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Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 1 of 40UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORKBRUCE D. KUNSMAN, et al.,Plaintiff,-againstSALLY L. CONKRIGHT, PATRICIA M.NAZEMETZ AND LAWRENCE M. BECKER, INTHEIR CAPACITY AS XEROX CORPORATIONRETIREMENT INCOME GUARANTEE PLANADMINISTRATORS AND AS INDIVIDUALS,XEROX CORPORATION RETIREMENTINCOME GUARANTEE PLAN, XEROXCORPORATION, HEWITT ASSOCIATES, andHEWITT MANAGEMENT COMPANY LLC,Civil Action No. 08-cv-6080 (DGL)Defendants.DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFMCNEIL’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTIONFOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSSMOTION FOR SUMMARY JUDGMENTLITTLER MENDELSON, P.C.Attorneys for Defendants375 Woodcliff Drive, 2nd FloorRochester, NY 14450(585) 203-3400Margaret A. Clemens, Esq.Pamela S. C. Reynolds, Esq.
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 2 of 40TABLE OF CONTENTSPAGEPRELIMINARY STATEMENT . 1STATEMENT OF FACTS AND PROCEDURAL HISTORY. 1ARGUMENT . 6POINT ITHE CLAIMS OF FORTY-THREE PLAINTIFFS MUST BEDISMISSED BECAUSE THEY SIGNED VALID,ENFORCEABLE RELEASES . 6A.Plaintiffs’ Education and Business Experience Support a ValidWaiver . 7B.The Access to the Agreement and Time to Review It Also Supporta Waiver . 7C.The Third and Fourth Factors Favor the Enforcement of theRelease . 15D.Plaintiffs Were Expressly Advised to Consult With An Attorney . 16E.Plaintiffs Received Adequate Consideration for the Release . 18F.Other Circumstances Warrant Enforcement of the Releases . 20POINT IIPLAINTIFFS’ REQUEST FOR INJUNCTIVE ORDECLARATORY RELIEF FOR “SIMILARLY SITUATEDPLAN PARTICIPANTS” IS INAPPROPRIATE AND NOTLEGALLY JUSTIFIED . 23POINT IIIPLAINTIFFS’ REMAINING CLAIM IS SUBJECT TODISMISSAL BASED ON WELL-ESTABLISHED LAW . 27A.Plaintiffs’ Breach of Fiduciary Duty Claim Must Be Dismissed . 28B.The Court of Appeals Never Intended to Preclude Valid Defensesto Claims . 30C.The Plan Administrator Properly Denied Time-Barred Claims . 31CONCLUSION . 33-i-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 3 of 40TABLE OF AUTHORITIESPage(s)Cases805 Third Avenue Co. v. M.W. Realty Associates,58 N.Y.2d 447 (1983) .14Aken v. Xerox Corp.,No. 07-CV-6253, 2008 U.S. Dist. LEXIS 56187 (W.D.N.Y. July 22, 2008).18Alliance Bond Fund v. Grupo Mexicano de Desarrollo, S.A.,143 F.3d 688 (2d Cir. 1998).23Anderson v. Xerox,614 F. App’x 38 (2d Cir. 2015) . passimBaldwin Cty. Welcome Ctr. v. Brown,466 U.S. 147 (1984) .26Bandak v. Eli Lilly & Co. Ret. Plan,2009 U.S. Dist. LEXIS 10885 (S.D. Ind. Feb. 10, 2009) .23, 24Berger v. Nazemetz,No. 00-cv-0584, 2001 WL 936322 (S.D. Ill. June 26, 2001) .21Brady v. United of Omaha Life Ins. Co.,902 F. Supp. 2d 1274 (N.D. Cal. 2012) .23Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan,572 F.3d 76 (2d Cir. 2009).28Carey v. International Brotherhood of Electrical Workers,201 F.3d 44 (2d Cir. 1999).25, 26Chaplin v. Nationscredit Corp.,307 F.3d 368 (5th Cir. 2002) .6, 18Cheung v. New York Palace Hotel,No. 03-CV-0091, 2005 U.S. Dist. LEXIS 34659 (E.D.N.Y. Sept. 28, 2005) .22Christian v. Honeywell Ret. Ben. Plan,582 F. App’x 103 (3d Cir. 2014) .32Clouthier v. Becker,No. 08-cv-6441L, 2016 U.S. Dist. LEXIS 7196 (W.D.N.Y. Jan. 21, 2016) . passim-ii-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 4 of 40Conkright v. Frommert,559 U.S. 506 (2010) .26Cyan Contracting Corp. v. New York State Dormitory Authority,No. 09 Civ. 603 (LAK) (HBP), 2011 U.S. Dist. LEXIS 119371 (S.D.N.Y.July 11, 2011).30Davis v. Eastman Kodak Co.,2007 U.S. Dist. LEXIS 23193 (W.D.N.Y. 2007) .15Farrell v. Title Assocs.,No. 03 Civ. 4608, 2004 U.S. Dist. LEXIS 2508 (S.D.N.Y. Feb. 19, 2004) .13, 19Figueroa v. MRM Worldwide,2014 U.S. Dist. LEXIS 30012 (S.D.N.Y. Mar. 4, 2014) .14Finz v. Schlesinger,957 F.2d 78 (2d Cir. 1992).6, 18Firestone Tire & Rubber Co., v. Bruch,489 U.S. 101 (1989) .31Frommert v. Conkright,433 F.3d 254 (2d Cir. 2006). passimFrommert v. Conkright,472 F. Supp.2d 452 (W.D.N.Y. 2007) .2Frommert v. Conkright,535 F.3d 111 (2d Cir. 2008).6Hakim v. Accenture United States Pension Plan,718 F.3d 675 (7th Cir. 2013) .16, 17, 18Heimeshoff v. Hartford Life & Acc. Ins. Co.,134 S.Ct. 604 (2013) .32Howell v. Motorola, Inc.,No. 03 C 5044, 2005 U.S. Dist. LEXIS 22137 (N.D. Ill. Sept. 30, 2005) .18Joseph v. Chase Manhattan Bank N.A.,751 F. Supp. 31 (E.D.N.Y. 1990) .14Kilpatrick v. Germainia Life Ins. Co.,183 N.Y. 163 (1905) .14Kunsman v. Conkright,977 F. Supp. 2d 250 (W.D.N.Y. 2013) . passim-iii-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 5 of 40Linder v. BYK-Chemie USA, Inc.,No. 3:02 CV 1956, 2006 U.S. Dist. LEXIS 13823 (D. Conn. Mar. 10, 2006) .7Livingston v. Bev-Pak, Inc.,112 F. Supp. 2d 242 (N.D.N.Y. 2000) .15, 22Lloyd v. J.P. Morgan Chase & Co.,791 F.3d 265 (2d Cir. 2015).25Lockheed Corp. v. Spink,517 U.S. 882 (1996) .6Lynn v. CSX Transportation, Inc.,84 F.3d 970 (7th Cir. 1996) .21Malcolm v. Honeoye Falls Lima Cent. Sch. Dist.,669 F. Supp. 2d 330 (W.D.N.Y. 2009) .18Martin v. Pub. Serv. Elec. & Gas Co.,271 F. App’x 258 (3d Cir. 2008) .28Mazur v. UNUM Ins. Co.,590 F. App’x 518 (6th Cir. 2014) .32McCord v. Agard (In re Bean),252 F.3d 113 (2d Cir. 2001).29McElwaney v. Becker et al.,No. 16-cv-6578 .24Merrimon v. Unum Life Ins. Co. of Am.,758 F.3d 46 (1st Cir. 2014) .29Miller v. Fortis Benefits Ins. Co.,475 F.3d 516 (3d Cir. 2007).32Moses v. Revlon Inc.,No. 16-2960-cv, 2017 U.S. App. LEXIS 9005 (2d Cir. May 24, 2017) .28, 32Muehlgay v. Citigroup Inc.,649 F. App’x 110 (2d Cir. 2016), cert. denied, 137 S. Ct. 583 (2016) .27Mullin v. Scottsdale Healthcare Corp. Long Term Disability Plan,2016 U.S. Dist. LEXIS 2927 (D. Ariz. Jan. 11, 2016) .23Najib v. Arnold,2008 U.S. Dist. LEXIS 46326 (S.D.N.Y. June 12, 2008).15-iv-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 6 of 40Nat. Bank. of Cincinnati v. Pepper,454 F.2d 626 (2d Cir. 1972).14Nicholas v. NYNEX, Inc.,929 F. Supp. 727 (S.D.N.Y. 1996) .19Novella v. Empire State Carpenters Pension Fund,No. 05 Cv. 2079 (BSJ), 2009 U.S. Dist. LEXIS 25245, (S.D.N.Y. Mar. 26,2009) .27Novella v. Westchester County, New York Carpenters’ Pension Fund,661 F.3d 128 (2d Cir. 2011).26, 28Petersen v. E.F. Johnson Co.,366 F.3d 676 (8th Cir. 2002) .18Reches v. Morgan Stanley & Co.,No. 16-3294-cv, 2017 U.S. App. Lexis 6490 (2d Cir. Apr. 14, 2017) .32Reid v. IBM,1997 U.S. Dist. LEXIS 8905 (S.D.N.Y. June 26, 1997).15, 21, 22Riley v. Metro Life Ins. Co.,744 F.3d 241 (1st Cir. 2014) .26Rockmore v. Antell,353 F. App’x. 517 (2d Cir. 2009) .14Roe v. City of Waterbury,542 F.3d 31 (2d Cir. 2008).30Russell v. Harman International Industries, Inc.,945 F. Supp. 2d 68 (D. D.C. 2013) .18SEC v. Tandem Mgmt.,No. 95 Civ. 8411, 2001 U.S. Dist. LEXIS 19109 (S.D.N.Y. Nov. 13, 2001) .26Smart v. The Gillette Co. Long-Term Disability Plan,70 F.3d 173 (1st Cir. 1995) .18Testa v. Becker,No. 10-cv-62291, 2017 WL 1857384 (W.D.N.Y. May 9, 2017).5, 24, 28, 32VKK Corp. v. NFL,244 F.3d 114 (2d Cir. 2001).14Winnett v. Caterpillar, Inc.,609 F.3d 404 (6th Cir. 2010) .26-v-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 7 of 40Wittorf v. Shell Oil Co.,37 F.3d 1151 (5th Cir. 1994) .21, 22Yablon v. Stroock & Stroock & Lavan Retirement Plan & Trust,No. 01 CIV 542, 2002 WL 1300256 (S.D.N.Y. June 11, 2002).21Yablon v. Strook & Strook & Lavan Ret. Plan and Trust,No. 01 Civ 452, 2002 U.S. Dist. LEXIS 10528 (S.D.N.Y. June 12, 2002),aff’d, 98 F. App’x.13Statutes29 U.S.C. § 1001 et seq.129 U.S.C. § 1104(a)(1)(D) .3229 U.S.C. § 1132(a)(1)(B) .2, 24, 2729 U.S.C. § 1132(a)(3) .3, 28Other AuthoritiesFed. R. Civ. P. 23 .4Fed. R. Civ. P. Rule 12(b)(6) .2, 14, 28(W.D.N.Y.) Local Rules Rule 23.4-vi-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 8 of 40PRELIMINARY STATEMENTThis Memorandum of Law is submitted by Defendants Sally Conkright, Patricia M.Nazemetz and Lawrence M. Becker, as former Plan Administrators of the Xerox RetirementIncome Guarantee Plan (“RIGP”) and as individuals, 1 in opposition to Plaintiff Joseph McNeil’smotion for summary judgment and the motion for summary judgment filed by the other Plaintiffsin this action and in support of Defendants’ cross-motion for summary judgment dismissing thesole remaining claim in the Complaint on the grounds that (i) forty-three Plaintiffs signed validand enforceable releases waiving any and all claims, including the claims interposed in this case;and (ii) Defendants did not breach their fiduciary duty in denying Plaintiffs’ claim for benefitsfollowing the issuance of the 2006 Decision and Order by the Second Circuit in Frommert v.Conkright because there were applicable defenses to Plaintiffs’ claim that the offset provisioncontained in the RIGP should not be applied to them, that were not intended to be precluded bythe Second Circuit’s directive in that case.STATEMENT OF FACTS AND PROCEDURAL HISTORYA.The Claims Asserted by PlaintiffsThis case was filed as a multi-plaintiff action filed by eighty-three individual plaintiffs,seeking to be paid additional pension benefits under the Employee Retirement Security Act(ERISA”), 29 U.S.C. § 1001 et seq., 29 U.S.C. § 1001 et seq. The crux of Plaintiffs’ claim isthat they are a group of “Xerox rehires” that were all participants in the Xerox RetirementIncome Guarantee Plan (the “Plan” or “RIGP”), were separated from employment and received adistribution from the Plan, and then were rehired by Xerox prior to the publication andThe claims as against the Hewitt Defendants and Xerox Corporation were dismissed by theCourt in its 2013 Decision and Order. (See Dkt. No. 53).1-1-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 9 of 40distribution of the September 1998 SPD. (Compl. ¶ 14). 2 Plaintiffs further claim that they areentitled to the benefit of the Second Circuit’s ruling in Frommert v. Conkright, 433 F.3d 254 (2dCir. 2006)(“Frommert I”) and this Court’s Decision and Order in Frommert v. Conkright, 472 F.Supp.2d 452 (W.D.N.Y. 2007), to the effect that the Decision in Frommert I does “seemapplicable to all Xerox employees who are similarly situated to the named plaintiffs.” (Compl. ¶15). Plaintiffs interposed four separate claims for alleged statutory violations, entitling them tothe payment of additional benefits and/or equitable relief under ERISA, 29 U.S.C. §1132(a)(1)(B) and/or § 1132(a)(3). (See generally Compl.).B.Defendants’ 2008 Motion to Dismiss and This Court’s DecisionAs this Court is fully aware, Defendants filed a motion to dismiss the action, pursuant toRule 12(b)(6) of the Federal Rules of Civil Procedure, approximately ten years ago, on June 10,2008, on numerous grounds, including that it was untimely commenced.On or about October 16, 2013, this Court issued a Decision and Order in this case,granting in part and denying in part, Defendants’ initial motion to dismiss. (Dkt. No. 53). 3Three of the four claims for benefits asserted by Plaintiffs under Section 502(a)(1)(B) of ERISA,29 U.S.C. § 1132(a)(1)(B) were properly dismissed by this Court in its 2013 Decision and Order,reported at Kunsman v. Conkright, 977 F. Supp. 2d 250 (W.D.N.Y. 2013) (“Kunsman 2013”) onthe grounds that they were time-barred.As properly explained by this Court, this action was filed in 2008, and those claims aroseno later than 1998, when the Plan was amended to fully explain the phantom account offset thatis at the root of this case and the other related cases. Thus, even under the most generous sixReferences to the Amended Complaint filed by the Plaintiffs on April 8, 2008 are designated“Compl.” [paragraph number].3References to the District Court’s Docket in this case are designated as [Dkt No. [number].”2-2-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 10 of 40year limitations period, this Court held that most of Plaintiffs’ claims were time-barred.Kunsman 2013, 977 F. Supp. 2d at 259. This Court, however, refused to dismiss Plaintiffs’breach of fiduciary duty claim under ERISA § 502 (a)(3), 29 U.S.C. 1132(a)(3), which the Courtfound sought equitable relief for Defendants’ alleged failure to comply with a directive of theSecond Circuit in Frommert I. Since the allegations of alleged wrongdoing as contained in theComplaint would have arisen with the issuance of the Second Circuit’s Decision and Order in2006, the Court held that such claim would not be time-barred and could proceed as againstDefendants. See Kunsman 2013, 977 F. Supp. 2d at 26C.Defendants’ Answer and Plaintiffs’ Subsequent Motion for ClassCertificationDefendants filed an Answer to the Amended Complaint, asserting various defenses,including among others, that the vast majority of the Plaintiffs had signed releases and releasedtheir claims against Defendants. (Dkt. No. 58).As the Court may also recall, at the time the action was commenced, Plaintiffs wererepresented by Robert A. Jaffe. On or about August 2009, Attorney Jaffe passed away. TheLaw Offices of John A. Strain entered a Notice of Appearance, indicating that he had beenretained to represent 27 of the individual Plaintiffs in this action. (Dkt. No. 36). On March 31,2014, Plaintiff McNeil, who had changed counsel on February 3, 2009, filed a motion to file asecond amended complaint (which would include sufficient allegations to proceed as a classaction allegation), and a motion for class certification. (Dkt. No. 64 and 66). On that same date,Attorney Shaun Martin filed a Notice of Appearance for the remaining unrepresented Plaintiffsin this matter. (Dkt. No. 65).Defendants opposed Plaintiff McNeil’s motion to amend the complaint a second time andopposed the motion for class certification on the basis that, among other things, that Plaintiff-3-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 11 of 40McNeil’s efforts to seek class certification was untimely according to the Local Rules of thisCourt in that it was filed six years after the Complaint was filed and because the action did notmeet the requirements for a class action under Fed. R. Civ. P. 23 and Local Rule 23 of the LocalRules of the Western District of New York. (Dkt. No. 68).On July 7, 2017, this Court issued a Decision and Order denying Plaintiff McNeil’smotion to amend the complaint yet again and his motion for class certification (“2017 Decisionand Order”). (Dkt. No. 83). The Court stated that converting this case to a class action isunnecessary and inappropriate. (Id. at 12-13). In the 2017 Decision and Order, the Court statedthat relief can be ordered without certifying a class and also recognized that Defendants mayhave “valid, individualized defenses” that may preclude such relief. (Id. at 14).D.The Current Motions Before this CourtPlaintiffs now move for summary judgment on behalf of all Plaintiffs, despite the factthat it is undisputed that forty-three of them have signed releases (the “Releases”) and were paidseverance or salary continuance, pursuant to the terms of such Releases.The terms of the Releases are virtually identical to the releases that the Second Circuitupheld as valid and enforceable in the Frommert v. Conkright and the Anderson v. Beckeractions, discussed below. Plaintiffs also seek to revisit the issue of class certification, andrequest, without providing any authority for such an order to do so, that the Court issueinjunctive relief, applicable to non-parties to this suit, without any consideration as to whetherthere are defenses to a non-party claim.For the reasons discussed below, Defendants oppose the grant of summary judgment inPlaintiffs’ favor and cross-move for summary judgment. Forty-three Plaintiffs signed valid andenforceable Releases, and the totality of the circumstances here warrant their enforcement. The-4-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 12 of 40claims asserted by these forty-three Plaintiffs must be dismissed for the reasons discussed inPOINT I, infra.Plaintiffs’ renewed motion for class certification should be denied for the reasonsdiscussed in POINT II, infra.With regard to the grant of summary judgment on the merits as to the remainingPlaintiffs, Defendants are respectful and aware that this Court has already denied Defendants’motion for summary judgment and granted summary judgment in favor of a plaintiff in a relatedcase in Testa v. Becker, No. 10-cv-62291, 2017 WL 1857384 at 3 (W.D.N.Y. May 9, 2017)(“Testa”). In doing so, the Court rejected Defendants’ argument that had Testa made a claim thathe was entitled to additional benefits based on an inadequate SPD within the applicable statutorytime period, (that is, within six years of the issuance of the 1998 SPD or by 2004), the PlanAdministrator would have had an obligation to comply with the Second Circuit’s 2006 directivein Frommert v. Conkright, but that it is not a breach of fiduciary duty to deny a time-barredclaim. The Second Circuit’s subsequent decisions in the Frommert case dismissing the claims ofthose plaintiffs who signed releases demonstrated that its 2006 directive was not intended topreclude valid defenses to a plan participant’s claim. As this Court is also aware, Defendantshave filed an appeal of this Court’s Decision and Order in Testa, and have already filed theirBrief in that matter.While not intending any disrespect to the Court, Defendants are preserving their rights inthis action, pending the outcome of the appeal of the above issues in Testa, by opposingPlaintiffs’ motion for summary judgment on the issues raised in the Testa matter with regard tothe Plaintiffs’ breach of fiduciary duty claim and by cross-moving for summary judgment onthose issues in this action. (See POINT III, infra).-5-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 13 of 40Accordingly, Plaintiffs’ motion for summary judgment and injunctive relief should bedenied and Defendants’ cross-motion for summary judgment should be granted and theremaining claim in the Amended Complaint dismissed in its entirety.ARGUMENTPOINT ITHE CLAIMS OF FORTY-THREE PLAINTIFFS MUST BE DISMISSED BECAUSETHEY SIGNED VALID, ENFORCEABLE RELEASESThe Supreme Court has unequivocally upheld the right of a participant in an ERISAgoverned benefit plan to enter into an agreement in which the participant releases claims forbenefits under ERISA in exchange for valid consideration. See Lockheed Corp. v. Spink, 517U.S. 882, 892-94 (1996). It is settled law in the Second Circuit that in determining whether anemployee has released his ERISA claims, courts consider whether, under the totality of thecircumstances, the individual knowingly and voluntarily waived his rights according to a numberof factors. Frommert v. Conkright, 535 F.3d 111, 121 (2d Cir. 2008) (“Frommert II”); Finz v.Schlesinger, 957 F.2d 78, 82 (2d Cir. 1992). See also Chaplin v. Nationscredit Corp., 307 F.3d368, 373 (5th Cir. 2002).As the Second Circuit explained in Frommert II, to determine if a plaintiff has releasedhis claims under ERISA, the courts must consider whether the individual’s waiver of his or herrights was knowing and voluntary under the “totality of the circumstances.” Frommert II, 535F.3d at 121; Finz, 957 F.2d at 82. The Court identified the following non-exhaustive list offactors as relevant to the determination of whether a waiver is knowing and voluntary:1) the plaintiff's education and business experience, 2) the amountof time the plaintiff had possession of or access to the agreementbefore signing it, 3) the role of plaintiff in deciding the terms of theagreement, 4) the clarity of the agreement, 5) whether the plaintiffwas represented by or consulted with an attorney, [as well aswhether an employer encouraged the employee to consult an-6-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 14 of 40attorney and whether the employee had a fair opportunity to do so]and 6) whether the consideration given in exchange for the waiverexceeds employee benefits to which the employee was alreadyentitled by contract or law.Frommert II, 535 F.3d at 121 (citing Finz, 957 F.2d at 82). See also Linder v. BYK-Chemie USA,Inc., No. 3:02 CV 1956, 2006 U.S. Dist. LEXIS 13823, *24-*25 (D. Conn. Mar. 10, 2006).A proper application of the above factors here warrants a conclusion that Plaintiffsknowingly and voluntarily waived any disputed ERISA claim that they have in this case.Frommert II, 535 F.3d at 121 (citing Finz, 957 F.2d at 82).A.Plaintiffs’ Education and Business Experience Support a Valid WaiverWith regard to the first factor, their education and business experience, all forty-three ofthese individuals worked for Xerox for two separate periods of employment and thus had someeducation and business experience. It is undisputed that to be a plan participants in the XeroxRIGP, Plaintiffs had to be in exempt or salaried, non-exempt positions. (Cone Decl., Ex. A). 4 Itis also undisputed that Plaintiffs were not low level or non-exempt hourly workers at the timethat they signed their Releases. As such, this factor is met.B.The Access to the Agreement and Time to Review It Also Support a WaiverWith regard to the next factor, (Plaintiffs’ access to the agreement and time to review it),a review of the releases shows that 41 of the 43 had access to and were provided with 45 days toreview the release and 2 were provided with 21 days. Specifically, forty-one releases advise thatthat the individuals signing the release “HAVE 45 DAYS FROM THE DATE OF THISRELEASE IS PROVIDED TO ME TO CONSIDER IT BEFORE I SIGN AND RETURNReferences to the Declaration of Will Cone, sworn to on October 25, 2017, are cited as “(ConeDecl., ¶ [paragraph number], Ex. [exhibit letter]).”4-7-
Case 6:08-cv-06080-DGL-JWF Document 88 Filed 10/27/17 Page 15 of 40IT TO XEROX.” (Cone Decl., Exs. C-R and T-X and Z-RR; Formisano Decl., Ex. A 5 )(emphasis in original of most releases).The Releases signed by Plaintiff Jenkins and Plaintiff Luppino advise that they have “21DAYS FROM THE DATE THIS RELEASE IS PROVIDED” to consider the release beforesigning and returning it. (Cone Decl., Ex. R and X) (emphasis in original).Moreover, the signed Releases, attached as Exhibit to the Cone Declaration, show that: Ann Adams was provided a “General Release” on January 23, 2002 and signedand returned the release on or about March 14, 2002. Ms. Adams received 36weeks of salary continuance and other valuable compensation for signing therelease. (Cone Decl., Ex. C) (emphasis in original). Coralyn Burns was provided a “General Release” on April 30, 2008 and signedand returned the release on or about July 28, 2008. By signing the release Ms.Burns requested to participate in a Voluntary Reduction in Force Program beingoffered at that time. Ms. Burns received salary continuance and other valuablecompensation for signing the release. (Cone Decl., Ex. D). Richard O. Carville was provided a “General Release” on April 30, 2008 andsigned and returned the release on or about May 9, 2008. By sign
retirement income guarantee plan administrators and as individuals, xerox corporation retirement income guarantee plan, xerox corporation, hewitt associates, and hewitt management company llc, defendants. civil action no. 08-cv-6080 (dgl) defendants' memorandum of law in opposition to plaintiff
