Full opinion text
RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. No. 30] HALL, District Judge. I. INTRODUCTION The lead plaintiff, an employee of the defendant corporation, complains that this corporation and its pension plan violated her rights under various sections of the Employee Retirement Income Security Act (ERISA). The defendants move to dismiss all six counts of the plaintiffs Complaint as failing to state a claim upon which relief may be granted. II. FACTS The lead plaintiff, Donna C. Richards (“Richards”), is an employee of defendant FleetBoston Financial Corp. • (“Fleet Financial”) and a participant in the defendant FleetBoston Pension Plan (“Fleet Amended Plan”). Richards was born on May 15,1948. Richards was hired by Hartford National Bank in 1973. Following a series of mergers, she became a participant in the Shawmut Retirement Plan. In 1995, Fleet Financial Group acquired Shawmut, and Richards became a Fleet Employee participating in the Fleet Plan. Prior to January 1, 1997, Richards was a participant in a traditional defined benefits pension plan (“Traditional Plan”), under which retiring employees received a percentage of their final average pay for life. Effective January 1, 1997, Fleet amended the Traditional Plan such that it became a “cash balance” benefit. The new plan (“Amended Plan”) calculates an employee’s retirement benefits as follows. It first adds the employee’s age plus years of vesting service to arrive at a number of “points.” Pay credits to be added to an employee’s hypothetical account each quarter are then calculated by multiplying the employee’s compensation for that quarter by certain percentages, as indicated in the following chart, copied from the Amended Plan: _Points_Pay Credit Rate_ Applicable to Applicable to Compensation Compensation Below the Social Above the Social Security Wage Security Wage Number of Points:_Base Base less than 39_3%_6%_ 40 but less than 50_3.5%_7%_ 50 but less than 60_4.5%_9%_ 60 but less than 70 5,5%_11% 70 but less than 80 6.5%_13% 80 or more_7.5%_15% Defs.’ Mem. Supp. Mot. Dismiss, Ex. A [Doc. No. 32]. The employee also receives quarterly interest credits. The interest rate is uniform for all participants and is based on the average annual yield of one-year U.S. Treasury constant maturities for the month preceding the calendar quarter in which the pay period begins. The size of a participant’s interest credit in a given quarter depends upon the interest rate, the participant’s account balance, and the participant’s pay credit for that quarter. When it adopted the Amended Plan in 1997, Fleet converted the benefits that Richards and other employees in her situation had earned under the Traditional Plan into an opening hypothetical cash balance. It arrived at this opening balance by computing the lump sum, actuarially equivalent value of the benefit payable at age 65 that the employee had accrued under the prior pension plans as of December 31, 1996. Amended Plan Summary Plan Description (SPD), Plf.’s Mem. Ex.l at 22 [Doc. No. 40]. As the defendants admitted at oral argument on this motion, this opening balance did not include the value of a Traditional Plan participant’s right to subsidized early retirement benefits. See Compl. ¶ 31. In calculating the opening balance, the Amended Plan applied a pre-retirement mortality discount, providing for the possibility of death prior to normal retirement, but provided no mechanism for crediting this discount back to participants’ accounts as they grow older and the risk of pre-retirement mortality shrinks. Compl. ¶ 35. It employed a 7% interest rate in calculating the value of the frozen benefit derived from the Traditional Plan as an age-65 annuity, for purposes of arriving at an opening balance under the Amended Plan, but it provided no mechanism to adjust this balance when interest rates fall below 7%, as they have over the last five years. Id. The Amended Plan provided that, upon termination of employment with Fleet, an employee who had participated in both the Traditional Plan and the Amended Plan would receive the greater of her Cash Balance Account, under the Amended Plan, or her benefit under the Traditional Plan terms, frozen as of January 1, 1997 (“frozen benefit”). Id. at ¶ 32. This rule, combined with the fact that the Amended Plan converted less than the full value of the benefits that Richards and other former Traditional Plan participants had accrued under the Traditional Plan to opening account balances under the Amended Plan terms, meant that the value of retirement benefits available to such participants did not increase past the frozen benefit that they had already accrued as of December 31,1996, until the amount in the cash balance account reached and then exceeded that amount. Id. at ¶ 33. This phenomenon, which Richards refers to as the “wear-away” effect, caused Richards and other employees to work for many years following 1997 without actually accruing any new benefits, despite the existence of a hypothetical cash balance account that showed benefits being added each quarter. Id. at ¶ 34. The use of the pre-retirement mortality discount and the 7% interest rate exacerbated this wear-away effect. Id. at 35. Prior to January 1, 1997, Fleet gave no notice to plan participants that they would be experiencing a significant reduction in benefits as a result of the plan amendment. Moreover, the Amended Plan summary plan description (“SPD”), which was distributed to participants, does not mention the wear-away effect, nor state that that participants’ benefit accruals under the Amended Plan would be reduced by advancing age. It told participants, “your cash balance benefit builds steadily throughout the time you work at Fleet. Each quarter Fleet makes pay credits and interest credits into an account in your name.” Id. at ¶ 40. Fleet also answered a hypothetical plan participant question, “Can my pension benefit decrease under the new Fleet Pension Plan?,” by saying “No.” Id. at ¶ 41. It continued, “Whether you participate in the cash balance benefit or the traditional benefit, you will never receive less than the benefit you earned as of December 31, 1996,” and did not mention the wear-away effect. Id. Similarly, it did not state that the rate of benefit accruals would decline with age. It stated it was adopting the Amended Plan because it “makes good sense for our employees.” Id. The plaintiff alleges that, in practice, Amended Plan administrators frequently have informed retiring plan participants only of the value of their cash balance accounts, and not of the greater benefits to which they are entitled under the frozen benefit derived from the Traditional Plan terms. Id. at ¶ 36. III. CAUSES OF ACTION Richards asserts a number of different claims against the defendants. In Count I, she alleges that the cash balance terms of the Fleet Amended Plan violate ERISA § 204(b)(1)(H), prohibiting an employer from establishing or maintaining plan rules that reduce “the rate of an employee’s benefit accrual ... because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H). In Count II, she alleges that, by conditioning Richards’ receipt of cash balance benefits on her foregoing early retirement benefits earned prior to the adoption of the cash balance amendment, the cash balance terms violate ERISA § 203(a), 29 U.S.C. § 1053(a), which requires that benefits are not forfeitable. In Count III, she alleges that, by causing participants who had begun to earn retirement benefits under the Traditional Plan prior to its amendment to experience years in which they accrue zero benefits followed by years in which they accrue actual benefits, the Amended Plan violates the “anti-backloading” rule in ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B). In Count IV, she alleges that the defendants failed to notify her and other participants of a significant reduction in the rate of future benefit accrual 15 days prior to the effective date of the Amended Plan, thereby violating ERISA § 204(h), 29 U.S.C. § 1054(h). In Count V, she alleges that the defendants failed to provide an adequate Summary Plan Description (“SPD”), in violation of ERISA § 102, 29 U.S.C. § 1022. Finally, in Count VI, she alleges that the defendants breached their fiduciary duty by failing to fully inform retiring plan participants of the funds they are owed under the frozen benefit derived from the Fleet Traditional Plan terms. See ERISA § 404, 29 U.S.C. § 1104. For each of these counts, she seeks relief under ERISA § 502(a)(3), which provides that, “A civil action may be brought ... by a participant ... (A) to enjoin any act or practice which violates any provision of this subchapter [which includes all of the substantive provisions of ERISA upon which Richards bases her claims] or the terms of the plan, or (B) to obtain other appropriate equitable relief (I) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan,” 29 U.S.C. § 1132(a)(3), and, alternatively or additionally, under ERISA § 502(a)(1)(B), which states that a participant may bring suit “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” 29 U.S.C. § 1132(a)(1)(B). The defendants have moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of all counts. IV. STANDARD OF REVIEW In deciding a rule 12(b)(6) motion to dismiss, the court takes the allegations of the Complaint as true, and construes them in a manner favorable to the pleader. Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984); see Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In this case, the court also considers the 1997 FleetBoston Plan document, the Summary Plan Description, and the predecessor (“Traditional”) Plan document. It may do so because these documents are integral to the complaint and the plaintiff relies upon them in her complaint. Rothman v. Gre- gor, 220 F.3d 81, 88 (2d Cir.2000); Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). A Rule 12(b)(6) motion to dismiss tests the adequacy of the complaint. United States v. City of New York, 359 F.3d 83, 87 (2d Cir.2004). Thus, such a motion can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A Rule 12(b)(6) motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. (quotation omitted). “[W]hile bald assertions and conclusions of law will not suffice to state a claim, the district court, before granting a motion to dismiss, must accept as true all of the factual allegations set out in plaintiffs complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally.” Tarshis v. Riese Org., 211 F.3d 30 (2d Cir.2000) (internal citations omitted); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Although the defendants state that their motion to dismiss the plaintiffs complaint is brought pursuant to Rule 12(b)(6), Defs.’ Mot. Dismiss [Doc. No. 30], they argue in part that Richards lacks constitutional standing to bring the claim in Count VI. “[A] district court must generally resolve material factual disputes and establish that it has federal constitutional jurisdiction, including a determination that the plaintiff has Article III standing, before deciding a case on the merits.” Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Therefore, the court will treat the defendants’ motion to dismiss Count VI as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See, e.g., Franchi v. Manbeck, Civ. No. 90cv517 (PCD), 1991 WL 137276, at *3 n. 2 (D.Conn.1991) (“Inasmuch as this court could not consider the sufficiency of the complaint under Rule 12(b)(6), unless jurisdiction is established under Rule 12(b)(1), the motion will be treated first as one for dismissal for lack of subject matter jurisdiction.”). A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (internal citations omitted). V. DISCUSSION A. Age Discrimination Claim (Count I) 1. Statutoiy Standing to Bring Claim Under ERISA § 204(b)(1)(H) The defendants argue that Richards may not bring her Count One claim under ERISA § 204(b)(1)(H) because this subsection protects only plan participants who are age 65 or above, and Richards has not yet reached this age. In order to address this argument, the court must construe that Section. As the Supreme Court has instructed, “[t]he preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” Bed.Roc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal citation omitted); see Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir.2005) (citing BedRoc). “Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc, 541 U.S. at 183, 124 S.Ct. 1587 (internal citations omitted). The plain language of section 204(b)(l)(H)(i) prohibits reductions in the rate of benefit accrual “because of the attainment of any age.” 29 U.S.C. § 1054(b)(l)(H)(i). The inclusion of the word “any,” when given “its ordinary, common meaning,” In re Caldor Corp., 303 F.3d 161, 168 (2d Cir.2002) (internal citation omitted), renders this language unambiguous with respect to the question of whether it protects only employees who have reached age 65. By its own terms, this subsection applies to employees of any age. See Wells v. Gannett Retirement Plan, 385 F.Supp.2d 1101, 1102 (D.Co. 2005) (“The term is unambiguous, and there is no need to resort to legislative history or other sources for its interpretation. This provision applies to the attainment of ‘any age’ and not just to the attainment of normal retirement age”). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The court has reviewed the other provisions of ERISA cited by the defendants, and none create ambiguity as to whether “attainment of any age,” ERISA § 204(b)(l)(H)(i), means what it says, or whether it means, as defendants suggest, “attainment of any age over 65.” The court has considered all of the defendants’ arguments and is not persuaded to read the statute other than as its plain meaning suggests. Because the text of the statute is not ambiguous, the court need not look beyond it. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”) (considering the statutory text but declining to consider legislative history) (internal citations omitted). The defendants argue that “courts regularly look to legislative history to interpret statutory language that might appear unambiguous on its face,” Defs.’ Reply Br. Supp. Mot. Dismiss at 7 [Doc. No. 45-1], but the only precedential opinion they cite for this proposition actually held that the court did not have to consider administrative rules and advisory committee notes because Congress’s intent was clear from the face of the statute in question. See In re Caldor Corp., 303 F.3d 161, 171 (2d Cir.2002). Only in dicta did the Court of Appeals “add that we find no tension between our reading of § 1109(b) and the rules and notes relied on by the Joint Liquidators. ” See id. Moreover, even if the court did take into account the legislative history and the statutory heading, it does not find that any of the defendants’ arguments in those regards present “rare and exceptional circumstances” that would require the court to disregard the plain language of the statute. See Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Although the current language of section 204(b)(l)(H)(i) derives from a section of the Omnibus Budget Reconciliation Act of 1986 (“OBRA 1986”) whose statutory heading reads, “Benefit Accrual Beyond Normal Retirement Age,” the statutory heading alone (which is not in the codified statutory provision) is not sufficient to compel a reading of the statute not indicated by its unambiguous text. See Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (“[T]he title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase.”) (internal citation omitted) (ellipses and brackets in Yeskey); Cheung v. United States, 213 F.3d 82, 90 (2d Cir.2000) (“Although mindful of the limited role of statutory headings in textual interpretation, this Court has recognized that statutory headings may be used to resolve ambiguities in the text.”) (internal citation and quotation marks omitted). Similarly, the legislative history is not as clear as the defendants would make it out to be, and could lend some support to both sides. The defendants focus primarily on the statement in the OBRA 1986 Conference Report that: Under the conference agreement, the rules preventing the reduction or cessation of benefit accruals on account of attainment of any age are not intended to apply in cases in which a plan satisfies the normal benefit accrual requirements for employees who have not attained normal retirement age. H.R. Conf. Rep. No. 99-1012, at 379 (1986), reprinted in 1986 U.S.C.C.A.N. 3868, 4024. However, the Report immediately continues by explaining, beginning in the same paragraph: Under the benefit accrual rules, the rate of benefit accrual for an employee may vary depending on the number of years of service an employee may complete between date of hire and the attainment of normal retirement age. For example, under the fractional benefit accrual rule, an employee may accrue a benefit ratably for each year of service between the employee’s date of hire and the employee’s attainment of normal retirement age. If a plan has a normal retirement age of 65, under this fractional rule, an employee who is hired at age 45 would accrue the normal retirement benefit between age 45 and age 65 (normal retirement age). Thus, the employee would accrue the benefit over 20 years. On the other hand, an employee with the same salary hired at age 55 would accrue the same normal retirement benefit over 10 years (the number of years between date of hire and normal retirement age). In this example, when both employees have completed five years of service, they will have different accrued benefits because of the different rate of benefit accrual for each year of service. The conferees do not intend that the plan is to be treated as violating the general rule that benefit accruals cannot be reduced or ceased on account of the attainment of age merely because a younger employee has a lower accrued benefit than an older employee with the same number of years of service. Id. In light of this explanation and example, the sentence the defendants have quoted may at least arguably be stating a much different proposition than that urged by them. It is quite possible that the report used the phrase “for employees who have not attained normal retirement age” merely to modify the phrase “normal benefit accrual requirements,” and not to limit the application of the new age discrimination provisions. This is consistent with the fact that the particular example of a “normal benefit accrual requirement” used in the second paragraph above, “the fractional benefit accrual rule,” is a rule used to determine the required rate of benefit accrual for the years prior to normal retirement age. See id.; ERISA § 204(b)(1)(c), 29 U.S.C. § 1054(b)(1)(c). Additionally, the court finds that the floor statements the defendants have cited, by of individual legislators who sponsored the bill, do not override the meaning arising from the clear statutory text. Finally, the IRS’s recent interpretation of section 411(b)(1)(H) of Title 26 of the United States Code, which was passed into law at the same time as ERISA § 204(b)(1)(H) and uses exactly the same language, supports the court’s reading of the latter statutory section. In an explanatory section in a 2002 notice of proposed rulemaking under section 411(b)(1)(H), the IRS stated, Section! ] 411(b)(1)(H) ... prohibits] cessation of accruals or allocations, and reduction in the rate of benefit accrual or allocation, because of the attainment of any age. Under th[is] section!], attainment of any age means a participant’s growing older. Accordingly, these regulations, like the 1988 proposed regulations, would apply regardless of whether the participant is older than, younger than, or at normal retirement age. Some commentators have suggested that only cessations or reductions after attainment of normal retirement age are prohibited by these sections. This interpretation is not consistent with the language of the statute, which does not specify any minimum age at which the rale applies, and is not adopted under these proposed regulations. 67 Fed.Reg. 76, 123-01, 76, 124 (Dec. 11, 2002). While proposed regulations themselves “are not authoritative until finalized,” Greenhalgh v. Putnam Sav. Bank, 140 F.3d 427, 430 n. 4 (2d Cir.1998), an interpretation of a statute by the agency charged with its administration, when not promulgated as a regulation, is nevertheless “entitled to respect” to the extent it has the “power to persuade.” See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134,140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir.2001) (quoting Christensen). The court finds this interpretation to be persuasive, although the court’s holding would be the same even in the absence of this notice of proposed rulemaking. Therefore, while recognizing that its decision on this issue is contrary to that of several other courts, see Tootle v. ARINC, Inc., 222 F.R.D. 88 (D.Md.2004); Engers v. AT & T Corp., No. 98-3660(NHP), 2001 U.S. Dist. LEXIS 25889, at *8-*13 (D.N.J. June 6, 2001); Eaton v. Onan Corp., 117 F.Supp.2d 812, 825-29 (S.D.Ind.2000); see also Campbell v. BankBoston, N.A., 327 F.3d 1, 10 (1st Cir.2003) (noting in dicta that “the ERISA age discrimination provision may not even apply to workers younger than the age of normal retirement”), the court concludes that Richards’ age does not bar her from asserting a claim for age discrimination pursuant to ERISA § 204(b)(1)(H). 2. Age Discrimination Theoiy The court now turns to the question of whether Richards has stated a claim upon which relief may be granted in Count I of her complaint. She alleges in this count that, “the cash balance terms of the Fleet Plan” violate the age discrimination provision of ERISA § 204(b)(1)(H), as quoted above. The defendants argue that this claim should be dismissed, even if the court reaches its merits, because the Amended Plan does not discriminate on the basis of age. Cash balance plans are a form of pension that have become increasingly prevalent in recent years. See Eaton, 117 F.Supp.2d at 816-18 (defining and discussing the history of cash balance plans). Thus, the issue of whether cash balance plans violate ERISA’s age discrimination provision is one that courts have only recently begun to address. a. Meaning of “Rate of Benefit Accrual. ” The parties’ main dispute, like that of other parties to have litigated this issue, centers on the meaning of the phrase “the rate of an employee’s benefit accrual,” as it is used in ERISA Section 204(b)(l)(H)(i). If section 204(b)(1)(H) permits a participant’s rate of benefit accrual to be “measured in terms of the change in the balance of each participant’s hypothetical account,” Eaton, 117 F.Supp.2d at 824, then the Amended Plan does not discriminate on the basis of age. In a particular quarter, given two employees who are identically situated except for their ages, the Amended Plan never allocates a smaller cash value to the older employee’s hypothetical account than that allocated to the younger employee’s hypothetical account. On the other hand, as the defendants conceded at oral argument, if section 204(b)(1)(H) requires “a participant’s rate of benefit accrual to be measured solely in terms of an annuity payable at normal retirement age,” Eaton, 117 F.Supp.2d at 823, then the Amended Plan does add a greater value to the younger employee’s hypothetical account than to the older employee’s account. See id.; Cooper, 274 F.Supp.2d at 1016. Under the Amended Plan’s cash balance terms, an older employee receiving the same dollar amount of contribution to her cash balance account in a given quarter as that received by a younger employee buys a smaller age-65 pension annuity with that money. This phenomenon occurs because the older worker is closer to retirement, so the money contributed to her hypothetical account has less time to earn annual interest credits under the plan than does the money contributed to the younger worker’s account. The Amended Plan’s method of including age and years of service in the determination of quarterly pay credits, such that older employees tend to receive increasingly higher additions of cash value to their hypothetical accounts, mitigates this disparity in age-65 annuity value. See Compl. ¶25, 29. However, the pay credits do not increase quickly enough to eliminate the disparity, so employees experience an increasingly lower rate of benefit accrual as they age, if that rate is defined as the change in the value of their accrued benefit measured as an annual benefit commencing at normal retirement age. See id. at ¶ 29. The Second Circuit has not yet ruled on the manner in which ERISA requires courts to calculate the rate of benefit accrual, and district courts who have addressed it are divided. Compare Register v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268, at *4-*8 (E.D.Pa. Nov.21, 2005); Tootle v. ARINC, Inc., 222 F.R.D. 88 (D.Md.2004); Eaton v. Onan Corp., 117 F.Supp.2d 812 (S.D.Ind. 2000); with Cooper v. IBM Personal Pension Plan, 274 F.Supp.2d 1010 (S.D.Ill. 2003); see also Campbell v. BankBoston, N.A., 327 F.3d 1, 10 (1st Cir.2003) (noting in dicta that “it is by no means clear that the annuity method is the only permitted method in this context”). The former group of district court opinions are not consistent with the Second Circuit’s opinion in Esden v. Bank of Boston, 229 F.3d 154 (2d Cir.2000), which provides an important guide to the court in determining the meaning of the terms Congress used in ERISA § 204(b)(1)(H)®. The Esden court held that, even though cash balance plans “are designed to imitate some features of defined contribution plans, they are nonetheless defined benefit plans under ERISA.” 229 F.3d at 158. “However ‘hybrid’ in design a cash balance plan may be, it remains subject to a regulatory framework that is in many respects rigidly binary.” Id. at 159 n. 6. Indeed, the defendants concede that the Amended Plan, as a cash balance plan, must comply with ERISA provisions applicable to defined benefit plans. Defs.’ Reply Br. Supp. Mot. Dismiss at 10 [Doc. No 45]. In Esden, the Second Circuit held that the classification of cash balance plans as defined benefit plans has “wide-reaching” “regulatory consequences.” It specifically recognized that the appropriate definition of “accrued benefit” to use in regard to cash balance plans is that for defined benefit plans: “the individual’s accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age.” ERISA § 3(23)(A), 29 U.S.C. § 1002(23)(A). “Only for a defined contribution plan is ‘accrued benefit’ defined as simply ‘the balance of an individual’s account.’ ” Esden, 229 F.3d at 158 (citing ERISA § 3(23), 29 U.S.C. § 1002(23)(B)). It also held that cash balance plans, as defined benefit plans, “are subject to a series of parallel statutory constraints-under ERISA and I.R.C. [Internal Revenue Code]-from which defined contribution plans are exempted.” Esden, 229 F.3d at 158; see id. at 159 (citing several examples). The Esden court recognized that “the governing statutes [including ERISA] and regulations were developed with traditional final-pay defined benefit plans in mind; they do not always fit in a clear fashion with cash balance plans and they sometimes require outcomes that are in tension with the objectives of those plans.” Id. at 159. Nevertheless, it enforces the regulatory consequences that arise from the classification of cash balance plans as defined benefit plans. See id. at 158-59. The Eastern District of Pennsylvania, in a holding that conflicts with that of several other courts to have addressed this issue, held that “rate of benefit accrual” is the grammatically correct way of saying “the rate of accrued benefit,” the phrase that is defined in ERISA § 3(23), and that the term “rate of benefit accrual” is therefore unambiguous. Cooper, 274 F.Supp.2d at 1016. This court concurs with the Cooper court’s ultimate reading of the phrase “rate of benefit accrual,” although the grammatical relationship between the terms “rate of benefit accrual” and “accrued benefit” is not the only reason for its holding. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). As the Second Circuit emphasized in Esden, ERISA has a binary structure, under which defined benefit plans face significantly different requirements from those applicable to defined contribution plans. 229 F.3d at 158 & n. 6, 159. The structure of section 204(b) itself is binary. Whereas section 204(b)(1) states requirements for defined benefit plans, section 204(b)(2) states parallel requirements for defined contribution plans. Section 204(b)(2)(A) contains an age discrimination provision parallel to that of section 204(b)(1)(H). Whereas the latter prohibits a reduction in “the rate of an employee’s benefit accrual,” the former prohibits a reduction in “the rate at which amounts are allocated to the employee’s account.” “[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (citing 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed.2000)). The court finds that Congress did not intend that “the rate of an employee’s benefit accrual,” as used in section 204(b)(l)(H)(i), to be measured as “the rate at which amounts are allocated to the employee’s account.” Congress’ use of the latter phrase, which explicitly requires measurements involving an increase in account balances, in ERISA § 204(b)(2) demonstrates that Congress could have used the same phrase in the age discrimination provision governing defined benefit plans had it intended to apply the same measurement rule to defined benefit plans. Instead, it used a completely different phrase, “rate of benefit accrual.” ERISA § 204(b)(l)(H)(i). In light of the great similarity that this phrase bears to the statutorily defined term “accrued benefit,” and the fact that ERISA requires accrued benefit to be measured as an annual benefit commencing at normal retirement age for defined benefit plans, but requires accrued benefit to be measured as the balance of an individual’s account for defined contribution plans, the term “rate of benefit accrual,” as used in section 204(b)(1)(H)®, refers to rate measured as a change in the annual benefit commencing at normal retirement age. The statute is unambiguous in this respect, and the court need not inquire further into its meaning. Defendants’ primary arguments in support of measuring the “rate of benefit accrual” as the rate of change in hypothetical account balances, adopted from the reasoning in Eaton, focus on the practical consequences of the contrary interpretation or on the legislative history. In light of this court’s holding that the meaning of this phrase is clear from ERISA itself, and the fact that Esden requires this court to apply ERISA’s defined benefit plan rules to cash balance plans even if they result in apparently unintended consequences, the court finds that inquiring any further into the practical consequences of the application of the section 3(23) “accrued benefit” definition would be inappropriate. See Es-den, 229 F.3d at 159. None of the arguments advanced by the defendants or the cases they have cited would suggest “rare and exceptional circumstances,” Rubin, 449 U.S. at 430, 101 S.Ct. 698, as to overcome the presumption that Congress “says in a statute what it means and means in a statute what it says there,” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal citation omitted); see Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir.2005) (citing BedRoc), and permit the court to disregard the plain meaning of the statutory text. For example, the defendants argue that requiring the rate of benefit accrual to be measured as a rate of increase in an annual benefit commencing at ‘ age 65 would not make sense if applied to employees over 65. However, the plaintiffs interpretation of “rate of benefit accrual,” applied to employees older than 65, does not necessarily lead to results that would contradict the Congressional intent expressed in the statutory text. Because the definition of “accrued benefit” for defined benefit plans is not explicitly limited to employees under 65, see ERISA § 3(23), it is reasonable to assume that Congress intended that “accrued benefits” be “expressed in the form of an annual benefit commencing at normal retirement age,” even for employees older than 65. In applying this rule to the calculation of the “rate of benefit accrual” for an employee older than 65, one possibility would be that which the defendants suggest — to refer to an annuity projected backwards in time to age 65. This result would not necessarily be absurd. Congress’ intent was to assure a benefit measured as of normal retirement age. The value of that benefit does not change, regardless of whether the employee is younger or older than normal retirement age. What it costs to provide the benefit may change depending on an employee’s age. However, that was not Congress’ concern when it prohibited the dimunition of the rate of accrual of the benefit expressed as an annual benefit commencing at normal retirement age. The court will not delve into the legislative history to seek a meaning for language that is unambiguous. It does note that it disagrees with the Eastern District of Pennsylvania’s holding with respect to the OBRA 1986 Conference Report language. See Register v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268, at *1 (E.D.Pa. Nov.21, 2005) (quoting general statement in OBRA 1986 Conference Report statement that “[p]resent law specifies certain requirements with respect to the rate at which benefits are accrued (i.e., earned) under a pension plan”) (quoting H.R. Conf. Rep. No. 99-1012, at 375 (1986)). The conference report does not clearly address the issue of how the “rate of benefit accrual” should be measured, and certainly does not create “rare and exceptional circumstances” to ignore the plain language of the statute by reading in words that are not there. The defendants’ additional argument that a court may not find age discrimination in the fundamental effects of the time value of money and that this effect is inherent in all cash balance plans is simply a restatement of the dispute between the parties. The defendants cite only two authorities for this argument, Eaton and Lunn v. Montgomery Ward & Co., 166 F.3d 880, 883 (7th Cir.1999). The court has already discussed the reasons for its disagreement with Eaton. The Lunn court did observe that, “no one supposes ... that defined benefit plans violate ERISA, or any other statute, merely because, depending on the age of the employee and his choice of whether to retire, the actuarial value of his retirement benefits may be less than if he had retired at the normal retirement age” and that it is “unlikely that ERISA would require a subsidy for older workers.” 166 F.3d at 883. However, Lunn did not specifically consider the meaning of the phrase “rate of benefit accrual.” In light of the Second Circuit’s reasoning in Esden and the language and structure of ERISA itself, the court adheres to its conclusion regarding the reading of section 204(b)(1)(H). The court respectfully disagrees with the reasoning of the Eastern District of Pennsylvania in Register v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268 (E.D.Pa. Nov.21, 2005), with respect to the manner in which cash balance plans are treated under ERISA: Cash balance plans accrue benefits differently than traditional defined benefit plans. Under a traditional defined benefit plan, the benefits are defined in terms of the age 65 annuity. Therefore, it follows logically that the rate of benefit accrual is the change in the accrued benefit. Cash balance plans are not defined in terms of an age 65 annuity, rather they are defined in terms of an account balance that grows with pay credits and interest. Therefore, it follows logically that the rate of benefit accrual is determined by the change in account balance. 2005 WL 3120268, at *7. This reasoning conflicts with Esden because it effectively treats cash balance plans as if they are defined contribution plans, when they ought to be treated as defined benefit plans. See Esden, 229 F.3d at 158-59. In sum, the court has considered all of the defendants’ arguments, but finds them unpersuasive. ERISA itself requires the court to compare annual benefits commencing at normal retirement age when considering age discrimination in a cash balance plan under section 204(b)(1)(H). The court may not pick a different outcome, even one that may appear more sensible to some, when Congress has not chosen that course. b. Hazen Argument. The defendants argue further that Richards has failed to state a claim even if section 204(b)(1)(H) does require that the “rate of benefit accrual” be measured in terms of an annual benefit commencing at age 65. They argue that changes in the value of benefits that correlate with age, but are not caused by age, cannot constitute unlawful age discrimination. Their argument in this respect relies on the Supreme Court’s decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), which held that a disparate treatment claim under the related Age Discrimination in Employment Act (ADEA) must fail if the employer’s adverse employment action was solely motivated by factors other than age, even if these factors were correlated with age. Id. at 611, 113 S.Ct. 1701. However, Hazen Paper left open the question of whether the ADEA permitted suits on a theory of disparate impact. Id. at 610, 113 S.Ct. 1701. The recent decision in Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), held that section 4(a)(2) of the Age Discrimination in Employment Act does permit disparate impact claims, albeit in more narrow circumstances than Title VII. In light of City of Jackson, Hazen does not support the defendants’ position, and they cite no authority to suggest that a claim under ERISA § 204(b)(1)(H) in particular would require a showing of improper motivation. The defendants cite as support for their argument the Eaton court’s observation that, in OBRA 1986, Congress expressly permitted the rate of benefit accrual (however it is measured) to decline over time as long as the decline is tied to the participant’s years of service rather than the participant’s age (and despite the one-to-one correlation of age and years of service). Those pension age discrimination provisions all make clear that a defined benefit plan can even completely stop benefits from accruing to an employee if the plan has a dollar or percentage cap on benefits, or if the plan limits the number of years of service that will be counted in calculating benefits. 117 F.Supp.2d at 831-32 (citing 29 U.S.C. §§ 623(I)(2), 1054(b)(l)(H)(ii); 26 U.S.C. § 411(b)(l)(H)(ii)). The cited ERISA provision, section 1054(b)(l)(H)(ii) of Title 29 of the United States Code, reads: A plan shall not be treated as failing to meet the requirements of this subpara-graph solely because the plan imposes (without regard to age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan. Section 411(b)(l)(H)(ii) of Title 26 is the parallel provision from the Internal Revenue Code, identical to that of ERISA. This provision does permit a pension plan to take into account years of service or participation in determining benefits, and perhaps to place an absolute ceiling on the total benefits available under a plan. Richards, however, does not allege that the Amended Plan violates section 204(b)(1)(H) for these reasons. She alleges that “an older worker with the same rate of pay and years of service as a younger worker, receiving the same dollar amount of contribution to her cash balance account, buys an increasingly smaller age-65 pension annuity with that money because the closer the older worker gets to retirement age the less time the money contributed has to earn annual interest credits under the plan.” Compl. ¶ 29. Years of service or participation and the value of previously accrued benefits may tend to correlate with age, but they are not perfectly correlated therewith. An older employee may have fewer years of service and participation than a younger employee and may have accrued fewer benefits than a younger employee with more years of service. In contrast, the number of years between an individual’s age and age 65 is always perfectly correlated with age. The defendant presents no authority that persuades the court that Richards has failed to make out a claim in Count I. The court finds that Count I states a claim upon which relief may be granted. It denies the defendants’ motion to dismiss insofar as it is premised on the substantive claim in Count L B. Violation of ERISA § 203(a) Non-Forfeitability Provision (Count II): Wear-Away In Count II, Richards asserts a claim under ERISA § 203(a), which requires that “[e]ach pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age” and sets forth specific requirements for determining whether a benefit satisfies the requirements of this paragraph. 29 U.S.C. § 1053(a). ERISA § 3(19) states in relevant part, The term “nonforfeitable” when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan. 29 U.S.C. § 1002(19). Richards claims that the Amended Plan’s cash balance terms violate section 203(a) because they “condition Richards’ receipt of cash balance benefits on her foregoing the early retirement benefits she earned prior to the adoption of the cash balance amendment.” Compl. ¶ 44. Although the defendants did not raise a substantive challenge to this Count in their initial memorandum, they do raise a substantive challenge in responding to arguments in the plaintiffs opposition brief. The defendants argue that the plaintiff has failed to allege facts that would state that the Amended Plan requires a forfeiture. They argue that the Amended Plan does not require a choice between alternative benefits, because “participants who accrued a benefit prior to the conversion to a cash balance formula receive one benefit which is always the greater of (1) their cash balance account benefit and (2) their benefit accrued under the Traditional Plan as of December 31, 1996.” Defs.’ Reply Br. at 14 [Doc. No. 45-1]. They further argue that, “because the only benefit that participants are entitled to under the cash balance formula is the greater of their benefit under the old plan or under the cash balance formula, there is never a ‘forfeiture of any accrued benefit.” Id. at 14-15. The Supreme Court has held that defining the “content of the benefit that, once vested, cannot be forfeited” is a “threshold issue” that must be resolved in order to determine if a plan violates section 203(a). Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981): [W]hat defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining nonforfeitable fights as well as from other portions of ERISA. ERISA defines a “nonforfeitable” pension benefit or right as “a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan.” 29 U.S.C. § 1002(19). In construing this definition last Term, we observed: “[T]he term ‘forfeiture’ normally connotes a total loss in consequence of some event rather than a limit on the value of a person’s rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [§ 1053(a)(3) ] describes an event-such as death or temporary re-employment-that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of' ‘nonforfeitable’ to view it as describing the quality of the participant’s right to a pension rather than a limit on the amount he may collect.” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. [359,] 372-373, 100 S.Ct. 1723, 64 L.Ed.2d 354.... Similarly, the statutory definition of “nonforfeitable” assures that an employee’s claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, “it is the claim to the benefit, rather than the benefit itself, that must be ‘unconditional’ and ‘legally enforceable against the plan.’ ” Id., at 371,100 S.Ct. 1723.... Id. at 511-12,101 S.Ct. 1895; see Williams v. Caterpillar, Inc., 944 F.2d 658, 664 (9th Cir.1991) (“[C]ourts have uniformly relied on Alessi to uphold the formulas by which employers compute the amount of their employees’ benefits, so long as the pension plans in question satisfy ERISA’s guidelines”). The terms of the Amended Plan itself state that an employee in Richards’ position, upon termination of employment, will receive the greater of the balance in her hypothetical cash balance account and the frozen benefit derived from the Traditional Plan. Thus, the Amended Plan terms give Richards no claim to benefit accrual during the years in which her hypothetical account balance is below the value of her frozen Traditional Plan benefit. Section 203(a) gives Richards a non-forfeitable claim to her accrued benefit, but the balance of the hypothetical cash account does not become part of her accrued benefit until it surpasses the value of the frozen Traditional Plan benefit. Thus, the plan does not require a forfeiture of an accrued benefit, nor is the receipt of accrued benefits conditional. Therefore, the court grants the motion to dismiss with respect to Count II. Particularly because the court’s decision rests on an argument raised after plaintiff opposed the motion to dismiss, the court will reconsider this ruling if the plaintiff moves within two weeks. The plaintiff is also granted leave to replead if the court has misconstrued the terms of the Amended Plan and she can accurately allege that the Amended Plan requires forfeiture of accrued benefits. C. Violation of ERISA § 204(b)(l)(B)’s Anti-Backload-ing Provision (Count III): Substantive Argument In Count III, Richards alleges that the wear-away effect violates ERISA § 204(b)(1)(B) because it causes Richards and other participants “to face years where they accrue zero benefits followed by years where they accrue actual benefits.” Compl. ¶46. Section 204(b)(1)(B), which applies to the Amended Plan, prohibits defined benefit plans from backloading benefits such that they increase by more than 33 1/3% from one year to another. The defendants did not make any substantive arguments with respect to Count III in their memorandum in support of the motion to dismiss. In their reply to the plaintiffs opposition to the motion to dismiss, the defendants for the first time argued that plans involving a wear-away effect do not violate ERISA. However, they cited no authority that has addressed the question of whether the wear-away effect violates section 204(b)(1)(B) in particular, nor did they present any substantive argument on section 204(b)(1)(B). In November 2005, two days after the Eastern District of Pennsylvania dismissed a claim that a wear-away provision similar to that in the Amended Plan violated the anti-backloading rule, the defendants submitted a supplemental memorandum alerting the court to that decision. See Register v. PNC Financial Svcs. Group, Inc., No. 04-CV-6097, 2005 WL 3120268 (Nov. 21, 2005). The Register court cited ERISA § 204(B)(1)(B)©, which states that, for the purposes of the anti-backload-ing provision, “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years.” Relying on this provision, it reasoned that the plaintiff had not stated a claim because the rate at which benefits accrued in the hypothetical cash balance accounts, viewed in isolation, did not violate the anti-backloading rule. The Second Circuit has held that the section 204(b)(1)(B) “test applies to how a given plan operates at a given time and prevents it from being unfairly weighted against shorter-term employees; but it is irrelevant to across-the-board increases in benefit rates made at some future time on behalf of all current employees regardless of period of service.” Langman v. Laub, 328 F.3d 68, 71 (2d Cir.2003); see Allen v. Honeywell Retirement Earnings Plan, 382 F.Supp.2d 1139, 1160 (D.Ariz.2005) (“[I]n determining whether a new benefit formula violates the 133 1/3 rule, one does not compare the new formula with the old formula; rather, the backloading question must be answered by considering the new formula on a stand-alone basis.”). In light of the text of section 204(b)(1)(B)© and Langman, the court holds that the plaintiff has failed to state a claim under section 204(b)(1)(B). If the Amended Plan is treated as having been in effect for all plan years, employees such as Richards would never have accrued a benefit under the Traditional Plan, and would have started accruing benefits under the cash balance formula from the start of their employment. Assuming such a scenario, such employees would suffer no backloading of benefits. The court grants the defendants’ motion to dismiss on Count III. However, because the plaintiff has not had an opportunity in writing to address the bases for the court’s decision in this regard, the court will reconsider this part of its decision if the plaintiff so requests within .two weeks of this ruling. D. Violation of ERISA § 204(h) (Count IV): Failure to Supply Advance Notice of a Significant Benefit Decrease: Defendants’ argument that they provided sufficient notice In Count IV, Richards claims that the defendants’ failure to notify her and other plan participants of the significant reduction in the rate of future benefit accrual that the Amended Plan would cause for them violated ERISA § 204(h). At the time of the 1997 plan amendment, this section provided, A single-employer plan may not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless, after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice, setting forth the plan amendment and its effective date, to — (1) each participant in the plan.... Consolidated Omnibus Budget Reconciliation Act of 1985, Title XI, § 11006, 100 Stat. 82 (1986) (current version at 29 U.S.C. § 1054(h)). The alleged reduction in the rate of future benefit accrual, as asserted in this claim, results not only from the use of a cash balance plan, but also the “wear-away” effect, the pre-retirement mortality discount, and the use of the 7% interest rate. The defendants argue, for the first time in their Reply Brief in Support of Summary Judgment, that they provided notice that satisfied the version of section 204(h) in effect in 1997, as interpreted by the regulations in effect at that time. Specifically, they argue that an Employee Reference Guide, a copy of which they attach to their Reply Brief, provided the required notice. However, the plaintiff has not alleged that this Guide was provided to employees at least 15 days before the effective date of the plan amendment, and the court cannot assume that was so provided. It therefore may not consider the Guide for purposes of Count IV. The defendants point to no other communication in which they provided the required advance notice to plan participants. Therefore, the court finds no basis for the defendants’ argument that it provided notice that would comply with section 204(h). It denies the defendants’ motion to dismiss Count IV on this ground. E. Prejudice (Counts IV and V) The defendants argue that Counts IV and V fail to state a claim because Richards did not allege prejudice. The court has already summarized the claim asserted in Count IV, see Part IV.D., supra. Count V claims that the defendants violated ERISA § 102, 29 U.S.C. § 1022, and its implementing regulations, 29 C.F.R. § 2520.102, by failing to explain terms such as the wear-away effect and the manner in which the cash balance plan reduces the rate of benefit accrual as participants age. In Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir.2003), the Court of Appeals adopted the “likely prejudice” standard for claims alleging that SPDs do not meet the requirements of ERISA. To show “likely prejudice,” a plaintiff must show that she was “ ‘likely to have been harmed’ by the faulty SPD.” Frommert v. Conkright, 433 F.3d 254, 267 (2d Cir.2006) (quoting Burke, 336 F.3d at 112). In light of Frommert, which addressed a section 204(h) claim, the defendants concede that Richards’ ERISA § 204(h) claim “cannot be dismissed for her failure to allege actual prejudice.” Defs.’ Mem. Re: 3rd Supplemental Authority in Support of Dismissal at 2 [Doc. No. 92-1], They argue that this claim should fail because she has not pled “likely prejudice.” Id. The parties agree that a claim under section 102 is subject to the “likely prejudice” standard. See Defs.’ Mem. Supp. Mot. Dismiss at 32 [Doc. No. 31]; Plf.’s Mem. Opp. Mot. Dismiss at 32 [Doc. No. 40]. The Burke court, which reviewed a summary judgment ruling, held that a plaintiff had made an initial showing that he was likely to have been harmed because the “conspicuous absence of the domestic partnership affidavit requirement in [a self-contained section of the SPD] likely led the Burkes to believe that an affidavit was unnecessary” for certain benefits, for which the plan actually required an affidavit. 336 F.3d at 114. It held that this showing gave rise to a presumption of prejudice, and that the defendants had not presented sufficient rebuttal evidence to show that the plaintiffs were actually aware of the requirement that had been omitted from the SPD. Frommert held that a defendant’s failure to notify participants of a significant reduction in the rate of future benefit accrual for up to five years after the reduction began was sufficient to establish likely prejudice because it “likely, and quite reasonably, led plan participants to believe it was not a component of the Plan.” 433 F.3d at 267. As relevant to Count IV, Richards has pled that, “Fleet did not explain the full import of the cash balance terms in a summary plan description distributed to plan participants, including but not limited to an explanation of the wear-away effect and a disclosure that benefit accruals under the plan are reduced by advancing age.” Compl. ¶ 39. She has pled that it failed to notify her and other plan participants “of a significant reduction in the rate of future benefit accrual 15 days prior to the January 1, 1997 effective date” of the Amended Plan, in violation of section 204(h). Id. at ¶ 48. Although the Complaint does not specify when Richards actually learned of the manner in which the Amended Plan would significantly reduce the rate of her future benefit accrual, the Complaint, read in light of the SDP at issue, could support a finding that the defects in notice “likely, and quite reasonably, led plan participants to believe” that the wear-away effect and decreasing rate of benefit accrual were not components of the plan. Frommert, 433 F.3d at 267. Neither the complaint nor the plan documents present any basis for the court to infer that Richards was aware that the Amended Plan would significantly reduce the rate of her future benefit accrual despite the defendants’ failure to disclose this information. Therefore, the court denies the defendants’ motion to dismiss Count IV for a failure to plead likely prejudice. In Cou