Full opinion text
MEMORANDUM AND ORDER PLATT, District Judge. Before the Court is Defendant MetLife’s motion for summary judgment or in the alternative partial summary judgment. Also before the Court is Plaintiffs’ motion for summary judgment. For the reasons described below, MetLife’s motion for summary judgment and Plaintiffs’ motion for summary judgment are DENIED. The undersigned assumes familiarity with this Court’s earlier decision denying MetLife’s initial motion to dismiss Plaintiffs’ original complaint in this case filed under Section 12(a) of the Securities Act of 1933 in In Re: MetLife Demutualization Litig., 156 F.Supp.2d 254 (E.D.N.Y.2001) and with the Statement of Facts set forth therein, and in In Re: MetLife Demutualization Litig., 322 F.Supp.2d 267 (E.D.N.Y.2004). BACKGROUND This case is a securities class action against Metropolitan Life Insurance Company and MetLife, Inc., (“MetLife”) with respect to MetLife’s conversion from a mutual life insurance company to a stock life insurance company by a process known as demutualization. The plaintiff class (“Plaintiffs”) allege that MetLife omitted material information from a prospectus sent to MetLife policyholders in connection with the demutualization. Various aspects of the underlying facts have been recounted in prior Court orders: In re MetLife Demutualization Litig., 156 F.Supp.2d 254 (E.D.N.Y.2001), In re MetLife Demutualization Litig., 322 F.Supp.2d 267 (E.D.N.Y.2004) and In re MetLife Demutualization Litig., 495 F.Supp.2d. 310 (E.D.N.Y.2007). Because of the lengthy material facts and supporting evidence presented by the parties in the present motion for summary judgment, it is (reluctantly) necessary to include a detailed account of both the disputed and undisputed facts at issue as presented by the parties. The ultimate question is whether the Plaintiffs have alleged sufficient facts to show that there remain genuine issues of material facts. Development and Review of the Plan of Reorganization Defendants Metropolitan Life Insurance Company (the “Company”) and MetLife, Inc. have been, since the Company’s founding in 1866, a life insurance company incorporated and existing under the laws of New York State. Defs Statement of Material Fact at ¶ l. On November 24, 1998, the Company’s Board of Directors (the “Board”) authorized the development of a reorganization plan to change the Company’s corporate form from a mutual life insurance company to a stock life insurance company. Id. at ¶ 2. During the development of a proposed plan of reorganization, Company personnel “worked with” outside legal, actuarial, and investment banking advisors, the New York Insurance Department (“Department”) and the Department’s external legal, actuarial, and financial consultants. Defs Statement of Material Fact at ¶ 3; Ex. 32 at 37:19-25, 83:8-20, 156:1-11; Ex. 33 at 152:5-9, 207:7-25, 209:9-210:2; Ex. 20 at 178:12-21, 226:21-227:p, Ex. 21 at 13:1-15:13, 56:18-25; Ex. 23 at 271:21-272:22. Although Plaintiffs dispute the characterizations “worked with” and “to develop,” PL’s Response at ¶#, Plaintiffs do not assert that their disagreement involves an issue of material fact and do not cite any evidence demonstrating a genuine issue of material fact with respect to Met-Life’s characterizations. Def.’s Reply at 2. The Department was assisted in its review of the demutualization by its outside consultants, which included its legal consultant Fried, Harris, Shriver and Jacobon (Ex. 35 at 501:12-13); its financial consultant The Blackstone Group (Ex. 33 at 208:13-16); and its actuarial consultant Milliman & Robertson, Inc. (Ex. 32 at 158:5-12). Def.’s Statement of Material Fact at 1U. Plaintiffs dispute the characterization “was assisted in its review,” PI. ’s Response at 111, but do not cite any evidence as this question. The Department, with its outside consultants, reviewed multiple drafts of the Plan of Reorganization, the Policyholder Trust Agreement, Policyholder Booklet Parts One and Two, actuarial documents and other related materials. Defs Statement of Material Fact at ¶ 5; Ex. 21 at 6:15-7:10, 13:1-15:13, 27:11-18, 52:11-21; Ex. 35 at 500:11-501:16, 567:22-568:2; Ex. 31 at 9:8-23, 21:12-16; 23:25-21:12. Plaintiffs dispute the characterization “reviewed,” PL’s Response at ¶ 5. All these documents, however, were the subject of meetings and discussions between the Department and its consultants and the Company and its advisors, as well as any other issues arising out of the demutualization. Def.’s Statement of Material Fact ¶ 6, 7; Ex. 32 at 37:18-38:6, 59:21-61:17; Ex. 21 at 52:11-21, 51:8-16; Ex. 19 at 198:1-18. The Company and its advisors submitted additional documents addressing issues regarding the Plan of Reorganization at the request of the Department and its consultants or upon its own initiative. Id. at ¶ 8; Ex. 31 at 23:11-25, 216:9-20, 217:6-12; Ex. 27 at 110:19-111:3-6; Ex. 17 at 53:2-8. Plaintiffs contend that the meetings and discussions concerned only the documents described in paragraph 5, (the Plan of Reorganization, the Policyholder Trust Agreement, Policyholder Booklet Parts One and Two, actuarial documents and other related materials), and that the only materials submitted to the Department were the documents described in paragraph 5. PI. ’s Response at ¶ 7, 8. However, in addition to the materials described in paragraph 5, numerous other issues were the subject of meetings and discussions between the Company and the Department. Def.’s Reply at 2. E.g., Ex. 19 at 198:1-9 (Goldman Sachs spoke to Insurance Department “with respect to the status of the IPO and bringing [the Department] up to speed on a very regular basis”); Ex. 21 at 52:11-21 (“[T]he insurance department clearly interacted with its outside advisors, on both parts of the policy holder information booklet, including all the contents as well as certain other materials.”); see also Ex. 52 ¶27. The evidence also shows additional documents, aside from those referenced in paragraph 5 were submitted to the Department. Def.’s Reply at 3. Ex. 31 at 23:11-25, 216:9-20, 217:6-12; Ex. 27 at 440:19-441:9; Ex. 17 at 53:2-8; see also Ex. 52 ¶ 17. Adoption of the Plan of Reorganization by the Board of Directors On September 28, 1999, the Board adopted a Plan of Reorganization (the “Plan”). Defs Statement of Material Fact at ¶ 9; Exs. 7, 12-14; see Ex. 8; Ex. 33 at 88:4-6; Ex. 29 at 199:16-200:2. On November 3 and 16, 1999, and March 9, 2000, the Board amended the Plan. Def’s Statement of Material Facts at ¶ 10; Exs. 9, 10, 11. In adopting the Plan and its amendments, the Board determined that the Plan was fair and equitable to policyholders and in the best interest of the Company and its policyholders. Def’s Statement of Material Facts at ¶ 14. Exs. 8, 9, 10, 11. According to the terms of the Plan, each owner of a policy that was in force on September 28, 1999, was an “Eligible Policyholder” who was entitled to vote on the proposed Plan and, upon the Plan’s approval, to receive consideration upon demutualization. Def’s Statement of Facts at ¶ 15; Ex. 7 Art. II, §§ 5.2(a), 5.2(d) (Hi), 5.6(b). Between November 24 and December 21, 1999, the Company mailed to Eligible Policyholders a package that included the following items: (a) A cover letter from the Company’s chairman; (b) A booklet titled “Read Me First”; (c) A two-part Policyholder Information BooMet; (d) A ballot and return envelope for voting on the Plan; (e) A card listing the policyholders’ policies for which the policyholder was eligible to receive consideration under the Plan and indicating the form in which consideration was to be received; (f) Except for policyholders with addresses in Canada, an Internal Revenue Service Form W-9 to report the policyholder’s social security number; and (g) Except for policyholders with addresses in Canada, a card that allowed policyholders eligible to receive consideration in the form of stock to elect to receive cash instead of stock. Exs. 1-5; see Ex. 49; Ex. 26 at 128:14-17, 272:6-11, 273:15-22; Ex. 40 at 105:10-13, 22-24; Ex. 34 at 52:12-17; Ex. 42 at 24:20-25, 36:11-18, 48:15, 57:19-58:9. The package was sent to all or substantially all Eligible Policyholders with valid addresses. Def’s Statement of Material Fact at ¶ 18. Those with no known valid addresses received a notice, in the form of a letter informing them on how to obtain a full package. Id.; Ex. 49; Ex. 42 at 53:5-10. Mailing to Policyholders and Policyholder Vote Prior to mailing, all of the materials sent to Policyholders were reviewed and commented upon by the New York State Department of Insurance and its advisors and were approved by the Superintendent of Insurance of the State of New York (“Superintendent”). Def’s Statement of Material Fact at ¶ 19; Ex. 32 at 61:23-62:13; Ex. 34 at 9:8-9:23, 18:4-18:10, 20:18-22:5, 24:7-12, 49:19-50:4- Plaintiffs dispute MetLife’s characterization and theorize that the Department only reviewed summaries of the Plan. Pi’s Response at ¶ 19; Def. Ex. 3 at 9. MetLife asserts that Plaintiffs have misstated the evidence by implying that the only materials approved by the Superintendent were the summaries of the Exhibits and Schedules to the Plan. Def.’s Response at 3. MetLife asserts that under applicable New York Law, it was required to obtain the Superintendent’s approval of not only the summaries but all explanatory materials sent to policyholders. Id.; See N.Y. Ins. Law § 7312(i), (k)(l); Ex. 52 ¶216 (“[t]he policyholder notices and accompanying documents, including the Policyholder Information Booklets, Parts One and Two ... were approved by the Superintendent pursuant to Section 7312(i), (k)(l),”). Plaintiffs have failed to raise a genuine issue of material fact as to this issue. On February 7, 2000, the policyholder vote was completed. Def.’s Statement of Material Fact at ¶20; Ex. 51 at 1. Approximately 93.16% or, 2,572,832 of the 2,761,746 eligible policyholders, voted in favor of the demutualization. Def.’s Statement of Material Fact at ¶ 21; Ex. 51 at 2. Superintendent’s Approval of the Plan On January 24, 2000, the Superintendent conducted a public hearing. Id. at ¶22; Decl. ¶ 5k. On April 4, 2000, the Superintendent issued an Opinion and Decision approving the Plan, Id. at ¶23; Ex. 52, which stated that “the proposed reorganization, in whole and in part, does not violate applicable law, is fair and equitable to the policyholders, and is not'detrimental to the public, and, after giving effect to the reorganization, the reorganized issuer will have an amount of capital and surplus reasonably necessary for its future solvency.” Def.’s Statement of Material Fact at ¶ 2k; Ex. 52 ¶ 238. The Opinion and Decision also stated that the disclosure materials “contained sufficient information about the proposed reorganization to enable Eligible Policyholders to make an informed decision regarding the Plan.” Id. at ¶25; Ex. 52 ¶ 216. Plaintiffs do not dispute that the Opinion and Decision contain this language, but instead allege that “the vote on reorganization violated applicable law and injured participating policyholders,” PI. ’s Response at ¶ 2k; Plaintiffs’ Second Amended Complaint, and that the disclosure materials prevented policyholders from making an informed decision by omitting material information regarding the proposed reorganization. Id. at ¶ 25. In response, Met-Life argues that Plaintiffs cannot rely on the conclusory allegations in the Second Amended Complaint to raise a genuine issue of material fact, and have thus failed to do so. Def.’s Reply at 1, ¶B. Effect of the Plan According to the terms of the Plan, its effective date was the date that MetLife completed an initial public offering (“IPO”) of its common stock. Def.’s Statement of Material Fact at ¶26; Ex. 7 § 5.2(b). The IPO was completed, and the Plan became effective on April 7, 2000, completing demutualization, Id. at % 27; Ex. 33 at 25:22-26:12; Ex. 5k; see also N.Y. Ins. Law § 7312(1), at which time the Company ceased to be a mutual life insurance company and became a stock life insurance company as a wholly owned subsidiary of MetLife, Inc. Id. at ¶ 28; Ex. 7 §§ 5. 1, 5.2(e), (j). MetLife states that the demutualization did not alter the contractual rights or obligations of any policy, other than any right to vote that may have been contained in such policy. Def.’s Statement of Material Fact at ¶ 29; Ex. 7 Art. II, Policyholders’ Membership Interests, § 3.1(b), (c); see also Ex. 20 at 100:19-101:15; Ex. 38 at 21:k-18. Plaintiffs assert that the demutualization altered the rights of policyholders and obligations of the MetLife, under N.Y. Ins. Law § 3203, which provides that a life insurance policy shall contain a provision mandating an insurer to ascertain and apportion any divisible surplus accruing on the policy. PI. ’s Response at ¶ 29; Ex 7 Art. II, Policyholders’ Membership Interests, § 3.1(b), (c); see also Ex. 20 at 100:19-101:15; Ex. 38 at 21:k~18. However, § 3203 requires that certain provisions be included in “[a]ll life insurance policies ... delivered or issued for delivery in this state.” N.Y. Ins. Law § 3203. Since § 3203 makes no distinction between stock and mutual companies, as a matter of law it continues to apply to MetLife after demutualization. Def.’s Response at 5. Furthermore, Plaintiffs does not point to any evidence showing that the Plan removed such provisions from policyholders’ insurance policies. Def.’s Response at 5, ¶¶ (3). Both the Plan and applicable New York Insurance Law expressly preserve all insurance policy provisions other than those conferring a right to vote. See N.Y. Ins. Law § 7812(a)(3), (r); Ex. 7 Art. II, Policyholders’ Membership Interests; id. § 3.1(b)-(c). MetLife states that the demutualization did not alter any policy’s eligibility for dividends as declared by the Company’s Board. Ex. 7 Art. II, § 3.1(b), (c); see also Ex. 20 at 100:4-101:15; Ex. 38 at 21:4-18. Plaintiffs assert that such rights were altered pursuant to § 3203 and § 4231 of N.Y. Ins. Law. Harwood 4/6/06 Tr. at 98:9-99:18, 33:24-34:21, 45:19-47:2; Ex. 35; Dunham 3/26/08 Tr. at 204:15-209:9; Ex. 14- However, § 4231 requires “every domestic life insurance company” to make annual dividend determinations, and as a matter of law, it continues to apply to MetLife after demutualization. N.Y. Ins. Law § 4231; see also Ex. 84 at 91:20-92:23; Ex. 86 at 32:15-33:11; Ex. 87 at 107:16-108:2; Ex. 83 at 20:23-21:13. MetLife states that participating polices prior to demutualization remained participating policies subsequent to demutualization. Def.’s Statement of Fact at ¶31. Plaintiffs dispute this and assert that participating policyholders’ rights to participate in dividends under N.Y. Ins. Law § 3203 and § 4231 were altered and restricted. Harwood 4/6/06 Tr. at 98:9-99:18, 33:24-34:21, 45:19-47:2; Ex. 35; Dunham 3/26/08 Tr. at 204:15-209:9; Ex. 14- However, Plaintiffs as a matter of law possessed no “rights” in dividends other than to receive them if they were declared by the Company’s Board of Directors. Def.’s Reply at 5, ¶¶ (4); Ex. 48 ¶¶ 6, 7(e)-(f); Ex. 20 at 101:4-15; Ex. 83 at 85:7-15. In the event that Plaintiffs’ insurance policies contained any greater rights, such rights would have been expressly preserved by the Plan and as a matter of law by New York statute. Def.’s Reply at 5, ¶¶ (4); See N.Y. Ins. Law § 7312(a)(3), (r); Ex. 7 Art. II, Policyholders’ Membership Interests, § 3.1(b)-(c). Policyholders’ Membership Interests Policyholders’ membership interests were extinguished by operation of the Plan on the effective date of the Plan. Def.’s Statement of Material Fact at ¶ 32; Ex. 7 § 3.1(c). Eligible Policyholders, by the terms of the Plan, were entitled to receive consideration in exchange for their membership interests. Id. at ¶ 33; Ex. 7 §§ 3.1(c), 5.2(d)(iii), 5.2(e)(ii)-(iv), 7.1(a). State law required MetLife to mail to the policyholders prior to the vote a notice “accompanied by a true and complete copy of the plan, or by a summary thereof approved by the superintendent, and such other explanatory information as the superintendent shall approve or require.” N.Y. Ins. Law § 7312(k)(l). These materials (collectively “PIB” or “the Prospectus”) stated: As an owner of a MetLife Policy, you have certain rights as a “member” of the company because MetLife is a mutual insurance company. These rights will no longer exist if the Plan becomes effective. However, if you are an Eligible Policyholder, you will receive compensation in exchange for these rights. Def.’s Statement of Material Fact at ¶ 34; Ex. 1 at 8. The PIB also stated that upon approval of the demutualization, policyholders “will no longer have any Policyholders’ Membership Interest in MetLife.” Def.’s Statement of Material Fact at ¶ 35; Ex. 1 at 13. The Plan defines “Policyholders’ Membership Interests” as follows: “Policyholders’ Membership Interests” means all policyholders’ rights as members arising prior to the Reorganization under the charter of the Company or otherwise by law. These include the right to vote and to participate in any distribution of surplus in the event that the Company is liquidated. The term “Policyholders’ Membership Interests” does not include rights expressly conferred upon the policyholders by their policies or contracts (other than any right to vote), such as the right to any declared policy dividends. All Policyholders’ Membership Interests will be extinguished on the Plan Effective Date. Def.’s Statement of Material Fact at ¶ 36; Ex. 7 Art. II. Immediately prior to the demutualization, The Company’s Charter contained a provision conferring the right to vote in elections for directors of the company on each policyholder. Def.’s Statement of Material Fact at ¶ 37. Ex. 55 Art. V, § 1. Among the “membership interests” that were terminated upon approval and operation of the Plan was the policyholders’ right to vote. Id. at ¶ 38; Ex. 20 at 61:2k-62:7; Ex. 37 at 19:11-22. MetLife distinguishes the policyholders’ “membership interests” from their contractual dividend rights and states that, other than their right to vote, policyholders’ “membership interests” did not include any rights expressly conferred by either their policies or contracts. Def.’s Statement of Material Fact at ¶39; Ex. 7 Art. II, Policyholders’ Membership Interests. Plaintiffs assert that the interests also include statutorily required provisions pursuant to New York Insurance Law § 3203. Pl.’s Response at ¶39; N.Y. Ins. Law § 3203, 7312. In further distinguishing policyholders’ contractual rights from their “membership interests,” MetLife states that “membership interests” did not include any rights expressly conferred, either through policies or contracts, to any declared dividends. Def.’s Statement of Material Fact at ¶ k0; Ex. 7 Art. II, Policyholders’ Membership Interests. Plaintiffs assert that § 3203 of the New York Insurance Law requires a policy to include the contractual right to dividends and such right is necessarily included in “membership rights” as defined by MetLife. Pi’s Response at ¶ k0. The PIB provided a description of interests that, upon demutualization, would be extinguished: As an owner of a MetLife Policy, you have certain rights as a “member” of the company because MetLife is a mutual life insurance company. For the purposes of the demutualization these rights are referred to as “Policyholders’ Membership Interests, ” and they consist primarily of: The right to vote on matters submitted to policyholders for a vote, including the election of directors. The right to receive a portion of any remaining surplus (total assets minus total liabilities) if the company is liquidated. These rights will no longer exist if the Plan becomes effective. However, if you are an Eligible Policyholder, you will receive compensation for relinquishing these rights. Def.’s Statement of Material Fact at 1Ui; Ex. 1 at 16. Plaintiffs do not contest the language quoted by MetLife, but instead dispute Met-Life’s definition of “interests,” asserting that policyholders’ “primary rights” must also include a right to all earnings and surpluses accruing on a policy, which is omitted. Pi’s Response at ¶ kO; See N.Y. Ins. Law § 1231. MetLife argues that Plaintiffs’ distinction between a contractual right to dividends and “membership interests” consisting of the right to vote, is based on a misreading of applicable New York law and do not raise a genuine issue of material fact, but instead a legal dispute. Def.’s Reply at 6-7. MetLife asserts that, as a matter of law and by the plain terms of the Plan, policyholders’ “membership interests” are separate and distinct from contractual rights contained in a policy, including a right to receipt of dividends as declared by the Board. Def.’s Reply at 6-7; Ex. 7 Art. II, Policyholders’ Membership Interests. MetLife states that the Plan has no effect on the continued applicability of New York Insurance Law § 3203 or § 4231 to MetLife and also does not affect any provisions required by § 3203 in class members’ policies. Def.’s Reply ay 7; See Def.’s Statement of Material Fact ¶ 29-31. MetLife further defines policyholders’ membership interests in the Company when it was a mutual life insurance company as “illiquid and restricted interests.” Def.’s Statement of Material Fact at 1U2; Ex. 2U at 320:11-22; Ex. 31 at 159:16-160:6. Additionally, the policyholders’ membership interests in the Company, pri- or to demutualization, were not transferable separately from the policies that gave rise to them. Def.’s Statement of Material Fact at ¶ 13; Ex. 18 at 213:2-9; Ex. 31 at 158:20-160:19. Plaintiffs dispute these statements by asserting that the interests were the equivalent of shares of stock. Pl.’s Response at \k2, 13; Reali/Rosen 8/28/01 Letter, pp. 1-8, Ex. 9; Dunham 3/26/08 Tr. at 30:13-31:5, Ex. U. These interests, Plaintiffs assert, could be transferred together with the policies. Id. MetLife responds by asserting that Plaintiffs have not raised any additional facts inconsistent with theirs. Def. ’s Reply at 7, ¶ E. MetLife points to Plaintiffs’ expert witness’s admission that the policyholders’ membership interests were both “illiquid” and “restricted.” Id.; Ex. 21 at 320:11-22. Plaintiffs do not dispute that membership interests are not separately transferable from the policy. Defs Reply at 7, ¶ E. Additionally, the fact that a policyholder’s transfer of the policy includes the simultaneous transfer of any membership interests attached to the policy is not disputed. Id. MetLife disputes Plaintiffs’ statement that the membership interests were the equivalent to shares of stock, asserting that such characterization is a misstatement of both the evidence and the law. Def.’s Reply at 8, ¶E. MetLife cites to undisputed evidence, showing that unlike stocks, the membership interests were not transferable by sale or bequest or tender back to the Company separate from the underlying policy. Additionally, the interests could not be borrowed against, terminated without value upon termination of the underlying policy by death, maturity, lapse, or surrender. MetLife also notes that policyholders’ risk is underwritten by the Company and benefits guaranteed, unlike stock which has fluctuating value that is entirely at risk. Def.’s Reply at 8; Ex. 48 ¶¶ 2, 3, 7(d); Ex. 34 at 159:16-160:6; Ex. 24 at 320:11-22; see also Dryden v. Sun Life Assur. Co., 737 F.Supp. 1058, 1063 (S.D.Ind.1989); State v. N.W. Mut. Ins. Co., 86 Ariz. 50, 340 P.2d 200, 204 (1959); Lubin v. Equitable Life Assur. Soc’y of U.S., 326 Ill.App. 358, 61 N.E.2d 753, 756-57 (1945); N.Y. Life Ins. Co. v. Burbank, 209 Iowa 199, 216 N.W. 742, 743 (1927); Louisville Bd. of Ins. Agents v. Jefferson County Bd. of Educ., 309 S.W.2d 40, 41 (Ky.1957); People ex rel. Venner v. N.Y. Life Ins. Co., 111 A.D. 183, 97 N.Y.S. 465, 467 (1906); Lawrence. Plaintiffs cite no evidence to the contrary. Def.’s Reply at 8, ¶ E. Prior to demutualization, a policyholder’s membership interests would vanish without any compensation to the policyholder or the policyholder’s survivors upon termination of the policy by either death, surrender, lapse or maturity. Def.’s Statement of Material Fact ¶ 44; Ex. 48 ¶ 2; Ex. 36 at 212:23-213:12; Ex. 34 at 159:19-20, 159:25-160:6, 163:25-164:5. MetLife notes that the interests of “tens of millions” of former policyholders terminated without any compensation prior to demutualization. Def.’s Statement of Material Fact ¶ 45. Plaintiffs dispute MetLife’s statements, stating that some MetLife policies paid an additional “terminal” dividend upon termination of a policy, implying that there was compensation for the termination of membership interests. Pl.’s Response ¶44-See, e.g., Dividend Resolutions 1992-2000 pp. 8, 13, 16, 22, 25, Table A, column 5, Ex. 31. Additionally, Plaintiffs cite MetLife’s actuarial expert’s failure to cite to any evidence establishing how many policyholders’ membership interests lapsed without compensation. PL’s Response ¶ 45; Def. Ex. 48 ¶ 5. See, e.g., Dividend Resolutions 1992-2000 pp. 8, 13, 16, 22, 25, Table A, column 5, Ex. 31. However, MetLife asserts that Plaintiffs have not contested the factual validity of MetLife’s statement that membership interests vanished without compensation when a policy terminated by death, surrender, lapse or maturity. MetLife contends that Plaintiffs have alleged additional facts that are not inconsistent with MetLife’s statements. Def.’s Reply at 9. MetLife maintains that terminal dividends are policy dividends, not compensation for loss of membership interests. MetLife notes that Plaintiffs’ cited evidence only shows that MetLife declared approximately 2 to 3 percent as terminal dividends during certain years and has failed to show that those dividends were compensation for loss of membership interests. Def.’s Reply at 9; Ex. 34 at 159:16-160:6; Ex. 90 at 50:2-20; Ex. 87 at 60:3-11. Contrary to Plaintiffs’ assertions, Met-Life contends that the undisputed evidence shows that terminal dividends bear no relation to the termination of membership interests. Def.’s Reply at 9. Prior to demutualization, MetLife only paid terminal dividends when the policy so provided and not all policies provided for such payments. Ex. 90 at 49:21-50:20. The Plan, by its terms, preserves all dividend rights granted by a policy and excludes those rights from its definition of membership interests. Def.’s Reply at 9; Ex. 7 Art. II, Policyholders’ Membership Interests; Ex. 7 § 3.1(b)-(c). Metropolitan Life Insurance Company, now operating as a stock company, continues payment of terminal dividends when the policy so provides, despite the termination of all membership interests by operation of the Plan at the time of demutualization. Def.’s Reply at 9; Ex. 7 §§ 3.1(c), 8.1. Additionally, MetLife asserts that Plaintiffs have not contested that many policyholders’ membership interests terminated without value and that the precise number is immaterial. Def.’s Reply at 10. Thus, MetLife contends that the undisputed evidence shows that the payment of terminal dividends was not compensation for the termination of membership interests. Id. MetLife further differentiates membership interests from shares of stock, stating that a policyholder’s membership interest, prior to demutualization, did not represent “any ascertained percentage of the Company.” Def.’s Statement of Material Fact ¶ 46; Ex. 48 ¶¶ 2, 7(a); Ex. 34 at 159:1-162:23. Plaintiffs assert that MetLife’s cited evidence does not support their statement. PL’s Response ¶ 46. Plaintiffs contend that, prior to demutualization, and pursuant to the Plan, MetLife was required to ascertain the contribution of each policyholder to the surplus annually and calculate each policyholder’s equity share. Pl.’s Response ¶4.6; N.Y. Ins. Law § 4231; MetLife 1996 Actuarial Statement, p. 1, Ex. 49; MetLife Dividend Resolutions 1992-2000;. Ex. 31; Plan § 7.2 (PIB 1 at 80) and PIB 1 at 18-19, Def. Ex. 1. MetLife asserts that there is no genuine issue of material fact, because as a matter of law, their statement is correct, See Defendants’ Memorandum in Support (“Defs.’ Mem.”) at 21, and Plaintiffs merely alleged additional facts not inconsistent with the statements. Def.’s Reply at 10. MetLife does not dispute that MetLife is required, by law, to make annual determinations about dividends and their equitable distribution among policyholders. Def.’s Reply at 10; N.Y. Ins. Law § 4231. Met-Life’s dividends were determined by the estimated contribution of each class of dividend-paying policy to surplus. Def.’s Reply at 10; Ex. 87 at 27:8-30:6. The undisputed evidence also shows that MetLife, now operating as a stock company, continues to “ascertain and allocate annual policy dividends on the basis of contribution to surplus,” Def.’s Reply at 10-11; Ex. 87 at 27:8-30:6, 34:22-35:13; Ex. 80 at 499:9-15, despite the termination of membership interests. Ex. 7§ 3.1(e). It is also undisputed that MetLife, pursuant to the Plan calculated a ratio referred to by the Plan as the “variable equity share.” Def.’s Reply at 11. Met-Life asserts that Plaintiffs do not contend, and fail to cite any evidence showing that this ratio represents an “ascertained percentage of the Company” as it existed prior to demutualization. Id. MetLife contends that the “variable equity share,” pursuant to the Plan, was the percentage of shares of stock to be allocated to policyholders upon demutualization (excluding the fixed component). Def.’s Reply at 10; Ex. 7 § 7.2; Ex. 20 at 108:3-14, 109:17-110:10. MetLife states that membership interests in the Company prior to demutualization had no independent value apart from any value created by the Plan. Def.’s Statement of Material Fact ¶^7; Ex. 33 at 45:13-46:12; Ex. 35 at 350:18-351:3; Ex. 30 at 87:9-88:10; Ex. 17 at 30:12-31:7. Plaintiffs dispute this statement by asserting that policyholders’ membership interest essentially made them owners of the Company, which is a valuable entity. PI’s Response ¶ 47; Reali/Rosen 8/28/01 Letter, pp. 4-8, Ex. 9; MetLife 10/13/03 Request for Tax Conciliation at 4, Ex. 10. MetLife contends that Plaintiffs have failed to genuinely dispute their statement, but instead raised additional factual allegations that are not inconsistent with their statements. Def.’s Reply at 11. MetLife asserts that what a policyholders’ interest is called is merely a semantic discussion and that Plaintiffs have failed to dispute that membership interests in a mutual company has no value absent a demutualization or a solvent liquidation. Id. There does not appear to be a disputed issue of fact here, only different conclusions of law. MetLife takes the position that other than what the Plan specified, no policyholder of the Company had any contractual, statutory, or other right to receive any amount or form of consideration. Def.’s Statement of Material Fact ¶ 48; Ex. 48 ¶¶ 7(b), (f), (g), 37; Ex. 18 at 119:23-120:16, 121:2-16; Ex. 34 at 41:13-43:18; 162:24-163:8; Ex. S3 at 15:18-16:21, 43:12-44:19; Ex. 17 at 150:2-9; N.Y. Ins. Law §§ 7312(c), (e)(3). Plaintiffs dispute the statement and assert that if the Plan was rejected by the policyholders, they had contractual and statutory rights to receive an annual distribution of surplus and the right to elect a Board that would propose a demutualization plan that was in their best interests. Pl.’s Response ¶48; N.Y. Ins. Law §§ 8203, 4231 and § 4210. MetLife asserts that Plaintiffs’ contentions fail to raise a genuine issue of fact and is misleading, because as a matter of law, policyholders had no such rights. Def.’s Reply at 12. In the event the policyholders did have such rights, they would have retained them regardless of whether the Plan was implemented or not. Id.; See Def.’s Reply ¶29, 30. MetLife further asserts that any such dispute over the meaning and effect of applicable statutes is a dispute of law, not of fact. Id. MetLife does not dispute that policyholders, prior to demutualization, could vote for members of the Board. Def.’s Reply at 12. It is undisputed that differences between the mutual and stock forms of organization were fully and repeatedly disclosed to materials distributed to policyholders. Def.’s Reply at 12; Ex. 1 at 7, 16, 17; Ex. 7 Art. II, Policyholders’ Membership Interests, § 3.1(c). MetLife further contends that Plaintiffs’ statement that policyholders could “elect a board” to “propose a plan of demutualization that was in their best interests” is a mischaracterization of the undisputed facts and the law: (1) Plaintiffs do not dispute that the Plan was elected by the policyholders; (2) as a matter of law, policyholders have no right to force the Board to adopt a any demutualization plan and Plaintiffs have failed to cite any evidence that they would have done so; (3) the demutualization plan required not only Board approval, but also a two-thirds policyholder vote and approval by the Superintendent of Insurance. Def.’s Reply at 12-13. Defendant asserts that Plaintiffs do not cite any evidence that any alternative demutualization plan would have passed successfully. Id. Exchange of Membership Interests for Stock, Cash or Policy Credits Pursuant to the Plan, upon demutualization eligible policyholders received consideration in exchange for their extinguished membership interests. Def. ’s Statement of Material Fact ¶49; Ex. 35 at 340:5-11, 349:10-16, 396:18-397:10; Ex. 20 at 69:10-19, 109:19-110:10. The Plan further provided that this consideration would take the form of either (a) Metropolitan Life Insurance Company stock, which was then exchanged for Trust interests in MetLife, Inc. stock, (b) cash or (c) policy credits. Def.’s Statement of Material Fact 1Í50; Ex. 7 §§ 3.1(c), 5.1(d)(iii), 5.1(e)(ii)(iv), 7.1(a). Plaintiffs dispute MetLife’s characterization of the consideration given to eligible policyholders and assert that regardless of the form of payment, the consideration received by eligible policyholders was an allocation of Metropolitan stock. PI. ’s Response ¶ 50; Def. Ex. 52; In Re MetLife Demutualization Litigation, Court’s 8/29/06 Order on Scope of Class, Dkt. 254- MetLife responds by asserting that Plaintiffs raise an issue of law, not fact. MetLife contends that it is undisputed that the consideration was based on an allocation of Company stock, but by the clear terms of the Plan, the consideration allocated was either cash, stock or policy credits. Def.’s Reply at 13; Ex. 7 Art. I, §§ 3.1(c), 5.2(d)(iii), 7.1(a). MetLife argues that Plaintiffs’ “contrived interpretation” of the plain language of the Plan raises a question of law and that the undisputed evidence has shown that the Plan was carried out in adherence to those plain terms. Def.’s Reply at 13; Ex. 35 at 306:5-11, 349:10-16; 396:18-397:10; Ex. 20 at 109:15-110:10. The consideration given to Eligible Shareholders was expressed by the Plan in terms of an allocation of Company stock, regardless of the form it was actually to be issued or paid. Def.’s Statement of Material Fact ¶ 51; Ex. 7 §§ 7.1(a), (b); Ex. 20 at 108:3-14, 109:17-110:10. In accordance with the Plan, the PIB stated: Regardless of whether you will be paid in the form of shares of Common Stock (to be held in the trust), cash or Policy Credits, the compensation you will receive for your Policyholders’ Membership Interest will be based upon the number of shares of MetLife common stock allocated to you under the terms of the Plan as described below. Def.’s Statement of Material Fact ¶52; Ex. 1 at 18. Amount of Consideration to Policyholders Pursuant to the Plan, 700 million shares of Company stock were allocated to policyholders as consideration for their membership interests. Def.’s Statement of Material Fact ¶ 53; Ex. 1 Art. II, Allocable Common Shares. This allocation represented all of the Company’s “initial common equity.” Def.’s Statement of Material Fact ¶ 54; Ex. 35 at 363:9-12. Plaintiffs dispute MetLife’s statement and assert that the allocation did not represent the Company’s “initial” equity because the Company had been in business for many years and that, prior to demutualization, the policyholders were MetLife’s equity “owners.” PI. ’s Response ¶ 54; Reali/Rosen 8/28/01 Letter, pp. 4-8; Ex. 9; Friedman 8/5/99 Letter to NYID, p. 3, Ex. 11. In turn, MetLife asserts that Plaintiffs’ “quibble” over whether the Company’s equity was “initial” or not is immaterial because Plaintiffs do not dispute that the 700 million shares represented all of the Company’s equity at the time of demutualization. The PIB stated that “A total of 700 million shares of MetLife common stock, representing 100 percent of MetLife’s equity ownership, will be allocated to all Eligible Policyholders.” Def.’s Statement of Material Fact ¶ 55; Ex. 1 at 18. The cover letter mailed with the PIB stated that “The Demutualization will allocate 100 percent of the stock of the company at the time of the demutualization to our eligible policyholders to be paid in the form of stock, cash or policy credits.” Def.’s Statement of Material Fact ¶ 56; Ex. 4- Pursuant to the Plan, policyholders who received consideration in the form of Met-Life, Inc. common stock, to be held in trust for the policyholders’ benefit, received one share of Company common stock for every share that was allocated to them. Def.’s Statement of Material Fact ¶ 57. The shares of Company common stock, held in trust, were then exchanged for an equal number of shares of MetLife, Inc. common stock. Id.; Ex. 7 §§ 3.1(c), 5.2(d)(iii), 5.2(e)(ii)-(iv). The value of the MetLife, Inc. shares varied and continues to fluctuate according to market prices. Def.’s Statement of Material Fact ¶ 58; Ex. 34 at 124:23-125:10. Plaintiffs dispute this statement and assert that the value of the MetLife, Inc. shares held' in trust for eligible policyholders was not accurately represented by the market value of those shares. Plaintiffs contend that the approximately 494.5 million shares, or 63% of MetLife’s equity, that were placed in the Trust upon demutualization represented a controlling interest in MetLife, and thus carried with it a greater aggregate value per share of the controlling “block.” PI. ’s Response ¶ 58; Reali 4/25/00 Board Slide Presentation, slide 5; Ex. 43; Wheeler 7/13/06 Dep. Tr. at 25:16-26:7; Ex. 3. MetLife asserts that Plaintiffs cited evidence only applies to the acquisition of a controlling interest during a merger or acquisition and not to the instant case, which concerns a demutualization followed by an IPO. Control premiums, MetLife asserts, do not apply in the instant case. Def.s Reply at 15; Pis.’ Ex. 3 at 26:4-7; Defs. ’ Reply Mem. at 3; Ex. 93 at 17:2-13. Pursuant to the Plan, policyholders who received consideration in the form of cash or policy credits received an amount determined by multiplying (a) the number of common shares allocated to the policyholder by (b) the IPO price per share of Met-Life’s common stock. Def.’s Statement of Material Fact ¶ 59; Ex. 7 § 7.3(f). The PIB also stated: The compensation you will receive will be calculated by multiplying the total number of shares of Common Stock allocated to you by the IPO Price. If you receive shares (to be held in the Trust), the value of the shares will depend upon the market value of the Common Stock, which may change from time to time. Def.’s Statement of Material Fact ¶ 60; Ex. 1 at 2. For policyholders receiving consideration in cash, the PIB further provided that “[t]he payment amount will equal the number of shares allocated to you multiplied by the IPO price, less any required withholding tax.” Def.’s Statement of Material Fact ¶ 61; Ex. 1 at 23. The PIB did not indicate that the IPO value or subsequent market value of Met-Life, Inc. common stock would equal the amount that a buyer would pay during the sale of the entire company. Def.’s Statement of Material Fact ¶ 62; Ex 's. 1, 2, 3, 4. However, Plaintiffs assert that the Prospectus explained that the IPO value of MetLife, Inc. common stock would be the amount that the buyer, MetLife, Inc., would pay for ownership of Metropolitan: “Upon demutualization, the ownership of MetLife [Metropolitan] will be transferred to our newly formed Holding Company MetLife, Inc. In other words, MetLife [Metropolitan] will become a wholly-owned subsidiary of the Holding Company.” PI. ’s Response ¶ 62; Prospectus, PIB 1, p. 13; Deft. Ex. 1; 1/24/00 Public Hearing Tr. at 12, Ex. 25; MetLife 2/11/00 PostrHearing Submission, p. 2, Ex. 21. MetLife asserts that, as a matter of law, the portion of the Prospectus quoted above is not inconsistent with their statement. Transfer of ownership to a newly formed holding company is a corporate reorganization, not the sale of a company or an acquisition. Def.’s Reply at 15; See Defs.’ Reply Mem. at 4-5; Int’l Controls Corp. v. Vesco, 490 F.2d 1334, 1343 (2d Cir.1974); Gelles v. TDA Indus., Inc., 1993 WL 275216, at *10-11, 1993 U.S. Dist. LEXIS 9779, at *30-31 (S.D.N.Y. July 16, 1993). Furthermore, MetLife argues that the PIB clearly disclosed that policyholders’ consideration would be based on the IPO value of the MetLife, Inc. common shares, not by a sale to a single buyer. Def.’s Reply at 15; Ex. 1 at 6, 9, 19, 23, 35, 40; Ex. 2 at 4- IPO and Related Transactions At the time of demutualization, MetLife, Inc. conducted a public offering of convertible equity security units and a private placement of common stock, also known as an initial public offering (IPO). Def.’s Statement of Material Fact 63; Ex. 29 at 86:21-88:1. The PIB stated that MetLife, Inc. was authorized to conduct capital raising transactions, including but not limited to the sale of shares of common stock in an IPO. Def.’s Statement of Material Fact ¶ 64; Ex. 1 at 9, 13, 35, 67; Ex. 2 at 4-5, 20, 41, 72-73. Upon demutualization, holders of the common stock will consist of the Trust, which hold shares on behalf of the policyholders. Following the IPO, other investors may purchase shares of common stock. Def. ’s Statement of Material Fact ¶ 65; Ex. 1 at 6. The IPO price of MetLife, Inc. common stock was $14.25/share. Def.’s Statement of Material Fact ¶ 66; Ex. 59 at 2; Ex. 29 at 71:20-22; Ex. 25 at 53:11-13. The IPO price was determined, according to Met-Life, by consideration of investors’ interest during the road show process where Met-Life management marketed the IPO to potential investors and through negotiations with .Goldman Sachs & Co., the Company’s financial advisor, which was responsible or pricing the IPO. Def.’s Statement of Material Fact ¶ 67; Ex. 29 at 135:23-13 6:12; Ex. 10 at 26:21-27:9; Ex. 17 at 101:23-107:3. Plaintiffs assert that the IPO price was set by a joint pricing committee. PI. ’s Response ¶ 67; MetLife 56.1 Statement ¶ 73 infra; Joint Pricing Committee 1/1/00 Minutes and Resolutions; Ex. 11; Prospectus, PIB 2 pp. 111-13; Def. Ex. 2. It is undisputed that setting a higher IPO price would have reduced demand for the shares. Defs Statement of Material Fact ¶ 68; Ex. 36 at 263:5-21; Ex. 17 at 101:23-107:3; Ex. 29 at 112:13-17. MetLife asserts that at or around April 2000, MetLife, Inc. could not have raised sufficient capital in an IPO to conduct a Method 2 demutualization. Def.’s Statement of Material Fact ¶ 69; Ex. 17 ¶¶ 15-17; Ex. 18 ¶ 31; Ex. 33 at 112:22-118-8; Ex. 31 at 133:25-131:5, 110:22-112:3; Ex. 18 at 233:8-231: 11. MetLife states, and the Court agrees, that there was no evidence that the Company or MetLife, Inc., at or around April 2000, was capable of raising the necessary capital by any means to conduct a Method 2 demutualization. Def.’s Statement of Material Fact ¶ 70; Ex. 18 ¶ 31; Ex. 18 at 238:18-239:2; Ex. 33 at 112:22-118:8; Ex. 31 at 133:25-131:5, 110:22-112:3. According to MetLife, there is no evidence that, at or around the time the IPO was conducted, the Company was capable of conducting a Method 2 demutualization that would not have harmed the Company’s financial position and served the goals of the Plan as effectively as Method 4 demutualization. Def.’s Statement of Material Fact ¶ 71; Ex. 31 at 135:20-136:7, 110:22-112:3; Ex. 18 ¶¶30-31; Ex. 11 at 219:17-221:2. In response, Plaintiffs assert that Met-Life, based on an “extremely crude estimate” in 1997, dropped consideration of what a Method 2 demutualization would pay to policyholders and never determined if sufficient capital could be raised through an IPO. Pl.’s Response ¶ 69; Weiss 5/19/97 Project Corvette Memo; Ex. 26; Reali 5/17/06 Tr. At 120:18-121:1; Ex. 17; Weiss 5/1/06 Tr. at 31:7-13; Ex. 27. Additionally, Plaintiffs assert that MetLife’s value was more than what Method 2 required to be paid to policyholders and that MetLife’s IPO could be delayed up to one year. PI. ’s Response ¶ 70, 71; [Weiss 5/19/97 Project Corvette Memo; Ex. 26; Reali 5/17/06 Tr. at 120:18-121:1; Ex. 17; Weiss 5/1/06 Tr. at 31:7-13; Ex. 27]; Wilcox/Harris 8/28/07 Report, pp. 2, 19-20; Def. Ex. 11; Prospectus, PIB 1, p. 51, Def. Ex. 1. MetLife, in response, asserts that Plaintiffs only raise additional factual allegations that are not inconsistent with MetLife’s statements and have not raised an issue of material fact preventing summary judgment in their favor. Def. ’s Reply at 17. The PIB stated that the IPO price was to be determined by “arm’s length negotiations with representatives of the underwriters,” and will be based on (1) prevailing market conditions, (2) the Company’s historical performance, (3) estimates of Company’s business potential and earnings prospects, (4) an assessment of the Company’s management and (5) consideration of all factors in relation to the market value of other similar businesses. Def.’s Statement of Material Fact ¶ 72; Ex. 2 at 71-75. Plaintiffs dispute the statement and assert that the IPO price was negotiated by MetLife and their investment bankers and that the price was ultimately set by the Joint Pricing Committee. PI. ’s Response ¶ 72; Joint Pricing Committee k/k/00 Minutes and Resolutions. Ex. kk; Dunham 3/26/08 Tr. at 300:22-301:21; Ex. Ik- MetLife contends that Plaintiffs simply raise additional uncontested facts that are consistent with MetLife’s statements. Def.s’ Reply at 1, ¶¶ (C). The PIB further stated that “[t]the final decision on pricing of the IPO and any Other Capital Raising Transactions to be completed on the Plan Effective Date will be made on or before the Plan Effective Date by a joint pricing committee of the boards of directors of MetLife and the Holding Company.” Def.’s Statement of Material Fact ¶ 73; Ex. 1 at 39. Pro forma financial data based on an IPO price range of $14 to $24 per share was also provided in the PIB. Def.’s Statement of Material Fact ¶ 7k; E.g., Ex. 2 at 29. The PIB stated, in bold type: We have based the pro forma information on available information and on assumptions management believes are reasonable and that reflect the effects of these transactions. We have provided the pro forma information for informational purposes only. The number of shares actually sold in the initial public offering and the initial public offering price may vary from the amounts assumed. Def.’s Statement of Material Fact ¶ 75; Ex. 2 at 29. Plaintiffs disputes the above quoted language contained in the PIB, contending that since some of the assumptions underlying the pro forma information was false at the time, it could not have been reasonable. PI. ’s Response ¶ 75; Investment Bankers 10/26/99 Memo (Materials for 10/26/99 Bd. Comm. Mtg.); pp. 1-2, Slide 2k; Ex. 2k- According to MetLife, however, the alleged misrepresentation was not plead in the complaint and is not a part of this case. Def.’s Reply at 17, ¶¶ (2). Furthermore, MetLife contends that Plaintiffs fail to specify what assumptions were false or unreasonable and the evidence cited by Plaintiffs does not illustrate their contentions but is actually consistent with the pro forma estimates included in the PIB. Id. The PIB stated that “[t]he Initial Public Offering might take place at a time when market conditions or MetLife’s financial performance or prospects cause the price per share of the Common Stock in the Initial Public Offering to be lower than it might have otherwise been.” Defs Statement of Material Fact ¶ 76; Ex. 1 at 20. Plaintiffs only dispute the characterization “warned” used in MetLife’s 56.1 Statement. The Company’s financial advisors, Credit Suisse First Boston Corporation and Goldman, Sachs & Co., provided opinions which were reprinted in the PIB as follows: We believe that trading in the Holding Company Common Stock for a period following the completion of a distribution of the Holding Company Common Stock, including the IPO, may be characterized by a redistribution of the Holding Company Common Stock among the Eligible Policyholders and other investors. It is possible that during these periods of redistribution the Holding Company Common Stock may trade at prices below the prices at which it would trade on a fully-distributed basis. Def.’s Statement of Material Fact ¶ 77; Ex. 2 at A-7-A8, A-12. Plaintiffs contend that the above quoted language was not part of the advisors’ opinion. Pl.’s Response ¶ 77. They further assert that the language is false since advisors provided MetLife with presentations showing that the IPO would be less than full-distributed prices and illustrating the price differences. PI. ’s Response ¶ 77; Prospectus PIB 2, pp. A-5 to A-12, Def. Ex. 2; Investment Bankers 10/26199 Memo to Board, pp. 1-2; Ex. 2k. MetLife asserts that Plaintiffs do not genuinely dispute their statement, and that Plaintiffs have failed to cite to evidence supporting their assertions and the disputes are not material. Def.’s Reply at 33, ¶¶ (2). Allocation of Consideration Among Policyholders All eligible policyholders were allocated a “Fixed Component” minimum of ten shares. Def.’s Statement of Material Fact ¶ 78. Ex. 7 § 7.1(b)(1);. Ex. 20 at 63:19-22. The “Variable Component,” based on an actuarial formula, allocated additional shares to certain eligible policyholders. Def.’s Statement of Material Fact ¶ 79; Ex. 25 at 3k:16-35:25; Ex. 39 at 85:5-17, 163:19-16k:9; Ex. 7 §§ 7:i(b)(ii), 7.2(a), (b). The Variable Component’s actuarial formula was developed through consultation between the Company and its actuarial advisor and the Department and its actuarial consultants. Def.’s Statement of Material Fact ¶£0; Ex. 38 at 73:16-23; Ex. 27 at 355:2k-356:17. Other than the characterization that MetLife “worked closely” with the Department, MetLife’s statement is undisputed. ' Pl.’s Response ¶ 80. The Company also “consulted” with the Department to determine the Fixed Component to be allocated to shareholders. Def.’s Statement of Material Fact ¶ 81; Ex. 33 at 180:21-183:25; •Ex. 38 at 209:2-210:8. Plaintiffs dispute the characterization “consulted” and asserts that the Department did not make any proposal about a fixed component. PL’s Response %81. An Opinion and Decision issued by the Superintendent of Insurance stated: “The consideration to be given to the policyholders of MetLife will be allocated among such policyholders in a manner which is fair and equitable, in compliance with Section 7312(d)(4)(B).” Def.’s Statement of Material Fact ¶ 82; Ex. 52 ¶ 205. Plaintiffs, citing to the Second Amended Complaint, allege “that the allocation injured participating policyholders in violation of federal securities law.” PL’s Response ¶ 82. MetLife correctly asserts that Plaintiffs have failed to materially dispute their statement and cannot rely on conclusory allegations in their complaint to raise an issue of material fact. Def.’s Reply at 1, ¶¶ (B). There is no material issue of fact as to this statement. Allocation of the Variable Component All of the approximately 700 million shares of Company common stock that were allocated to Eligible Policyholders under the Plan were either allocated as the Fixed Component or the Variable Component. Def.’s Statement of Material Fact ¶ 83; Ex. 7 § 7.1(b); Ex. 35 at 389:1-390:5. Only policyholders who owned “Qualifying Policies”, policies that were in force on the adoption date of the plan and had been determined to have a positive “Actuarial Contribution,” were eligible to receive the Variable Component. Def.’s Statement of Material Fact ¶ 8k; Ex. 7 Art II, § 7.2(i), (ii); Ex. k0 at 162:1-22; Ex. 38 at kk'^O13; Ex. 20 at 163:10-2k- The Actuarial Contribution consisted of the sums of (1) a Qualifying Policy’s estimated past contributions to the Company’s surplus and (2) the present value of its projected future contribution to the Company’s surplus. Def.’s Statement of Material Fact ¶85; Ex. Ik at 2; Ex. 38 at lk:18-16:l. Pursuant to the Plan, an Eligible Policyholder’s Variable Component was calculated by (1) taking the sum of the positive actuarial contributions of the policyholder’s Qualifying Policies, (2) dividing it by the sum of the positive actuarial contributions of all Eligible Policyholders’ Qualifying Policies, and (3) multiplying the result by the total number of shares available for allocation as the aggregate Variable Component. Def.’s Statement of Material Fact ¶ 86; Ex. 7 § 7.2(i). Additionally, each Qualifying Policy with a negative actuarial contribution was treated as having an actuarial contribution of zero. Def.’s Statement of Material ¶87; Ex. 7 § 7.2(i), Ex. Up at 3; Ex. 38 at 67:25-68:8. Nonparticipating policies and polices not in force at the adoption date of the Plan were not included in the calculation of Actuarial Contribution or the Variable Component. Def.’s Statement of Material Fact ¶ 55; Ex. 7 Art II, Actuarial Contribution, Aggregate Variable Component, Participating Policy, Qualifying Policy, §§ 7.1(b)(ii), 7.2(a); Ex. 39 at 236:3-20; Ex. 25 at 223:5-25. Schedule 5 to the Plan, the Actuarial Contribution Memorandum stated: “the sole use of the AC [Actuarial Contribution] calculations was to determine the contribution to surplus of a given policy relative to all other policies.” Def.’s Statement of Material Fact ¶ 89; Ex. Up at 3 (emphasis in original). Plaintiffs contend that the above quoted language was not included in the summary of Schedule 5, Def. Ex. 1 at 139, which was distributed to policyholders in the PIB.- PI. ’s Response ¶ 89. Instead, Plaintiffs assert that the language was in Schedule 5 but not in its summary provided to policyholders. Id. MetLife states that the aforementioned method of calculating the Variable Component is consistent with “the usual practice in recent U.S. life insurance company demutualizations.” Def.’s Statement of Material Fact ¶90; Ex. 15 at 9Ip: 18-95:2; Ex. 27 at 372:21-13; Ex. 18 at 112:8-1U:19. MetLife asserts that there were no representations made that the variable component would equal or approximate the sum of positive actuarial contributions of the policyholders and maintains that nothing in the PIB stated that the variable component would equal or approximate the positive actuarial contributions of a policyholder’s qualifying policies. Def.’s Reply ¶0; Def.’s Statement of Material Fact ¶91; Exs. 1, 2, 3, Ip. Plaintiffs, however, assert that MetLife did make such representations by stating that the variable component was based on an actuarial formula based on a policy’s contribution to the Company’s surplus. Pl.’s Response ¶ 91. Plaintiffs assert that MetLife’s statements represented that the variable component would be reasonable in relation to total actuarial contributions under actuarial standards that that under actuarial standards reasonableness is approximate equality. PI. ’s Response ¶ 91; Actuarial Standard of Practice 37 at k; Ex. 18; Carroll 2/15/08 Tr. at Iplp:25-Jp8:21p; Ex. Jp6. MetLife, in response, asserts Plaintiffs misstate the evidence and that the Actuarial Standard of Practice cited by Plaintiffs was not in effect at the time of demutualization, see Ex. 57, and even if applicable, does not support Plaintiffs’- claims, see Ex. 82 at 18:3-21:23. Def.’s Reply at 18. The PIB stated, among other things, as follows: The formula for allocating the shares among Eligible Policyholders consists Of two parts: Minimum allocation (the fixed component of the compensation) — If you are an Eligible Policyholder, you will be allocated 10 shares, regardless of the number or face amount of Policies you own in the same capacity. Some Eligible Policyholders will receive an additional variable allocation of shares. Additional allocation (the variable component of the compensation) — If you own a Policy that is a Participating Policy, you may be allocated additional shares. The number of additional shares you will receive will be based on an actuarial formula. This formula takes into account, among other things, the Policy’s past and estimated future contributions to MetLife’s surplus. Def.’s Statement of Material Fact ¶92; Ex. 1 at 18. MetLife distinguishes “actuarial formula” from actuarial “concepts” or “standards of practice.” Def.’s Reply MetLife asserts that, from the above quoted description, it was clear that: (1) the fixed component was not based on an actuarial formula (2) that the variable component was based on an actuarial formula, and (3) the actuarial formula was used for allocation purposes. Def.’s Statement of Material Fact ¶ 93; Ex. 41 at 168:5-169:24. Plaintiffs assert that it was not made clear that the fixed component was based on an actuarial formula. Plaintiffs cite to the actuary’s opinion letter attached to the Prospectus which states that his opinion on the fixed component was based on “actuarial concepts and standards of practice.” PI. ’s Response ¶ 93. Plaintiffs also cite to the statements of a MetLife actuarial ad-visor made at a public hearing on demutualization: “The size of the fixed component, under MetLife’s plan, relative to the total compensation to be distributed to all eligible policyholders is consistent with applicable actuarial literature and with previous demutualizations.” Pi’s Response ¶ 93; PIB 2 at A-13; Def. Ex. 2; 1/24/00 Public Hearing Tr. at 43; Ex. 25. MetLife asserts that Plaintiffs are attempting to “create confusion” and fail to cite any evidence showing that a “formula” is the same as a “concept” or “standard of practice.” Def.’s Reply at 19. The PIB provided the following summary of Schedule 1 to the Plan: “As described in Article VII of the Plan, the Aggregate Variable Component shall be allocated to Eligible Policyholders for their Qualifying Policies based on the Actuarial Contribution for such Qualifying Policy relative to the sum of the Actuarial Contributions for all Qualifying Policies.” Def.’s Statement of Material Fact ¶94; Ex. 1 at 128. MetLife’s actuarial advisor, Kenneth M. Beck of PricewaterhouseCoopers, LLP issued a Statement of Actuarial Opinion, which was reprinted in the PIB, stated the following: The distribution described in Article VII of the Plan takes into account the ratio of the positive sum of the estimated past and future contributions to MetLife surplus, if any, of each participating Policy and Contract owned by each Eligible Policyholder to the total of all such positive sums. Most of the consideration to be distributed to policyholders is allocated on this basis. Under Section 7312 of the New York Insurance Law, there is no specific guidance given for the allocation of consideration in a “Method Four” reorganization, but policyholder contributions are specifically identified as an acceptable approach to allocation of consideration under other methods of reorganization within this section of the law. In addition, the contribution method is recognized in the actuarial literature as an appropriate method. I therefore find that the use of “actuarial contribution” as the principal basis underlying the allocation of consideration is fair and equitable. The distribution to policyholders also takes into account, to a lesser extent, the fact that policyholders have intangible me