new plan. Your life annuity at any
retirement age will never be less than the retirement benefit you will
have earned under the current plan as of December 31, 2004, which
will include an early retirement subsidy, if applicable. In addition,
the same optional forms of payment available under the current plan
will be available under the new Retirement Account Balance Plan.
The benefit you earn after December 31, 2004 under the new
Retirement Account Balance Plan formula w ill not include early
retirement subsidies.

J. App., Vol. II at 342–43. The notice later explains that the “[a]ctuarial
equivalence used to convert the cash balance lump sum to a monthly annuity and
to calculate the opening balance is based on the most recent IRS-mandated
mortality table, GAR-94, and 5.0% interest.” Id. at 347.

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footnoted. 8 The section provides tables that compare what 16 hypothetical

8
The notice states:
The examples¹ on the next few pages are designed to help you
understand how the plan changes may affect your future benefits.
The examples compare benefits under the current benefit formula and
the Retirement Account Balance Plan formula for representative
employees (not real people) with different ages and years of service
with Solvay America as of January 1, 2005. A lthough they are not
personalized, the exam ples w ill help you understand the
potential im pact of the form ula ch anges on y our plan benefits.
You should review the examples that are closest to your current age,
service and compensation. The follow ing exam ples do not include
the enhanced savings plan benefits.
The table compares benefits payable under the current
form ula (assum ing that form ula had rem ained in effect after
January 1, 2005) and u nder the new form ula. The numbers
shown in the new formula column take into account the Retirement
Account Balance Plan benefit and the frozen benefit under the
current formula as of December 31, 2004.
The assumptions used for the calculations are shown after the
examples. Any changes in these assumptions would change the
estimated projections shown in the examples. In fact, it is likely that
actual experience w ill differ from these assumptions.
A bout Tables A and B
These tables are meant to illustrate a comparison between what
employees are projected to have received if the plan would have kept
its current formula in 2005 and beyond, and what they are projected
to receive in the new formula. Tables A and B show sample
participants with pensionable earnings during 2004 of $45,000 and
$90,000, respectively.
The tables show the before-tax future benefits that would be
paid to them at age 65 as a single life annuity (monthly payment for
life). The first scenario (the left-hand portion of the table) assumes
each of these people leaves Solvay America at age 65. The second
scenario (the right-hand portion of the table) assumes each of these
people leaves Solvay America at age 55.

(continued...)

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8
(...continued)
The examples in tables A and B do not include the additional
enhanced savings plan benefits.

¹These examples are for illustrative purposes only. Actual experience will
differ from these assumptions. Receiving this notice is in no way a
guarantee of continued employment or payment of benefits.

(continued...)

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employees would be expected to receive as benefits under the new plan with what

they would have been expected to receive if the old plan had continued. There is

8
(...continued)

J. App., Vol. II at 345–46.

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also a section entitled “Early Retirement Benefits” that explains the concept of

wear-aways without using the term. It provides an example of an employee with a

six-year w ear-aw ay period. The section is reproduced in the footnote below. 9

9
The section states:
Some participants may notice that while their lump sum benefit
always grows, their monthly benefit may not increase at the same rate
or at all in some years. This could be due to changes in prevailing
interest rates. The lower the interest rate used to convert account
balances to annuities, the smaller the annuity equivalent of your
account balance will be (and vice versa). Flat or sm all monthly
benefit increases can also be due to the fact that the starting account
balance used by [Solvay] does not take into account early retirement
subsidies.
For example, take an employee who is age 54 as of December
31, 2004 with 12 years of service and earnings of $50,000. Her
monthly benefit earned under the current plan as of December 31,
2004 is $500 payable for life beginning at age 65. Her opening
balance in the new plan is $39,000. The following chart compares
the monthly annuity earned under the current plan at December 31,
2004 (which will be payable to her as a protected minimum benefit)
to the monthly annuity and lump sum benefit under the new plan that
would be payable at each retirement age from 55 to 65.

(continued...)

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 C. D istrict-C ourt Proceedings

Plaintiffs’ complaint set forth six claims: (1) that Solvay violated ERISA

§ 204(h), 29 U.S.C. § 1054(h), by not adequately disclosing that the benefit-

accrual rate was reduced under the new plan, that the reduction was a function of

age, that early-retirement subsidies were eliminated, and that em ployees w ould

suffer a wear-away period; (2) that the summary of material modifications (SM M )

required by ERISA § 102(a), 29 U.S.C. § 1022(a), was deficient and Solvay

violated its fiduciary duty under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), by

failing to disclose the negative effects of the cash-balance plan; (3) that the

change in Solvay pension plans discriminates against Plaintiffs based on age,

thereby violating ADEA § 4(a), 29 U.S.C. § 623(a); (4) that the cash-balance plan

violates the “133a % benefit accrual” requirement of ERISA § 204(b)(1)(B),

29 U.S.C. § 1054(b)(1)(B); (5) that the cash-balance plan violates the rule against

forfeiture in ERISA § 203(a), 29 U.S.C. § 1053(a), because participants’ rights to

9
(...continued)

In this example, w hile the lump sum in the new plan continues to
increase with pay and interest credits at each age, the actuarial
equivalent monthly annuity will be no greater than the monthly
annuity earned as of December 31, 2004 until this employee reaches
age 61, when she will begin to earn an additional annuity benefit
under the new plan formula.

J. App., Vol. II at 344.

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accrued benefits are conditional; and (6) that under the new plan, the rate of

benefit accrual based on a particular year’s wage is greater for younger employees

than older employees, violating both ERISA § 204(b)(1)(H), 29 U.S.C.

§ 1054(b)(1)(H), and ADEA § 4(i)(1)(A), 29 U.S.C. § 623(i)(1)(A). The district

court certified the ERISA claims as a class action and the A DEA claims as a

collective action.

Solvay moved for summary judgment on all six claims, and Plaintiffs

moved for partial summary judgment on their first claim (under ERISA § 204(h)).

The district court granted Solvay’s motion.

On appeal Plaintiffs challenge only the dismissal of their first claim (failure

to make adequate disclosures under ERISA § 204(h)), second claim (failure to

make adequate disclosures under ERISA § 102 and under the fiduciary duty

imposed by ERISA § 404(a)(1)), and third claim (age discrimination under AD EA

§ 4(a) because of the w ear-away periods). They argue (1) that the district court

did not apply the correct summary-judgment standard because much of its order

was a verbatim adoption of Solvay’s proposed findings and factual analysis; (2)

that Solvay’s notice under ERISA § 204(h) did not adequately disclose various

benefit reductions; (3) that Solvay’s SM M violated the disclosure requirement of

ERISA § 102 and Solvay’s fiduciary duty to disclose under ERISA § 404(a)(1);

and (4) that the plan conversion violated A DEA § 4(a).

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II. D ISC U SSIO N

A. Standard of R eview

“W e review the district court’s grant of summary judgment de novo,

applying the same standards that the district court should have applied.” Jarvis v.

Potter, 500 F.3d 1113, 1120 (10th Cir. 2007). Summary judgment is appropriate

if “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

Because this appeal is from a grant of summary judgment to Solvay, we view the

evidence in the light most favorable to Plaintiffs. See Cahill v. Am. Family M ut.

Ins. Co., 610 F.3d 1235, 1236 (10th Cir. 2010).

Plaintiffs contend that because the district court adopted much of its order

verbatim from Solvay’s summary-judgment brief, it could not have applied the

proper summary-judgment standard. But we need not decide whether we agree

with Plaintiffs’ characterization of the court’s actions. Although we disapprove

of verbatim adoptions, they do not affect our standard of review. See Flying J

Inc. v. Comdata Network, Inc., 405 F.3d 821, 830 (10th Cir. 2005). In any event,

our review is de novo; because we do not defer to the district court, its findings

and analysis have no legal import for our review.

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 W e first address Plaintiffs’ disclosure claims under ERISA; then we

consider their ADEA claim.

B. E R ISA D isclosures

Plaintiffs fault Solvay for inadequately disclosing the effects of the new

plan. In particular, they say that Solvay violated the following ERISA provisions:

(1) § 204(h) and its implementing regulation, which require notice of significant

reductions in benefit-accrual rates; (2) § 102 and its implementing regulation,

which require a summary of any material modification to the plan; and (3)

§ 404(a)(1), which, according to Plaintiffs, imposes a general fiduciary duty that

can require plan administrators to disclose information not specifically mandated

by ERISA . W e consider each argument in turn.

1. Section 204(h) N otice

ERISA § 204(h) provides that when an amendment to a pension plan results

in “a significant reduction in the rate of future benefit accrual,” 29 U.S.C.

§ 1054(h)(1), the plan administrator must provide a notice to plan participants,

see id. § 1054(h)(2). Under the original version of § 204(h) enacted in 1986, the

only requirement for the content of the notice was that the notice “set[] forth the

plan amendment and its effective date.” Consolidated Omnibus Budget

Reconciliation Act of 1985, Pub. L. No. 99-272 § 11006(a)(2), 100 Stat. 82

(1986). But because of concern that employees often did not understand the

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negative impact on benefits, see H.R. Rep. No. 107-51 (II), at 142–43 (2001),

Congress amended the section in 2001 so that it now requires that the notice “be

written in a manner calculated to be understood by the average plan participant

and . . . provide sufficient information (as determined in accordance with

regulations prescribed by the Secretary of the treasury) to allow applicable

individuals to understand the effect of the plan amendment.” 29 U.S.C.

§ 1054(h)(2); see Economic Growth and Tax Relief Reconciliation Act of 2001,

Pub. L. No. 107-16 § 659(b), 115 Stat. 38 (2001); see also 26 U.S.C. § 4980F(e)

(stating same requirements as § 204(h)). The Secretary of the Treasury issued its

final regulation implementing § 204(h) in 2003. See Notice of Significant

Reduction in the Rate of Future Benefit Accrual, 68 Fed. Reg. 17277-02 (Apr. 9,

2003). It is codified at 26 C.F.R. § 54.4980F-1.

Plaintiffs do not say that Solvay’s § 204(h) notice is inaccurate. But they

argue that it fails to comply with various provisions of 26 C.F.R. § 54.4980F-1

that require additional information. They contend that the notice is deficient

because (1) it “Does Not Describe the Drastic Reductions in Future Retirement

Benefit in the M anner Prescribed by the Regulations,” Aplt. Br. at 50; (2) it says

nothing about how early-retirement benefits are calculated under either the old

plan or the new plan; and (3) it does not disclose that employees in their 40s and

early 50s may face a lengthy wear-away period.

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 i. Significan t R eduction in B enefits

Plaintiffs assert that because the plan conversion “drastically lower[ed] . . .

future benefit accruals,” Aplt. Br. at 50, the notice should have set forth enough

information for participants to estimate the magnitude of the reduction and to

compare readily what the future accruals would be under the two plans. They

contend that the notice is inadequate in this respect because (1) it fails to state

that there is a large reduction in future accrual rates or to describe that reduction

in “percentage or dollar terms,” as do the regulation’s illustrative examples, id. at

51; (2) the examples in the tables “only show the total of the previously-earned

benefits with the new benefits without identifying the part earned before or after

the conversion,” id. at 50; and (3) the notice does not disclose that the reduction

was more severe for older employees. In our view, however, the notice was

adequate in disclosing reductions in benefits.

Section 54.4980F-1, A-11(a)(4)(i)(A) requires notices to “include sufficient

information for each applicable individual to determine the approximate

magnitude of the expected reduction for that individual.” Plaintiffs concede that

the “reduction” referred to in the regulation is the reduction of benefits. See Aplt.

Br. at 50 (“The D istrict Court’s Order accurately stated that the Treasury

regulations require disclosure of ‘sufficient information for each applicable

individual to determine the approximate magnitude of the expected reduction [of

-23-
benefits] for that individual.’” (quoting district court’s order, J. App., Vol. I at

46; brackets in district-court order and Plaintiffs’ brief)). The regulation

explicitly provides that the notice requirement can be satisfied “if the notice

includes one or more illustrative examples showing the approximate magnitude of

the reduction in the examples,” 26 C.F.R. § 54.4980F-1, A-11(a)(4)(ii)(A), so

long as the examples “bound the range of reductions,” id. § 54.4980F-1,

A-11(a)(4)(ii)(B), and are based on reasonable assumptions, see id. § 54.4980F-1,

A-11(a)(4)(ii)(C).

In our view, Tables A and B in Solvay’s § 204(h) notice satisfy these

requirements. They provide illustrative examples comparing the expected

monthly benefit under the new plan with the expected monthly benefit that would

have been earned if the old plan had continued; the examples concern employees

of different ages, compensation, service years, and time of retirement. By finding

the example most like himself, an employee can estimate his benefit reduction in

dollar terms. Nothing in these tables hides the fact that the new plan significantly

reduces employees’ monthly benefits. On the contrary, these comparisons show

that employees are almost always worse off after the conversion; for instance, a

50-year-old employee with 10 years of service, who makes $45,000 a year, and

who plans to retire at 65, would have received $1,500 a month under the old plan;

but he will receive less than half that amount— $700 a month— under the new

-24-
plan. Plaintiffs have not complained that the examples fail to bound the range of

reductions in annuities or that the assumptions are unreasonable.

Plaintiffs do complain, however, that Solvay’s notice does not describe

“future accruals under the new formula in percentage terms that can be readily

compared to the 1.1% of final pay offered by the old formula.” Aplt. Br. at 53.

They point to § 54.4980F-1, A-11(b), Example 4. True, the notice in Example 4

complies with what Plaintiffs would require. The example concerns a conversion

of a plan like Solvay’s old plan to a cash-balance plan. Unlike Solvay’s new

plan, however, there was no carryover from the old plan to the hypothetical cash-

balance account, which thus started with $0. See 26 C.F.R. § 54.4980F-1,

A-11(b), Example 4(i)(B). The vested benefit from the old plan was simply added

to the cash-balance benefit under the new plan. See id. The notice in Example 4

contains only three illustrations, one of which is described in detail. See id. at

Example 4(i)(D). It hypothesizes a 49-year-old employee with 10 years of service

who is earning $50,000. See id. The notice projects that from age 49 to 65 the

employee w ill accrue an average annual benefit of .57% of the employee’s highest

three-year pay, compared to 1.5% under the old plan. See id. But the regulation

says nothing to require such a comparison of annual accrual rates. The test in the

regulation is whether the notice provides enough information to allow an

employee “to determine the approximate magnitude of the expected reduction.”

-25-
Id. § 54.4980F-1, A-11(a)(4)(i)(A). Perhaps some employees would prefer the

information to be in the form of annual accrual rates. But many (we suspect

most) would prefer to know the bottom line— what will I get under the new plan

compared to what I would have gotten had the old plan continued. The tables

provided by Solvay are more informative in that regard than the three illustrations

in Example 4. And it is worth noting that the final sentence of Example 4 states

that § 54.4980F-1, A-11(a)(4)(ii) would have been “satisfied if the notice instead

directly stated the amount of the monthly pension that would have accrued over

the 16-year period from age 49 to age 65 under the old formula.” Id. § 54.4980F-

1, A-11(b), Example 4(ii); see id. at Example 5(ii) (containing similar statement

regarding early-retirement pension). That sentence is inconsistent with a

requirement that reductions be stated in terms of annual accrual rates.

Although Plaintiffs also challenge Solvay’s notice because it does not

“describe the reductions in future benefits in percentage or dollar terms,” Aplt.

Br. at 51, the regulation does not require that the notice compute the reduction. It

is enough if the notice provides easily compared figures (such as accrual rates or

monthly benefits) for the plan before and after conversion. The notice in

Example 4, for instance, does not subtract the two accrual rates to obtain the

difference (the reduction in rates); and the final sentence of the example endorses

a notice that states the “amount of the monthly pension” accrued under the new

-26-
cash-balance plan, not the amount by which this pension is less than it would have

been under the old plan. The examples in Solvay’s tables provide easily

compared figures— the monthly benefits under the old and new plans— so the

notice is adequate in that regard.

W e are also not persuaded by Plaintiffs’ claim that the notice is defective in

that the benefits that are compared are the benefits that the employee would earn

as a result of the employee’s entire tenure with Solvay. The tables in the notice

take, for example, an employee who worked for Solvay for 10 years before the

conversion and then state the expected annuity amount assuming the conversion

and the expected amount assuming that there had been no conversion. Plaintiffs

argue that the comparisons should have been between how much additional

annuity the employee would earn after the conversion and how much additional

the employee would have earned in that period had there been no conversion.

They again cite Example 4, which so distinguishes the benefits. All that the

regulation requires, however, is information allowing an easy comparison of the

benefits expected after the conversion with those that would have been expected

had there been no conversion. Solvay’s notice provides that information. Some

employees may prefer a comparison in the form demanded by Plaintiffs; but

others may not. In any event, an employee who reviews the examples in Solvay’s

-27-
notice will have no doubt that the reduction in the annuity is due totally to the

decline in future accruals resulting from the conversion to the new plan.

As for Plaintiffs’ contention that the notice fails to mention that the

reduction in the rate of future accruals was more severe for older employees, that

omission violates no provision of the regulation. W e also note that if an

employee wishes to see whether other employees fare better under the conversion

than she does, the tables in Solvay’s notice provide ample information with which

to do so.

ii. C alculation of Early-R etirem ent Benefits

Plaintiffs argue that the notice “did not disclose how early retirement

benefits are calculated before and after the cash balance amendment.” A plt. Br.

at 42–43. They rely on 26 C.F.R. § 54.4980F-1, A-11(a)(3)(ii), which states that

when an amendment

reduces an early retirement benefit or retirement-type subsidy . . .,
the notice must describe how the early retirement benefit or
retirement-type subsidy is calculated from the accrued benefit before
the amendment, [and] how the early retirement benefit or retirement-
type subsidy is calculated from the accrued benefit after the
amendment.

W e first address the early-retirement benefit under the old plan.

Under the old plan an employee’s early-retirement benefit was derived from

the normal-retirement benefit— that is, the monthly pension payable if the

employee begins receiving the pension at age 65. W hatever that normal monthly

-28-
benefit was, it was reduced by 3% for every year before age 65 that the employee

began receiving benefits, if the employee was at least 55 before leaving Solvay’s

employment. The benefit was reduced by 4% each year if the employee left

before age 55. There was no reduction from the normal-retirement benefit,

however, if the employee left the company after reaching age 55 and the

employee’s age plus years of service totaled at least 85 on the date of termination.

As pointed out above, an employee’s early-retirement benefit had a greater

actuarial value than the normal-retirement benefit. That is, based on mortality

data (the number of years that the employee w ill probably be receiving benefits)

and expected interest rates, the reduction in benefits for early retirement should

exceed 3% or 4% per year if the cost to the company for the benefit is to be the

same as for normal retirement. In other w ords, the company subsidized early

retirement under the old plan. Because the new plan provides no early-retirement

subsidies, the disclosure requirement of § 54.4980F-1, A-11(a)(3)(ii) was

triggered by Solvay’s conversion.

W e agree with Plaintiffs that the regulation therefore required Solvay’s

notice to describe how the early-retirement benefit was calculated under the old

plan. And we further agree that the notice contains no such description. All that

Solvay can say in its defense on appeal is to emphasize the language in the notice

stating: “The current plan also allows you to retire as early as age 55 and receive

-29-
a life annuity commencing on your early retirement date but reduced to reflect the

earlier commencement. The current plan formula includes an early retirement

subsidy.” J. App., Vol. II at 343. W e fail to see how an employee could calculate

early-retirement benefits with just this information. The notice does not comply

with the regulation.

On the other hand, the notice adequately describes how to calculate early-

retirement benefits under the new plan. It informs employees (1) that their

“benefit is described in terms of an account balance, which you will be able to

receive either as a lump sum or a life annuity,” id.; (2) that the account balance is

based on the present value of their benefits under the old plan, plus pay credits

and interest credits (including how they are calculated); and (3) that to convert a

cash-balance lump sum into a monthly annuity, employees must use “the most

recent IRS-mandated mortality table, GAR-94, and 5.0% interest,” id. at 347. The

notice also advises employees that, unlike the old plan, the new plan offers no

early-retirement subsidies. There is, however, one lapse in the disclosure of

early-retirement benefits under the new plan. Even after conversion to the new

plan, an employee is entitled to the early-retirement benefit accrued before the

conversion if that benefit exceeds what has accrued under the new cash-balance

plan. One could therefore say that the notice does not fully disclose how early-

-30-
retirement benefits are calculated under the new plan insofar as the new plan

incorporates some benefits under the old plan.

W e therefore conclude that Solvay’s notice failed to comply with the

requirements for disclosure of early-retirement calculations. W hether Plaintiffs

are entitled to relief, however, depends on whether there was an “egregious

failure” in compliance. 29 U.S.C. § 1054(h)(6)(A). W e remand to the district

court to resolve that issue (although it may also consider any defense not

addressed in this opinion that Solvay may have to this claim).

iii. W ear-A w ay Periods

Plaintiffs also fault Solvay’s notice for inadequate disclosure of another

matter relating to early retirement. They contend that the “notice did not include

the required information from which individuals can determine whether they will

be subject to w ear-aways, . . . [or] examples to illustrate the ‘range of reductions’

as directed by [26 C.F.R. § 54.4980F-1, A-11(a)(4)(ii)(B)].” Aplt. Br. at 47.

Further, they say, the notice did not disclose the duration of the wear-away

periods. But these contentions are based on a misreading of the regulation.

After declaring that the requirement to disclose the reduction in benefits

can be satisfied by providing examples, the regulation states that such examples

are required for conversions in two circumstances:

[1] any change from a traditional defined benefit formula to a cash
balance formula or [2] a change that results in a period of time

-31-
 during which there are no accruals (or minimal accruals) with regard
to normal retirement benefits or an early retirement subsidy (a w ear-
away period).

26 C.F.R. § 54.4980F-1, A-11(a)(4)(ii)(A). 1 0 Both circumstances are present in

the Solvay conversion. It is both a conversion from a traditional defined-benefit

formula to a cash-balance formula, and the conversion created w ear-away periods.

The next provision then describes w hat should be covered by the examples.

It states:

W here an amendment results in reductions that vary (either among
participants, as would occur for an amendment converting a
traditional defined benefit formula to a cash balance formula, or over
time as to any individual participant, as would occur for an
amendment that results in a wear-away period), the illustrative
example(s) provided in accordance with this paragraph (a)(4)(ii) must
show the approximate range of the reductions.

Id. § 54.4980F-1, A-11(a)(4)(ii)(B). As w e understand the quoted language, it

says nothing about disclosing the duration of wear-away periods or even about

10
The full text of the provision states:
(ii) Illustrative examples— (A) Requirement generally. The
requirement to include sufficient information for each applicable
individual to determine the approximate magnitude of the expected
reduction for that individual under (a)(4)(i)(A ) of this Q & A-11 is
deemed satisfied if the notice includes one or more illustrative
examples showing the approximate magnitude of the reduction in the
examples, as provided in this paragraph (a)(4)(ii). Illustrative
examples are in any event required to be provided for any change
from a traditional defined benefit formula to a cash balance formula
or a change that results in a period of time during which there are no
accruals (or minimal accruals) with regard to normal retirement
benefits or an early retirement subsidy (a w ear-away period).

-32-
using the term wear-away. It simply requires that the “illustrative example(s) . . .

show the approximate range of the reductions.” Id. The concept of a wear-away

may provide an interesting, or even useful, lens to examine a conversion from one

pension plan to another; but a wear-away is not itself a “reduction.” A reduction

is a decrease in the anticipated pension benefit. Thus, all that the regulation

requires with respect to wear-aways in early-retirement benefits is that the

illustrations “show the approximate range of the reductions” in early-retirement

benefits. Id. In that regard, the Solvay notice appears to be adequate. The tables

in the notice give 14 examples of changes in monthly benefits resulting from the

conversion for employees retiring at age 55 (and two examples for retirement at

60). The examples do not conceal the large reductions that may occur, with

several examples showing reductions greater than two-thirds of the benefit under

the old plan. Plaintiffs say that the examples do not show the range in wear-away

periods; but they have made no argument that the range of examples is

unrepresentative, misleading, or otherwise inadequate in showing the extent of the

reduction in early-retirement benefits.

And Solvay’s notice does more. It contains a section entitled “Early

Retirement Benefits” that alerts employees to the possibility that there may be

years in which those benefits do not grow. The section, which is reproduced

earlier in this opinion, see n.9, supra, does not contain the word wear-away, but

-33-
the concept is presented. The section states: “Some participants may notice that

while their lump sum benefit always grows, their monthly benefit may not

increase at the same rate or at all in some years. This could be due to . . . the fact

that the starting account balance used by [Solvay] does not take into account early

retirement subsidies.” J. App., Vol. II at 344. Further, although the illustration in

the section would in itself be inadequate to inform employees of the potential

decline in early-retirement benefits, it describes a six-year wear-away period and

should assist employees in understanding the wear-away concept.

Accordingly, we reject Plaintiffs’ argument that Solvay’s notice violated

§ 54.4980F-1 because of an inadequate description of w ear-aways.

2. Sum m ary of M aterial M odification

ERISA entitles plan participants to receive “[a] summary of any material

modification in the terms of the plan and any change in the information required

[to be in a summary plan description],” and the summary must be “written in a

manner calculated to be understood by the average plan participant.” 29 U.S.C.

§ 1022(a); see 29 C.F.R. § 2520.104b-3(a) (implementing § 1022(a)). The

information required to be in a summary plan description is set forth in 29 U.S.C.

§ 1022(b). See 29 C.F.R § 2520.102–3(l) (implementing § 1022(b)).

Solvay’s summary, its SM M , consists of the § 204(h) notice and the

FutureChoice brochure. Plaintiffs contend that the SM M did not adequately

-34-
disclose (1) the “changes in reduction factors for early retirement,” Aplt. Br. at

57; (2) “the legally-required protection of early retirement benefits offered under

the prior plan or the loss or forfeiture of the value of those features if employees

accept lump sum distributions before 55,” id. at 57–58; or (3) “the general classes

of employees subject to wear-away or the approximate range of such wear-

aways,” id. at 57.

W e are not convinced that the SM M was defective. W ith respect to

Plaintiffs’ first contention, aside from the failure to disclose how early-retirement

benefits were calculated under the old plan, the SM M adequately described how

the new plan differed from the old. And we need not decide w hether that failure

constituted an independent violation of § 1022(a), because we have already held

that the failure violated 26 C.F.R. § 54.4980F-1, A-11(a)(3)(ii); and Plaintiffs

have not suggested that any additional remedy would be available for a violation

of § 1022(a).

As for any other possible defects in the SM M , we would assume that a

notice that complies with the disclosure requirements of § 204(h) w ould satisfy in

that respect the requirements for an SM M . W e apparently are not alone in that

regard. W hen the § 204(h) regulation was published in 2003, the introduction to

the regulation stated: “The Department of Labor has advised the IRS that a plan

administrator who provides a section 204(h) notice to applicable individuals in

-35-
accordance with this final rule will be treated as having furnished those

individuals with an SM M regarding the section 204(h) amendment.” 68 Fed. Reg.

at 17278.

In any event, we will briefly address Plaintiffs’ other two contentions.

They rely on the requirement that a summary plan description must “describe the

plan’s provisions relating to eligibility,” 29 C.F.R. § 2520.102-3(j) (emphasis

added), and “clearly identify[] circumstances which may result in . . . denial, loss,

forfeiture, suspension, offset, reduction, or recovery . . . of any benefits that a

participant or beneficiary might otherwise reasonably expect the plan to provide

on the basis of the description of benefits,” id. § 2520.102-3(l) (emphases added).

First, Plaintiffs complain that the SM M did not disclose the “loss or

forfeiture of the value of [early-retirement benefits] if employees accept lump

sum distributions before age 55.” Aplt. Br. at 57–58. The contention is obscure.

But to the extent that we understand it, we reject it. Even were we to agree that

one change in the Solvay plan was the introduction of the possibility that an

employee could lose early-retirement benefits by taking a lump-sum distribution

before age 55, no employee who chooses a lump-sum benefit reasonably expects

to retain any annuity benefit. Solvay’s documents clearly state that an employee

must make an election between alternative benefits. The loss of the annuity is not

-36-
an unexpected forfeiture, and therefore need not be disclosed in a summary plan

description or an SM M .

As for disclosures regarding wear-aways, the authorities cited by Plaintiffs

are either not persuasive or readily distinguishable. W e disagree with the

suggestion in Hum phrey v. United W ay of Tex. Gulf Coast, 590 F. Supp.2d 837,

847 n.6 (S.D. Tex. 2008), that a wear-away provision is an eligibility requirement

in that “Participants [must] wear away their prior pension before they will receive

benefits under their current one.” W ear-away under Solvay’s plan is a

consequence of a change in plan terms, not a fact that an administrator must

determine to assess eligibility for a benefit. Therefore, wear-away need not be

disclosed as a new eligibility requirement after conversion.

And the other decisions cited by Plaintiffs as requiring disclosure of w ear-

aways involved significant failures to disclose that are not present, or even

approximated, here. In Richards v. FleetBoston Fin. Corp., No. 3:04-cv-1638

(JCH), 2006 W L 2092086, at *8 (D. Conn. July 24, 2006), the notice did not

properly explain how the opening cash-balance account was calculated. In Amara

v. CIGNA Corp., 534 F. Supp.2d 288, 340, 346 (D. Conn. 2008), the employer

admitted that it had never informed employees that they may not accrue benefits

under the new cash-balance plan, and the court found that the employer had made

“material misrepresentations suggesting benefit increases,” id. at 339, and

-37-
“offered statements that misled plan participants into believing that significant

reductions in the rate of future benefit accrual were not a component or a possible

result of” the conversion to the new plan, id. at 340. The employer had provided

no before-and-after examples of changes in the plan. See id. at 343.

In sum, we hold that Solvay’s SM M was not deficient, except for the

possibility that § 1022(a) required disclosure of the old plan’s method of

calculating early-retirement benefits. W e need not address that possible violation,

however, because we have held that the failure to disclose violates 26 C.F.R.

§ 54.4980F-1, A-11(a)(3)(ii), so remand is required in any event.

3. F id uciary D uty

Plaintiffs’ remaining criticism of Solvay’s disclosure is that it “Breached

Its Fiduciary Duties By Refusing to Provide Information in Response to Inquiries

from Employees.” A plt. Br. at 58. Their complaint alleges that this fiduciary

duty to disclose arises under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), although

their discussion of the issue in their appellate brief does not cite that provision.

It is an interesting question whether the fiduciary duties imposed by

§ 404(a)(1) include a duty of disclosure. The Supreme Court left the issue open

in Varity Corp. v. Howe, 516 U.S. 489, 506 (1996) (“[W]e need not reach the

question whether ERISA fiduciaries have any fiduciary duty to disclose truthful

information on their own initiative, or in response to employee inquiries.”). The

-38-
circuit courts are divided on the matter. Some have held that any duty to disclose

is imposed only by ERISA’s specific disclosure requirements. See Faircloth v.

Lundy Packing Co., 91 F.3d 648, 657 (4th Cir. 1996); Ehlmann v. Kaiser Found.

Health Plan of Tex., 198 F.3d 552, 555 (5th Cir. 2000); Sprague v. Gen. M otors

Corp., 133 F.3d 388, 405 (6th Cir. 1998) (en banc). Others, however, have held

that § 404(a) can impose additional duties of disclosure. See G laziers &

Glassworks Union Local No. 252 Annuity Fund v. Newbridge Sec. Inc., 93 F.3d

1171, 1181–82 (3d Cir. 1996); Shea v. Esensten, 107 F.3d 625, 628–29 (8th Cir.

1997); Eddy v. C olonial Life Ins. Co. of Am., 919 F.2d 747, 750–51 (D.C. Cir.

1990).

W e need not enter the debate, however, because Plaintiffs have not

adequately presented the issue in their appellate brief. They have not specified a

single em ployee question to w hich Solvay did not respond. W ithout more, we

cannot determine what, if any, fiduciary duties were violated. Appellate courts

will not address abstract legal issues that are not tied to specific events. See

United States v. Allen, 603 F.3d 1202, 1209 (10th Cir. 2010) (A court will not

“analyze the record for [the appellant] to determine whether a violation occurred.

That task was for [appellant’s] counsel and it has not been performed.”). W e

therefore decline to consider this argument. See Cisneros v. Aragon, 485 F.3d

-39-
1226, 1233 (10th Cir. 2007) (arguments not adequately addressed on appeal are

waived).

C. A D E A C laim

Plaintiffs’ final claim is that Solvay’s conversion to a cash-balance formula

violated § 4(a) of the ADEA, which makes it unlawful for employers to “fail or

refuse to hire or to discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In

district court Plaintiffs contended that a wear-away consequence of the

conversion was that “older, longer-service employees will accrue no additional

benefits for their years of employment with [Solvay] in 2005, 2006, 2007 and

subsequent years. Younger or recently hired employees will not experience a

similar benefit freeze.” J. App., Vol. I at 201. During this period, Plaintiffs

alleged, Solvay “incurs no cost for older, longer-service employees’ pensions. A t

the same time, [Solvay] incurs costs for younger employees’ pensions.” Id. at

202.

Solvay argues that this claim fails because of the ADEA provision

specifically addressing benefit accruals in pension plans. Subsection (i) of AD EA

§ 4 (entitled, “Employee pension benefit plans; cessation or reduction of benefit

-40-
accrual or of allocation to employee account . . . ,” 29 U.S.C. § 623(i)) broadly

prohibits age discrimination with respect to benefit accruals:

Except as otherwise provided in this subsection, it shall be unlawful
for an employer, an employment agency, a labor organization, or any
combination thereof to establish or maintain an employee pension
benefit plan which requires or permits—

(A) in the case of a defined benefit plan, the cessation of
an employee’s benefit accrual, or the reduction of the
rate of an employee’s benefit accrual, because of age
....

Id. § 623(i)(1). But, as foreshadowed by the introductory clause, the subsection

proceeds to set forth several safe harbors— practices that do not violate § 4. Of

special importance is § 4(i)(4), which states: “C ompliance with the requirements

of this subsection with respect to an employee pension benefit plan shall

constitute compliance with the requirements of this section relating to benefit

accrual under such plan.” Id. § 623(i)(4). Section 4(i) was added to the ADEA in

1986. The conference report accompanying the amendment explained:

It is the intention of the conferees, in adopting the amendments to
ADEA (new sec. 4(i)), that the requirements contained in section 4(i)
related to an employee’s right to benefit accruals with respect to an
employee benefit plan . . . shall constitute the entire extent to which
ADEA affects such benefit accrual and contribution matters with
respect to such plans . . . .

H.R. Rep. No. 99-1012, at 144 (1986) (Conf. Rep.), as reprinted in 1986

U.S.C.C.A.N. 3868, 4027.

-41-
 Solvay contends that paragraph (4) bars Plaintiffs’ claim because (1)

Plaintiffs do not challenge the district court’s ruling that Solvay’s plan complies

with § 4(i), and (2) Plaintiffs do not contest that their ADEA “wear-away claim

relates to benefit accrual under [Solvay’s] Plan.” Aplee. Br. at 27. W e agree.

Plaintiffs raise two counterarguments, but neither is persuasive. First, they

argue that they are making a disparate-impact claim under the ADEA, not a

disparate-treatment claim, and that § 4(i)(4) bars only disparate-treatment claims.

The distinction between the two types of claims is well-established. In general,

disparate treatment occurs when an “employer simply treats some people less

favorably than others” because of a certain characteristic, such as race or age;

disparate impact, on the other hand, “involve[s] employment practices that are

facially neutral in their treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justified by business necessity.”

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). But

Plaintiffs’ contention that the distinction is relevant to § 4(i)(4) is made out of

whole cloth. Nothing in the statutory language supports it. On the contrary,

§ 4(i)(4) states broadly that compliance with § 4(i) “shall constitute compliance

with the requirements of this section relating to benefit accrual.” 29 U.S.C.

§ 623(i)(4). Plaintiffs’ claim is raised under § 4, and compliance with § 4(i)

satisfies § 4, period.

-42-
 In support of their contention, Plaintiffs cite two district-court opinions that

appear to state that disparate-impact claims can be brought under § 4(a) despite

compliance with § 4(i). See George v. Duke Energy Ret. Cash Balance Plan, 560

F. Supp.2d 444 (D.S.C. 2008); Vaughn v. Air Line Pilots Ass’n, Int’l, 395 B.R.

520 (E.D.N.Y. 2008). But we decline to follow them. W e cannot tell how the

cases were argued to those courts; but we are struck by the failure to cite § 4(i)(4)

in either opinion. See Nw. Airlines, Inc. v. Phillips, 594 F. Supp.2d 1075, 1089

(D. M inn. 2009) (noting failure of George to consider § 4(i)(4)). W e choose to

follow the plain language of the statute rather than court opinions that ignore the

statute.

Plaintiffs’ second counterargument is that “§ 4(i) does not regulate early

retirement benefits.” A plt. Br. at 35. They rely on ADEA § 4(i)(6), which states:

“A plan shall not be treated as failing to meet the requirements of paragraph (1)

solely because the subsidized portion of any early retirement benefit is

disregarded in determining benefit accruals . . . .” 29 U.S.C. § 623(i)(6).

According to Plaintiffs, this language means that subsidized early-retirement

benefits fall outside § 4(i)’s scope. But, they continue, after § 4(i) was added to

the ADEA in 1986, a 1990 amendment clarified that § 4(a) governs benefit plans.

Section 4(a) bars age discrimination against employees “with respect to . . .

compensation, terms, conditions, or privileges of employment,” id. § 623(a)(1);

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and the amendment stated that “[t]he term ‘compensation, terms, conditions, or

privileges of employment’ encompasses all employee benefits, including such

benefits provided pursuant to a bona fide employee benefit plan,” id. § 630(l).

Thus, Plaintiffs reason, the 1990 amendment brought subsidized early-retirement

benefits (w hich were not within § 4(i)’s scope) w ithin § 4(a)’s scope.

W e disagree. The principal problem with Plaintiffs’ analysis is that it

contradicts the statutory language. The 1990 Amendment on which they rely did

not repeal § 4(i)(4), which states that compliance with subsection (i) constitutes

compliance w ith § 4 insofar as benefit accrual is concerned. If the 1990 Congress

intended that § 4(i)(4) not apply to early-retirement subsidies addressed in

§ 4(i)(6), it surely would have found some language to express that intent. Sub

silentio repeals are not favored in the law. See, e.g., Dir. of Revenue of M o. v.

CoBank ACB, 531 U.S. 316, 323 (2001). M oreover, the natural reading of

§ 4(i)(6) is not that subsidized early-retirement benefits fall outside the scope of

§ 4(i). Rather, its clear import is that plans do not violate the ADEA when they

disregard early-retirement subsidies in determining benefit accruals. Plaintiffs’

concern is that § 4(i)(6) protects a practice that they believe to be age

discrimination. W e agree that one could make a decent argument that wear-aways

can discriminate on the basis of age. But it appears to be for that very reason that

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paragraph (6) was enacted— the paragraph removes such age-discrimination

claims from debate (at least when § 4(i) is otherw ise satisfied).

W e reject Plaintiffs’ arguments on their ADEA claim.

III. C O N C L U SIO N

W e AFFIRM the judgment of the district court with respect to Plaintiffs’

ADEA claim and with respect to all of their ERISA claims except the claim based

on the failure of the § 204(h) notice to describe the calculation of early-retirement

benefits. W e REVERSE and REM AND for further proceedings on that ERISA

claim.

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