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Stephen R. Bruce
Attorney for Plaintiffs

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Welcome to the Solvay Pension Class Action Lawsuit web page, which provides information and court documents relating to the Solvay class action about a cash balance pension conversion: Jensen v. Solvay America, Inc., C.A. 06-273 (D.Wyo.).

 

IMPORTANT UPDATE:

On February 24, 2014, the Supreme Court denied Plaintiffs’ Petition for Certiorari asking the Court to review the Tenth Circuit’s decision affirming the judgment in favor of Solvay. We are very disappointed with this outcome, but since the Supreme Court has decided not to hear the case, we unfortunately are out of legal options.

 

 

 

PREVIOUS UPDATES:

On July 2, 2013, the Tenth Circuit issued a decision affirming the district court’s judgment in favor of Solvay. The Tenth Circuit said that Solvay’s failure to describe the changes in early retirement benefits “wasn’t intentional even under the definition the employees advance” because it was “accidental, no more than an oversight.” The Tenth Circuit also found that the employees were not entitled to “equitable relief” for Solvay’s violation of the notice requirements under ERISA because that type of relief should be “extremely limited” and the court thought the employees did not specify the type of relief they sought. Plaintiffs filed a petition for rehearing or rehearing en banc of that decision (asking that all of the active judges on the Tenth Circuit rehear the case) on July 16, 2013, but our petition was denied by the Tenth Circuit on July 29, 2013.

On October 28, 2013, Plaintiffs filed a Petition for Certiorari requesting that the Supreme Court review the Tenth Circuit’s decision on the ground that: (1) the Tenth Circuit improperly made its own factual findings instead of deferring to the District Court’s finding that the employees had “carried their burden” at trial of proving that Solvay’s failure to provide a notice adequately describing the changes in early retirement benefits was an “intentional failure” under a “general intent” standard; and (2) the Tenth Circuit failed to defer to the District Court’s findings related to equitable relief for Solvay’s violation of the notice requirement, which deprived the District Court of its discretion to award the employees “appropriate equitable relief” under ERISA. Solvay’s response is due at the end of November, and the Supreme Court will decide whether to hear our case after the briefing is complete.

Plaintiffs were very disappointed with this ruling and filed a Notice of Appeal on November 7, 2011. The briefing for the appeal was completed in May 2012. The oral argument on the appeal took place on November 6, 2012 in Courtroom I of the Byron White U.S. Courthouse, located at 1823 Stout Street, Denver, CO 80257.

A seven-day bench trial in front of Judge Alan B. Johnson was held from July 11-18, 2011, in Cheyenne, Wyoming. Plaintiffs presented testimony from named Plaintiffs Jensen and Goff, six other former and current Solvay employees, an actuarial expert, and two Solvay executives. Plaintiffs also presented the deposition testimony of Defendants' actuarial expert and two Solvay executives who were unable to attend the trial. Defendants presented testimony from the outside actuary and outside counsel for Solvay's pension plan.

On October 1, 2011, the District Court issued findings of fact and conclusions of law in favor of Solvay. The District Court found that Solvay's failure to provide a notice adequately describing the changes in early retirement benefits was not an "intentional failure." The Court also found that the employees' inquiries about the changes were insufficient for Solvay to "discover" that it had not adequately described the early retirement changes. See a copy of the court's decision.

Plaintiffs were very disappointed with this ruling and filed a Notice of Appeal on November 7, 2011. The briefing for the appeal was completed in May 2012. The oral argument on the appeal took place on November 6, 2012 in Courtroom I of the Byron White U.S. Courthouse, located at 1823 Stout Street, Denver, CO 80257.

A trial in the United States District Court for the District of Wyoming was scheduled to begin on Monday, July 11, 2011, at 1:30 p.m. in Courtroom No. 3 of the Joseph C. O’Mahoney Federal Center, located at 2120 Capitol Avenue in Cheyenne, Wyoming. The trial was expected to last through Friday, July 15. The trial was to determine whether Solvay intentionally failed to adequately disclose changes in early retirement benefits and the approximate magnitude of the benefits that employees would lose from those changes. Click here to see a map or get driving directions.

On September 7, 2010, the Tenth Circuit issued a decision which held that Solvay did not adequately disclose the plan’s changes in early retirement benefits in an ERISA-required “Section 204(h) notice” or “summary of material modification.” The court denied Plaintiffs’ appeal of the other ERISA and ADEA claims. The case has been remanded for further proceedings in the district court to determine whether Solvay’s disclosure violation was “egregious.” Plaintiffs will conduct additional discovery and a trial is expected to occur next summer.

On August 27, 2009, the District Court denied Plaintiffs’ motion to alter or amend its decision granting Solvay’s summary judgment motion and dismissing all of Plaintiffs’ claims. Plaintiffs filed a Notice of Appeal with the United States Court of Appeals for the Tenth Circuit on September 1, 2009. On November 6, 2009, Plaintiffs filed their brief in support of the appeal and Solvay filed an opposition on December 15, 2009. The oral argument on the appeal is scheduled for Tuesday, March 9, 2010, at 9:00 a.m. in Courtroom III of the Byron White U.S. Courthouse, located at 1823 Stout Street, Denver, CO 80257.

IMPORTANT: The age discrimination lawsuit about Solvay’s conversion to a “cash balance” pension formula was scheduled for a jury trial beginning August 24, 2009 in Cheyenne, Wyoming. This would have been the first class action involving age discrimination in the conversion of a pension plan to a cash balance formula to be tried before a jury in the United States. Unfortunately, the day before pretrial memos were due and one week before the final pretrial conference, the judge granted Solvay’s summary judgment motion to dismiss all of our claims--under both the Age Discrimination in Employment Act (“ADEA”) and the Employee Retirement Income Security Act (“ERISA”). See a copy of the Court’s decision.

The ADEA claims focus on the transition to the cash balance formula, including that Solvay designed the changes so there would be years of “wear-away” for employees in their 40’s and 50’s in which the retirement benefits payable at age 55 and older were not increasing at all. The ERISA claims focused on whether Solvay’s brochures and other written materials understandably and honestly explained how steeply the cash balance changes were going to reduce future retirement benefits.

Plaintiffs strongly disagree with the Court’s decision and have filed a motion to alter or amend the summary judgment that is pending before the Court. If the motion is denied, we will appeal to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado.


See the expert actuarial report and the expert statistical report of the Plaintiff's actuarial and statistical experts dated March 17 and 31, 2009 and the rebuttal reports dated April 30, 2009 that the Plaintiffs’ actuarial and statistical experts prepared in response to the reports by Solvay’s experts. The expert reports show how Solvay’s cash balance design created periods of “wear-away” during which older employees do not earn any additional retirement benefits. The expert reports also analyze Solvay’s communications about the cash balance plan.

See the Court’s February 8, 2008 Order certifying an ERISA class and approving a collection action under ADEA. Notices of the age discrimination lawsuit and consent forms were mailed on March 10, 2008 and June 19, 2008. The second mailing went to approximately 950 current and former employees of Solvay Pharmaceuticals, Solvay Solexis, and Solvay Draka who were not included in the initial mailing.

Please read the Notice of Age Discrimination Lawsuit Concerning Benefits Under the Solvay America Companies Pension Plan After 2005 for more information.

To join the class, you must sign and return the Consent Form before June 9, 2008 or before September 17, 2008 if you are a current or former employee of Solvay Pharmaceuticals, Solexis or Draka.  Note: Please do not submit the form posted on this website if you already received the Consent Form in the mail. To confirm whether we received your Consent Form, please call (toll free) 1-866-591-7255.

The Solvay case centers on the conversion of the Solvay America Companies Pension Plan to a “cash balance plan,” which significantly reduced future retirement benefits for employees.  In the lawsuit, the plaintiffs argue that the pension plan conversion is inconsistent with statutory requirements and disclosure rules under ERISA and the ADEA.
 
Below is the class definition for this lawsuit:

The class definition adopted by the District Court covers any and all persons who:

  1. Are current or former employees of subsidiaries of Solvay America, Inc.,
  2. Were age 40 or more as of February 8, 2008; and
  3. Participated in the Solvay America Companies Pension Plan before January 1, 2005, and have been subject to the “Retirement Account Balance Formula” on or after January 1, 2005.

Attorneys handling the class action are:

  • Stephen R. Bruce, Washington, D.C., lead counsel
  • Richard Honaker, Rock Springs, WY
     

 

El Paso Pension end
 
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