Full opinion text
MEMORANDUM OPINION JOHN D. BATES, District Judge. Plaintiff Denise Clark brings this action pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), alleging that defendants improperly denied her a significant portion of her retirement benefits. Defendants are the law firm Feder, Semo & Bard (“Feder Semo” or “the firm”) (Clark’s former employer), the Feder Semo Retirement Plan and Trust (“Plan”), and two former trustees of the Plan, Joseph Semo and Howard Bard. The Court conducted a six-day bench trial beginning on April 23, 2012, on plaintiffs three remaining claims in the case. Clark worked at Feder Semo for almost ten years before moving on to other employment in 2002. She was distributed retirement benefits after the firm unexpectedly went out of business toward the end of 2005. However, when Feder Semo went out of business, it had insufficient funds to pay out all benefits due under calculations dictated by the terms of the Plan. Lump sum distributions under the Plan’s terms could be determined in two ways, and Plan participants were entitled to receive benefits in the amount of whichever determination was larger. One of the two amounts was a definite amount of money that grew as Plan participants accrued a percentage of their annual compensation in benefits and earned interest on the account balance; Plan recipients, including Clark, were regularly notified of this amount. The other was based on a calculation involving a floating interest rate, which was tied to the return on 30-year Treasuries. When the Plan went out of business, this rate was especially low, resulting in benefit distributions — and Plan liabilities — that were especially high. But the Plan had insufficient funds to pay these benefits, so each Plan recipient received a pro rata share of the amount due. Hence, although Clark ultimately received more money than the fixed amount that had been quoted to her, she received only about 53% of the full amount due under the second calculation. She claims both that the Plan’s actuarial assumptions were unreasonable given the terms of the Plan and that she was inadequately informed of the risk of loss of her benefits. Furthermore, Clark contends that under either calculation her account balance was credited with a smaller percentage of her annual compensation than she was entitled to receive. Clark’s three claims accordingly involve the administration of the Plan. First, she contends that she was improperly grouped for the purpose of determining her account balance and that Semo and Bard violated them fiduciary duties in failing to correct this error when Clark made a formal appeal. Second, she contends that the firm violated ERISA’s disclosure requirements by failing to disclose the risk of loss if the Plan terminated with insufficient funds and the Plan’s lack of insurance to protect participants in that contingency. Third, she contends that Feder Semo and Semo and Bard, as Plan fiduciaries, failed to use a reasonable actuarial assumption for interest on the Plan’s assets, causing the Plan to be underfunded. After careful consideration of the evidence at trial, the parties’ memoranda, the applicable law, and the entire record herein, and for the reasons set forth in more detail in the findings of fact and conclusions of law that follow, the Court will enter judgment for the defendants on each of Clark’s remaining three claims. With respect to the improper grouping claim, the Court concludes that the decision Semo and Bard made on Clark’s appeal was reasonable. With respect to ERISA’s disclosure requirements, the Court finds that Clark was not harmed by any failure to disclose the risk of loss at Plan termination and the Plan’s lack of insurance. And with respect to the interest rate assumption, the Court finds that the defendants did not breach their fiduciary duties to maintain the Plan on a sound actuarial basis. I. Case History This case has already gone through several iterations in this Court. Clark’s amended complaint was filed on May 28, 2008 [Docket Entry 28]. On December 17, 2007, the Court dismissed some of Clark’s claims but denied defendants’ motion to dismiss on the remaining claims. Clark v. Feder Semo & Bard, P.C., 527 F.Supp.2d 112, 118-19 (D.D.C.2007) (“Clark I”). On March 22, 2012, the Court granted summary judgment for defendants on all but plaintiffs improper grouping claim. Clark v. Feder Semo & Bard, P.C., 697 F.Supp.2d 24 (D.D.C.2010) (“Clark II”). However, on September 13, 2010, the Court issued its decision on reconsideration, which vacated the partial grant of summary judgment. Clark v. Feder Semo & Bard, P.C., 736 F.Supp.2d 222, 225 (D.D.C.2010) (“Clark III ”). After this decision, the Court ordered Clark to file a statement precisely detailing the nature of her remaining claims so that both the Court and the parties would have a concrete grasp of her at-times evolving allegations. See Order of Sept. 30, 2010 [Docket Entry 85]. In Clark’s Statement Detailing Nature of Claims [Docket Entry #87] (“Pl.’s Statement”), she asserted five theories of recovery. On September 7, 2011, the Court granted summary judgment for defendants on two of these claims. Clark v. Feder Semo & Bard, P.C., 808 F.Supp.2d 219 (D.D.C.2011) (“Clark IV”). Specifically, the Court concluded that Clark could not bring an “anti-cutback” claim because Clarks’ benefits were not reduced by an amendment to the Plan. Id. at 226-29. The Court also concluded that Clark could not bring a claim against Semo and Bard for permitting distributions to the firm’s founder and his wife in 2002 and 2005. See id. at 232-34. The case then proceeded to trial on the three remaining claims. II. Findings of Fact The Court conducted a bench trial over a six-day period beginning on April 23, 2012. Based on the record established at trial, the Court makes the following findings of fact. The Court will first introduce the individuals involved in this case and then explain the evolution of the firm and the Plan. Next, the Court will describe Clark’s treatment under the Plan, including the decision made by the firm upon her appeal of the amount of her distribution. The Court will then explain how, in relevant part, the Plan was funded, including the actuarial assumption of interest that is the basis of one of Clark’s claims. The Court will then describe the expert testimony heard at trial about the interest rate assumption. Finally, the Court will review the evidence heard about the Plan’s summary plan description. a. Individuals Involved with the Firm and the Plan Gerald Feder founded the Feder Semo law firm, then known as “Feder & Associates,” in the mid-1970s. Feder Tr. 8:2-9. The Plan was founded in the mid-1980s. Feder Tr. 9:14-16, 29:11-16. Fed-er was the original sponsor and fiduciary of the Plan. Feder Tr. 11:11-12:7. The Plan was initially drafted to be primarily to the benefit of Feder and his wife, Loretta, who was also employed by the firm. Tr. 839:12-21 (Anspach). The Feders retired from the firm on December 31, 2001, but continued to receive a percentage of the firm’s revenue for some time thereafter. Feder Tr. 13:6-9, 15:12-19. Denise Clark is an attorney with an L.L.M. degree and employee benefits certification from Georgetown University Law Center. Tr. 29:10-17 (Clark). She practices in the “employee benefits” area of law, among other related areas. See Tr. 29:20-30:3, 39:18-40:1 (Clark). Clark was hired in 1993 to work at the Feder Semo law firm, then known as “Feder & Associates, P.C.,” by Gerald Feder. Tr. 30:6-15 (Clark). After becoming a non-equity partner in 1997, Clark became an equity partner in the firm as a Class A Shareholder in 2000. See Tr. 31:5-35:9 (Clark); Pl.’s Ex. 7. In 2001, she became managing partner of the firm. Tr. 36:25-37:8 (Clark). Clark resigned from the firm in mid-2002 to become the general counsel of the Hotel Employees and Restaurant Employees International Union Welfare and Pension Fund. Tr. 37:20-38:11, 117:21-118:11 (Clark). Howard Bard is an attorney who began working for the firm roughly contemporaneously with Clark in 1993. Tr. 30:18-20 (Clark). Bard practices in the employee benefits area of the law. Tr. 313:1-14 (Bard). He became a non-equity partner in the firm in 1997 and a Class A Shareholder in 2000 when Clark did. Tr. 31:5-31:7 (Clark); Tr. 319:6-10 (Bard); PL’s Ex. 7. He became the managing partner when Clark left the firm in 2002 and remained in that position until the firm terminated in 2005-2006. Tr. 313:17-24 (Bard). It is fair to say that, with one notable exception described below, Bard and Clark were treated equivalently in relevant respects during their time together at Feder Semo. Joseph Semo is an attorney with substantial experience in the employee benefits field dating to the mid-1970s. Tr. 472:25-475:15 (Semo). His own firm merged with Feder & Associates in July 1998. PL’s Ex. 6; Tr. 31:19-32:14 (Clark); Tr. 478:15-17 (Semo). According to the terms of the merger, memorialized in a “Business Combination Agreement” (“BCA”), Semo became a Class A Shareholder in Feder Semo at that time. See PL’s Ex. 6. Robert Landau is an attorney who was an employee of Feder Semo until approximately January 2000. Tr. 428:1-21 (Landau). Landau appears to have been treated roughly equivalently with Bard and Clark while at the firm, but left the firm before becoming an equity partner. Mark Nielsen is an attorney who was also an employee of Feder Semo until the firm’s dissolution in 2005. Tr. 801:3-802:5 (Nielsen). He had substantial experience with ERISA prior to joining Feder Semo, including an L.L.M. in labor and employment law with a specialty in employee benefits law and subsequent work as an investigator at the Department of Labor on ERISA compliance. Tr. 801:2-17 (Nielsen). Nielsen was involved with Semo and Bard’s resolution of Clark’s appeal of her distribution of benefits from the Plan. See Tr. 803:20-805:12 (Nielsen). William Anspach, an attorney, was the Plan’s outside counsel from the drafting of its restatement in the early 1990s until the Plan’s termination. Tr. 838:4-839:14 (Anspach). Anspach has significant experience in the employee benefits area of law. See Tr. 831:5-836:1 (Anspach). Dennis Reddington was the firm’s enrolled actuary from the mid- to late-1990s until the Plan’s termination. Tr. 602:13-16 (Reddington). He has actuarial experience dating to approximately 1989. Tr. 599:20-601:11 (Reddington). b. The Firm The BCA that merged Feder & Associates with Semo’s firm established an “Executive Committee” for the management of the firm. See Pl.’s Ex. 6 at P0672. Since the BCA indicated that “[t]he members of the Executive Committee shall consist of the Class A Directors only,” the original members of the executive committee after the merger were apparently only Feder and Semo. Bard and Clark became members upon becoming equity partners in 2000. At the time of the firm’s dissolution, the executive committee appears to have consisted only of Bard and Semo. See id.; Pl.’s Ex. 7. At trial, members of the firm referred to the executive committee as the “board of directors,” although others in addition to Bard and Semo appeared to participate in “board” meetings without it being clear to all participants who was and was not a voting member. See Tr. 314:8-315:11, 404:15-21 (Bard); Tr. 813:10-13 (Nielsen). The most significant relevant event regarding the firm, at least for present purposes, was its dissolution in 2005. On July 21, 2005, Semo was informed by the general counsel of the Union Labor Life Insurance Company (“ULLICO”), the firm’s largest client, that the firm would be losing the account. Tr. 488:17-489:19 (Semo). The loss of the firm’s biggest client was apparently quite unexpected. Tr. 488:25-489:5 (Semo). After first contemplating trying to downsize, the firm eventually decided to shut its doors. Tr. 490:18-25 (Semo); see also Tr. 49:9-16, 119:7-120:12 (Clark); Pl.’s Ex. 44. The firm essentially ceased operations by the end of 2005. See Tr. 815:5-25 (Nielsen). c. The Plan The Plan was established on October 1, 1993, and the terms of the Plan were amended several times thereafter. See Pl.’s Exs. 1-3. The firm was the Plan’s “plan administrator.” PL’s Ex. 1 § 2.25; PL’s Ex. 3 § 2.30; Tr. 500:23-25 (Semo). The firm administered the Plan through its executive committee and its staff. Tr. 501:1-7 (Semo). The Plan also contained the following statement about Plan fiduciaries: Standard of Conduct. Each Fiduciary of the Plan shall discharge his duties hereunder solely in the interest of the participants and their Beneficiaries and for the exclusive purpose of providing benefits to Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan. Each Fiduciary shall act with the care, skill, prudence and diligence under the circumstances that a prudent man, acting in a like capacity and familiar with such matters, would use in conducting an enterprise of like character and with like aims, in accordance with the documents and instruments governing this Plan, insofar as such documents and instruments are consistent with this standard. Exs. 1 & 3 § 11.1. i. Benefits Under the Original Plan The calculation of retirement benefits for a participating employee under the Plan was a multi-step process. This process did not change under the various iterations of the Plan. The Plan was a “cash balance” or “defined benefit” plan. Pl.’s Ex. 1 § 1.5. Under such a plan, each participant has a “hypothetical” (or “theoretical”) account balance. Id.; see also Tr. 180:24-181:22 (Poulin). The hypothetical account balance is created by the making each year of hypothetical contributions to the account by the firm, as well as interest adjustments. See Pl.’s Ex. 1 § 1.5; Tr. 182:14-15 (Poulin). The amount of the yearly contribution made to each employee’s hypothetical account varied under the iterations of the Plan, but the basic idea remained the same from the outset: contributions were determined by multiplying the amount of each participating employee’s compensation in the “plan year” by a certain percentage. See Pl.’s Ex. 1 § 2.3; PL’s Ex. 2 at P0063; PL’s Ex. 3 § 2.3. Different employees received hypothetical contributions in amounts that varied not only according to salary, but also how they were “classified” under the Plan. That is, the hypothetical contribution for each employee was based on multiplying that employee’s salary by a percentage that depended on which “group” (or “class”) that employee fell into under the Plan’s terms. Under the original iteration of the Plan, there were three such groups. The Plan provided: For any Plan Year commencing on or after October 1, 1993, the actuarially equivalent single sum value of the portion of a Participant’s Accrued Benefit attributable to the current Year of Service [is] determined by multiplying each Participant’s Compensation for the Plan Year by the following product: (A) For Participants in Class A, ... 45% of such Participant’s Compensation (B) For Participants in Class B, ... 20% of such Participant’s Compensation ...; and (C) For Participants in Class C, ... 8% of such Participant’s Compensation — PL’s Ex. 1 § 2.3(b). The original iteration of the Plan defined the groups as follows: “Class A shall include all Participants who are shareholders of the Employer, Class B shall include all Participants who are classified as officers and not members of Class A, and Class C shall include all Participants who are not Shareholders of the Employer or officers.” PL’s Ex. 1 § 5.1(a). In addition to employer contributions made to the hypothetical account each year, the hypothetical account balance would also increase each year by an interest percentage, as defined in the Plan. See id. The next step in determining the retirement benefit due to a participating employee was “accumulating” the hypothetical balance based on the age of the employee at the time of the distribution of benefits. See PL’s Ex. 96 ¶ 7; PL’s Ex. 1 § 5.1(a). Under the terms of the Plan, the hypothetical account balance would be accumulated (or “projected”) at a 7% interest rate until the time when the employee would reach the age of 65 (normal retirement age). Tr. 181:8-182:1 (Poulin). In other words, one would take the employee’s age at termination, determine how much time would elapse until that employee would turn 65, and compound (or “accumulate” or “project”) the account balance at a certain interest rate for that amount of time. Next, the quantity would be further accumulated, again at a 7% interest rate, to the employee’s expected date of death, as provided for in mortality tables. See Tr. 189:2-14 (Poulin). As an expert indicated at trial, the concept being effectuated is that this amount is the amount that would be necessary to provide the beneficiary with an annuity for the rest of their life from retirement at age 65. See Tr. 183:12-15 (Poulin). The Plan referred to this amount — the hypothetical account balance accumulated from current age to expected date of death — as the “Accrued Benefit.” See Pl.’s Ex. 1 § 5.1(a). The Accrued Benefit is an important quantity, because the amount of the retirement benefit actually received by the employee is calculated from the Accrued Benefit. The benefit actually received by the participant, however, depended on how the employee opted to receive it. The Plan afforded participants two options for receiving their benefits. The option that the Plan referred to as the “Normal Retirement Benefit” was an annuity, payable from age 65 to the participant’s death. See Pl.’s Ex. 1 § 5.1; Tr. 183:6-15 (Poulin). As a factual matter, nobody seems to have taken this option. The other option was to receive the retirement benefit as a lump sum following termination from the firm. The Plan defined how a lump sum would be calculated and contained certain rules about when the lump sum could be received by “terminated participants.” With respect to timing, under the original iteration of the Plan, if the terminated participant’s accrued benefit was less than or equal to $15,000, the participant could receive the lump sum as soon as administratively feasible following the end,of the plan year in which employment was terminated. PL’s Ex. 1 § 8.6. If a terminated participant’s accrued benefit exceeded $15,000, the participant could not receive the lump sum until five years after the end of the plan year in which employment was terminated. Id. As explained below, these rules were amended over the time period at issue here. The amount of the lump sum that a participant would receive was the larger of two quantities. Tr. 184:11-185:1 (Poulin); Tr. 604:15-22 (Reddington). The first amount was the “present value” of the Accrued Benefit calculated using the Plan assumptions — that is, using the 7% interest rate. This amount would be equal to the hypothetical account balance at termination — the account balance before accumulation. See Tr. 604:15-22 (Reddington); PL’s Ex. 71. The second amount was the “present value” of the Accrued Benefit calculated using the so-called “GATT rates.” See Tr. 189:15-190:1-2 (Poulin); Tr. 604:15-605:25 (Reddington); see also Pl.’s Ex. 2 at P0062. The GATT interest rate is a “moving average of the 30-year Treasury rate.” Tr. 743:4-15 (Altman); see also Tr. 185:2-15 (Poulin); PL’s Exs. 24, 25 at D766. One of the two possible amounts for the lump sum was calculated using a variable interest rate; hence, the lump sum actually due to Plan participants could vary from the hypothetical account balance to different degrees over time. The lower the interest rate used in a present value calculation, the larger the present value will be, since money received in the future will be less discounted. Thus, the lower the GATT rate, the greater the lump sum distribution would be in excess of the hypothetical account balance. This disparity is known as the “whipsaw effect.” Tr. 204:22-205:13 (Poulin); Tr. 605:12-606:5 (Reddington). Because the whipsaw effect is based on taking the present value of benefits that would be received at age 65, the effect will be more significant for younger participants. See Tr. 282:8-10 (Poulin). Quite importantly, as it turned out, the GATT rate was substantially lower than 7% during the time period at issue in this case and many of the Plan participants were significantly younger than 65. Hence, the lump sum due to many participants was substantially larger than their hypothetical account balances. See Tr. 285:8-12 (Poulin). ii. Revisions to Plan The first revision to the Plan that is relevant to this case was the “Third Amendment,” executed October 1, 1998, a few months after Semo joined the firm. PL’s Ex. 2 at P0064. The Third Amendment redefined the grouping of employees and created an additional group as follows: Class A: All Participants who are Class A Shareholders of the Employer and who were born prior to January 1, 1950. Class B: All Participants who are Class A Shareholders of the Employer and who were born on or after January 1, 1950. Class C: All Participants who are either Class A or Class B Shareholders of the Employer and who were born on or after January 1,1950. Class D: All Participants who are not Shareholders of the Employer. PL’s Ex. 2 at P0066. Gerald Feder clearly qualified under this amendment for treatment under Class A. Tr. 806:22-25 (Nielsen). But as this Court has previously noted, the Third Amendment contained a patent ambiguity: Class A Shareholders who were born on or after January 1,1950, could be placed in either the second group (which received an employer contribution, or “service credit,” of 20% of compensation) or the third group (which received an employer contribution of 10% of compensation). See Clark II, 697 F.Supp.2d at 32. At the time of the Third Amendment’s enactment, Semo was in this category; Clark and Bard were not because they were not yet Class A Shareholders. See Tr. 540:5-25 (Semo). The BCA explicitly provided, however, that Semo would be “classified under the Firm’s pension plan as a participant entitled thereunder to a rate of contribution of twenty percent (20.0%),” Pl.’s Ex. 6 § 3(i), assuring him treatment as a Class B participant. See Tr. 539:10-541:3 (Semo). When Bard and Clark became Class A Shareholders in March 2000, they entered into this ambiguous category. A minor amendment to the Plan was made in October 2000. That amendment added an exception to the rules about when participants could receive lump sum distributions. Under the exception, a participant who had at least five years of service with the firm prior to termination would be eligible for a lump sum distribution upon turning age 63 and incurring a one-year break-in-service. Pl.’s Ex. 2 at P0067. The only other change was to add Clark and Bard’s names to the Plan. Id. In August 2003, the terms of the Plan were completely restated, effective October 1, 2002, with more substantial changes from the earlier version, apparently to bring the Plan into compliance with newly enacted laws that are not relevant here. See PL’s Ex. 3 § 1.2, PL’s Ex. 37. The August 2003 restatement of the Plan made one substantial relevant change. The restated Plan indicated: [T]he groupings shall be defined as follows: (1) Group A shall include all Participants who are Class A shareholders of the Employer and who were born prior to January 1,1950; (2) Group B shall include all Participants who are Class A shareholders of the Employer and who were born on or after January 1,1950; (3) Group C shall include all Participants who are shareholders of the Employer and are not covered by Groups A or B; and (4) Group D shall include all Participants who are not shareholders of the Employer. PL’s Ex. 3 § 5.1(d). Hence, the restated Plan eliminated the ambiguity between the second and third groups by putting individuals who could have previously been in either group clearly into the second group, which received an employer contribution (“service credit”) of 20% of compensation. The restated Plan also stated that “[f]or the period commencing October 1, 1993 and ending September 30,1998, the groupings were defined as follows: Group A included all Participants who were shareholders of the Employer, Group B included all Participants who were classified as officers and not members of Group A[,] and Group C included all Participants who were not Shareholders of the Employer or officers.” PL’s Ex. 3 § 5.1(e). The restated Plan made no explicit mention of any other period. Anspach testified at trial that he decided to make this revision to the groupings while preparing the restatement to the Plan for compliance with the statutory changes. Anspach testified that he intended to resolve the ambiguity in the Plan language, but had no intention to change the grouping of any specific individuals by making the change, although he also stated that he “may have had a conversation with somebody at the firm” about the groupings but could not recall. See Tr. 923:13-16, 924:22-925:7, 935:17-21 (Anspach). Anspach also testified that he did not intend the change in the groupings to have retroactive effect prior to the restatement’s effective date of October 1, 2002. Tr. 927:15-928:10 (Anspach). Anspach sent a “cover memorandum” to the firm about the 2003 restatement, which focused on the new statutory requirements and did not mention the changes to the grouping section. See Pl.’s Ex. 37. In September 2003, the firm made a significant change to the Plan by freezing altogether the accrual of benefits. The firm amended the Plan to include the statement that “[tjhere shall be no further accruals of benefits after September 30, 2003.” Pl.’s Ex. 38 at P0218. The other provisions of the Plan did not change. On July 29, 2005, shortly after the firm lost its biggest client, the firm amended the Plan to remove the timing restrictions on when former employees with accrued benefits of greater than $15,000 could take their lump sum distributions. See Tr. 570:5-572:25 (Semo). The Plan was amended to add that, effective August 1, 2005, the restrictions regarding participants with more than $15,000 in accrued benefits applied only to “Participants who are or have been a shareholder of the Employer on or after December 31, 2004.” PL’s Ex. 45 at D0124. In other words, former employees such as Clark were immediately eligible to take their lump sum distributions. Finally, the firm terminated the Plan completely on September 26, 2005. PL’s Ex. 50 at D0127. From a benefits perspective, the result of the Plan’s termination was that everyone, rather than just former employees like Clark, became immediately eligible for lump sum distributions of their Plan benefit. d. Treatment of Bard and Clark Under the Plan i. Clark’s Grouping and Benefits While an employee of the firm, Clark regularly received benefit statements regarding her participation in the Plan which provided her hypothetical account balance, contribution by the firm, and calculated annuity amount. Tr. 57:7-15 (Clark). Upon leaving the firm, Clark had an accrued benefit in excess of $15,000, so under the Plan’s terms at that time she was not immediately eligible to receive a distribution upon separation. After the firm lost its largest client and amended the Plan to remove the timing restrictions on lump sum distributions, Clark received a letter from Semo, dated September 2, 2005, informing her of the change. See PL’s Ex. 46 at D0001; Tr. 49:17-50:20 (Clark). The letter indicated that Clark was entitled to a monthly annuity benefit in the amount of $4,860.65 or a lump sum payment of $227,647.75. Id. at D0004. The letter also included election forms for requesting the benefit, which Clark did not return. Clark emailed Semo to ask how her benefit had been calculated and requested Reddington’s calculation of the lump sum amount. Tr. 51:9-20 (Clark); PL’s Ex. 47 at D0017. On September 12, 2005, Semo provided Clark with Reddington’s calculation worksheet, which has been admitted into evidence. PL’s Ex. 47 at D0019-20. The worksheet indicates that Clark received a benefit accrual of 8% of her annual compensation for each of the four plan years ending on September 30, 1995, to September 30, 1998. The worksheet indicates that Clark received a benefit accrual of 10% of her annual compensation for each of the four years for the plan years ending on September 30, 1999, to September 30, 2002. In other words, Clark was placed in “Group D” for the years prior to her becoming an equity partner (Class A shareholder) and was placed in “Group C” for her remaining years as a shareholder of the firm. Clark’s hypothetical account balance as of September 30, 2005, was $159,815. Clark then received another letter from the firm dated September 30, 2005. See Pl.’s Ex. 53. This letter indicated that the Plan was terminating and distributing all benefits, making all Plan participants eligible for immediate lump sum distributions. The letter referenced the most recent amendment to the Plan (removing the timing restriction on former employees) and stated that “[a]t that time, it was believed that sufficient funds existed in the Plan to make full distributions to all participants with small cutbacks to the firm’s shareholders.” Id. at D0021. However, the letter explained that, due to “the dramatic decrease in GATT rates over the past few years, on a termination basis the Plan has unfunded liabilities” and that therefore each participant’s lump sum was “proportionately reduced so that the aggregate amount paid equals the trust assets.” Id. at D022; Tr. 68:23-69:15 (Clark). Accordingly, the letter indicated that Clark was only eligible for a lump sum payment of $166,541.71. Clark then directly emailed Anspach. Tr. 70:14-73:20 (Clark). Clark inquired about the reduction in her lump sum amount, as well as her accrual of benefits and other issues. PL’s Ex. 55 at P0625. Anspach explained that, as a result of a drop in GATT rates, the lump sum due to Clark under the Plan’s terms had actually increased to $312,380.83 from $227,647.56 in the time between the first and second letters. Id. at P0624. However, benefits were then reduced pro rata by approximately 47% so that benefits in the aggregate would equal the Plan’s assets. Id. at P0624. Anspach noted that the amount of $166,541.71 was still greater than Clark’s hypothetical account balance, which was $158,899.96. Id. On October 17, 2005, Clark returned the benefits election form. See PL’s Ex. 58. At that time, she also sent the firm a formal “Appeal of Benefit Calculation and Plan Termination” with several questions about her benefit, including questions about the applicable percentage by which she accrued benefits and whether there were any changes to the “actuarial earnings assumptions.” See PL’s Ex. 59; Tr. 74:19-76:4 (Clark). Clark received a letter from Anspach dated December 14, 2005, with responses to each question. See PL’s Ex. 85; Tr. 76:16-77:24 (Clark). With respect to Clark’s accrual percentage, the letter stated: “For plan years ending 09/30/95-09/30/98, 8% was the applicable percentage. For plan years ending 09/30/99-09/30/02, 10% was the applicable percentage. We note that for the above years Howard Bard received the same percentage as Ms. Clark.” PL’s Ex. 85 at D0106. With respect to actuarial assumptions, the letter referenced an increase in the interest rate assumption from 7% to 8% and stated that “Ms. Clark was integrally involved with making this decision.” Id. at D0108. The letter concluded with a decision denying Clark’s appeal and “reconfirming] that the correct amount of Ms. Clark’s lump sum benefit is $166,541.71.” Id. at D0109. ii. Bard’s Grouping and Benefits Reddington’s calculation of Bard’s benefits under the Plan has also been introduced into evidence and was apparently produced to the plaintiff during discovery in this case. See PL’s Ex. 66; Tr. 13:18-22. The worksheet indicates that Bard, like Clark, received a benefit accrual of 8% of his annual compensation for each of the four plan years ending on September 30, 1995, to September 30, 1998. Id. at D0735. In other words, Bard and Clark were both placed under “Group D” for the years prior to becoming equity partners. The worksheet indicates that Bard, like Clark, received a benefit accrual of 10% of his annual compensation for the next three years — that is, for plan years ending on September 30, 1999, to September 30, 2001. Id. Again, Bard and Clark were both placed in “Group C” for these years. But the worksheet indicates that Bard, unlike Clark, received a 20% benefit accrual for the plan year ending on September 30, 2002. Hence, Bard was placed in “Group B” for the fourth year and Clark was placed in “Group C,” despite the fact that both Bard and Clark were Class A Shareholders during this year. In accordance with the 2003 restatement of the Plan, which explicitly placed Class A shareholders of appropriate age in Group B, Bard also received a 20% benefit accrual for the following plan year, which ended on September 30, 2003, after Clark had left the firm. Id.; see also PL’s Ex. 39 (actuarial worksheet indicating “all but Semo & Bard are class D (8%)” with annotations of “B” next to Semo and Bard’s names). in. Decision on Clark’s Grouping The Court has been presented with a substantial amount of evidence regarding Clark’s grouping under the Plan. This information appears to have all been considered by the firm when Clark made her formal appeal, with the exception of the fact that Bard was grouped at a higher accrual rate than Clark for one year during which both were at the Firm. This fact seems not to have been understood by defendants at the time of Clark’s appeal. On November 4, 2005, subsequent to Clark’s appeal letter, Anspaeh emailed Semo to alert him to the ambiguity in the Third Amendment. PL’s Ex. 67; Tr. 896:18-897:12 (Anspaeh); Tr. 1073:18-22 (Semo). More specifically, the email stated: “The good news is that the amendment ties together our position that Denise received ... 10% for plan years ending 9/30/99, 9/30/00, 9/30/01 and 9/30/02. “The problem with the Third Amendment is that there appears to be a drafting error and the definitions of Class B and Class C are unclear.” PL’s Ex. 67. The email also indicated that the Plan was restated in September 2003 “for the plan year beginning October 1, 2002” and that “[s]ince Denise was gone by that date, this restatement does not affect her.” Id. Anspaeh’s email also stated that he had received a fax from Reddington in August 2003, which in turn contained a memorandum from Bard to Reddington dated June 2000. PL’s Ex. 67; Tr. 897:13-18 (Anspaeh). The Bard memorandum states that, under the Third Amendment, “contributions [are] as follows: Class A — 45 percent of annual compensation (Gerald Feder); Class B — 20 percent of annual compensation (Joseph Semo, Diana Peters); Class C — 10 percent of annual compensation (Robert Landau, Denise Clark, Howard Bard); Class D — 8 percent of annual compensation (all other Participants).” PL’s Ex. 36 at PAG1145. The memorandum also indicates that it is being sent “in order to enable us to have final numbers by the end of this week, so that we may make our final contribution to the Plan by the June 15, 2000, due date.” Id. Anspaeh sent further emails to Semo and Bard in the next few days on the topic of Clark’s grouping. One of the emails, dated November 9, 2005, asked: “Since [Bard] and [Clark] became Class A shareholders on March 31, 2000, why does the June 6, 2000 fax memo state that [Clark] and [Bard] are members of Class C and entitled to 10% compensation?” Pl.’s Ex. 69; see Tr. 944:11-947:9 (Anspach). The email also indicated that “[e]xcept for the June 6, 2000 fax from [Bard], [Reddington] does not think that he has any written documentation regarding the groupings[;] [h]e believes that each year Jaci [Moline] verbally provided this information in telephone conversations.” PL’s Ex. 69. Jacqueline Moline was the firm’s office manager. Tr. 91:24-92:12 (Semo). At trial, Anspach confirmed this understanding of how Reddington received information about groupings from the Firm. Tr. 944:18-945:2 (Anspach). Reddington also confirmed this fact at trial. Tr. 603:1-5, 641:9-642:11 (Reddington). Anspach, on behalf of the firm, asked Reddington to prepare calculations putting Bard and Clark in Group B — 20% accruals — for plan years 2000, 2001, and 2002. Tr. 901:12-17 (Anspach); PL’s Ex. 69. Reddington made these calculations and provided them to Anspach, who in turn provided them to Bard and Semo. Tr. 405:8-18 (Bard); Tr. 665:14-670:10 (Reddington); Tr. 901:7-902:15 (Anspach); PL’s Exs. 70-71. According to Reddington’s calculations, placing Clark in the 20% category for these three years would increase her hypothetical account balance to $225,325.72 (as compared to $158,899.96 under the original grouping) and her unreduced lump sum amount to $440,428.98. PL’s Ex. 71. As a pro rata share of the Plan’s assets, Clark would be entitled to $216,005.88 (as compared to $166,541.71 under the original grouping). PL’s Ex. 70. Hence, Clark would be entitled to an additional $49,464.17 in lump sum distribution. Id. Bard’s unreduced lump sum would increase to $559,343.66 and his pro rata share would increase to $274,371.54. PL’s Exs. 70-71. Semo and Bard eventually decided to deny Clark’s appeal. See Tr. 405:23-406:6 (Bard); Tr. 564:13-18 (Semo); Tr. 912:22-913:18 (Anspach); Exs. 72-74. Bard and Semo considered Clark’s appeal with the assistance of Anspach and Nielsen. Bard testified that he reviewed the BCA to see if there was any provision about himself and Clark and that he “did not see anything in there or anything in the [Third] amendment” about their placement. Tr. 410:18-411:20 (Bard). Bard also testified that it was his understanding that the second grouping was created for Semo when he joined the firm and that he and Clark were intended to be placed in the third grouping. Tr. 323:18-325:18 (Bard). Bard had no explanation for why Diana Peters — whose identity was not discussed further at trial — was also included in the second grouping. Tr. 324:13-325:11 (Bard). Semo testified several times that “[w]hatever doubts [he] had” about the appropriate classification were “clarified” by Bard, who stated against his financial interest that he and Clark were intended to stay in the third grouping. Tr. 548:22-25, 557:6-12, 1079:1-15, 1096:14-1097:12 (Semo). Semo indicated that this factor “weighed heavily” in the decision. Tr. 1079:15 (Semo). Additionally, Semo noted that the BCA provided that his own accrual percentage would be 20% and that no similar agreement existed for Clark and Bard. Tr. 548:3-22, 1076:20-1077:22 (Semo). Semo also testified that he “probably” would have received less money if the decision on the appeal had been to raise Clark’s distribution. Tr. 549:10-13 (Semo). Nielsen testified that Bard and Semo asked him to join the deliberation on Clark’s appeal — despite the fact that he had already begun new employment elsewhere by that time — because he had benefit claims experience and “they wanted someone who had perhaps a more set of fresh eyes [sic] to go over the issues with them.” Tr. 804:21-805:12 (Nielsen). Nielsen testified that Semo and Bard told him that the Plan was designed to put Clark and Bard in the 10% category and that he found it significant that this statement was against Bard’s own financial interest. Tr. 810:20-812:4 (Nielsen). Nielsen testified that he did not object to denying the appeal because “[i]t did not sound like a particularly objectionable interpretation to me.” Tr. 811:14-19 (Nielsen). Anspaeh testified that he concurred with this result, primarily because Clark had originally been grouped in the 10% category and, after reviewing the available information, the group did not “f[ind] anything different to change the answer” and so “made a decision to leave everything the same and leave it how it was.” Tr. 900:14-906:13 (Anspaeh). Anspaeh sent Clark the formal notice denying her appeal, which went through several drafts. The erroneous statement that “Howard Bard received the same percentage as Ms. Clark” during the years in question was apparently not in the original draft of the letter, but was added at some point during the editing process. Compare Pl.’s Ex. 85 at D0106, with Defs.’ Ex. 1 at PR050. Anspaeh testified at trial that “[s]omeone at the firm” told him in November 2005 that Bard and Clark received the same accrual percentage, though he could not recall who at the firm told him. Tr. 959:12-960:2, 1004:4-9 (Anspaeh). Semo testified that he believed the statement to be true at the time of Clark’s appeal and that he relied on Anspaeh and Reddington for the information. Tr. 550:4-550:16, 558:15-19, 1095:8-1096:10 (Semo). Bard testified similarly that he believed the statement to be true at that time and did not learn of his own more favorable grouping until his deposition in this case. Tr. 320:9-322:2, 417:11-418:1 (Bard). iv. Distributions to the Feders Following his retirement on December 31, 2001, Gerald Feder was eligible for a distribution, apparently because he had reached age 65. Clark oversaw this distribution with substantial advice from Anspach and Reddington. See Tr. 103:23-106:12,107:7-108:12,109:23-112:14 (Clark). Feder was not able to receive the full lump sum amount resulting from the GATT rate calculation because of certain restrictions on distributions to “highly compensated employees.” See Tr. 61:3-20 (Clark); Tr. 641:5-8 (Reddington); PL’s Ex. 24. According to Reddington, IRS regulations “restrict[] benefits payments to highly compensated employees as a measure of protection so highly compensated employees do not terminate and leave a plan underfunded for nonhighly compensated employees. The Plan cannot be less than 110% funded on a current liability basis.” PL’s Ex. 24. According to calculations provided by Reddington, Feder’s full lump sum distribution amount as of April 2002 was $1,083,263, but he only was able to receive $779,082. See PL’s Exs. 22-26; Tr. 61:21-62:18 (Clark). Loretta Feder’s distribution a few months later was similarly reduced. See PL’s Exs. 23, 28; Tr. 642:17-643:10 (Reddington). Anspach testified at trial that Gerald Feder could not receive the remaining portion of his benefit until the Plan was funded to a certain percentage — Anspach “believefd]” the percentage was 110% — on a current liability basis. See Tr. 1010:3-15 (Anspach). (The phrase “current liability” is explained more fully below.) According to Clark, she had a conversation with Semo in 2004 in which he indicated that the Plan was not funded in a manner that would allow Feder “to get the balance of his distribution out of the plan.” Tr. 60:2-61:2 (Clark). Semo was not specifically asked about this conversation during his trial testimony, but did testify that he was not “concerned about Mr. Feder” in making decisions about the funding of the Plan. Tr. 1115:17-1116:9 (Semo). Gerald Feder was also involved in discussions with Semo and Bard around the time that the firm lost its largest client in July 2005. According to Semo, in the period between when the firm lost the client and when the firm terminated, Semo and Bard spoke to Feder about the possibility of their forfeiting “about a third” of their distributions under the Plan in order to make full distributions to other employees such as Clark. Tr. 573:23-575:21 (Semo); see also Tr. 413:9-414:1 (Bard). Semo testified that “[i]t was only when it was realized that number had to be much bigger than a 30 percent haircut that Mr. Feder said, no, he wanted his benefit” and that this effectively foreclosed the option of making a full distribution to Clark. Tr. 575:7-24 (Semo). e. Plan Funding i. Plan Terms and Assumptions Regarding Funding The Plan also contained provisions relating to funding. The Plan stated: “It is the intention of the Employer to continue the Plan and make regular contributions to the Trustee each year in such amounts as are necessary to maintain the plan on a sound actuarial basis and to meet minimum funding standards as prescribed by any applicable law.” PL’s Exs. 1 & 3 § 4.1. The Plan itself did not define what was meant by “maintain[ing] the plan on a sound actuarial basis.” Reddington, the Plan’s actuary, testified that the Plan’s funding was based on “actuarial assumptions” that are “not hard-coded into the plan document.” Tr. 607:21-608:1, 608:25-609:2 (Reddington); see also Tr. 223:4-13 (Poulin). As with other similar plans, the actuary performs calculations, based on actuarial assumptions, to inform the plan sponsor how much needs to be contributed to fund the Plan. Tr. 261:17-262:1 (Poulin). In other words, the actuarial assumptions dictated the minimum and maximum allowable contributions to the Plan. Two such assumptions are relevant here. First, the Plan was funded under the assumption that participants would take their benefits as an annuity at normal retirement age, rather than as a lump sum at an earlier time. Tr. 606:20-608:7 (Reddington). Reddington testified that “[t]hat was a very common feature of small plans, not to assume that participants take their distributions earlier.” Tr. 608:7-9 (Reddington). Second, the Plan was funded under an assumption about the rate of return on the investment of its assets — the so-called “interest rate assumption.” Tr. 608:10-21 (Reddington); see also Tr. 262:5-8 (Poulin); Pl.’s Ex. 106 at 26 (defining “Valuation Liability Interest Rate” as “the assumption as to the expected interest rate (investment return)”). This assumption is the basis of one of Clark’s three claims in this case. As Clark’s expert has explained, “if a high interest rate assumption is used, the contributions to the plan will be lower than if a lower interest assumption was used. By selecting an unreasonably high interest assumption, minimum funding requirements can be decreased to lower levels.” Pl.’s Ex. 100 ¶ 4. And as the Court has previously noted, the interest rate assumption “mattered because to the extent the market interest rate decreases relative to the Plan’s projected interest rate, the present cash value of a beneficiary’s annuity increases. And if the present value of a beneficiary’s annuity increases, but the Plan’s funding remains constant, there is a potential for the Plan to have unfunded liabilities.” Clark III, 736 F.Supp.2d at 232 (citing Hirt v. Equitable Ret. Plan for Emps., Managers, & Agents, 533 F.3d 102, 109 (2d Cir.2008)). ii. Interest Rate Assumption The interest rate assumption was 7% prior to the fall of 2001, but was then raised to 8% in 2002, after Clark became managing partner of the firm. At that time, there was some communication between Clark and Reddington about the interest rate. The testimony at trial regarding this communication was inconsistent. Reddington testified that Clark indicated to him that the firm’s minimum required contribution to the Plan was “larger than what they wanted to contribute” using the 7% interest rate assumption, so he performed calculations and informed Clark what the minimum contribution would be using an 8% interest rate. Tr. 609:8-610:1 (Reddington). Clark testified that an inquiry about the interest rate came from Reddington to her and that she understood that Feder and Semo had previously agreed to raise the rate and had communicated that to Reddington prior to her becoming managing partner. Tr. 47:11-48:8, 162:2-9 (Clark). Semo testified that Clark made a recommendation to the board of directors based on discussions she had had with Reddington, that the board of directors approved the change, and that he never had any other conversations about the interest rate, including with Feder. Tr. 523:22-524:15 (Semo). Bard testified that he remembered Clark presenting the issue at a board meeting, but that he couldn’t recall who was managing partner when the issue was first raised. Tr. 352:18-353:1 (Bard). Both Reddington and Clark testified that at some point Clark informed Reddington to go forward with raising the interest rate assumption from 7% to 8%. Tr. 162:7-9 (Clark); Tr. 609:20-610:1 (Reddington). iii. Funding of the Plan Over Time Reddington provided Actuarial Valuation Reports to the firm with various statistics about the Plan for each plan year during the time period in question. The “accrued benefits” statistic was the sum total of the Plan participants’ hypothetical account balances — essentially, the value of benefits if participants took their benefit at normal retirement age. See Tr. 249:15-251:2 (Poulin). The Plan’s “current liability” and “funded current liability percentage” statistics, however, were indicators of the Plan’s liabilities on a lump sum distribution basis and how well-funded the Plan was on that basis, because “current liability” is calculated based on a rate similar to the GATT rate. See Tr. 248:16-249:4 (Poulin); 726:21-727:13 (Altman). Nonetheless, the current liability statistic did not exactly reflect the Plan’s liabilities upon termination. See Tr. 679:7-680:2 (Reddington); 726:21-25, 758:13-15 (Altman). The interest rate assumption affected the “minimum required contribution” amount — the amount of money Feder Semo was required to contribute to the Plan each year — as well as what the reports referred to as “Accrued Liability.” See Pl.’s Ex. 17 at D0407; Tr. 233:4-234:8 (Poulin). The firm appears to generally have made the “minimum required contribution” each year, although there was some dispute at trial over whether Reddington correctly calculated the contribution in the final year of the Plan (i.e., at termination). See Tr. 306:9-15 (Poulin); Tr. 876:15-22 (Anspaeh). In January 2003, Reddington provided an Actuarial Valuation Report to the firm for the plan year ending September 30, 2002. PL’s Ex. 17; Tr. 503:16-24 (Semo). The report indicated that the Plan’s “[fjunded current liability percentage for current year” was 55.76% and that the Plan had accrued benefits with a present value of $1,272,414 and assets with a market value of $1,048,576. PL’s Ex. 17 at D0391, D0405. This was a significant drop in funding from the prior year, primarily due to the distributions to the Feders. The report indicated that the minimum required contribution from the firm to the Plan that year was $150,276. Id. at D0391. On March 3, 2003, Reddington emailed the firm about the Plan, and, in particular, the Plan’s funding. PL’s Ex. 34; Tr. 616:25-617:13 (Reddington). The email stated: “Gerald and Loretta Feder have now retired. The Plan was set-up to maximize the Feder’s [sic] benefits. The Plan design needs to be reviewed to best advantage the current owners.” PL’s Ex. 34 at 1. The email indicated that, as of September 30, 2002, the Plan had liabilities in the amount of $1,216,000 and assets in the amount of $1,002,000 and that therefore the Plan had an “Underfunded Status” of “[[liabilities exceeding] assets by $214,000.” Id. Under the heading “How does the Plan become sufficiently funded?”, the email listed three options: “Larger Contributions in 2002/03 and future years ($250,000 instead of the $157,000 for 2001/02),” “Contributions similar to the 2001/02 contribution and good asset performance,” and “Lower contributions ($75,000 to $100,000) and freezing of accruals.” Id. The email explained that a participant’s lump sum distribution is based upon the greater of the cash balance account and the calculation involving the GATT rate and stated that GATT rates “are currently at a historical low point.” Id. at 3. The email stated that “[therefore, on a plan termination basis, the Plan is even more significantly underfunded.” Id. After receiving Reddington’s email, the Firm’s executive committee met and considered the funding issue. Documents in the record suggest that the firm first decided not to take any action to address the funding issue and that Anspaeh expressed his view that this path did not make sense, although at trial Anspaeh, for one, did not recall this fact. See PL’s Ex. 35; Tr. 845:13-856:13 (Anspaeh). In any event, the committee then resolved to address the funding issues by freezing benefit accruals and “putting in additional monies over the next several years.” Tr. 1067:3-1068:8, 1071:5-10 (Semo); see also Tr. 360:12-20 (Bard); Tr. 616:16-620:3 (Reddington); Tr. 851:8-854:12 (Anspaeh). Semo testified that “in his mind” the firm would make additional contributions to the Plan over a period of three to five years to remedy the “ongoing” underfunding of approximately $200,000 and the additional underfunding on a “termination basis.” Tr. 509:12-511:14, 533:21-535:7 (Semo). Semo indicated that he believed the firm would have “extra funds” available as the firm’s revenue-sharing agreement with Feder wound down. Tr. 497:8-16, 509:23-510:2 (Semo). He also testified that the firm was not intending to contribute more funds to address the possibility of immediate lump sum distributions because “we weren’t thinking of terminating the plan.” Tr. 535:8-9 (Semo). It does not appear that anyone ever suggested or considered changing the interest rate assumption. See Tr. 352:8-15, 353:9-18 (Bard); Tr. 524:20-25, 527:19-528:16 (Semo). As indicated, the Plan was amended to freeze accruals as of September 2003. Tr. 855:25-856:4 (Anspach). The Actuarial Valuation Report for plan year ending September 30, 2003, which was certified in July 2004, indicated that the Plan’s “[flunded current liability percentage for current year” was 49.25%. PL’s Ex. 18 at D0313. In November 2004, Reddington emailed the firm. Reddington indicated that “[t]he minimum required contribution for the plan year end[ing] September 30, 2004 is $22,404” and that this amount “is much lower than in the past because of the freeze in benefits that took place at the end of the previous plan year.” PL’s Ex. 42. at 1. Reddington also stated that “[t]he plan is still very underfunded on a plan termination basis” and that “[w]e would strongly recommend that the final contribution for the plan year exceed the minimum funding requirement.” Id. For the plan year ending September 30, 2004, the firm contributed $122,404 to the Plan in installments from February 2005 to May 2005. PL’s Ex. 13 at D0239; Tr. 632:5-633:21 (Reddington). Semo and Anspach testified that they believed that this was approximately $100,000 more than the minimum required amount. Tr. 858:23-859:2 (Anspach); Tr. 1069:4-1070:13 (Semo). The Actuarial Valuation Report for plan year ending September 30, 2004, which was dated July 11, 2005, indicated that the minimum required contribution was $62,263 — apparently contradicting Reddington’s email. PL’s Ex. 19 at D0222; see Tr. 651:13-24 (Reddington). For plan year ending September 30, 2005, the firm made its final contribution to the Plan in the amount of the minimum contribution, $4,774, in one installment made in December 2005. PL’s Ex. 14 at D0161; Tr. 653:18-654:20 (Reddington). Reddington testified that this minimum contribution was approximately $58,000 less than the minimum contribution would have otherwise been, because the contribution for the September 30, 2004, plan year was included as a “[p]rior year credit balance.” Tr. 654:10-20 (Reddington); see PL’s Ex. 14 at D0163. According to the Actuarial Valuation Report for the plan year ending September 30, 2005, which was dated June 30, 2006, the Plan’s “[fjunded current liability percentage” was 79.1%. PL’s Ex. 20 at D0149; Tr. 620:22-621:11 (Reddington). At that time, the report indicated that the present value of accrued benefits was $1,675,517 and the value of the Plan’s assets was $1,392,275. PL’s Ex. 20 at D0135; Tr. 624:9-18 (Reddington). Somewhat inexplicably, Reddington appears to have included Bard and Clark’s hypothetical account balances in the Actuarial Valuation Report as if Clark’s appeal had been resolved in both employees’ favor — that is, as if they had been in the 20% accrual grouping for the three years in question. Compare Pl.’s Ex. 20 at D0150, with Pl.’s Ex. 71; see PL’s Ex. 96 at 10-11; Tr. 673:16-23 (Reddington). As a result, the present value of the accrued benefits that were actually paid out must have actually been somewhat lower than $1,675,517. As indicated, each plan participant received a pro rata share of 53.31% of their benefit as provided for by the lump sum calculation. PL’s Ex. 56; Tr. 679:20-23 (Reddington). f. Expert Testimony on Reasonableness ’ of Interest Rate Assumption The Court heard testimony from two expert witnesses regarding the reasonableness of the 8% interest rate assumption. Claude Poulin was admitted as an expert witness on behalf of Clark to provide testimony on the general subject of the design, interpretation, administration, and review and compliance of defined benefit pension plans, including offering opinions as to the reasonableness of certain actuarial assumptions. Tr. 179:11-16 (Poulin). Poulin testified that he believed the 8% interest rate assumption was unreasonable. Tr. 232:8-11 (Poulin). He stated that, under ERISA, “actuarial assumptions must individually and in the aggregate ... tak[e] into account the experience under the plan as well as reasonable expectations as to the future experience under the plan.” Tr. 231:20-24 (Poulin). Poulin testified that the interest rate assumption did not take into account the features of the Plan that participants could take their distributions as lump sums, rather than receiving a benefit at retirement age, and that lump sum distributions were based on GATT rates if that rate produced a larger lump sum. Tr. 220:18-221:7, 229:21-230:18, 285:24-286:1 (Poulin). He testified that the liabilities of the Plan were computed assuming the participants would retire at age 65, when in practice, for a plan of this type, it would be reasonable to expect that participants will take a lump sum distribution when it becomes available. Tr. 226:13-227:13, 232:4-7, 289:22-290:5, 300:6-10 (Poulin). Poulin testified that the “experience of the plan” was to make lump sum distributions; he noted that the Feders both took their distributions as lump sums, although he also noted that he was not aware of anyone else taking lump sum distributions prior to the Plan’s termination. Tr. 221:8-18, 229:16-24, 289:10-17, 300:20-301:5 (Poulin). Poulin also indicated that benefit distributions generally do not “come due at the same time” — i.e., all at once — in pension plans. Tr. 287:15-17 (Poulin). Poulin also testified that an 8% assumption might have been reasonable if the Plan had “offsetting” actuarial assumptions, but the Plan did not have any such assumptions. Tr. 230:24-231:8 (Poulin). He stated that his opinion about the reasonableness of the 8% assumption was based on the fact that the Plan’s terms indicated that the Plan “had to be fully funded.” Tr. 230:19-23, 286:14-287:3 (Poulin). Poulin testified that he believed 6% would have been a reasonable interest rate assumption. Tr. 232:12-233:3 (Poulin). He testified that had the Plan utilized a 6% assumption, the minimum required contribution would have been approximately $400,000 greater in total for plan years 2002-2004; had the Plan utilized a 7% assumption, the contribution would have been approximately $275,000 greater; and had the Plan utilized a 5.38% assumption (the average GATT rate for this period), the contribution would have been approximately $500,000 greater. Tr. 236:1-237:20 (Poulin). Poulin stated that merely freezing the Plan would not remedy the underfunding issue because the “whipsaw” effect was a feature of the Plan. Tr. 228:16-229:9 (Poulin). Poulin testified that the whipsaw effect was a common feature of similar plans during this time period. Tr. 282:11-284:6 (Poulin). Ian Altman was admitted as an expert witness on behalf of the defendants to provide testimony on the design, interpretation, administration, and r