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Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 1 of 14UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORKROBERT TESTA, an individual,Civil Action No.: 10-cv-06229Plaintiff,DEFENDANTS’ RESPONSE TOPLAINTIFF’S STATEMENT OF-againstUNDISPUTED FACTS IN SUPPORTOF PLAINTIFF’S MOTION FORLAWRENCE BECKER, as plan administrator of the ENTRY OF SUMMARY JUDGMENTXerox Corporation Retirement Income GuaranteeAND DEFENDANTS’ STATEMENTPlan, and XEROX CORPORATION RETIREMENT OF UNDISPUTED FACTS ININCOME GUARANTEE PLAN, an EmployeeSUPPORT OF THEIR CROSSPension Benefit Plan,MOTION FOR SUMMARYJUDGMENTDefendants.I.DEFENDANTS’ RESPONSE TO PLAINTIFF’S STATEMENT OFUNDISPUTED FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR ENTRYOF SUMMARY JUDGMENTDefendants Lawrence Becker and the RIGP (collectively, “Defendants”), by theirattorneys, Littler Mendelson, P.C., submit the following Statement of Undisputed Facts inSupport of Plaintiff’s Motion for Entry of Summary Judgment (“Plaintiff’s Statement ofUndisputed Facts”):1.Prior to 1990, Xerox corporation had two ERISA “pension” plans, the XeroxProfit Shari[sic] Plan (the “PSP”) was a defined contribution plan.The old XeroxRetirement Income Guarantee Plan (the “RIGP”) was a defined benefit plan.RESPONSE:Defendants dispute that Plaintiff has proffered admissible evidence to support thisstatement. Plaintiff cites to paragraph 8 of the Declaration of John A. Strain of Plaintiff’s Briefin Support of Motion for Summary Judgment, which was filed with Plaintiff’s Motion forSummary Judgment (Dkt. No. 49-3) (“Strain Declaration”), and to “Exh. I (Frommert v.
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 2 of 14Conkright (“Frommert 1”), 433 F.3d 254, 257 (2d. Cir. 2006))”. Paragraph 8 of the StrainDeclaration states: “As a result of representing certain RIGP Members over the last 18 years, Iam familiar with the terms of such plan. The RIGP has never permitted a member to repay priordistributions back to the RIGP.” However, a declaration by Plaintiff’s attorney that he is“familiar with the terms of” the RIGP is not admissible evidence to support a motion forsummary judgment. Shamrock Power Sales LLC v. John Scherer, No. 12-CV-8959 (KMK),2015 U.S. Dist. LEXIS 133650, at *61 (S.D.N.Y. Sept. 30, 2015) (citing DiStiso v. Cook, 691F.3d 226, 230 (2d Cir. 2012)) (quoting Fed. R. Civ. P. 56(c)(4)) (when ruling on a motion forsummary judgment, a court should only consider evidence that would be admissible at trial, and“where a party relies on affidavits to establish facts, the statements ‘must be based on personalknowledge, set out facts that would be admissible in evidence, and show that the affiant iscompetent to testify on the matters stated.’”); see also L. R. Civ. P. 56(a)(1) (stating that theparty moving for summary judgment must submit a concise statement “of the material facts as towhich the moving party contends there is no genuine issue to be tried” and that “Each suchstatement must be followed by citation to admissible evidence as required by Fed.R.Civ.P.56(c)(1)(A).”).Additionally, Plaintiff’s citation to an “Exh. I” referencing the decision inanother matter, Frommert v. Conkright, 433 F. 3d 254, 257 (2d Cir. 2006) is confusing. Nodocument or evidence designated “Exh. I” has been submitted with Plaintiff’s motion forsummary judgment nor is there an “Exh. I” referenced in the Frommert citation. Moreover, thepage cited in the Frommert citation for this statement is irrelevant to Plaintiff’s statement.Consequently, the purported fact set forth in the first statement in Plaintiff’s Statement ofUndisputed Facts 1 is not properly before the Court on the present motion.1References to the individual statements set forth in Plaintiff’s Statement of Undisputed Facts-2-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 3 of 14Relatedly, neither the PSP nor the “old Xerox Retirement Income Guarantee Plan” havebeen submitted to the Court in this action by either party. Thus, purported evidence regardingthe terms of those plans are not properly before the Court on the present motion.Regardless, the first statement in Plaintiff’s Statement of Undisputed Facts are notmaterial on this motion as they relate to claims that have been dismissed by the Court,specifically, claims regarding the terms of the RIGP. The First and Second Claims in Plaintiff’sComplaint, which sought to recover benefits Plaintiff claims are due to him under the RIGP,enforcement of his purported rights under the terms of the RIGP, and clarification of his rights tofuture benefits under the RIGP (See Compl. ¶¶ 92-97 2), were dismissed by the Court’s Decisionand Order dated October 30, 2013, granting in part and denying in part, Defendants’ motion todismiss the Complaint (Dkt. No. 44) (the “Decision and Order”).Defendants refer to the terms of the 1998 Restatement of the RIGP for the material termsof the Plan as well as the 2007 Restatement; the 1998 Restatement of the RIGP was previouslysubmitted in support of Defendants’ motion to dismiss the Complaint as Exhibit B to theDeclaration of Lawrence M. Becker dated May 21, 2010. (Becker 2010 Decl., Ex. B 3; see alsothe 2007 Restatement of the RIGP, Strain Decl., Ex. G4).(Dkt. No. 49-2), which are not numbered in Plaintiff’s Statement, are referred to as the “firststatement”, “second statement” and so on in accordance with the order that the statements arelisted in Plaintiff’s Statement of Undisputed Facts.2References to Plaintiff’s Complaint (Dkt. No. 1), which is attached as Exhibit A to theDeclaration of Margaret A. Clemens, Esq., dated September , 2016, are cited as “Compl. ¶[paragraph number].”3References to the Declaration of Lawrence M. Becker dated May 21, 2010 and filed withDefendants’ motion to dismiss the complaint (Dkt. No. 22) are cited as “Becker 2010 Decl.,Ex. [exhibit number].”4References to the Declaration of John A. Strain in Support of Plaintiff’s Brief in Support ofMotion for Summary Judgment dated July 25, 2016 (Dkt. No. 49-3) are cited as “Strain Decl.,¶ [paragraph number], Ex. [exhibit letter].”-3-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 4 of 142.Effective January 1, 1990, Xerox discontinued contributions to the PSP,changed various features of the RIGP and merged the frozen PSP into the RIGP.RESPONSE:As set forth above in paragraph 1, Defendants dispute that Plaintiff has profferedadmissible evidence to support this statement. Plaintiff again cites to paragraph 8 of the StrainDeclaration and to “Exh. I at 257”. Paragraph 8 of the Strain Declaration is insufficient becausea declaration by Plaintiff’s attorney that he is “familiar with the terms of” the RIGP is notadmissible evidence to support a motion for summary judgment. Shamrock Power Sales LLC,2015 U.S. Dist. LEXIS 133650, at *61; see also L. R. Civ. P. 56(a)(1). Additionally, Plaintiff’scitation to an “Exh. I at 257”, purportedly referencing the decision in another matter that is citedin support of Plaintiff’s first statement – Frommert, 433 F. 3d at 257 – is confusing. There is noreference to “Exh. I” in the Frommert citation. Moreover, the page purportly cited in theFrommert citation for this statement is irrelevant to Plaintiff’s statement. Consequently, thepurported fact set forth in the second statement in Plaintiff’s Statement of Undisputed Facts isnot properly before the Court on the present motion.Relatedly, neither the PSP nor the “old Xerox Retirement Income Guarantee Plan” havebeen submitted to the Court in this action by either party. Thus, purported evidence regardingthe terms of those plans are not properly before the Court on the present motion.Regardless, the second statement in Plaintiff’s Statement of Undisputed Facts is notmaterial on this motion as it relates to claims that have been dismissed by the Court, specifically,claims regarding the terms of the RIGP. The First and Second Claims in Plaintiff’s Complaint,which sought to recover benefits Plaintiff claims are due to him under the RIGP, enforcement ofhis purported rights under the terms of the RIGP, and clarification of his rights to future benefits-4-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 5 of 14under the RIGP (See Compl. ¶¶ 92-97), were dismissed by the Court’s Decision and Order (Dkt.No. 44).Therefore, there are no genuine facts for dispute for the motion regarding the soleremaining claim in the Complaint. Defendants refer to the terms of the 1998 Restatement of theRIGP for the material terms of the Plan as well as the 2007 Restatement. (Becker 2010 Decl.,Ex. B; see also the 2007 Restatement of the RIGP, Strain Decl., Ex. G).3.The terms of the RIGP that are relevant to this case are reflected in theXerox Corporation Retirement Income Guarantee Plan, 2007 Restatement, as amended byAmendments 1 through 12 thereto (the “Plan” or the “RIGP”).RESPONSE:The third statement in Plaintiff’s Statement of Undisputed Facts appears to relate toclaims that have been dismissed by the Court, specifically, claims regarding the terms of theRIGP. The First and Second Claims in Plaintiff’s Complaint, which sought to recover benefitsPlaintiff claims are due to him under the RIGP, enforcement of his purported rights under theterms of the RIGP, and clarification of his rights to future benefits under the RIGP (See Compl.¶¶ 92-97), were dismissed by the Court’s Decision and Order (Dkt. No. 44).Therefore, there are no genuine facts in dispute for the motion regarding the soleremaining claim in the Complaint. Defendants refer to the terms of the 1998 Restatement of theRIGP for the material terms of the Plan as well as the 2007 Restatement. (Becker 2010 Decl., Ex.B; see also the 2007 Restatement of the RIGP, Strain Decl., Ex. G).4.Plaintiff Robert Testa was employed by Xerox from April 24, 1972 throughMay 12, 1977 and again from October 5, 1977 through February 1, 1983.-5-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 6 of 14RESPONSE:Disputed. Plaintiff cites to Exhibit E to the Strain Declaration, which is a June 2, 2009,letter to Attorney Strain from Arlyn Kaster, who was Manager Pension and Life InsuranceBenefits for the RIGP at that time. The dates of Plaintiff’s employment set forth in Exhibit E tothe Strain Declaration are different than those set forth in the fourth statement in Plaintiff’sStatement of Undisputed Facts. Defendants refer to the Kaster’s June 2, 2009 letter to Strain forits contents. (Becker 2016 Decl., Ex. D 5). Defendants admit that Plaintiff was initially employedby Xerox for a period beginning on or about April 24, 1972 and continuing until on or aboutMay 12, 1977 and again from on or about October 3, 1977, until on or about February 1, 1983and that Plaintiff recommenced employment with Xerox on or about July 8, 1985 and retiredfrom employment with Xerox on or about August 30, 2008. (See Compl., ¶¶ 51-53; Answer tothe Compl. ¶ 51-53 6; Becker 2016 Decl., Ex. D).5.When Testa left Xerox in 1983, his Average Monthly Compensation asdefined under the RIGP was approximately 3,800 per month.RESPONSE:Disputed. As an initial matter, the fifth statement in Plaintiff’s Statement of UndisputedFacts contradicts Plaintiff’s allegation set forth in paragraph 58 of the Complaint. (See Compl. ¶58). Furthermore, Plaintiff cites to paragraph 4 of the Declaration of Robert Testa in Support ofPlaintiff’s Brief in Support of Motion for Summary Judgment (“Testa Declaration”) in support ofthis statement, however, paragraph 4 of the Testa Declaration does not state what Plaintiff’s5References to the Declaration of Lawrence M. Becker dated September 28, 2016 and submittedherewith in opposition to Plaintiff Robert Testa’s motion for entry of summary judgment andin support of Defendants’ cross-motion for summary judgment are cited as “Becker 2016Decl., ¶ [paragraph number], Ex. [exhibit letter].”6References to Defendants’ Answer to the Complaint (Dkt. No. 47) are cited as “Answer to theCompl. ¶ [paragraph number].”-6-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 7 of 14“Average Monthly Compensation” was “as defined under the RIGP” nor does the TestaDeclaration offer any evidence for his declaration in paragraph 4 or show that Plaintiff “iscompetent to testify on the matters stated”, specifically what Mr. Testa’s Average MonthlyCompensation was as defined under the RIGP. See Shamrock Power Sales LLC, 2015 U.S. Dist.LEXIS 133650, at *61. Regardless, this statement is not material to resolving the pendingmotion for summary judgment on the sole remaining claim in the Complaint.6.When Testa left Xerox in 1983, Testa received a distribution ofapproximately 25,000 from the PSP. He did not receive any distribution from the RIGP.RESPONSE:Disputed. The sixth statement in Plaintiff’s Statement of Undisputed Facts contradictsPlaintiff’s allegation set forth in paragraph 54 of the Complaint. (See Compl. ¶ 54). Defendantsdisputed this fact in the Answer to the Complaint and admitted “Plaintiff has received priordistributions from the RIGP.” (See Answer to the Compl. ¶ 54). Therefore, this purported fact isnot “undisputed” as Plaintiff claims. Regardless, this statement is not material to resolving thepending motion for summary judgment on the sole remaining claim in the Complaint.7.Testa was rehired by Xerox on July 8, 1985.RESPONSE:Admitted. (Compl. ¶ 52; Answer to the Compl. ¶ 52; Becker 2016 Decl., Ex. D).8.The RIGP does not permit rehired participants to repay to either such planany amount distributed upon a prior termination of employmentRESPONSE:The eighth statement in Plaintiff’s Statement of Undisputed Facts appears to relate toclaims that have been dismissed by the Court, specifically, claims regarding the terms of the-7-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 8 of 14RIGP. The First and Second Claims in Plaintiff’s Complaint, which sought to recover benefitsPlaintiff claims are due to him under the RIGP, enforcement of his purported rights under theterms of the RIGP, and clarification of his rights to future benefits under the RIGP (See Compl.¶¶ 92-97), were dismissed by the Court’s Decision and Order (Dkt. No. 44).Additionally, Plaintiff cites, in part, to paragraph 9 of the Strain Declaration in support ofthe eighth statement in Plaintiff’s Statement of Undisputed Facts, however, the StrainDeclaration does not contain a paragraph numbered “9”. (See Strain Decl.). Regardless, thisstatement is not material to resolving the pending motion for summary judgment on the soleremaining claim in the Complaint. Defendants refer to the terms of the 1998 Restatement of theRIGP for the material terms of the Plan as well as the 2007 Restatement. (Becker 2010 Decl., Ex.B; see also the 2007 Restatement of the RIGP, Strain Decl., Ex. G).9.Testa did not have any opportunity to repay any amount with respect to the1983 distributions.RESPONSE:Defendants dispute that this statement is a material fact for the purpose of the Court’sconsideration on this motion because it does not create a genuine issue of fact for dispute as tothe sole remaining breach of fiduciary duty claim in this case and instead relates to a claim forbenefits previously dismissed by this Court’s Decision and Order. See Decision and Order (Dkt.No. 44).10.Testa retired from Xerox on August 30, 2005.RESPONSE:Admitted. (Compl. ¶ 53; Answer to the Compl. ¶ 53; Becker 2016 Decl., Ex. D).-8-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 9 of 1411.At the time of such termination, Testa’s Average Month Compensation was 10,614.18 per month and he had completed a total of 33.66 Years of Participation underthe RIGP (including the years completed before his termination in 1983).RESPONSE:In support of the eleventh statement in Plaintiff’s Statement of Undisputed Facts, Plaintiffcites, in part, to Exhibit A to the Strain Declaration, which, according to Mr. Strain, is a copy ofa “Pension Calculation Statement” dated July 24, 2008 that was provided to Plaintiff by theRIGP Plan Administrator. (Strain Decl., ¶ 2). Defendants refer to that Pension CalculationStatement dated July 24, 2008 provided to Plaintiff by the RIGP for its contents.Additionally, Plaintiff cites to Exhibit E to the Strain Declaration in support of theeleventh statement in Plaintiff’s Statement of Undisputed Facts, however, that document doesnot set forth any information as evidence for the statement. (See Strain Decl., Ex. E).Further, the eleventh statement in Plaintiff’s Statement of Undisputed Facts is not amaterial fact for the purpose of the Court’s consideration on this motion because it does notcreate a genuine issue of fact for dispute as to the sole remaining breach of fiduciary duty claimin this case and instead relates to a claim for benefits previously dismissed by this Court’sDecision and Order. See Decision and Order (Dkt. No. 44).-9-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 10 of 1412.Under Section 4.2 of the RIGP, Testa’s total accrued benefit under the RIGP(before any offsets) was equal to the following:Average Monthly Compensation times recognized Years of Participation times 1.4%which was equal to: 10,614.18 times 30 years 1.4 % 4,457.96 per month as an accrued benefit.RESPONSE:The twelfth statement in Plaintiff’s Statement of Undisputed Facts is not a material factfor the purpose of the Court’s consideration on this motion because it does not create a genuineissue of fact for dispute as to the sole remaining breach of fiduciary duty claim in this case andinstead relates to a claim for benefits previously dismissed by this Court’s Decision and Order.See Decision and Order (Dkt. No. 44).13.The Plan Administrator then reduced this amount to 1,703.65 per month.RESPONSE:Defendants dispute that Plaintiff’s benefit under the RIGP was reduced by the PlanAdministrator. Any reduction in Plaintiff’s benefit under the RIGP was calculated in accordancewith the terms of the RIGP as set forth in the 1998 Restatement of the RIGP and the 1998Summary Plan Description for the RIGP. (Dkt. No. 22, Becker 2010 Decl., Ex. B; Becker 2016Decl., Ex. D; Strain Decl., Ex. E).14.The Plan Administrator then converted that amount to a lump sum of 309,842.46.RESPONSE:The lump sum of Plaintiff’s benefit under the RIGP was calculated in accordance withthe terms of the RIGP as set forth in the 1998 Restatement of the RIGP and the 1998 Summary-10-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 11 of 14Plan Description for the RIGP. (Becker 2010 Decl., Ex. B; Becker 2016 Decl., Ex. D; StrainDecl., Ex. E).Defendants admit that the lump sum amount of 309,842.46 was distributed toPlaintiff from the RIGP on or about February 4, 2009. (Becker 2016 Decl., ¶ 8; Compl. ¶ 70;Answer to the Compl. ¶ 70).15.That sum was distributed to Testa as a rollover to an account at Bank ofAmerica.RESPONSE:Admit that the lump sum amount of 309,842.46 was distributed to Plaintiff from theRIGP on or about February 4, 2009, to a rollover account as requested by Plaintiff. (Becker 2016Decl., ¶ 8; Compl. ¶ 70; Answer to the Compl. ¶ 70).-11-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 12 of 14II. DEFENDANTS’ LOCAL RULE 56 STATEMENT OF UNDISPUTED FACTS INSUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENTPursuant to Local Civil Rule 56, Defendants, by their attorneys, Littler Mendelson, P.C.,by and for their statement of material facts as to which there are no genuine issues to be tried,state as follows:1.Plaintiff worked for Xerox intermittently commencing in 1972 until his retirementon or about August 30, 2008. (Becker 2016 Decl., Ex. D; Compl. ¶¶ 51-53).2.Plaintiff’s first period of employment was for approximately five years, fromApril 1972 to May 1977; his second period of employment was for about four years, fromapproximately October 1977 until February 1983; and his third stint with the Company was for aperiod of about twenty-three years, from July 1985 until August 2008. (Becker 2016 Decl., Ex.D; Compl. ¶¶ 51-53).3.Plaintiff was a participant in Xerox’s pension plan, known as the RIGP. Upon thetermination of his employment in 1983, plaintiff received a lump sum distribution of the thenpresent value of his pension benefit. (Comp. ¶ 54).4.When Plaintiff was rehired by Xerox in 1985, he again became a participant in theRIGP. (Id. ¶¶ 54-57).5.Plaintiff submitted a claim for benefits to the Plan Administrator in the form of aletter, dated May 26, 2009, addressed to Lawrence Becker. (Becker 2016 Decl., ¶ 9, Ex. C; seeCompl. ¶ 80).6.Plaintiff’s claim was denied by letter dated June 2, 2009, signed by Arlyn Kaster,Manager of Pension and Life Insurance Benefits. (Becker 2016 Decl., ¶ 10, Ex. D; see Compl. ¶81).-12-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 13 of 147.Plaintiff filed an appeal of such denial by letter addressed to the PlanAdministrator, Lawrence Becker, dated July 28, 2009. (Becker 2016 Decl., ¶ 11, Ex. E; seeCompl. ¶ 82).8.The appeal was denied by Becker by letter, dated August 4, 2009. (Becker 2016Decl., ¶ 12, Ex. F; Compl. ¶ 83).9.Plaintiff commenced this action by filing a Summons and Complaint in theDistrict Court for the Central District of California on January 28, 2010, and the case wastransferred to the Western District of New York. Testa v. Becker, 2010 U.S Dist. LEXIS 47130(CD. Cal. Apr. 22, 2010). (See generally Compl.).10.Plaintiff commenced this action approximately twelve years after the issuance ofthe 1998 Summary Plan Description for the RIGP. (See Compl.).11.Plaintiff alleges that he had no notice prior to 1998 of the phantom account offsetprovision contained in the RIGP. (See Compl. ¶¶ 75, 78).12.Plaintiff did not contend during the administrative claims process that he failed toreceive notice of the phantom account offset provision until a date later than 1998. (Becker 2016Decl., ¶ 9, Ex. C; see Compl. ¶ 80; Becker 2016 Decl., ¶ 11, Ex. E; see Compl. ¶ 82).13.Defendants filed a motion to dismiss the Complaint on May 21, 2010. (Dkt. No.14.In the Decision and Order, this Court dismissed Plaintiff’s First, Second and22).Fourth claims in their entirety. Testa v. Becker, 979 F. Supp. 2d 379, 384 (W.D.N.Y. 2013);(Dkt. No. 44).-13-
Case 6:10-cv-06229-DGL-JWF Document 52-1 Filed 09/27/16 Page 14 of 14Date: September 27, 2016Fairport, New York/s/Margaret A. ClemensMargaret A. ClemensPamela S.C. ReynoldsLITTLER MENDELSON, P.C.375 Woodcliff Drive, 2nd FloorFairport, NY 14450585.203.3400Attorneys for Defendants142903303.1-14-
Xerox Corporation Retirement Income Guarantee Plan, 2007 Restatement, as amended by Amendments 1 through 12 thereto (the "Plan" or the "RIGP"). RESPONSE: The third statement in Plaintiff's Statement of Undisputed Facts appears to relate to claims that have been dismissed by the Court, specifically, claims regarding the terms of the RIGP.
