Full opinion text
MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. Plaintiff Jamal J. Kifafi, on behalf of himself and similarly situated individuals, brings this lawsuit alleging that the terms and implementation of the Hilton Hotels Retirement Plan violated the Employee Retirement- Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001, et seq. In particular, Kifafi alleges that (1) the terms of the Plan produced an impermissible amount of variation among accrual rates, commonly called “backloading,” (2) Defendants improperly applied the Plan’s vesting provisions, and (3) Defendants committed multiple other ERISA violations as to Kifafi individually by, for example, failing to keep on file records of his marital status. On May 11, 1999, the Court certified a so-called “benefit-accrual class” as to the first allegation, and on March 30, 2005, the Court certified four sub-classes as to the second allegation. Defendant Hilton Hotels Corporation (together with the Hilton Hotel Retirement Plan, Committee, and individual members, “Hilton”), assert that the terms of the Plan have not violated ERISA, and that they have fully implemented the Plan in accordance with its terms. Hilton has, nevertheless, continuously amended its Plan throughout the course of this litigation in an attempt to respond to Kifafi’s allegations and to moot all of the claims in this case. Currently pending before the Court are the parties’ Cross-Motions for Summary Judgment, Hilton’s Motion to Strike certain declarations submitted by Kifafi in support of his Motion for Summary Judgment, and a Motion for Leave to submit a Sur-Reply, which was filed by Kifafi as support for his Opposition to Hilton’s Motion to Strike. After thoroughly reviewing the parties’ submissions, relevant case law, applicable statutory and regulatory authority, and the record of the ease as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Kfafi’s [177] Motion for Summary Judgment, GRANT-IN-PART and DENY-IN-PART Hilton’s [180] Cross-Motion for Summary Judgment, DENY Hilton’s [183] Motion to Strike, and DENY [194] Kifafi’s Motion for Leave to file a Sur-Reply, for the reasons that follow. I. BACKGROUND A. Statutory and Regulatory Background It is well established that ERISA does not require employers to establish retirement plans for their employees and does not mandate any particular level of benefits that must be provided should an employer choose to have such a plan. See Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). “Employers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995). Nevertheless, employers’ discretion with respect to their retirement plans is not without limitation. ERISA contains certain requirements that “protect[] employees’ justified expectations of receiving the benefits their employers promise them.” Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 743, 124 S.Ct. 2230, 159 L.Ed.2d 46 (2004). The present case involves ERISA protections associated with employees’ accrual of benefits (the amount of benefits to which an employee is entitled) and vesting of benefits (the time at which an employee obtains a right to his or her accrued benefits). These are distinct but related concepts: the ‘vesting schedule’ specifies the time at which an employee obtains his nonforfeitable right to a particular percentage of his accrued benefit. It does not provide any formula or schedule for determining the amount of the accrued benefit. Thus, ‘vesting’ governs when an employee has a right to a pension; ‘accrued benefit’ is used in calculating the amount of the benefit to which the employee is entitled. Holt v. Winpisinger, 811 F.2d 1532, 1536 (D.C.Cir.1987) (quoting Stewart v. Nat’l Shopmen Pension Fund, 730 F.2d 1552, 1562 (D.C.Cir.1984) (emphasis in original omitted)). Because “vesting is tied to length of employment” and the accrual of benefits “depends upon participation in the plan,” it is possible for employees to “earn credit toward vesting without accumulating any pension benefits.” Id. at 1537. With respect to the accrual of benefits, ERISA protects employees by limiting the variation associated with rates of accrual, setting forth three alternative tests for monitoring accrual rates. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 512-13, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981). By requiring defined benefit plans to comply with any. one of these three alternative tests, ERISA prevents employers from “backloading” benefits, a term of art used to describe “a plan’s use of a benefit accrual formula that postpones the bulk of an employee’s accrual to [his] later years of service.” In re Citigroup Pension Plan ERISA Litig., 470 F.Supp.2d 323, 333 (S.D.N.Y.2006). See also 26 C.F.R. 1.411(b)-l (“[a] defined benefit plan is not a qualified plan unless the method provided by the plan for determining accrued benefits satisfies at least one of the alternative methods ... for determining accrued benefits with respect to all active participants under the plan”). Backloading is prohibited because it defeats ERISA’s minimum vesting provisions: [t]he primary purpose of [minimum accrual rates] is to prevent attempts to defeat the objectives of the minimum vesting provisions by providing undue ‘backloading,’ i.e., by providing inordinately low rates of accrual in the employee’s early years of service when he is most likely to leave the firm and by concentrating the accrual of benefits in the employee’s later years of service when he is most likely to remain with the firm until retirement. Langman v. Laub, 328 F.3d 68, 71 (2d Cir.2003) (quoting H.R.Rep. No. 93-807 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4688). The three alternative tests are set forth in Section 204(b) of ERISA, 29 U.S.C. § 1054(b)(1). The first test is commonly called the ' “3% rule,” 29 U.S.C. § 1054(b)(1)(A). .The second test is commonly called the “133 1/3% rule,” and it requires that the annual rate of accrual in any .later year of participation not exceed 133 1/3% of the accrual rate in any earlier year under the plan: [a] defined benefit plan satisfies the requirements of this paragraph of a particular plan , year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year. Id. § 1054(b)(1)(B). The third test is commonly called the “fractional rule,” and it requires an employee’s accrued benefit to exceed a fractional projected retirement benefit: [a] defined benefit plan satisfies the requirements of this paragraph if the accrued benefit to which any participant is entitled upon his separation from the service is not less than a fraction of the annual benefit commencing at normal retirement age to which he would be entitled under the plan as in effect on the date of his separation if he continued to earn annually until normal retirement age the same rate of compensation upon which his normal retirement benefit would be computed under the plan, determined as if he had attained normal retirement age on the date any such determination is made (but taking into account no more than the 10 years of service immediately preceding his separation from service). Such fraction shall be a fraction, not exceeding 1, the numerator of which is the total number of his years of participation in the plan (as of the date of his separation from the service) and the denominator of which is the total number of years he would have participated in the plan if he separated from the service at the normal retirement age. Id. § 1054(b)(1)(C). With respect to vesting, Section 203(a) of ERISA provides that an employee’s accrued benefits cannot be forfeited once an employee reaches the age of retirement. Id. § 1053(a). Whether an employee has reached the age of retirement turns, at least in part, on his or her years of service. Id. § 1002(24) (allowing retirement plans to specify the age of retirement or, alternatively, setting the age of retirement as 65 years old or the fifth year of participation in the plan). Pursuant to Section 203(b) of ERISA, employers are required to count all of an employee’s years of service for calculating his or her years toward vesting. Id. § 1053(b)(1) (requiring employers to count “all of an employee’s years of service with the employer or employers maintaining the plan”). An employee’s years of service are counted even if they occur prior to participation in the retirement plan. See Holt, 811 F.2d at 1537 (citing H.R. Conf. Rep. No. 1280, 93rd Cong., 2d Sess. 268 (1974), reprinted in 1974 U.S.Code Cong. & Admin. News 5038, 5050 (“generally, ... once an employee becomes eligible to participate in a pension plan, all his years of service with an employer (including preparticipation service, and service performed before the effective date of [ERISA]) are to be taken into account for purposes of determining his place on the vesting schedule”)). An employee who is credited with 1,000 hours of service during an “eligibility computation period” must generally be credited with one year of service. 29 C.F.R. § 2530.200b-l. Pursuant to this calculation, the employer must count hours reflected in its records not only for hours as to which the employee was paid or entitled to be paid for the performance of his or her duties, but also for hours “during which no duties are performed ... due to vacation, holiday, illness, incapacity ... layoff, jury duty, military duty or leave of absence.” Id. § 2530.200b-2(a). To calculate these hours, an employer may rely on any records in its possession, “provided that they accurately reflect the actual number of hours of service with which an employee is required to be credited... Id. § 2530.200b-3(a). If an employer’s existing records do not allow it to properly calculate an employee’s actual number of hours that are required to be credited, “a plan must either develop and maintain adequate records or use a permitted “equivalenc[y],” provided that it credits “no less than the actual number of hours of service required be credited under § 2530.200b-2 to each employee in a computation period.” ” Id. If an employer is unable to accurately determine an employee’s total hours of service under this standard, an employer “may determine service to be credited to an employee on the basis of hours worked ... if 870 hours worked are treated as equivalent to 1,000 hours of service....” Id. § 2530.200b-3(d). Accordingly, if an employer is relying on its records to calculate an employee’s total hours of service, it may credit one year of service time if the employee has worked 1,000 hours (taking into account all hours and not only those during which the employee is required to be paid for performance); if an employer is unable to calculate an employee’s total hours of service, it may credit one year of service time if the employee has worked 870 hours (taking into account only the hours during which the employee is required to be paid for performance). A third method for calculating an employee’s years of service for vesting purposes is not based on an employee’s hours, but rather, based upon the total time elapsed while the employee is employed with the employer or employers maintaining the plan (the “elapsed time” method). See 26 C.F.R. 1.410(a)-7(a)(ii). This method allows an employer to avoid having to maintain hourly records associated with its employees, and permits “each employee to be credited with his or her total period of service with the employer or employers maintaining the plan, irrespective of the actual hours of service completed in any 12-consecutive-month period.” Id. Finally, ERISA provides for civil enforcement of its provisions and those in an employee’s plan. Under Section 502(a)(1)(B) of ERISA, a participant may bring an action “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). Aggrieved plan participants may seek “(A) to enjoin any act or practice which violates any provisions of [Title 29] 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 [Title 29] or the terms of the plan.” Id. § 1132(a)(3). B. The Hilton Hotels Retirement Plan Background The Hilton Hotels Retirement Plan (the “Plan”) is a defined benefit pension plan subject to ERISA. Defs.’ Stmt. ¶ 1. The Plan’s initial accrual formula was based on a participant’s compensation and years of service, and offset by a participant’s “integrated benefits,” a term that encompasses a participant’s “primary social security benefit.” Pl.’s Ex. 1 § 1.2 (Hilton Hotels Retirement Plan, version dated March 30, 1995). Beginning in 1976 and continuing until 1999, the Plan contained an accrual schedule that was supposed to comply with the 133 1/3% rule: 5.4 133-1/3 Percent rule. The method of computing a Participant’s accrued benefit under the provisions of Article IV is intended to satisfy the requirements of the 133-1/3 rule provided in Section 411(b)(1)(B) of the Code. Id. § 5.4. For this reason, when Hilton filed applications with the Internal Revenue Service for approval of its retirement plan, it indicated its compliance with the 133 1/3% rule. See, e.g., Pl.’s Ex. 2 at 3 (Hilton Application dated March 29, 1995) (indicating that the “[m]ethod for determining accrued benefit[s]” was the “133-1/3% Rule-Code Sec. 411(b)(1)(B)”). With respect to vesting, the Plan credits participants with years of service beginning January 1,1976, during the periods in which the employee “is employed with a Participating Employer or a Related Company.” PL’s Ex. 1 § 1.2 (Hilton Hotels Retirement Plan, version dated March 30, 1995) (defining “Vesting Computation Period”). By its terms, the Plan required all periods of employment between the date of hire and the date of termination to be taken into account, including leaves of absences and union service. Defs.’ Stmt. ¶ 15; PL’s Resp. Stmt. ¶ 15. An employee can earn a year of vesting credit by completing 1,000 hours of service. Defs.’ Stmt. ¶ 16; PL’s Ex. 1 (Hilton Hotels Retirement Plan, version dated Mar. 30, 1995) (defining “Years of Benefit Service”) (“a Participant shall not be entitled to any Years or fractional Years of Benefit Service for a Plan Year during which he completes less than 1,000 Hours of Service”). Under the Plan, a participant is eligible for early retirement benefits when he or she retires, has reached the age of 55, and has at least 10 years of vesting service (and has elected an early retirement benefit). See PL’s Ex. 1 § 1.2 (Hilton Hotels Retirement Plan, version dated March 30, 1995) (defining “Early Retirement Date”). A participant is eligible for normal retirement benefits on the date: on which occurs the later of (a) or (b), where (a) is the date a Participant attains age 65, and (b) is the earlier of: (i) the date he has completed 5 Years of Vesting Service, or (ii) the earlier of (A) the tenth anniversary of the date he commenced participation in the Plan, or (B) the fifth anniversary of the first day of the first Plan Year beginning on or after January 1, 1988. Id. (defining “Normal Retirement Age”). C. Factual and Procedural Background The facts of this case are inextricably intertwined with its procedural history. Between 1976 and 1982, Kifafi was intermittently employed by Hilton and other hotels as a union employee. Defs.’ Stmt. ¶ 28. On September 11, 1983, Kifafi was hired as a full-time union employee at the Capital Hilton in Washington, D.C. Id. ¶ 29. Less than one month later, he suffered a back injury that caused him to take a leave of absence. Id. This injury limited the number of hours Kifafi worked in 1983 and 1984. Id. Kifafi was terminated from the Capital Hilton in 1984, but reinstated as a nonunion employee on July 25, 1985. Id. ¶ 30. Kifafi worked in that capacity until he resigned on November 9, 1993. Id. Upon his resignation, Hilton did not notify Kifafi that he was eligible to receive a pension. Pl.’s Stmt. ¶ 4; Defs.’ Resp. Stmt. ¶ 4. Kifafi nevertheless inquired about his eligibility for retirement benefits, which resulted in Hilton’s preparation of a benefits illustration that was sent to Kifafi in July 1997. Defs.’ Stmt. ¶ 31. The benefits illustration listed Kifafi’s marital status as “not married,” and indicated that Kifafi was eligible to receive a pension of approximately $74.85 per month. See PL’s Ex. 78 at 1 (1997 Benefits Illustration). On July 9, 1997, Kifafi’s counsel wrote Hilton requesting additional information concerning Kifafi’s benefits. Defs.’ Stmt. ¶ 32. On December 29,1997, Kifafi’s counsel sent a letter to the Plan’s Pension Committee arguing that the terms and implementation of the Plan violated several provisions of ERISA. Id. In particular, the letter asserted that the Plan backloaded benefit accruals and failed to properly credit Kifafi’s years of service. See Defs.’ Ex. 21 at 2 (12/29/97 Letter from S. Bruce to Pension Committee). The Pension Committee responded on March 27, 1998, through counsel, coneluding that .Kifafi was entitled to an additional year of vesting for 1983, but not for 1984 or 1985. Id. ¶ 33. Because the Pension Committee also concluded that Kifafi continued to fall below the 10 years of service necessary to receive early retirement benefits even with the additional year of service credit, it denied Kifafi’s claim for early retirement benefits. Id. The Pension Committee also denied that the terms or implementation of the Plan violated any ERISA provisions. See PL’s Ex. 3 at 1-12 (3/27/98 Letter from W. Jacobsen to S. Bruce). With respect to Kifafi’s argument that the Plan unlawfully backloaded benefit accruals, the Pension Committee “determined that the Plan satisfies the 133— 1/3% rule.” Id. at 6. Kifafi filed an appeal, which was denied on September 22, 1998. Id. Kifafi filed this lawsuit on June 17, 1998. Initially, Hilton defended the Plan as having complied with the 133 1/3% rule. For example, in its initial Statement of the Case submitted to the Court, Hilton represented that: [t]he rate of accrual of pension benefits is set forth in the Hilton Hotels Retirement Plan (‘Retirement Plan’), which expressly provides for.accrual of pension benefits under ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B) — the so-called T33 1/3% rule.’ The Retirement Plan complies with the 133 1/3% rule. Defs.’ Stmt, of the Case at 2 (Oct. 15, 1998). The documents produced to Kifafi in discovery, however, demonstrated that Hilton’s own consultants had performed analyses of the Plan and concluded that the Plan did not, in fact, comply with the 133 1/3% rule. For example, the Towers Perrin consulting company (“Towers Perrin”) prepared a spreadsheet dated February 10, 1998, titled “411(b) Accrual Test.” Pl.’s Ex. 7 at 2 (2/10/98 Accrual Test). The spreadsheet examines the Plan’s benefit accrual formula and asks, “Does the Plan Pass 133% Rule?” Id. The answer “No” appears for the first seven years of benefit accruals reflected in the spreadsheet. Id. AON consulting also prepared a spreadsheet for a February 27, 1998 Hilton meeting. PL’s Ex. 8 at 1 (2/27/93 Meeting Spreadsheet). The spreadsheet depicts accrual rates of more than 200% under the Plan’s benefit accrual formula, which is greater than the variation permissible under the 133 1/3% rule. Id. Kifafi moved for class certification on November 4, 1998. After his motion had been fully briefed by the parties but prior to its resolution by the Court, Hilton amended the Plan. See PL’s Ex. 11 (Amendment 1999-1). The amendment modified the Plan’s benefit accrual formula “for the purpose of eliminating any controversy regarding the proriety [sic] of the rate of benefit accruals under the Plan,” and specifically referenced this lawsuit. Id. at 1. Unlike the previous formula which purportedly complied with the 133 1/3% rule, Hilton’s new formula sought to comply with the fractional rule. Id. at 2-3. According to Kifafi, and not disputed by Hilton, the amendment also modified two unrelated components of the Plan that were favorable to participants: (1) the Plan previously offered 2.0% of the highest average pay for each of the first 25 years of participation but was amended to effectively reduce this amount to 1.33% at its lowest, and (2) the Plan previously calculated Social Security benefits based only on earnings from Hilton but was amended to calculate this amount using projected earnings. PL’s Stmt. ¶ 27. Significantly, the amendment made all of these changes retroactive and specified that a participant would receive benefits pursuant to the formula under the pre-amendment Plan or the post-amendment Plan, whichever produced greater benefits for that participant. See PL’s Ex. 11 at 4 (Amendment 1999-1). Following Hilton’s amendment, Kifafi filed an Amended Complaint that contains six claims for relief. Count I alleges that the Plan unlawfully backloaded benefit accruals and that Hilton’s amendment would pay class members only a portion of the benefits that would be owed if their accrued benefits had been calculated in compliance with ERISA. Am. Compl. ¶¶ 40-42A. Count II alleges that Hilton failed to count all of his years of service in violation of the Plan. Id. ¶¶ 43-45. Count III alleges that Hilton failed to maintain sufficient data needed to locate and pay surviving spouses of Plan participants in violation of ERISA. Id. ¶¶ 46-48. Count TV alleges that Hilton failed to issue an individual benefit statement to Kifafi after his separation from service in violation of ERISA and Hilton’s Supplemental Plan Document (“SPD”). Id. ¶¶ 49-51. Count V alleges that Hilton failed to timely supply a copy of the Plan document to Kifafi in violation of ERISA. Id. ¶¶ 52-53. Count VI alleges that Hilton’s failure to comply with the obligations set forth in ERISA (based apparently on the alleged violations underpinning Counts I-V) constituted a breach of fiduciary duty. Id. ¶¶ 54-56. Because Hilton amended the Plan and Kifafi had filed an Amended Complaint, the Court allowed the parties an opportunity to submit additional pleadings in connection with Kifafi’s Motion for Class Certification. After considering the parties’ numerous submissions, the Court subsequently granted-in-part and denied-in-part the Motion for Class Certification on May 11, 1999. See Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174 (D.D.C.1999). The Court granted the motion with respect to a benefit-accrual class in connection with Count I of the Amended Complaint, subject to a possible amendment to conform the class with the statute of limitatiops, if necessary. Id. at 176-78. The Court denied the motion with respect to a “service-counting” class in connection with Count II of the . Amended Complaint, which the Court found to consist of five sub-classes: [w]ith respect to [Kifafi’s] (1) union-service claim and (2) his claim that the Defendants failed to give credit for leave of absence, Mr. Kifafi does not even appear to be a member of the proposed class ... [w]ith respect to the other three service-counting claims, Mr. Kifafi fails to show that his individual circumstances give rise to a generally applicable practice that ought to be tried on a class-wide basis. Id. at 179-80 (internal numbering added). Notwithstanding the pendency of this litigation, on September 3, 1999, Hilton submitted the amended Plan to the IRS and requested a determination that the Plan, as amended, satisfied the requirements of a qualified retirement plan. Defs.’ Stmt. ¶ 9. In connection with the same, Kifafi’s counsel drafted at least three letters advising the IRS of the claims asserted in this case to “protect the rights of [the] class.” Defs.’ Ex. 6 at 4 (5/27/99 Letter from S. Bruce to C. Gold). See also Defs.’ Ex. 7 (7/12/00 Letter from S. Bruce to IRS); Defs.’ Ex. 8 (11/1/01 Letter from S. Bruce to L. Isaacs). The IRS regional office handling the request referred the issues associated with Hilton’s Plan amendments to its national office (the National Employee Plans Technical Office). Defs.’ Stmt. ¶ 11. The IRS national office issued a Technical Advice Memorandum on July 25, 2002. See Pl.’s Ex. 16 (7/25/02 Technical Advice Memorandum). The Memorandum began by reviewing the accrual provisions associated with Hilton’s Plan and identifying the concerns articulated by Kifafi’s counsel. Id. at 6. The IRS then evaluated the preamendment Plan- and determined that it “fails to meet the 133 1/3 percent rule.” Id. at 7. The IRS explained that: [u]nder the 133 1/3 percent rule the annual rate of accrual for any participant must be determined for each year and compared with the annual rate of accrual for any later plan year. Under the Plan, the first year accrual PreAmendment Benefit rate is generally .71% of a participant’s average monthly compensation ... For all except the lowest paid participants in the Plan and participants in the Plan with decreasing compensation, an accrual rate of 1.54% or higher will generally occur in at least one plan year after the first plan year and before the twenty-sixth plan year.... Thus, because 1.54% is more than 133 1/3 percent of .71%, the Pre-Amendment Benefit fails to meet the 133 1/3 percent rule. Id. The IRS also found that the preamendment Plan violated the 3% rule and the fractional rule (i.e., it failed to comply with any of the three alternative accrual tests set forth in 29 U.S.C. § 1054(b)(1)). Id. at 6-8, 12 (“[t]he Plan benefit formula before the Amendment 1999-1 did not satisfy the 133 1/3% accrual rule under Internal Revenue Code Section 411(b)(1)(B), nor did it meet the fractional rule or the 3 percent method”). With respect to Hilton’s post-amendment Plan, the IRS determined that the Plan still failed to comply with the 133 1/3% rule (or the 3% rule), but that it did comply with the fractional rule. Id. (“[i]he Plan benefit formula after the Amendment 1999-1 does not satisfy the 133 1/3% accrual rule under Internal Revenue Code section 411(b)(1)(B) nor does it meet the 3 percent method, but it does meet the fractional rule”). Because the IRS did not believe that Hilton had previously misstated or omitted material facts at the time it had submitted applications related to the pre-amendment Plan, and because the IRS believed that Hilton had acted in good faith reliance on the IRS’ determination letters, the IRS decided not to retroactively revoke the Plan’s qualified status. Id. at 13. In making this determination, however, the IRS explained that Hilton agreed to further amend its Plan. Id. at 12. Among these amendments, Hilton eliminated the Plan’s representation that it was complying with the 133 1/3% rule: Amendment 2002-1 In response to concerns raised in the National Office, the Taxpayer’s representative has drafted a proposed amendment (“Amendment 2002-1”) providing: * * * (4) that section 5.4 of the Plan is amended to read as follows: “5.4 Code Section 411(b)(1). The method of computing a Participant’s accrued benefit under the provisions of Article IV is intended to satisfy the requirements of Section 411(b)(1) of the Code.” Id. at 12 (emphasis in original). Finally, the IRS explained in a cover letter that its determination “relates only to the status of [the][P]lan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes.” Pl.’s Ex. 84 (7/25/02 Letter from P. Shultz to Hilton). Although Hilton initiated these Plan amendments to remedy perceived deficiencies with its accrual provisions, Hilton also amended the Plan during the pendency of this litigation to correct issues associated with the Plan’s vesting provisions. For example, Hilton initially asserted that it complied fully with the Plan’s vesting provisions that allowed employees to earn a year of vesting credit by completing 1,000 hours of service: Defendants followed the early retirement provisions of the Retirement Plan in determining that only those years of employment in which Plaintiff had 1,000 hours of employment with Hilton were credited years of service.... Defendants calculated Plaintiffs years of credited service and service hours in accordance with ERISA and the terms of the Retirement Plan. PL’s Ex. 10 at 2-3 (10/15/98 Defs.’ Statement of the Case). See also Defs.’ Resp. to PL’s Suppl. Class Cert. Br. at 4 & n.2 (“Hilton does not use equivalency methods to count hours of service under the Plan [such as the 870 method] and did not do so in Plaintiffs case” and “[i]f Hilton used an equivalency method, it would have to say so in the Plan”). Similar to the events surrounding the Plan’s accrual provisions, documents produced to Kifafi in discovery demonstrated that Hilton had not implemented the terms of the Plan in full compliance with its vesting provisions. For example, an email drafted by Vera Stoicof, a benefits administrator employed by Hilton, indicated that Hilton did not properly calculate employees’ years of service prior to their participation in the Plan: In past calculations with Abacus, a person’s Union years were not bridged for purposes of benefit or vesting services unless the participant met the Special Service Rules requirements. However, due to the lawsuit we are reexamining this practice. We have been giving vesting years to participants who go into the union after years of benefit service ..., but should a participant be given vesting for union years prior to any benefit service, except in cases where special service rules apply? ... We have not previously given vesting prior to benefit service except in Reno’s special agreement, and it may alter calculations for certain retirees. Pl.’s Ex. 27 at 1 (5/6/02 Email from V. Stoico to G. Trotter) (emphasis in original). In another example, Ms. Stoicofs email exchange with Hilton employee Greg Trotter contained a similar description of Hilton’s failure to track these hours: Ms. Stoicof: [f|or as far back as we can go, no one kept track of the nonparticipating properties’ employees (hours/earnings) to give them vesting. How can we say the employees get vesting if that company was never participating? Mr. Trotter: I recognize that many of these issues would not be a concern if, historically, Hilton had been able to obtain good records from the various employers under the Plan and that the basic form of these rules have been in the Plan long before any of us were involved with the Plan. However, as I’ve said, most of the rules simply reflect legal requirements that the Plan must follow: Pl.’s Ex. 27 at 4-5 (5/9/02 Email Exchange between V. Stoicof and G. Trotter). Hilton again amended the Plan on December 10, 2002 (Amendment 2002-4) to change the methods it used to calculate years of service. A background document prepared in connection with the amendment specifically acknowledged Hilton’s failure to maintain the records necessary to properly calculate employees’ years of service: The pending Kifafi v. Hilton Hotels Retirement Plan litigation includes claims that the Plan failed to track and count all hours of service in determining vesting and eligibility for early retirement benefits as required by ERISA. We are uncertain whether these claims have merit because we have to date been unable to locate adequate historical records to verify the claims. To ensure that plan participants are provided with ERISA compliant benefits based on verifiable historical records, it is proposed to amend the Plan to change the method of counting hours worked for [the] purpose of determining years of service. Pl.’s Ex. 39 (Undated Document titled “proposed hours counting amendment to Hilton Hotels Retirement Plan”); Pl.’s Stmt. ¶ 90. Whereas the Plan previously allowed participants to earn one year of vesting credit for completing 1,000 hours of service, Defs.’ Stmt. ¶ 16, Hilton’s amendment replaced the 1,000 standard with two new counting methods. Id. ¶ 17. First, when a participant performs services that are credited under the Plan for both vesting and benefit accruals (such as nonunion service), the participant receives a year of vesting service for each Plan year in which the participant completes at least 870 hours of service (or 750 hours if the participant is a salaried employee). Id. Second, when a participant performs services that are credited under the Plan for purposes of vesting only (such as union service), the participant earns a year of vesting credit for each 365-day period of service regardless of the employees’ hours during that period (a so-called “elapsed time method” of counting). Id. Hilton subsequently adopted a formal resolution clarifying that its new calculating methods were to have retroactive effect. Id. ¶ 18. Following these Plan amendments, the Court held a Status Hearing with the parties on June 24, 2003. During the hearing, Hilton’s counsel conceded that Hilton did not possess all of the records necessary to properly calculate employees’ years of service prior to the Plan’s amendments: THE COURT: I take it you’re admitting that the plan requires this credit and that that has not actually occurred, whether it’s because you don’t have the historical records or whatever. Is that accurate or not? HILTON: Not quite, Your Honor. The plan was amended to just eliminate the issue of trying to figure out what these preparticipation years of service [were]. It went to this elapsed time method that makes it unnecessary to compute that with precision. THE COURT: Okay. But there was a period in there before you did the amendment where you had the plan, you then have the amendment at this end, and there’s a period in here when the plan was not being implemented. Do you agree? HILTON: Not completely, Your Honor. THE COURT: Where it wasn’t fully implemented. HILTON: With some adverb like that, I’ll agree. HILTON: We would say it was being implemented in many situations, including Mr. Kifafi’s fully. When he made his claim, efforts were made to get the hours and we believe adjudicated correctly. There were situations where the records weren’t there and, therefore, if that is not full implementation, I would agree with that.... Defs.’ Ex. 27 at Tr. 23:10-24:24 (6/24/03 Status Hearing Transcript). With the Court’s permission, Kifafi subsequently renewed his motion to certify a vesting claims class on July 21, 2003. Kifafi explained that “this renewed motion is based on new evidence obtained in the course of discovery, which is now completed.” Kifafi v. Hilton Hotel Ret. Plan, 228 F.R.D. 382, 384 (D.D.C.2005). As explained in its Memorandum Opinion, the Court certified four sub-classes in connection with the vesting violations alleged as Count II of the Amended Complaint: (1) Plaintiffs claim that Defendants failed to credit employees with years of union service for vesting purposes; (2) Plaintiffs claim that Defendants improperly used a 1000 hours service standard rather than an 870 hour service standard; (3) Plaintiffs claim that Defendants failed to credit leaves of absence; and (4) Plaintiffs claim that Defendants failed to count the year in which employees became participants in the retirement plan for vesting purposes. Id. at 386-89. Following class certification, the Court set a briefing schedule for the parties’ submission of Cross-Motions for Summary Judgment. Pursuant to that schedule, Kifafi filed a Motion for Summary Judgment (“Pl.’s Mot.”), Hilton filed a Consolidated Cross-Motion for Summary Judgment and Opposition to Kifafi’s Motion for Summary Judgment (“Defs.’ Opp’n”), and Kifafi filed a Consolidated Opposition to Hilton’s Cross-Motion for Summary Judgment and Reply in support of his Motion for Summary Judgment (“PL’s Reply”). Hilton also filed a Motion to Strike certain declarations submitted by Kifafi in support of his Motion for Summary Judgment, which the parties proceeded to fully brief. In connection with this briefing, Kifafi also filed a Motion for Leave to file a SurReply, which was opposed by Hilton and fully briefed by the parties. The Court decided to hold the Motion to Strike and Motion to file a Sur-Reply in abeyance, considering them within the larger context of the parties’ Cross-Motions for Summary Judgment. Accordingly, the Cross-Motions for Summary Judgment, the Motion to Strike, and the Motion to file a Sur-Reply, are all addressed in this Memorandum Opinion. Finally, the Court referred the parties to mediation with Magistrate Judge Alan Kay while they continued to brief their motions. Because the Court was notified that the parties were engaged in potentially fruitful settlement negotiations with the goal of resolving the lawsuit in its entirety, the Court denied all of the parties’ motions without prejudice, with leave to reinstate them if the negotiations ultimately proved to be unsuccessful. The parties were unable to reach a settlement during their negotiations, and consequently, the Court now reaches the parties’ Cross-Motions for Summary Judgment, Hilton’s Motion to Strike, and Kifafi’s Motion to file a SurReply, all of which are now ripe for decision. II. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, the moving party bears the “initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party must “go beyond the pleadings and by [its] Own affidavits, or depositions, answers to interrogatories, and admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal citations omitted). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an otherwise proper motion for summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (citing Fed.R.Civ.P. 56(e)) (emphasis in original). III. DISCUSSION Counsel for the parties have made resolution of the issues in this case unnecessarily difficult for two reasons. First, counsel have shifted their burden to the Court to determine which facts are in dispute between the parties. Local Civil Rule 7(h)(1) provides that [e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. LCvR 7(h)(1). Despite this rule’s emphasis on materiality, precision, and citations to the record, the parties presented the Court with 250 “material” facts, a substantial segment of which are opposed by the parties for frivolous or unsupported reasons. For example, Kifafi opposes Hilton’s 62nd proffered fact with this meritless objection: “[djispute the second sentence [of the proffered fact] which is unintelligible because of the double negative.” See Pl.’s Resp. Stmt. ¶ 62. Hilton makes a similarly well-reasoned objection to Kifafi’s 11th proffered fact: “[d]ispute plaintiffs interpretation of the [documents], the purpose for which they were created and what they demonstrate,” with no citation to evidence in the record and no further explanation. Defs.’ Resp. Stmt. ¶ 11. These types of objections not only reflect poorly on counsel, they also require the expenditure of resources that should be borne by the parties, not the Court. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir.1996) (“[LCvR 7(h)(1) ] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record”) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988)). The second difficulty created by counsel is that each side has repeatedly shifted their arguments such that the Court has consistently been presented with moving targets. For example, Kifafi has consistently demonstrated an inability to focus on the claims that he has actually asserted in his Amended Complaint, repeatedly raising new claims that are not a part of this litigation (such as various claims related to how Hilton has implemented amendments to its Plan). For Hilton’s part, it has consistently amended the Plan and sought to conflate separate inquiries associated with liability and remedies to argue that any ERISA violations should not give rise to liability because they have been mooted. In resolving the parties’ claims, the Court shall not allow Kifafi to expand his Amended Complaint, and shall not allow Hilton to conflate liability with issues associated with remedies or the doctrine of mootness. With these preliminary matters resolved, the Court shall now turn to the claims raised in the Amended Complaint: (A) the backloading of benefit accruals (certified as a class claim); (B) the improper calculation of vesting credit (certified as four sub-classes); (C) the failure to maintain data to locate Kifafi’s spouse (an individual claim); (D) the failure to issue an individual benefit statement (an individual claim); (E) the failure to supply a copy of the Plan document (an individual claim); and (F) the breach of fiduciary duty (an individual claim). A. “Backloading” Of Benefit Accruals (Count I) As set forth above, ERISA prevents employers from backloading benefit accruals, ie. “providing inordinately low rates of accrual in the employee’s early years of service ... [and] concentrating the accrual of benefits in the employee’s later years of service.” Langman, 328 F.3d at 71. In order to comply with ERISA, an employer must satisfy one of the three alternative tests set forth in Section 204(b) of ERISA, 29 U.S.C. § 1054(b)(1) (setting forth the 3% rule, the 133 1/3% rule, and the fractional rule). Beginning in 1976 and continuing until 1999, the Plan expressly provided for its compliance with the 133 1/3% rule. See Pl.’s Ex. 1 § 5.4 (Hilton Hotels Retirement Plan, version dated March 30, 1995) (“[t]he method of computing a Participant’s accrued benefit under the provisions of Article IV is intended to satisfy the requirements of the 133-1/3 rule”). Kifafi argues that Hilton failed to comply with this rule (and failed to comply with the other two accrual rules) such that it unlawfully back-loaded benefit accruals. See Pl.’s Mot. at 3-10. The record is replete with uncontested evidence that the Plan failed to comply with the 133 1/3% rule because its accrual rates varied by more than the permissible 133 1/3%. See, e.g., Pl.’s Ex. 7 at 2 (2/10/98 Towers Perrin Accrual Test) (Hilton’s consultant asking whether the Plan passes the 133 1/3% rule and answering “No”); PL’s Ex. 8 at 1 (2/27/93 Meeting Spreadsheet) (Hilton’s consultant preparing a spreadsheet reflecting variations of accrual rates of more than 200%); PL’s Ex. 16 at 6-8, 12 (7/25/02 IRS Technical Advice Memorandum) (evaluating Hilton’s Plan and concluding that it “did not satisfy the 133 1/3% accrual rule” because the accrual rates Varied between .71% to 1.54%); Pl.’s Ex. 5 ¶ 10-16 (Affidavit of C. Poulin) (Plaintiffs expert explaining his analysis of Hilton’s Plan and concluding that “the Plan’s benefit formula did not meet the requirement of the 133 1/3 percent rule”). Hilton does not dispute, as a factual matter, that the Plan violated this rule. Instead, Hilton argues that the Court should, as a legal matter, ignore the language in the Plan indicating its intention (but failure) to comply with the 133 1/3% rule. Specifically, Hilton argues that “a plan sponsor’s intention when drafting an ERISA plan will not be considered by courts unless the plan language at issue is ambiguous on its face.” Defs.’ Opp’n at 21. Hilton surmises that Kifafi “has made no claim that the Plan’s accrual provisions ... are ambiguous in any way,” and therefore, the Court should simply avoid any finding that the plan violated ERISA’s backloading provisions. Id. Hilton also references the entirely uncontroversial proposition that “ERISA does not require the adoption of the 133-1/3% Rule.” Id. at 21-22. The Court rejects Hilton’s suggestion that the Plan’s explicit anti-backloading clause and Hilton’s representations related to the same were mere musings without consequence. Not only did the Plan explicitly provide for its compliance with the 133 1/3% rule, but Hilton conveniently ignores that it represented its compliance with this rule to both the IRS, see PL’s Ex. 2 at 3 (Hilton Application dated March 29, 1995) (indicating that the “[mjethod for determining accrued benefit[s]” was the “133-1/3% Rule”), and this Court, see Defs.’ Stmt, of the Case at 2 (Oct. 15,1998) (“[t]he Retirement Plan complies with the 133 1/3% rule”). Moreover, because the Plan failed to satisfy any of the three accrual methods, this is not an instance where a Plan sponsor stated an intention to comply with one rule but the Plan in practice complied with a different one. Rather, Hilton’s Plan failed to comply with any of ERISA’s anti-backloading provisions, and most significantly, with the 133 1/3% rule included among its provisions. Hilton thus faces a circumstance where it was required to comply with the accrual method it expressly selected, even though ERISA generally allows employers to select compliance with any of the three alternative anti-backloading rules. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 85, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995) (“Whatever level of specificity a company chooses, in an amendment procedure or elsewhere, it is bound to that level”). The Third Circuit’s decision in Smith v. Contini expounds on this principle: we agree with the defendants and the district court that the defendants were under no obligation under ERISA to provide for reciprocal agreements and Pro-rata Pensions. Nevertheless, once having made the determination to provide for such pensions, the defendants were obliged to formulate a plan providing for vesting in accordance with ERISA section 203(a)(2)(A), 29 U.S.C. § 1053(a)(2)(A). Thus, this case represents a situation, not unusual in the law, that an actor’s discretion in how it engages in certain conduct is circumscribed, even though it was not obliged to engage in the conduct in the first instance. 205 F.3d 597, 605 (3d Cir.2000). Accordingly, it is apparent that the Plan violated ERISA’s anti-backloading provision, 29 U.S.C. § 1054(b)(1), and in particular, violated the 133 1/3% rule. As a result, the Court has little difficulty concluding that the Plan’s participants are entitled to receive the benefits they would have accrued had the Plan complied with 133 1/3% rule. Cf. Carrabba v. Randalls Food Mkts., Inc., 145 F.Supp.2d 763, 773 (N.D.Tex.2000) (requiring a backloaded plan to conform to the 133 1/3% rule where no accrual method was otherwise specified and-the plan violated all three of ERISA’s anti-backloading provisions), aff'd 252 F.3d 721 (5th Cir.2001). Having made' the determination that Hilton’s Plan violated ERISA’s antibackloading provision, 29 U.S.C. § 1054(b)(1), the Court shall now consider Hilton’s principal argument on summary judgment that its 1999 amendment to the Plan has mooted Kifafi’s benefit accrual claim. Defs.’ Opp’n at 30-33. As discussed above, the 1999 amendment was implemented “for the purpose of eliminating any controversy regarding the proriety [sic] of the rate of benefit accruals under the Plan.” See Pl.’s Ex. 11 at 1 (Amendment 1999-1). Rather than amend the Plan to comply with the 133 1/3% rule, however, Hilton’s new formula seeks to comply with the fractional rule. Id. at 2-3. The amendment also makes two changes unrelated to any effort to bring the Plan into compliance with ERISA’s anti-back-loading provision. PL’s Stmt. ¶ 27. Hilton does not contest that its two unrelated changes to the Plan resulted in lower levels of accrued benefits than if the changes were not made, but instead argues that such a result does not present a problem. See Defs.’ Opp’n at 17 (“Plaintiff wants to have his cake and eat it too; he wants to keep all of the upward adjustments in the new benefit formula while eliminating any downward adjustments”). Referring to the pre-amendment formula as simply “irrelevant” to resolution of the parties’ Cross-Motions for Summary Judgment, Hilton also argues that the new formula offers “complete relief in that it complies with § 204(b)(1) [the anti-back-loading provision], specifically, the Fractional Rule of § 204(b)(1)(C).” Defs.’ Opp’n at 30-31. According to Hilton, “[n]othing more is required” because the Plan’s participants “are entitled to participate in a plan that complies with ERISA § 204(b)(1) [and] they are not entitled to participate in a plan that complies with the 133-1/3% Rule.” Id. at 31. The Court rejects Hilton’s argument for several reasons, not the least of which is that, if accepted, it would make lawful Hilton’s otherwise unlawful backloading of benefit accruals. In particular, Hilton’s Plan violated ERISA’s anti-backloading provisions for the reasons stated above. The 1999 Plan amendment, while’ purporting to bring the Plan into compliance, also made other changes that were unfavorable to the benefits accrued by Plan participants. The fact that the Plan now provides that participants may receive the greater of the old (unlawful) formula or the new (lawful but with decreased benefits) formula does not remedy Hilton’s violations. Plan participants are entitled to receive the. benefits they would have accrued under the Plan’s initial benefit accrual formula, amended only to bring it into compliance with the 133 1/3% rule. If this were not so, Hilton and all other employers that have unlawfully backloaded benefit accruals could simply “amend away” their ERISA violations. The Court therefore finds Kifafi’s argument on this point entirely persuasive: [a] company could violate ERISA’s accrual rules and then, after the violation is discovered by a participant, ‘restructure’ its formula retroactively to either eliminate or dramatically diminish any liabilities. Under Hilton’s logic, if a retirement plan promised 2% of pay per year of participation but only provided 1% of pay in practice, only the unlawful 1% would be protected against a retroactive amendment.” PL’s Reply at 14. Although few cases have analyzed ERISA’s prohibition on backloading in factually similar circumstances (and none in this Circuit), Judge Shira Scheindlin faced a similar factual scenario in In re Citigroup Pension Plan ERISA Litigation and rejected the same argument as the one advanced by Hilton. 470 F.Supp.2d 323 (S.D.N.Y.2006), overruled in part on other grounds, sub nom., Hirt v. Equitable Ret. Plan for Employees, Managers & Agents, 533 F.3d 102, 107 (2d Cir.2008). In that case, Citigroup adopted a plan that purported to follow the fractional rule pursuant to 29 U.S.C. § 1054(b)(1)(C). Under the terms of the plan, if “an individual’s hypothetical account balance [turned out to be] less than the minimum amount required by section 204(b)(1)(C) of ERISA, Citigroup credits the participant the difference.” Id. at 337. In other words, if a participant discovered that Citigroup’s plan violated ERISA’s anti-backloading provisions, the plan provided that Citigroup would pay the amount necessary to bring the participant’s accrued benefits into compliance. Citigroup argued that “this supplementary contribution brings accrued pensions into compliance with the minimum required by the fractional rule,” but Judge Scheindlin soundly rejected that argument. Id. Finding that the plan “not only fail[ed] to guard against backloading,” she held that “this lump-sum contribution, made on the eve of the benefit payout, is inadequate precisely because it permits the backloading that the fractional rule was designed to prevent.” Id. (emphasis added). She also explained that “[i]f such applications of the fractional rule were permissible, plans would be free to adopt formulas providing a mere pittance of benefit accrual over, say, the first twenty years of employment, and thereafter have benefits accrue rapidly by tacking on an additional amount....” Id. at 338. The same logic applies in this case, prohibiting Hilton from simply changing the Plan’s formula to make accrued benefits lower for a substantial number of participants than the benefits they would have accrued had Hilton’s Plan .not violated ERISA’s antibackloading provision. The Court also agrees with Kifafi that Hilton’s legal argument — that Plan participants are only entitled to receive the greater of the old (unlawful) formula or the new (lawful but with decreased benefits) formula — -would, if accepted, transgress ERISA’s so-called “anti-cutback” rule in Section 204(g). See 29 U.S.C. § 1054(g) (“[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan”). This provision “prohibits any amendment of a pension plan that would reduce a participant’s ‘accrued benefit.’ ” Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 741, 124 S.Ct. 2230, 159 L.Ed.2d 46 (2004). Accrued benefits are considered “reduced” not only when they are decreased in size or eliminated entirely, but also when an employer imposes new, “conditions” or “materially greater restrictions on the[ir] receipt.” Id. at 744, 124 S.Ct. 2230. See also Bellas v. CBS, Inc., 221 F.3d 517, 522 (3d Cir.2000) (“[a] plan amendment that retroactively reduced benefits promised to plaintiffs for almost seven years was precisely the sort of inequity Congress designed ERISA to prevent”). Hilton argues that it has not reduced the benefits owed to Plan participants because its 1999 amendment provided participants with the “greater of’ the pre-amendment and post-amendment accrual formulas. Defs.’ Opp’n at 15. According to Hilton, “numerous cases” have found that a Section 204(g) violation has not occurred if a post-amendment accrued benefit is not less than the pre-amendment accrued benefit, citing Brody v. Enhance Reinsurance Co. Pension Plan, 00-9660, 2003 WL 1213084, at *9, 2003 U.S. Dist. LEXIS 3785, at *27-*28 (S.D.N.Y. Mar. 16, 2003). Id. This argument misses the mark, however, for the same reasons discussed above. The appropriate point of comparison is not what Plan participants accrued under the unlawfully backloaded pre-amendment Plan, but rather, what the Plan participants would have accrued had the preamendment Plan operated in compliance with the 133 1/3% rule. Hilton’s reliance on Brody and related cases is unpersuasive because none endorse the “greater of’ method to “make lawful” an otherwise unlawful plan. Finally, the Court specifically finds that Hilton has not met its burden of demonstrating mootness in the context of controlling case law. “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491, (1969)). Thus, when two conditions are satisfied: (1) “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur;” and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation” — a case is moot “because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. However, “voluntary cessation of allegedly illegal conduct” rarely moots a case because it leaves the defendant “free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 173-74, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[t]he appellate court erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant, albeit after commencement of the litigation, has come into compliance”). Because a court’s finding that a case is moot would entitle the defendant to a dismissal as of right, courts have been reluctant “to grant defendants such a powerful weapon against public law enforcement” because there is “a public interest in having the legality of ... practices settled.” W.T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. 894. For this reason, the Supreme Court has emphasized that a defendant’s burden to demonstrate mootness is substantial and difficult to satisfy: the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: ‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ Friends of the Earth, 528 U.S. at 189, 120 S.C