Full opinion text
MEMORANDUM AND ORDER ERIC F. MELGREN, District Judge. TABLE OF CONTENTS I. Contractual Vesting Claims Under ERISA.................................1098 A. The Parties ........................................................1098 1. Named Plaintiffs................................................1098 a. Carolina Telephone & Telegraph Company......................1098 b. United Telephone Companies .................................1098 c. Sprint......................................................1098 2. Defendants.....................................................1099 3. Class Members..................................................1099 B. Factual Background.................................................1099 C. Defendants’ Motions for Summary Judgment on Plaintiffs’ Contractual Vesting Claims (Docs. 323, 332).....................................1100 1. Summary Judgment Legal Standard...............................1100 2. ERISA Contractual Vesting Law..................................1101 3. Evidentiary Issues...............................................1102 a. Magistrate Judge O’Hara’s Sanction Order......................1102 b. Course of Performance Evidence..............................1102 c. Defendants’ Motion to Exclude the Report and Testimony of Prof. Gail Stygall (Doc. 321).................................1102 4. The SPDs......................................................1103 a. The First Group of SPDs (1 through 6, 18 and 24 through 32)____1103 1. Language in the SPDs....................................1104 (a) Language in SPDs 1 through 4.........................1104 (b) Language in SPD 18..................................1104 (c) Language in SPDs 5 and 6.............................1104 (d) Language in SPDs 24 through 27 and 29 through 31____1105 (e) Language in SPDs 28 and 32...........................1105 2. Discussion of the SPDs...................................1105 b. The Second Group of SPDs (7 through 9).......................1109 1. Language in these SPDs..................................1109 2. Discussion of SPDs 7, 8, and 9.............................1110 (a) The SPDs do not contain affirmative, lifetime language____1110 (b) The SPDs contain termination provisions................1112 3. Discussion of Named Plaintiff Britt’s Claim (SPD 7 and the 1984 CBA)............................................1113 c. The Third Group of SPDs (10 through 12 and 19)................1113 1. Language in these SPDs..................................1114 2. Discussion of these SPDs .................................1114 (a) The SPDs do not contain affirmative, lifetime language____1115 (b) The SPDs contain a ROR clause and termination provisions .........................................1116 d. The Fourth Group of SPDs (13 through 15 and 20 through 23)____1117 1. Language in these SPDs..................................1117 2. Discussion of these SPDs .................................1118 (a) The SPDs do not contain affirmative, lifetime language____1118 (b) The SPDs contain a ROR clause and termination provisions .........................................1119 e. Named Plaintiff Clark’s Claim (SPDs 16 and 17 and the 1974 CBA) ....................................................1119 1. Language in these SPDs and language in the CBA...........1119 2. Discussion ..............................................1120 f. Conclusion..................................................1120 D. Defendants’ Motion to Decertify the Class Action (Doc. 285)..............1120 II. Breach of Fiduciary Duty Claim Under ERISA.............................1121 A. Factual Background.................................................1121 B. Defendants’ Motion for Summary Judgment on Breach of Fiduciary Duty Claim (Doc. 338).............................................1122 1. ERISA Fiduciary Law...........................................1123 2. Discussion......................................................1123 III. Age Discrimination Claims ...............................................1127 A. The Parties ........................................................1127 1. Plaintiffs and the Collective Class..................................1127 2. Defendants.....................................................1128 B. Factual Background.................................................1128 C. Defendants’ Motion for Summary Judgment on Plaintiffs’ Age Discrimination Claims (Doc. 329)....................................1129 1. Plaintiffs Cannot Establish a Prima Facie Case......................1129 2. Defendants Demonstrate That They Made Their Decision on Reasonable Factors Other Than Age.............................1131 D. Defendants’ Motion to Decertify Action (Doc. 287), Defendants’ Motions . to Exclude Terry Long and David Crawford Testimony (Docs. 325, 327), Plaintiffs’ Motion for Advisory Jury (Doe. 333)...................1134 E. Plaintiffs’ Request for Oral Argument on Defendants’ Motions for Summary Judgment (Doc. 392) .....................................1134 Plaintiffs, on behalf of themselves, a certified class, ánd a certified collective class, bring suit alleging that Defendants’ modification and elimination of retirees’ medical, prescription drug, and life insurance benefits, violated the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Ohio, Oregon, and Tennessee’s anti-discrimination statutes. In Plaintiffs’ first claim, pursuant to ERISA section 502(a)(1)(B), seventeen named Plaintiffs and an approximate 15,-000 member class assert that the summary plan descriptions (SPDs) in effect when they retired, as well as other written documents and oral representations, give them a contractual right to vested health, prescription drug, and life insurance benefits. In Plaintiffs’ third claim, they seek declaratory relief that they are entitled to the reinstatement of their benefits in the form in which they received them at retirement. These two claims overlap and are Plaintiffs’ contractual vesting claims. In Plaintiffs’ second claim, pursuant to ERISA section 502(a)(3), the .seventeen named Plaintiffs allege that Defendants breached their fiduciary duty by misrepresenting the terms of the plans by affirmatively telling Plaintiffs, through SPDs, written communications, and oral statements, that their medical and life insuranee benefits were lifetime benefits. Plaintiffs also contend that Defendants failed to inform them that their benefits could change. In Plaintiffs’ fourth claim, the seventeen named Plaintiffs, an additional 750 named individuals, and an approximate collective class of 8,000 members, contend that Defendants violated the ADEA when - they reduced or eliminated Plaintiffs’ life insurance benefits because it had a disparate impact upon older retirees. Plaintiffs’ fifth, sixth,- and seventh claims are identical to the ADEA discrimination claim except that they are brought under Ohio’s, Oregon’s, and Tennessee’s age discrimination laws. There are eleven pending motions before this Court. The Court will address these motions in three different sections and will set forth the applicable parties, facts, and law in each respective section. In the first part of the Order, the Court will address Plaintiffs’ contractual vesting claims under ERISA. This section includes: Defendants’ Motion for Summary Judgment on the Named Plaintiffs’ Contractual Vesting Claims (Doc. 323), Defendants’ Motion for Summary Judgment on Selected Class Members’ Contractual Vesting Claims (Doc. 332), Defendants’ Motion to Exclude Gail Stygall Expert Testimony (Doc. 321), and Defendants’ Motion to Decertify Class Action (Doc. 285). In the second part of the Order, the Court will address the seventeen named Plaintiffs’ breach of fiduciary duty claim under ERISA. This section includes Defendants’ Motion for Summary Judgment on Plaintiffs’ Breach of Fiduciary Duty Claim (Doc. 338). In the third part of the Order, the Court will address Plaintiffs’ age discrimination claims. This section includes: Defendants’ Motion for Summary Judgment on Plaintiffs’ Age Discrimination Claims (Doc. 329), Defendants’ Motion to Decertify Collective Action (Doc. 287), Defendants’ Motion to Exclude the Report and Testimony of Terry Long (Doc. 325), Defendants’ Motion to Exclude the Report and Testimony of David L. Crawford (Doc. 327), Plaintiffs’ Motion for Advisory Jury (Doc. 333), and Plaintiffs’ Motion for Hearing on Defendants’ Motions for Summary Judgment (Doc. 392). I. Contractual Vesting Claims under ERISA In Plaintiffs’ first and third claims (the contractual 'vesting claims), they allege that Defendants’ reduction or elimination of their prescription drug, medical, and life insurance benefits violated ERISA because those benefits were' vested. Plaintiffs seek a declaration that these benefits are vested under section 502(a)(1)(B) of ERISA and a restoration of those benefits. A. The Parties 1. Named Plaintiffs There are seventeen named Plaintiffs who are retired, long-term management and unionized employees of several regional and local telephone operating companies. All of these companies eventually became wholly-owned subsidiaries of Defendant Embarq Corporation upon its spin-off from Defendant Sprint Nextel Corporation in May 2006. As retired employees, Plaintiffs and their eligible spouses and dependents were participants in various ERISA-governed plans. a. Carolina Telephone & Telegraph Company (“CT & T”) Plaintiffs Eleven named Plaintiffs retired from CT & T. Plaintiff Donald Clark retired from CT & T in August 1976. Plaintiffs James Britt and Laudie McLaurin retired from CT & T in approximately June 1985 and December 1988. Plaintiffs Willie Dorman and Calvin Joyner retired from CT & T in March 1994. Plaintiffs William Fulghum and William Daniel retired from CT & T in September 1996 and June 1999, respectively. Plaintiffs John Hollingsworth, Betsy Bullock, and William Games retired from CT & T in. December 2001. Plaintiff Sue Barnes retired from CT & T in March 2003. b. United Telephone Companies’ Plaintiffs Five named Plaintiffs retired . from United telephone companies. Plaintiff Robert King retired from United Telephone Company of Florida (“UTC-Florida”) in September 1993. Plaintiffs Betty and Kenneth Carpenter retired from United Telephone Company of Ohio (“UTC-Ohio”) in November 1997 and January 1998. Plaintiff Carl Somdahl retired from United Telephone Company of the Northwest (“UTC-NW”) in January 1999. Plaintiff Wanda Shipley retired from United InterMountain Telephone Company (“Inter-Mountain”) in June 1999. c. Sprint Plaintiff One Plaintiff, Timothy Dillon, retired from Sprint North Supply Company in approximately December 2002. 2. Defendants There are several companies that are named as Defendants. These include Defendant Sprint, formerly .known as United Telecommunications, Inc. and Sprint Corporation; Defendant Embarq Corporation (“Embarq”); Defendant Embarq Mid-Atlantic Management Services Company, formerly known as Sprint Mid-Atlantic Telecom, Inc.; and Defendant CT & T, formerly a wholly-owned subsidiary of Sprint. Numerous welfare benefit plans are named as Defendants. These include: Embarq Retiree Medical Plan, Sprint Retiree Medical Plan, Group Health Plan for Certain Retirees and Employees of Sprint Corporation, Sprint Welfare Benefit Plant for Retirees and Non-Flexcare Participants, Sprint Group and Long Term Disability Plans, Group Life Accidental Death and Dismemberment and Dependent Life Plan for Employees of Carolina Telephone and Telegraph Company, and Carolina Telephone and Telegraph Company Voluntary Employees’ Beneficiary Association Sickness Death Benefit Plan (‘VEBA”) (collectively, “the Plans”). There are two additional defendants. Defendant Employee Benefits Committee of Embarq Corporation (“the Committee”) is the administrator of the Plans sponsored by Embarq and CT & T. Defendant Randall T. Parker served as Embarq’s Director of Benefits between August 2005 and March 2010 and as Sprint’s Director— Benefits Strategy and Sprint Benefits Brand Management between 1995 and August 2005. 3. Class Members In early 2011, the Court certified a class with respect to the two contractual vesting claims. The class definition as set forth in the class notice is as follows: The certified ERISA class includes retired employees and their eligible dependents who retired before January 1, 2008 from Embarq or a business that became part of Embarq and who were participating in any of the retiree medical, prescription drug and life insurance benefit plans of Sprint Nextel Corporation and Embarq Corporation. There is also sub-class which includes individuals who were participants in CT & T’s Voluntary Employee Benefits Association (“VEBA”) plan. This sub-class is known as the “VEBA sub-class.” There are approximately 15,000 ERISA class members. B. Factual Background In November 2005, Sprint announced that the prescription drug benefits for participants and beneficiaries who were eligible for Medicare Part D coverage would be modified such that each participant and beneficiary would receive $41.67 a month, or $500 a year, effective January 1, 2006. On July 26, 2007, Embarq announced that (1) company-sponsored medical coverage and the prescription drug subsidy provided to Medicare-eligible retirees and Medicare-eligible dependents of retirees would be eliminated effective January 1, 2008; (2) basic life insurance coverage would be eliminated for retirees who were participants in the CT & T VEBA effective September 1, 2007; and (3) basic life insurance coverage would be capped at $10,000 for all other retirees effective January 1, 2008. In late December 2007, Plaintiffs brought suit over the reduction and elimination of these benefits. C. Defendants’ Motions for Summary Judgment on Plaintiffs’ Contractual Vesting Claims (Docs. 323, 332) In this case, the summary plan descriptions (“SPDs”) explain Plaintiffs’ and class members’ medical and life insurance benefits. Some of the SPDs address medical benefits, some of the SPDs pertain to life insurance benefits, and several of the SPDs address both medical and life insurance benefits in the same document. Plaintiffs rely upon language in these SPDs that their medical and life insurance benefits are vested lifetime benefits. Defendants bring two summary judgment motions on Plaintiffs’ and class members’ contractual vesting claims. Defendants’ first motion addresses the seventeen named Plaintiffs. There are seventeen SPDs at issue with respect to these Plaintiffs’ contractual vesting claims. These include SPDs 1 through 17. Defendants’ second summary judgment motion addresses certain class members that either fall under the same SPDs as the named Plaintiffs or fall under SPDs that contain similar language. There are fifteen SPDs at issue in Defendants’ Motion for Summary Judgment on selected class members’ contractual vesting claims. These include SPDs 18 through 32. Defendants group these thirty-two SPDs into five different groups based on the similarity of language contained within those SPDs. The Court will address each group of SPDs. 1. Summary Judgment Legal Standard Summary judgment is appropriate if the moving party demonstrates that “there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” The court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. To meet this standard, the moving party need not disprove the nonmoving party’s claim; rather, the movant must simply point out the lack of evidence on an essential element of the nonmoving party’s claim. If the moving party carries its initial burden, the party opposing summary judgment cannot rest on the pleadings but must bring forth “specific facts showing a genuine issue for trial.” “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Conclusory allegations alone cannot defeat a properly supported motion for summary judgment. 2. ERISA Contractual Vesting Law There are two types of employment benefits under ERISA: welfare benefits and pension benefits. In this case, these benefits are welfare benefits. Welfare benefit plans do not have the same requirements as pension benefit plans. That is, ERISA does not establish minimum participation, vesting, or funding requirements for welfare benefit plans. Thus, “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare benefit plans.” The exception to this rule is if an employer or other plan sponsor contractually agrees to grant vested benefits. An employer or plan sponsor “who changes the vested benefits granted in a welfare plan may be liable to a beneficiary under the plan.” Plaintiffs bear the burden of showing an agreement or other demonstration of employer intent to vest welfare benefits. “Contractual vesting of a welfare benefit is an extra-ERISA commitment that must be stated in clear and express language.... [It] is a narrow doctrine.” To determine whether a welfare benefit plan provides for vested benefits, the Court applies general principles of contract construction by looking at the contract language and considering the parties’ intent. Only if the language is ambiguous does the Court consider extrinsic evidence. Otherwise, the Court construes the documents as a matter of law. Title 29 U.S.C., section 1022(b) requires that an SPD contain information about “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.”. Section 1022(a) requires that the SPD be “written in a manner calculated to be understood by the average plan participant,” and it must be “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” An SPD is considered part of the plan documents required by ERISA. If the clause to be construed does not itself determine the plan sponsor’s intent, we read the language of the SPD as a whole. Because the SPD best reflects the expectations of the parties to the plan, the terms of the SPD control the terms of the plan itself. In this case, to determine the dispositive issue of whether Defendants intended to confer vested medical and life insurance benefits upon Plaintiffs, the Court must analyze provisions of the SPDs. In analyzing these provisions, the Court must first determine whether they are ambiguous. If they are unambiguous, the Court construes them as a matter of law. - 3. Evidentiary Issues Before discussing the language of these SPDs, the Court must address several evidentiary issues. a. Magistrate Judge O’Hara’s Sanction Order In this case, the parties engaged in lengthy-discovery, and there were numerous discovery disputes over the SPDs, collective bargaining agreements, and plan documents. One -of the issues involved which party had the responsibility of identifying the SPDs applicable to each class member. On February 24, 2012, Magistrate Judge O’Hara found that Plaintiffs had failed to comply with a previous order requiring Plaintiffs to identify by ’ group the retirees to which Plaintiffs’ alleged plan documents applied. Because of Plaintiffs’ failure to comply with his previous order, Judge O’Hara imposed a sanction precluding Plaintiffs from taking a position in the litigation inconsistent with Defendants’ document-to-class-member mapping. After Plaintiffs sought reconsideration of that order, Judge O’Hara upheld most of it, but clarified that his order did not apply to the seventeen named Plaintiffs because Plaintiffs had previously identified documents with respect to those named Plaintiffs. On May 24, 2012, 2012 WL 1893542, this Court denied Plaintiffs’ Motion to Review Magistrate Judge’s February 24, 2012 and March 27, 2012 Orders and upheld the sanction. Thus, Plaintiffs cannot now take a position inconsistent with Defendants’ identification of the SPDs applicable to the selected class members. b. Course of Performance Evidence Plaintiffs argue that “course of performance” evidence — consisting of alleged oral statements from company representatives to Plaintiffs, internal company documents, and written checklists and letters provided to Plaintiffs — demonstrates Defendants’ intent to provide lifetime benefits. All of this “course of performance” evidence is extrinsic evidence. Only if the plan language is ambiguous does the Court need to consider this evidence. For the reasons discussed below, the Court finds that the language in the SPDs is unambiguous. Thus, the Court will not consider the extrinsic evidence in relation to Plaintiffs’ contractual vesting claim. c. Defendants’ Motion to Exclude the Report and Testimony of Professor Gail Stygall (Doc. 321) Plaintiffs also attempt to rely upon expert testimony from Gail Stygall, Ph.D., a professor of English and Linguistics, in which she opines, in part, that due to the language of the SPDs, they are ambiguous and “reasonably susceptible to the reader’s conclusion that lifetime benefits have been promised.” Defendants filed a Motion to Exclude the Report and Testimony of Professor Gail Stygall. The determination of whether language in a contract is ambiguous is a question of law. As explained below, there are numerous court decisions regarding contractual vesting claims. In every one of these decisions, the court makes the determination as to whether or not the language in the contract is ambiguous — the court does not rely on an expert’s opinion for this conclusion. In this case, because the. Court must determine whether the contractual language is ambiguous as a matter of law, Professor Stygall’s opinion is irrelevant and unnecessary to the Court’s determination, and the Court will not consider her opinion. Accordingly, the Court grants Defendants’ Motion to Exclude the Report and Testimony. 4. The SPDs As noted above, Defendants group thirty-two SPDs into five different groups based on the similarity of language contained within those SPDs. The first group of SPDs contains at least one reservation of rights (“ROR”) clause providing that the company may amend or terminate the plan at any time. This first group of SPDs also contains a provision that coverage will end upon death. The second group of SPDs does not contain an express ROR. Nor does it contain such provisions that coverage will end upon death. The third and fourth groups of SPDs contain no express language indicating that benefits are vested and contain a reservation of rights clause premised on business necessity. The final group contains only two SPDs, and they are only applicable to named Plaintiff Clark. The Court will address each group of SPDs in turn. a. The First Group of SPDs (1 through 6, 18, and 24 through 32) This first group of sixteen SPDs are substantially similar in that they contain at least one ROR stating that the company reserves the right to amend or terminate the plan at any time. They also contain the statement that the' retirees’ benefit coverage ends upon the retirees’ death. These SPDs include 1 through 6, 18, and 24 through 32. ' ■ Thirteen named Plaintiffs base their claims for medical benefits on SPDs 1 through 6. An additional 4,513 class members retired while SPDs 1 through 6 were in effect. SPD 18 is substantially similar to SPDs 1 through 4, and SPDs 24 through 32 are substantially similar to SPDs 5 and 6. A total of 6,108 selected class members retired while these SPDs 18 and SPDs 24 through 32 were in effect. 1. Language in the SPDs (a) Language in SPDs 1 through 4 SPDs 1 through 4 are medical SPDs. They all include sections entitled “When Coverage Ends.”' Under the “Retirees” section, it provides: Your coverage under the Retiree Medical Plan ends —when you die, or —you do not pay your share of the cost of your coverage. In a section entitled “Answering Your Needs,” these plans provide that “[b]y participating in the United Telecom Retiree Medical Plan, you can feel secure that your family’s health and well-being will be protected after you stop working.” SPDs 1 through 4 also includes ROR provisions. On the first page of each of these SPDs, there is language explaining that the document is a summary plan description of the medical plan which states: The company expects to continue the Retiree Medical Plan indefinitely. However, the company reserves the right to amend or terminate this plan, or any statement made in this summary plan description, at any time. Other language in the Plans, at various places, indicate that coverage could change in the future. For example, in a section entitled ‘What the Plan Covers,” it states that “[j]ust as medical coverage can change in the future for active employees, so can the coverage that is available to retirees.” SPDs 1, 2, and 4 include a “Legal Information” section. In this section, under the heading “The Plans’ Future,” it provides that the company intends to continue providing benefits, but it reserves the right to amend the Plan, change the method of providing benefits, or terminate the Plan. (b) Language in SPD 18 SPD 18 is also a medical SPD and similar to SPDs 1 through 4. SPD 18, however, only contains one ROR clause. It is located at the end of the Table of Contents. It provides: “Embarq intends to continue the Retiree Medical Plan. However, the Company reserves the right to change or discontinue any or all benefits under these options, or any statement in this summary plan description, at any time.” (c) Language in SPDs 5 and 6 SPDs 5 and 6 are similar to SPDs 1 through 4. The main distinction between them is that SPDs 5 and 6 cover both medical and life insurance benefits, while SPDs 1 through 4 only cover medical benefits. SPDs 5 and 6 include sections in the medical portion of the Plan entitled “When Coverage Ends.” Under the Retiree section, it provides: Your coverage under the Retiree Medical Plan ends when: —you die, or —you do not pay your share of the cost of your coverage. They also include a section in the . life insurance portion of the Plan entitled “When Does Coverage End” which provides that “[t]he basic life insurance coverage ends on the date of your death.” SPDs 5 and 6 also include several ROR provisions. On the first page of both of these SPDs, there, is language explaining that the document is a summary plan description of retiree benefits which states: The company expects to continue the Retiree Benefits indefinitely. However, the company reserves the right to amend or terminate this plan, or. any statement made in this summary plan description, at any time. Other language throughout the SPDs indicates that coverage could change in the future and that the company may change or terminate coverage. SPD 5 has a “Legal Information” section. In the “the Plans’ Future” section, it provides that the company intends to continue providing benefits, but “it reserves the right to amend any of the plans, to change the method of providing benefits, or to terminate any or all of the plans. You’ll be notified of any changes.” SPD 6 does not have this “Legal Information” section. (d) Language in SPDs 24 through 27 and SPDs 29 through 31 SPDs 24 through 27 and 29 through 31 are substantially identical to SPDs 5 and 6. They state that coverage ends when the recipient dies. They also include a general ROR clause at the beginning of the SPDs, language throughout the SPDs indicating that coverage could change in the future, and a “Legal Information” section which includes an additional ROR clause. (e) Language in SPDs 28 and 32 SPD 28 and' SPD 32 are also similar to SPDs 5 and 6. They include the provision that coverage ends upon death. SPD 28 and SPD 32, however, only contain one ROR clause. The clause is located on the Table of Contents page and provides: “[The Company] intends to continue the Retiree Medical Program. However, the Company reserves the right to change or discontinue any or all benefits under these options, or any statement in this summary plan description, at any time.” 2. Discussion of the SPDs Defendants contend that the named Plaintiffs and selected class members relying on these SPDs cannot demonstrate that Defendants intended to provide vested medical and life insurance benefits because: (1) although these SPDs state that coverage ends “when you die,” that language is insufficient to demonstrate vested lifetime benefits; and (2) even if the language could be construed as a promise of lifetime benefits, the same SPDs state that the company reserves the right to change or terminate benefits at any time. Plaintiffs disagree and state: (1) the “when you die” provisions in the SPDs demonstrate that they- are entitled to lifetime benefits, and (2) even if the “when you die” language does not establish benefits for life, that language is in conflict with the ROR clause, rendering the SPDs ambiguous. Plaintiffs then contend that if the SPDs are ambiguous, the Court must consider extrinsic evidence to determine whether Defendants intended to provide vested benefits. In Chiles v. Ceridian Corp., the Tenth Circuit discussed the difficulty of making the determination of whether welfare benefits vested under an ERISA plan when the plan contains both an RQR provision and a promise of lifetime benefits. At the time Chiles was decided, the Third, Fourth, and Eighth Circuits had addressed the same issue. The Tenth Circuit noted that in cases in which SPDs contained both a ROR clause and a promise of lifetime benefits, the weight of case authority supports the approach “that a reservation of rights clause allows the employer to retroactively change the medical benefits of retired participants, even in the face of clear language promising company-paid lifetime benefits.” In Chiles, however, the Tenth Circuit found it unnecessary to adopt a “hard-and-fast rule” that a general reservation of rights clause unambiguously controlled a promise of lifetime benefits found elsewhere in the same ERISA document because it found that the plan language allowed the employer the right to change benefits. Since the Tenth Circuit’s decision in Chiles, four additional circuits have determined that retirees’ benefits were not vested because the same document indicating lifetime benefits also contained an unambiguous reservation of rights provision allowing the employer to terminate or change the plan at any time. Plaintiffs nevertheless argue that the language in the SPDs stating that their benefits will end only “when [they] die” is sufficient to indicate an intent on the part of Defendants to provide lifetime benefits. Plaintiffs rely upon a Tenth Circuit case, Deboard v. Sunshine Mining & Refining Co., for this proposition. In Deboard, the employer sent letters to employees informing them of an early retirement program. The letter stated that employees who chose to participate in early retirement “would be entitled to receive health care ... [at the employer’s] expense until the time of your death.” The letter also contained specifics as to how the plan worked. The Tenth Circuit found that this letter constituted a new benefit plan, not previously in existence, for early retirees. Accordingly, the Tenth Circuit looked to the terms in that letter to determine whether plaintiffs’ rights were vested. Although the Tenth Circuit found in Deboard that the plaintiffs’ rights were vested under the plan, the facts in this case are distinguishable. In Deboard, the new benefit plan promising benefits until death did not include a reservation of rights clause. Nor did the new benefit plan contain any language indicating that the employer could terminate or change the plan at any time. In 'addition, the Tenth Circuit determined that even if they read the letter to incorporate a reservation of rights clause from the employer’s other plan documents, the reservation of rights provision was ambiguous as to whether the employer had the right to terminate or make changes to the plan. Those facts are not present in this case. The document that contains language indicating that benefits are available until Plaintiffs’ deaths also contains several reservation of rights provisions explicitly stating that the company can terminate or change the plan at any time. Furthermore, it is unambiguous as to whom could discontinue or terminate the plan. The SPDs state that the company reserves the 'right to discontinue the plan at any time. Thus, the language in the SPDs at issue differs from the language in Deboard, The language in Plaintiffs’ SPDs is more akin to language that other circuits have found non-indicative of vested lifetime ben©fits. In Crown Cork & Seal Co. v. Int’l Association of Machinists the Eight Circuit considered language in an SPD that provided that coverage continued “until your death.” The Eight Circuit determined that this language was not “explicit vesting language, and in any case, it is inconsistent with the reservation-of-rights clause ... which controls.” And the Third Circuit has held that “[a]n employer who promises lifetime medical benefits, while at the same time reserving the right to amend the plan under which those benefits were provided, has informed plan participants of the time period during which they will be eligible to receive benefits provided the plan continues to exist.” Plaintiffs complain that the reservation of rights clause is not cross-referenced in any section, does not appear with a heading or a warning, and is not listed in the Table of Contents. Thus, Plaintiffs assert that allowing Defendants to change or terminate the plan adds language to the “When Coverage Ends” section. The Court disagrees. In all of the SPDs at issue in this section of the Court’s order, the ROR clause, even if there is only one, appears either next to the Table of Contents or on the first page of the SPD. In the SPDs in which only one reservation of rights clause appears, it is in bold on the Table of Contents page. The placement of these RORs does not render them obscure, and the Court must read the SPDs as a whole. Furthermore, not allowing Defendants to amend or terminate the plans or benefits under the plans eliminates the stated right to do so and would render the inclusion of the reservation of rights clause meaningless and leave it without effect. Plaintiffs also argue that the statement in SPDs 1 through 4 that retirees who participate in the plan “can feel secure that your family’s health and well-being will be protected after you stop working” is an express assurance of life-long retirement security. The Court disagrees that this statement can be read as an intent to provide unalterable lifetime benefits. The statement simply explains that retirees can participate in the plan once they are retired. It must be read in conjunction with the reservation of rights clause allowing Defendants to amend or terminate the plan at any time. In sum, the same document that purports to promise lifetime benefits also contains an unambiguous reservation of rights clause which clearly sets forth that Defendants could amend or terminate benefits at any time. Accordingly, the Court grants summary judgment to Defendants with respect to the contractual vesting claims of the Named Plaintiffs and Selected Class Members covered by SPDs 1 through 6, 18, and 24 through 32. b. The Second Group of SPDs (7 through 9) The second group of three SPDs are life insurance SPDs. The language in each of the three SPDs is substantially similar. Unlike the SPDs discussed above, these life insurance SPDs do not contain an express reservation of rights provision. Nor do they contain any express statement that coverage ends upon death. Named Plaintiff Britt contends that his life insurance benefits vested under SPD 7. Named Plaintiff Britt, however, also relies on a collective bargaining agreement in effect when he retired. Because Britt relies on both SPD 7 and a collective bargaining agreement, the Court will discuss Britt’s claim separately below in Section I(4)(b)(3). Named Plaintiff Barnes relies on SPD 8 for her claim of vested life insurance benefits. Named Plaintiffs Fulghum, Daniel, Dorman, Joyner, and MeLaurin rely on SPD 9. Named Plaintiffs Hollingsworth, Bullock, and Games base their claim for vested life insurance benefits on SPDs 5 and 9. A total of 2,205 selected class members retired while SPDs 7 through 9 were in effect. 1. Language in these SPDs The pertinent provisions in these life insurance SPDs are as follows. A section entitled “Benefits for You” states: If you are an Employee who is retired on pension on or after June 1, 1981, and you were insured as an'Active Employee for contributory insurance under the Group Policy, or the Group Policy replaced on June 1, 1981, for the full time after your forty-fifth birthday that you were eligible for such insurance, the amount of your Life Insurance during the first five years following the date of your retirement will be an amount equal to the amount of your Life Insurance on the day preceding the date of your retirement. On the fifth anniversary of the date of your retirement the amount of your Life Insurance will automatically reduce to the greater of (a) one-half of the amount of Life Insurance applicable to you prior to such fifth anniversary, and (b) $1,500. If you retired on or after September 1, 1965, but before June 1, 1981, your Life Insurance will be that amount, if any, applicable to you under the Group Policy on May 31, 1981, and, if the fifth anniversary of the date of your retirement is on or after June 1, 1981, will be subject to the reduction set out in the preceding paragraph on the fifth anniversary of the date of your retirement. If you retired prior to September 1, 1965, your Life Insurance on June 1, 1981, will be that amount, if any, applicable to you under the Group Policy on May 31,1981. A section entitled “When Your Insurance Ends” states: Your insurance under the Group Policy •will end on the earliest of the following dates: (a) the date the Group Policy terminates; (b) the date ending the period for which you last contributed toward the cost of your insurance, if you discontinue your contributions; and (c) the date your employment as a member of the Eligible Group, ends. Notwithstanding any provisions herein to the contrary, if any person is absent from active work as the result of retirement on pension, his employment may be deemed to continue for the purposes of insurance hereunder until terminated by the Policyholder. Another section, “Life Insurance For You” states: “If your death occurs while you are insured under the Group Policy, [insurer ] will pay the amount of your group life insurance to your beneficiary.” Finally, three pages at the end of these SPDs set forth additional information about ERISA. One of the provisions states: “The requirements for being covered under this plan, the provision concerning termination of coverage, a description of the plan benefits (including any limitations and exclusion which may result in reduction or loss of benefits) are shown on the preceding pages of this booklet.” SPD 9 also states: “The Group Policy is a contract between the Policyholder ánd Pilot Life which alone constitutes the agreement under which payments are made. It may be changed or terminated only by those parties.” CT & T is designated as the Policyholder. 2.. Discussion of SPDs 7, 8, and 9 Defendants argue that they are entitled to summary judgment with respect to these SPDs because the named Plaintiffs and selected class members cannot demonstrate an intent to provide vested benefits because (1) the aforementioned SPDs do not state that retirees’ life insurance benefits are forever unalterable, and (2) the SPDs contain an express provision allowing for termination of the policy. Plaintiffs contend that (1) because these SPDs do.not contain reservation of rights provisions, Defendants do not have the power to make changes; (2) the SPDs contain promises that indicate vested benefits; and (3) the language that the group policy can be terminated is ambiguous. (a) The SPDs do not contain affirmative, lifetime language Plaintiffs contend that because these SPDs lack express ROR provisions, Defendants intended to provide vested lifetime benefits. The Tenth Circuit, however, requires that contractual vesting be stated in express language. Other circuits also require affirmative contractual vesting language. “The absence of language in [a plan document] flatly rejecting the concept of vesting does not alter the retirees’ failure to identify language that affirmatively operates to imply vesting.” Silence is not “tantamount to an affirmative contractual • commitment.” Thus, the fact that these SPDs do not contain an express reservation of rights clause stating that the plans can be amended or terminated does not indicate unalterable lifetime benefits for the plan participants. Plaintiffs also argue that the following language indicates an intent to provide vested, lifetime benefits: If you are an Employee who’is retired on pension on or after June 1, 1981 .-.. the amount of your Life Insurance during the first five years following the date of your retirement mil be an amount equal to the amount of your Life Insurance on the day preceding the date of your retirement. On the fifth anniversary of the date of your retirement the amount of your Life Insurance will automatically reduce to the greater of (a) one-half the amount of Life Insurance applicable to you prior to such fifth anniversary, and (b) $1,500. Plaintiffs, relying upon Devlin v. Empire Blue Cross & Blue Shield assert that terms of this kind, “will be” and “will automatically reduce,” indicate vesting. The Court disagrees. In Devlin, the Second Circuit looked at two provisions of an SPD and found that the language was “ ‘capable of reasonably being interpreted’ as creating a promise to vest lifetime life insurance benefits.” The first provision in the SPD provided that “retired employees, after completion of twenty years of fulltime permanent service and at least age 55 will be insured.” The second provision provided that life insurance benefits “will remain at the annual salary level for the remainder of their lives.” The language specifically states that individuals, who have completed twenty years of service and reached 55 years, will be insured. The Second Circuit determined that the language could “be construed as an offer that specifies performance as the means of acceptance — sometimes referred to as an offer for a unilateral contract — and promises lifetime insurance benefits upon performance.” In Plaintiffs’ case, there is no similar language offering lifetime benefits upon completion -of performance. The language states that if an employee retires on pension. on or - after a certain date, “the amount of [his or her] life insurance ... will be an amount equal to the .amount of your Life Insurance on the day preceding [his or her] retirement.” The “will be” refers to the “amount” that the retiree may receive, rather than the term for which the retiree will receive it. Furthermore, the SPD at issue in Devlin contained the additional statement that benefits “will remain at [the annual salary level] for the remainder of their lives.” The Second Circuit determined that this “ ‘lifetime’ language ... [was] sufficient to create a triable issue of fact as, to whether [defendant] promised to vest retiree life insurance benefits at the stated level.” In this case, the SPDs do not contain any similar durational language promising benefits for the remainder of the retiree’s lifetime. Accordingly, the Court finds that these SPDs do not contain express language promising lifetime benefits. Nor do these SPDs contain ambiguous language regarding the company’s intent to provide vested benefits. (b) The SPDs contain termination provisions The Court must read the SPDs as a whole, and there are several termination provisions in SPDs 7, 8, and 9. AH’ of these SPDs contain provisions which provide that “[y]our insurance under the Group Policy will end on - ... the date the Group Policy terminates.” SPD 9 contains an additional, express termination provision that states, “The Group Policy is a contract between the Policyholder and Pilot Life which alone constitutes the agreement under which payments are made. It may be changed or terminated only by those parties.” CT & T is designated as the Policyholder. Plaintiffs nevertheless argue that Defendants cannot terminate or amend the plan because language in the SPDs specifically distinguishes the plan from the group policy. At the end of the group policy, it states that the plan is “the Group Life, Accidental Death and Dismemberment and Life Insurance on Dependents Plan,” and the plan sponsor is CT & T. The SPD also provides that benefits under the plan are provided by the group policy. Because of this distinction between the plan and the policy and the fact that the termination provisions reference the group policy, and not the plan, Plaintiffs contend that Defendants only have the right to terminate the policy — not the plan itself. In the alternative, Plaintiffs contend that the language is ambiguous, which precludes Defendants from amending or terminating the benefits. In Gable v. Sweetheart Cup Co., the Fourth Circuit discussed a similar argument. In that case, the master policy was the relevant plan document, and it contained a provision stating, “This Policy may be amended or discontinued at any time- ... without the consent of or notice to any [plan participant.]” The plaintiffs argued that the modification clause reserved “only a right to change the particular insurance policy that the company purchased, not a right to change plan benefits in general.” But, as the Fourth Circuit noted, “A company may establish an employee welfare benefit plan merely by purchasing a group policy for its employees.” Thus, the Fourth Circuit found that the modification provision did not limit the company’s right to amend the plan because the policy was the entirety of the welfare benefit plan. In this case, the last pages of the SPDs provide that “all benefits of this plan are provided by [the group policy].” They also state that “[t]he requirements for being covered under this plan ... are shown on the preceding pages of this booklet.” Indeed, Plaintiffs do not identify any other written document establishing plan benefits, and they rely on the language in the SPD in an attempt to establish their vested benefits. Thus, there does not appear to be a distinction between the policy and the plan. None of these SPDs contain clear and express language providing for vested, lifetime benefits. In addition, all three SPDs contain provisions indicating that benefits may terminate at some point. Accordingly, the Court grants Defendants’ motion with respect to those Named Plaintiffs and Selected Class Members covered by SPDs 7 through 9. 3. Discussion of Named Plaintiff Britt’s Claim (SPD 7 and the 1984 CBA) Named Plaintiff Britt retired in 1985. When he retired, CT & T and the Communications Workers of America (“CWA”) were parties to a collective bargaining agreement effective November 30, 1984, through November 29, 1987 (“1984 CBA”). Britt contends that SPD 7 and the 1984 CBA are relevant to his claim of vested medical and life insurance benefits. Thus, the Court must consider the 1984 CBA in conjunction with SPD 7 with respect to named Plaintiff Britt. The 1984 CBA provides that “[t]he Company will maintain a medical insurance plan and pay 100% of the plan premium during the term of the agreement.” It also provides that “[ojther insurance programs of the Company, including group life insurance ..., shall remain in force during the term of the agreement.” Article 36, Section 1 of the 1984 CBA, “Duration of Agreement,” provides that “[t]his agreement becomes effective on November 30, 1984 and shall remain in full force and effect until 12:00 midnight on November 29,1987.” Section 2 states: This Agreement shall continue in full force and effect after November 29,1987 unless either party gives the other party sixty (60) days written notice to cancel, revise or modify part of the Agreement. In the event agreement is not reached within sixty (60) days after such notice of cancellation, the Agreement shall in all respects be voided and. terminated. Extensions may be agreed to by written agreement between the parties. Defendants do not specifically address how this CBA relates to named Plaintiff Britt’s claim of vested benefits. Plaintiffs also' do not address how this CBA specifically relates to Britt’s claim, but they do address some of the language contained in the CBA. Plaintiffs contend that because the CBA expressly states that it will continue past the expiration date of November 29, 1987, unless the union and the employer agree to a revision, the CBA providing for the retiree benefits does not expire. Because Defendants do not address whether the CBA remains in effect, they cannot demonstrate the absence of a genuine issue of ' material fact. Accordingly, the Court denies Defendants’ motion for summary judgment as to named Plaintiff Britt. c. The Third Group of SPDs (10 through 12 and 19) These four SPDs are medical SPDs. The language in these four SPDs is substan- ■ tially similar. Language in these SPDs indicate that benefits will continue after retirement. There is also an express reservation of rights clause allowing Defendants to terminate or amend the plan for reasons of business necessity and several termination provisions throughout the policy- Named Plaintiff McLaurin contends that his medical benefits vested under the terms of SPD 10. Named Plaintiff Barnes contends that her medical benefits vested under SPDs 11 and 12. A total of 717 selected class members retired while SPDs 10 through 12 were in effect. SPD 19 is substantially similar to SPDs 11 and 12. An additional 55 class members retired while SPD 19 was in effect. 1. Language in these SPDs SPDs 10 through 12 and 19 include the following provisions. The section entitled “When You Retire” provides that “[a]ll benefits currently offered to active employees will continue after retirement by CT & T.” The “When Your Insurance Begins” section includes a sub-heading of “When You Retire.” Under this sub-section, it provides: All benefits currently offered to active employees will continue after retirement by CT & T. If you have not attained age 65, you will be insured for the same benefits currently offered to regular employees. If you have attained age 65, you will be insured for the same benefits currently offered to regular employees but subject to the application of the Non-Duplication of Benefits Provisions. The “When Insurance Ends” section provides: Your insurance ends when any of the following events occurs: (1) you leave our employ (2) you are no longer eligible (3) the Group Policy ceases. If you are insured for your, dependents under the Group Policy on the date of your death, and your spouse survives you, the Medical Care Insurance only on account of your Eligible Dependents may be continued, while the Group Policy remains in force and subject to all its provisions, until the widow’s (or widower’s) remarriage, provided the payment of any required contribution is made when due. A “Cessation of Benefits (Group Health Insurance)” section provides: No benefits (including any extended benefits) will be paid under the plan for any charges, fees or expenses incurred on or after the first of these dates to occur: (1) the date the Group Policy ceases (2) the date the coverage ends on the class of which a person is a member. Finally, there are several pages at the end of these SPDs setting forth additional information about ERISA rights. One of the provisions states: “The requirements for being covered by this plan, the provision concerning termination of coverage, a description of the plan benefits (including any limitations and exclusion which may result in reduction or loss of benefits) are shown on the preceding pages of this booklet.” Under “Future Plan Benefits,” it provides that “[t]he Company expects to continue the Plan for the foreseeable future. However, the Company reserves the right to amend, discontinue or terminate the Plan, for reasons of business necessity or financial hardship.” SPD 10 also states, “The Group Policy is a contract between the Policyholder and Pilot Life. They are the only parties to the contract. The contract alone is the agreement by which payments are made. It may be changed or terminated only by one of these parties.” CT & T is designated as the Policyholder. 2. Discussion of these SPDs Defendants argue that they are entitled to summary judgment with respect to these SPDs because the named Plaintiffs and selected class members cannot demonstrate an intent to provide vested benefits because: (1) -these SPDs do not state that retirees’ life insurance benefits are forever unalterable, and (2) these SPDs contain provisions allowing for termination of the policy. Plaintiffs contend that unqualified promissory language indicates an intent to provide vested benefit's, and the reservation of rights language only allows Defendants to terminate or amend the plan for business necessity or financial hardship which Defendants fail to demonstrate. (a) The SPDs do not contain affirmative, lifetime language Plaintiffs assert that the following provisions in the SPDs are unqualified promises of vested, lifetime benefits for retirees: (1) “[a]ll benefits currently offered to active employees will continue after retirement,” and (2) “you will be insured for the same benefits currently offered to regular employees.” The Court will first address the “will continue” language. The Tenth Circuit, and several other circuits, have addressed similar language and have determined that the language is not indicative of vested benefits. In Deboard, the Tenth Circuit considered language in a plan providing that employees “would be allowed to continue participation in the Group Dental Plan at company expense” and that employees “would also be covered for $10,000 life insurance on [themselves] and $5,000 on [their spouse(s) ] with Security Connecticut, with the premiums for these coverages also paid by the Company. Despite the language that the employees’ benefits “would be allowed to continue” and that the employees “would be covered” for a certain amount, the. Tenth Circuit found that “[n]othing in this language suggests an intent on the part of defendants to create vested rights in dental and life insurance coverage.” In Sengpiel v. B.F. Goodrich Co., the Sixth Circuit considered a SPD which stated that “if you retire and are eligible for a pension you shall continue to have the same health coverage.” The Sixth Circuit determined that “such language neither expressly guarantees lifetime benefits nor creates an ambiguity as to whether such benefits are vested.” Other language in the plan provided that “a retiree’s spouse will continue to receive benefits after the retiree dies ‘until death or remarriage.’ ” ■ Although the Sixth Circuit found that this language was more persuasive, it still fell “far short of expressing a clear intent to render such benefits ‘forever unalterable.’ ” Similarly, in this case, the Court finds that the “will continue” language does not promise lifetime benefits nor establish an intent to provide vested, unalterable benefits. With respect to the language “you will be insured for the same benefits currently offered to regular employees,” Plaintiffs emphasize the “will be insured” language. This language, however, must be read in the context of the entire sentence, and it is simply explaining the type of benefits available to retirees after their retirement. It does not state, nor imply, that benefits are forever unalterable once an individual retires. In sum, the language Plaintiffs identify as unqualified promises of lifetime benefits do no such thing. The language does not establish an intent to provide lifetime, unalterable benefits. Nor is the language ambiguous as to whether the company intended to provide vested benefits. (b) The SPDs contain a ROR clause and termination provisions Furthermore, SPDs 10 through 12 and 19 contain an express ROR provision. It provides that the company expects to continue the plan for the foreseeable future, but it reserves the right to amend, discontinue, or terminate the plan, for reasons of business necessity or financial hardship. Both parties rely upon the Tenth Circuit’s opinion in Chiles v. Ceridian Corporation when interpreting the meaning of this ROR clause. Defendants contend that the ROR clause is similar to the ROR- clause in Chiles, and it gives Defendant almost unlimited authority to terminate or amend the plan. Plaintiffs contend that the ROR language contains a more rigorous standard for amending or terminating the plan than the one the Tenth Circuit considered in Chiles. In Chiles, the ROR clause provided that the company intended to continue the plan indefinitely, but it reserved the right to change or discontinue it if it became necessary. In discussing this ROR clause, the Tenth Circuit found that “the termination clause retained almost unlimited discretion in [defendant] to change the plan.... The term ‘if necessary,’ found in the SPDs of all four Control Data plans, is not conditioned on any event or circumstance. Thus its meaning cannot fairly imply, as plaintiffs suggest, that the plans can only be amended if necessary to their fiscal survival.” In this case, the ROR clause does appear to impose a higher standard than the “if necessary” standard in Chiles because it is premised on “business necessity” or “financial hardship.” But the “business necessity” standard is only slightly more stringent because Defendants could amend the plan for business necessity. In any event, it is important to note that the issue before the Court is whether there is a question of fact as to whether the plan language indicates an intent to provide Plaintiffs with vested lifetime insurance benefits. The fact that these SPDs contain an express ROR clause allowing the company to discontinue or terminate the plan, even premised on the basis of business necessity, indicates that Defendants did not intend to provide unalterable, vested benefits. In contrast, the ROR language indicates that the company contemplated amending or terminating the plan. Furthermore, these SPDs contain several termination provisions' throughout the SPDs. All of these' SPDs include a provision stating that “your insurance ends when .... the group policy ceases.” In addition, a section entitled “Cessation of Benefits” provides that “no benefits (including any extended benefits) will be paid under the plan ... incurred on or after ... the date the Group Policy ceases.” Finally, SPD 10 contains an express termination provision stating that CT & T can change or terminate the policy. For the reasons set forth above in Section I(C)(4)(b)(2)(b) of this Order, the Court finds that these termination provisions indicate that Plaintiffs’ benefits were not vested and unalterable. When considering the SPDs as a whole, the Court cannot find questions of fact as to whether Defendants intended to provide vested benefits. Nor can the Court find that these SPDs are ambiguous. Accordingly, the Court grants Defendants’ motion for summary judgment with respect to those Named Plaintiffs and Selected Class Members covered by SPDs 10 through 12 and 19. d. The Fourth Group of SPDs (13 th