Full opinion text
TABLE OF CONTENTS Page FACTS . 982 A. The Stevens Salaried Plan. 982 B. Salaried Plan Management Prior to the Restructuring.983 C. Plan Restructuring and Reversion. 984 D. The Window. 987 DTSCTISSTON. 990 » > A. The Restructuring and Reversion. t — t 05 1. Basis for Remedy Claimed by Lynch. i — l 05 2. The Restructuring and Reversion — ERISA’s Exclusive Benefit Rule and Provisions on Fiduciary Duties. to to to a. Benefits Protected Under ERISA. to to ISO b. Plan Terminations Under ERISA and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions. to to CO c. Transfers of Plan Assets Under ERISA and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions... to to 05 999 3. Funding of Accrued Benefits for Salaried Plan Participants and the Implementation of the Restructuring and Reversion. 999 a. Funding for Benefits for Future Service. 1001 b. Funding of Benefits Accrued through 26 June 1985 _ 1003 c. Funding for the Window. 1003 d. Funding for the Increase in Salaried Plan Benefits. 1004 e. Funding for Early Retirement Subsidies. 1007 4. The Management of the Salaried Plan and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions. 1007 a. The Management Practices of Stevens with Respect to the Salaried Plan and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions. 1008 b. Management of the Salaried Plan by Stevens and the Allegation of Fraud. 1009 c. Use of Investment Managers and ERISA’s Exclusive Benefit Rule. 1009 d. Increase in the Actuarial Assumptions and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions .. 1010 e. Stevens’ Alleged Use of Salaried Plan Assets for the Benefit of the Hourly Plan and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions. 1012 f. Stevens’ Alleged Use of Retiree Plan Assets for the Benefit of the Salaried Plan and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions. Page . 1012 g. The Propriety of “Speculative” Investments and ERISA. . 1013 h. Segregation of Salaried Plan Assets and ERISA. 5. Notice to Salaried Plan Participants of the Restructuring of the Salaried Plan and ERISA . o h- B. The Window. o CONCLUSION. OPINION LECHNER, District Judge. Plaintiff Joseph P. Lynch (“Lynch”), a former employee of defendant J.P. Stevens & Co., Inc. (“Stevens”), brought this action against defendants Stevens, Thomas C. Durst (“Durst”) and the J.P. Stevens & Co., Inc. Pension Committee (the “Pension Committee”) (Stevens, Durst and the Pension Committee are collectively referred to as the “Defendants,” and Lynch and the Defendants are collectively referred to as the “Parties”). Jurisdiction is alleged pursuant to the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 624(a), and the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Lynch filed his complaint (the “Complaint”) on 29 June 1988. While the Complaint states three counts, the actions of the Defendants alleged therein are described throughout the Complaint and may be grouped into six categories. First, Lynch alleges the Defendants violated various provisions of ERISA in restructuring the Salaried Employees Retirement Salaried Plan (the “Salaried Plan”) of which Lynch was a participant and in recapturing $112 million in assets deemed surplus. Second, Lynch alleges the early retirement incentive offered to corporate area employees (the “Window”) who elected to retire by a designated date violated the ADEA. Third, Lynch alleges he was improperly denied Window benefits because he was in fact a corporate area employee. Fourth, Lynch alleges he was terminated from employment and not offered an alternative position within Stevens in violation of the ADEA and the Stevens personnel policy. Fifth, Lynch alleges the current Salaried Plan (the “On-Going Plan”) has been inadequately funded since the restructuring and recapture. Finally, Lynch alleges the Defendants failed to provide him with information regarding the Window in violation of the procedural provisions of ERISA. Lynch seeks as relief reinstatement to his former position at Stevens, back pay and benefits, and “compensatory and punitive damages for emotional stress, humiliation, and breach of expressed and implied contract.” Complaint at 15-16. Lynch also apparently seeks injunctive relief “[tjhat [Stevens] salaried employees pension plan be fully funded” and attorneys’ fees. Complaint at 15-16. The Defendants now move for summary judgment on the Complaint insofar as it relates to the restructuring of the Salaried Plan, to the recapture of assets deemed surplus and to Window Benefits. Because there is no genuine issue of material fact and because the restructuring of the Salaried Plan, the recapture of assets deemed surplus, the offering of the Window and the denial to Lynch of Window benefits did not as a matter of law violate ERISA or the ADEA, the Motion is granted. Facts Lynch was employed by Stevens on 1 April 1972 and was terminated on 15 January 1988 from a position as Administrative Manager for the International Division. Lynch Cert., ¶ 2. He was fifty-nine years old at the time of his discharge. Id. A. The Stevens Salaried Plan Stevens established the Salaried Plan effective 1 January 1948. Defendants’ Memorandum at 9; Opposition at 1. The Salaried Plan is a defined benefit pension plan for the benefit of eligible salaried employees. Defendants’ Memorandum at 9; Opposition at 2. As such, the Salaried Plan provides fixed benefits to participants based on a benefit formula set forth in the Salaried Plan. See 1983 Plan at 10-25. In general, pension benefits are calculated based on each participant’s compensation and period of covered employment with Stevens. Id. Pension benefits accrue during each participant’s period of covered employment and become vested, or nonforfeitable, after ten years of accrual (or after five years of accrual effective 1 January 1989), and are generally paid in monthly installments upon normal retirement at age 65 or upon early retirement at age 55. Id.; Anderson Cert., ¶ 14. The Salaried Plan provides that all accrued benefits become vested upon its termination. 1983 Plan at 44. Stevens is the sole contributor to the Salaried Plan. 1983 Plan at 34; Retiree Plan at 34; On-Going Plan at 34; Complaint at 8. Contributions by Stevens are determined based on actuarial calculations of the amount necessary to fund the obligations of the Salaried Plan. Id. From 1948 to the present, actuarial services for the Salaried Plan have been provided by George B. Buck Consulting Actuaries, Inc. (“Buck”). Anderson Cert., ¶ 7. As actuary, Buck is responsible for estimating the present value of future benefits to be paid by the Salaried Plan and for calculating the yearly contribution by Stevens based on a funding method which allocates to the current year a portion of the difference between the present value of future benefits and the current value of assets. Anderson Cert., ¶ 4. Because the Salaried Plan provides defined benefits to participants and because Stevens is its sole contributor, Stevens bears the risk of the Salaried Plan’s actual investment experience relative to actuarial predictions. Id. at ¶ 16. If the actuarial predictions for investment returns are lower than actual experience in a given year, Stevens is then required to make larger contributions to the Salaried Plan in subsequent years. Id. If, on the other hand, actuarial predictions prove too high, Stevens is permitted to decrease its contributions in subsequent years. Id. The funding method for the Salaried Plan and its investment earnings affect only the amount Stevens is required to contribute to the Plan. Id. Under the terms of the Salaried Plan, the Investment Committee of the Stevens’ Board of Directors (the “Investment Committee”) has the authority to make investment decisions for the Salaried Plan as “named fiduciary.” 1983 Plan at 37; Retiree Plan at 37; On-Going Plan at 37. The Investment Committee is also responsible for implementing funding policies and methods of funding contributions of Stevens to the Salaried Plan so as to maintain the Salaried Plan on a sound actuarial basis and so as to meet the minimum funding standards of ERISA. Id. The Salaried Plan also provides for the establishment of the Pension Committee by the Board of Directors to serve as “named fiduciary.” 1983 Plan at 38-41; Retiree Plan at 38-41; On-Going Plan at 38-41. The Pension Committee has the authority under the Salaried Plan to administer the Salaried Plan in all respects with the exception of those functions ascribed to the Investment Committee, including the setting of interest rates to be used for actuarial calculations and the determination of eligibility for participation in the Salaried Plan. Id. The Salaried Plan provides the Pension Committee shall be entitled to rely on information furnished by the actuary (Buck), and states: “[A]ll actions so taken or permitted shall be conclusive upon all persons having or claiming to have any interest in or under the [Salaried] Plan.” Id. The Salaried Plan permits its modification or amendment if such modification or amendment does not deprive a participant of benefits to which the participant is entitled or make it possible for Salaried Plan assets to be used for purposes other than for the exclusive benefit of participants before plan liabilities have been satisfied. 1983 Plan at 42; Retiree Plan at 42; On-Going Plan at 42; Complaint at 9. The Salaried Plan also authorizes its merger and consolidation with other plans and the transfer of its assets to other plans if the benefits provided to a participant prior to such merger, consolidation or transfer are equal to or greater than “the benefit [the participant] would have been entitled to receive immediately before the merger, consolidation, or transfer if the Plan had then terminated.” 1983 Plan at 42-43; Retiree Plan at 42-43; On-Going Plan at 42-43 (emphasis added). The Salaried Plan contains an “exclusive benefit” provision, which provides: [E]xcept as otherwise hereinafter provided, no part of the corpus or income of the funds shall be used for, or diverted to, purposes other than for the exclusive benefit of Members ... prior to the satisfaction of all liabilities.... 1983 Plan at 35-36; Retiree Plan at 35-36; On-Going Plan at 35-36. Finally, the Salaried Plan permits its termination and provides that upon termination, “any funds not required to satisfy all liabilities of the Plan for benefits because of erroneous actual computation or otherwise shall be returned to [Stevens].” 1983 Plan at 44; Retiree Plan at 44; On-Going Plan at 44 (emphasis added). B. Salaried Plan Management Prior to the Restructuring In order to increase investment returns, the Investment Committee approved an investment management structure in 1981 whereby all assets of the Salaried Plan and other Stevens retirement plans were placed in a master trust (the “Master Trust”). Zerrenner Dep. at 26; Investment Manager Restructure at 1. The Northern Trust Company (“Northern Trust”) was appointed trustee of the Master Trust effective 1 October 1981. See Master Trust; Holt Cert., 111; Opposition at 1. The Master Trust consisted of a single commingled fund in which a number of participating retirement plans of Stevens were deemed to have proportionate interests. Master Trust at 2-1; Holt Cert., 11 2. The retirement plans which were included in the Master Trust were the Salaried Plan, the Hourly Employees’ Salaried Plan of J.P. Stevens & Co., Inc. (the “Hourly Plan”) and other plans for the salaried and hourly employees of the Stevens subsidiaries Foote & Davies, Inc. and Ruralist Press, Inc. (the “Subsidiary Plans”). Id. Northern Trust determined the respective shares of Master Trust assets pertaining to the various retirement plans as of 1 October 1981. The determinations of the shares pertaining to the Subsidiary Plans were based on the value of the investment portfolio and contract value for each plan as determined by Northern Trust as of the day preceding the creation of the Master Trust. With respect to the Salaried and Hourly Plans, the determination of their shares was based on the value of the Salaried Plan portfolio as determined by Morgan Guaranty Trust Company (“Morgan”), the previous trustee for the Salaried Plan, and the value of the Hourly Plan portfolio as determined by the Equitable Life Assurance Society of America (“Equitable”), the previous trustee for the Hourly Plan. Holt Cert., If 4, 6. The initial percentages of total Master Trust interests were reallocated quarterly to the respective retirement plans to reflect interim contributions on behalf of each retirement plan. Holt Cert., ¶ 8. Aside from the initial valuations performed by Morgan and Equitable, Northern Trust determined the value of the Master Trust. Holt Cert., 1111. Under the terms of the Master Trust, responsibility for day-to-day investment decisions was held by the Operating Investment Committee, an adjunct to the Investment Committee, and by investment managers, or outside investment firms with expertise in various types of investments. See Investment Manager Restructure; Zer-renner Dep. at 21, 26; Opposition at 2. In addition, Northern Trust had discretion to invest certain assets. Master Trust, Arts. VII-VIII. Investments made following the creation of the Master Trust included the purchase of Stevens stock. Zerrenner Dep. at 57-58. C. Plan Restructuring and Reversion Stevens became aware in 1982 that the Salaried Plan was substantially overfund-ed. Zerrenner Dep. at 49-50; 17 August 1982 Zerrenner Memo, to W. Stevens et al. The overfunding was caused by higher than expected yields on Salaried Plan investments and by a contribution level by Stevens which had been based on conservative actuarial methods and assumptions. Zerrenner Dep. at 86; Restructuring Proposal at 1. In order to attempt to decrease the amount of the surplus, the actuarial assumption for interest rates was gradually increased in 1983 from seven percent to nine percent, with a corresponding increase in the assumption for future pay liability. Zerrenner Dep. at 63; Defendants’ Memorandum at 16. In addition, the funding method was changed from the aggregate method, the most conservative funding method, to the projected unit method, the least conservative method. Zerrenner Dep. at 64-66; 17 August 1982 Zerrenner Memo, to W. Stevens et al. Under the projected unit method, future pay increases were carried as a liability by Stevens. Zerrenner Dep. at 66. These changes in actuarial methods decreased contributions by Stevens to the Salaried Plan for 1983 and 1984. Zerrenner Dep. at 121. The changes, however, had no effect on the level of benefits to be distributed under the Salaried Plan as a defined benefits plan. Anderson Cert., 1116; Zerrenner Dep. at 67. Because the Salaried Plan continued to be overfunded in spite of these changes, the Stevens Board of Directors began consideration toward the end of 1983 of a proposal to restructure the Salaried Plan so as to recapture excess assets. Zerrenner Dep. at 105-06. On 17 April 1984, a formal proposal was submitted to the Board of Directors to restructure the Salaried Plan. Zerrenner Dep. at 106; Restructuring Proposal. On the same date, the Stevens Board of Directors adopted a resolution providing for the restructuring of the Salaried Plan and for the recapture of excess assets by Stevens (the “17 April 1984 Board Resolution”). 17 April 1984 Board Minutes; Zerrenner Dep. at 106. The 17 April 1984 Board Resolution provided for the division of the Salaried Plan into two plans, one for active employees (the On-Going Plan) and one for retired employees (the Retiree Plan). 17 April 1984 Board Minutes. It also provided for the allocation of assets needed to fund obligations of the On-Going Plan to that Plan and for the allocation of all remaining assets to the Retiree Plan. Id. It then provided for the termination of the Retiree Plan upon the purchase of lifetime annuities for Retiree Plan participants. It further stated: “All active employees shall be fully vested in their benefits accrued as of June 1, 1984.” Id. It provided for the subsequent recapture of assets remaining in the Retiree Plan after the purchase of the annuities. Id. Finally, it provided for an increase in benefits, including a two percent increase in benefits under the Retiree Plan for each full year of retirement commencing 1 April 1980 and a special contribution to the savings plans of On-Going Plan participants of 2% of gross pay for three years. Id. It conditioned its implementation on successful accomplishment of the restructuring of the Salaried Plan and authorized the Executive Committee of the Board of Directors to set the implementation date. Id. The Executive Committee of the Board of Directors adopted a resolution on 21 May 1984 (the “21 May 1984 Board Resolution”) which made the termination of the Retiree Plan effective 1 July 1984 and which provided: “[A]ll active employees shall be fully vested in their benefits accrued as of July 1, 1984 under the [Salaried] Plan as referred to in the Resolutions.” See 21 May 1984 Executive Committee Resolution. Stevens publicized its plan for the restructuring and reversion with Salaried Plan participants prior to and upon completion of its implementation. Stevens issued a press release on 17 April 1984 announcing its plan to restructure the Salaried Plan into two plans and to recover more than $50 million in excess assets following the restructuring. See Press Release. On 18 May 1984, Stevens circulated a letter to Salaried Plan participants, informing them: Stevens intends to divide the current plan into two plans — one for retired employees and one for our active employees .... After the necessary regulatory agencies are notified ... and more than enough money is set aside to meet all of the current pension commitments, there will be substantial excess assets that [Stevens] can use to help achieve its long-range goals. 18 May 1984 Stevens Letters to Participants. Finally, Stevens printed a Notice to Interested Parties, which counsel for Stevens states was sent to Salaried Plan participants, stating: This plan is going to be amended and split into two plans: One for active employees ... and one for retired employees .... The plan for retired employees will then be technically “terminated.” This technical “termination” will have no effect on the payment of benefits. A Notice of Intent to Terminate will be filed with the [PBGC] on April 9, 1984 and the proposed date of termination is May 1, 1984. The Plan Administrator believes that the plan assets under the retired employees plan will be adequate to provide for all vested benefits for participants under the plan. Notice to Interested Parties; Defendants’ Memorandum at 23-24. Northern Trust purchased annuities to cover the benefit obligations of the Retiree and On-Going Plans with respect to benefits accrued as of 1 July 1984 by making a one-time payment of $124.9 million to the Mutual Life Insurance Company of New York (“MONY”). Hardy Cert., ¶ 4; Anderson Cert., If 10. The annuity contracts unconditionally and irrevocably guaranteed payment by MONY of benefits accrued through 1 July 1984. Hardy Cert., ¶¶12-3; Anderson Cert., II10. In addition, the annuity contracts guaranteed payment of early retirement benefits for employees who met the age (fifty-five years old) and service requirements for eligibility as of 30 June 1984. Hardy Cert., 118; Anderson Cert., 1121. Participants in the On-Going Plan, including Lynch, were issued certificates reflecting the amount of benefits accrued through 30 June 1984 and payable on retirement. Hardy Cert., H 7. Because Lynch had met the eligibility requirements for early retirement benefits as of 30 June 1984, the annuity contract for the On-Going Plan guaranteed him payment of normal retirement benefits of $412.39 a month or an early retirement benefit, depending on his date of retirement. Id.) Deferred Annuitant Certificate. Northern Trust purchased “participating” annuity contracts for both the On-Going and Retiree Plans, whereby it paid to MONY an additional $8.6 million above a designated “trigger point” from which it was entitled to withdraw funds. Hardy Cert., 11112-3, 4, 6; Anderson Cert., H 25. The participating annuity contracts permitted Northern Trust to participate in investment gains as long as aggregate funds did not decline below the trigger point. Hardy Cert., 11 5. If the value of the assets fell below the trigger point, the contract automatically converted to a traditional, nonparticipating annuity. Id.; Anderson Cert., ¶ 25. On 1 June 1984, Stevens sought the approval of the IRS for the division of the Salaried Plan into the Retiree Plan and the On-Going Plan by filing a Form 5310 Notice of Transfer of Assets and Liabilities. 1 June 1984 Stevens Letter to IRS. Stevens advised the IRS the division of the Salaried Plan would take place on 1 July 1984, and indicated 1 July 1984 where Form 5310 requested the “date of merger, consolidation or transfer.” Id. Stevens also wrote to the PBGC on 19 June 1984 to advise it Stevens was dividing its Salaried Plan into a plan for active employees (the On-Going Plan) and a plan for retirees (the Retiree Plan) effective 1 July 1984. 19 June 1984 Notice to PBGC. Stevens further advised the PBGC it was dividing up current Salaried Plan assets between the two plans in sufficient amounts to cover benefits under the two plans. It stated that also effective 1 July 1984 it was terminating the Retiree Plan and recapturing from it excess assets. Id. It stated benefits accrued as of 1 July 1984 under the On-Going Plan would become vested, and those benefits as well as benefits under the Retiree Plan would be annui-tized. Id. Because all assets of the various Stevens retirement plans were commingled under the Master Trust, Northern Trust segregated Salaried Plan assets in a separate account within the Master Trust (the “Salaried Plan Account”) in April 1985 to facilitate the restructuring. Holt Cert., ¶¶ 14, 15. On 25 April 1985, the PBGC issued a Notice of Sufficiency to Stevens advising Stevens it had determined Salaried Plan assets were sufficient “as of [the] proposed date of distribution to discharge when due all obligations of the [Salaried] Plan with respect to guaranteed benefits.” See Notice of Sufficiency. The PBGC designated as the date of termination 1 July 1984. Id. Also on 25 April 1985, the PBGC approved use by Stevens of participating annuity contracts to cover Retiree and On-Going Plan liabilities accrued through 30 June 1984. 25 April 1985 PBGC Letter to Stevens. On 25 June 1985, the IRS notified Stevens it had determined termination of the Retiree Plan did not adversely affect qualification of the Retiree Plan for tax-exempt status. See 25 June 1985 IRS Letter to Stevens. The IRS further advised Stevens it was required to continue filing the Form 5500 for the Retiree Plan until all Retiree Plan assets were distributed. Id. The restructuring of the Salaried Plan into two plans and the subsequent termination of the Retirees Plan (the “spinoff and termination”) was implemented in June 1985 after all the requisite agency approvals were received. Anderson Cert., 1118. Stevens recaptured approximately $112 million in excess assets on 27 June 1985. See 26 June 1985 Northern Trust Letter to Stevens. Northern Trust distributed the excess assets to Stevens in cash and Stevens stock. Holt Cert., 1117. In addition, Northern Trust established two new accounts in the Master Trust, one for the Retiree Plan (the “Retiree Plan Account”) and the other for the On-Going Plan (the “On-Going Plan Account”). Holt Cert., 1116. Assets from the Salaried Plan account were distributed pro rata to those two accounts. Id. On 27 June 1985, Stevens issued letters to Salaried Plan participants informing them the restructuring and recapture of assets was approved by the PBGC. See 27 June 1985 Stevens Letters to Participants. The letters also informed Salaried Plan participants some recaptured assets would be used to increase their benefits and the payment of such increases would commence in August 1985. Id. Because the spin-off and termination were effective 1 July 1984, “the status of benefits [under the On-Going Plan accrued through 1 July 1984] was ‘frozen’ as of that date and the respective rights and obligations determined accordingly.” Anderson Cert., ¶ 18. The annuity contract purchased for the On-Going Plan satisfied liabilities accrued as of 30 June 1984. Benefits under the On-Going Plan, including early retirement benefits for employees who retired after 1 July 1984, began to accrue only as of 1 July 1984. Anderson Cert., 111110,12, 20-21. The On-Going Plan carried future liability in the amount of $29 million following the reversion. Zerrenner Dep. at 319. Because the Retiree Plan was terminated effective 1 July 1984, it did not accrue any benefits or accept any members after that date. Anderson Cert., 1120. Stevens continues to file annually a Form 5500 with the IRS for the Retiree Plan pursuant to IRS instructions because it has not distributed all benefits payable under the Retiree Plan. Anderson Cert., ¶ 23; 25 June 1985 IRS letter to Stevens. Stevens issued plan documents for the Retiree Plan and for the On-Going Plan. Defendants’ Memorandum at 18. The plan documents for the On-Going Plan give its effective date as 1 July 1984 and describe it as “a continuation, revision and modification of the Plan first effective January 1, 1948.” On-Going Plan at 1. They further state: As of July 1, 1984, the former Plan was split into two plans, (1) the Retired Employees Retirement Salaried Plan of J.P. Stevens & Co., Inc. and Subsidiaries, designed to cover all Members under the former Plan who were retired as of June 30, 1984, and (2) this Plan, designed to cover all other Members of the former Plan. Id. at 1. The plan documents for the Retiree Plan also give its effective date as 1 July 1984. Retiree Plan at 1. The Retiree Plan provides: As of July 1, 1984, the former Plan was split into two plans, (1) this Plan, designed to cover all Members under the former Plan who were retired as of June 30, 1984, and (2) the Retirement Salaried Plan of J.P. Stevens & Co., Inc. and Subsidiaries, designed to cover all other Members of the former Plan. This Plan shall be frozen and admit no new members and shall exist only to pay out benefits to its Members as of July 1, 1984. Id. at 1. D. The Window Beginning in 1983, Stevens attempted to increase its profitability by abandoning less profitable areas of its business. Durst Cert., ¶ 6. Stevens closed several of its plants in 1984 and 1985. Durst Cert., ¶ 7. With these divestitures, Stevens decreased in size by approximately forty percent. Durst Cert., 11 8. Corporate staff, i.e., staff who serviced the company as a whole, were not affected by the divestitures. Durst Cert., 11118, 17. Senior managers therefore agreed at a February 1986 meeting to make a reduction in corporate staff proportionate to the non-corporate reductions resulting from the 1984 and 1985 divestitures by using a voluntary retirement incentive (the Window). Durst Cert., 119. A follow-up meeting was held in March 1986 to discuss general eligibility criteria for the Window. Durst Cert., 11 9. The management staff present discussed limiting the Window to employees earning less than $65,000 and offering the Window on a company-wide basis. Durst Cert., ¶ 14-15. A company-wide Window was ruled out because it carried the risk that senior managers in the merchandising and sales departments would retire and because it was specifically corporate employees who were providing services no longer required in light of the newly-reduced size of Stevens. Durst Cert., ¶ 15; Zerrenner Dep. at 170-71. Corporate staff were identified using a functional approach whereby staff were deemed corporate if they performed services for Stevens as a whole. Durst Cert., 1117; Zerrenner Dep. at 176. Thus, certain presidents of divisions who were performing corporate services at the time the Window was offered were deemed eligible, including Irwin Gusman and W.W. Stasney. Id. In addition, because it was decided to offer the Window to all corporate employees who met the age guidelines, offerees included some corporate employees who were not performing surplus functions. Zerrenner Dep. at 177-78. Members of the International Division, of which Lynch was a member, were not offered the Window. The International Division was regarded not as a corporate area but as a division, in that its financial results were reported individually, it submitted its own profit and loss reports and it had its own division president. Id. The divisions of Stevens were held individually accountable for their financial results and division presidents were responsible for cost-cutting decisions, including the decision to terminate staff. Durst Cert., ¶ 18; Zerrenner Dep. at 171. The unprofitability of the divisions or their need to reduce staff were not considered in devising eligibility criteria for the Window. Id. By April 1986, it was determined the Window would be offered to all staff designated as “corporate” who were eligible for retirement. Durst Cert., 11 21. It was decided that corporate employees who would be required to retire in 1986 in any event because of their age, including Paul Nipper, would be included, and it was decided not to impose a salary limit on eligible corporate staff. Id. A “five plus five” program with an eligible age of fifty years old was agreed to, whereby each participant would receive an additional five years of credited service and age under the pension benefits formula of the On-Going Plan. Id. In addition, participants between the ages of 59 and 62 would receive an additional $500 a month under the Window. Id. The Stevens Board of Directors gave its authorization for the Window at a 15 May 1986 meeting. Durst Cert., 1122. The Stevens Board of Directors ratified the Window as an amendment to the On-Going Plan by unanimous written consent on 21 January 1987. Durst Cert., 11 24; 21 January 1987 Board Resolution. The 21 January 1987 Board Resolution made the Window amendment effective 19 May 1986. 21 January 1987 Board Resolution. On 19 May 1986, after receiving authorization for the Window by the Board of Directors, Stevens sent a letter announcing the Window to eligible corporate staff along with an election form. See 19 May 1986, Stevens Letter to Window Offerees. The letter stated the Window was available to corporate employees aged 50 by year-end and older with at least one year of service who decided between 19 May 1986, when the letter was issued, and 30 June 1986 to retire. Id. The letter described the Window benefits, and stated: If you elect to take early retirement during the Window period, your most likely retirement date will be August 1, 1986.... If you elect to retire as of August 1, 1986, the Company may request that you stay for a few months to complete special assignments. However, there will be very few of these exceptions and only with the approval of the Chairman’s office. Id. In addition, eligible corporate employees received a list of informational questions and answers (the “Questions and Answers”) as further explanation of the Window. Durst Cert., ¶ 27. The Questions and Answers stated only active corporate employees were eligible for the Window. See Questions and Answers. It also stated a few corporate employees in key positions who elected the Window may be held by management for critical business needs beyond 31 July 1986, the date set for retirement under the Window. Id. The Questions and Answers advised Window offer-ees: “[I]t is not anticipated that this program will ever be offered again....” Id. It also informed the offerees they were not permitted to sign up for the Window after the 30 June 1986 deadline. Id. In the end, seventy-seven corporate employees out of approximately two hundred and twenty offerees elected the Window. Durst Cert., 1129; Defendants’ Memorandum at 28. Stevens retained fifteen to twenty Window participants beyond the 1 August 1986 designated retirement date in order to complete work in progress. Durst Cert., IT 31. Given the number of acceptances, Buck determined the value of benefits under the Window to be $2,526,603. Durst Cert., U 30. Lynch was terminated on 15 January 1988 from his position at Stevens as Administrative Manager for the International Division. Lynch Cert., H 2. Lynch’s supervisor told him on 5 January 1988 that although he received a $10,000 job performance bonus during 1987, Stevens eliminated his job. Id. On 11 January 1988, apparently after being notified of his pension benefits, Lynch wrote to Linda Harris (“Harris”), the personnel manager of Stevens, to express disappointment at not receiving Window benefits and to request consideration for the benefits. 11 January 1988 Lynch Letter to Harris. Harris responded to Lynch on 27 January 1988 to advise him he would not be offered the Window because the Window had been offered to corporate employees only for retirements which occurred prior to 30 June 1986. 27 January 1988 Harris Letter to Lynch. In addition, the Pension Committee considered the request of Lynch and determined on 9 March 1988 to deny him Window benefits because he was ineligible when the benefits were originally offered and because he had not elected to retire by 1 July 1986, the date the Window period expired. Durst Cert., H 32; 9 March 1988 Salaried Committee Minutes. On 29 January 1988, Lynch filed the Charge of Discrimination with the EEOC. See Charge of Discrimination. He stated in the Charge of Discrimination: I have been denied the opportunity of accepting [the Stevens] Early Retirement Package extended to corporate employees, and my position has been terminated effective January 15, 1988. The respondent based its denial of early retirement on my alleged non-corporate status. I believe I have been discriminated against because of my age (59¥2) in violation of the Federal Age Discrimination in Employment Act of 1967, as amended. Id. Lynch states the “EEOC did not make any findings” with respect to his Charge of Discrimination. Lynch Answers to Interrogatories at 2. In support of their Motion, as it relates to the restructuring of the Salaried Plan and the recapture of assets deemed surplus, the Defendants argue the restructuring and recapture were effected in accordance with the provisions of the Salaried Plan and of ERISA. They further argue the recapture was legal because all accrued benefits through the effective date of the restructuring had been met by the purchase of the annuities. In opposition to the Motion, Lynch asserts the restructuring and recapture of excess assets violated ERISA because Lynch was not given adequate notice of the restructuring prior to its implementation. Lynch also contends the restructuring and reversion violated ERISA because Salaried Plan liabilities in the form of benefits for future service, early retirement benefits, the increase in benefits approved by the Board of Directors when they approved the restructuring and reversion, and benefits accrued through the date of actual implementation of the restructuring were not satisfied by the annuities. Lynch further contends the recapture constituted the use of Salaried Plan assets for purposes other than for the exclusive benefit of participants in violation of the “exclusive benefit rule" of ERISA, 29 U.S.C. § 1103(c). Finally, Lynch contends the implementation of the restructuring and reversion constituted a breach of the fiduciary duties of the Defendants under ERISA. In support of their Motion, as it relates to the Window, the Defendants argue the Window does not violate the ADEA because while it makes distinctions based on age, it is exempted from challenge under the ADEA by 29 U.S.C. § 623(f)(2) as a bona fide benefits plan. The Defendants also assert Lynch was denied Window benefits because he was not eligible under the terms of the Window as an employee of the International Division and because he missed the application deadline for Window benefits. In opposition to the Motion as it relates to the Window, Lynch variously argues the Window is not a bona fide pension plan within the meaning of § 623(f)(2) because it discriminates against employees who are not senior management employees and because it was targeted against employees over the age of fifty, or employees in the class protected by the ADEA. He also challenges the bona fides of the Window on the ground that several high level non-corporate area managers were offered the Window and permitted to work past the retirement date mandated under the Window as exceptions to its terms. With respect to the denial to him of Window benefits, Lynch asserts he should have been offered Window benefits because he was eligible as a corporate area employee. Discussion To prevail on a motion for summary judgment, the moving party must establish “there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The district court's task is to determine whether disputed issues of fact exist, but the court cannot resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir.1989); Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir.1989). Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a fact issue, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... In the language of the Rule, the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in original, citations and footnotes omitted). The court elaborated on the standard in Anderson: “If the evidence [submitted by a party opposing summary judgment] is merely colorable ... or is not significantly probative ... summary judgment may be granted.” 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986): “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Id. at 323-24, 106 S.Ct. at 2553 (footnote omitted). Thus, once a case has been made in support of summary judgment, the party opposing the motion has the affirmative burden of coming forward with specific facts evidencing the need for trial. See Fed.R.Civ.P. 56(e). See also Aronow Roofing Co. v. Gilbane Bldg. Co., 902 F.2d 1127, 1128 (3d Cir.1990) (“summary judgment will be granted where the non-moving party fails to ‘establish the existence’ of an element essential to the case.”). A. The Restructuring and Reversion 1. Basis for Remedy Claimed by Lynch Lynch contends a common law right of action for equitable restitution exists under ERISA and entitles him to demand restoration of the reversion to the On-Going Plan. Opposition at 66-68 (citing, among other cases, Plucinski v. I.A.M. Nat. Pension Fund, 875 F.2d 1052, 1056-58 (3d Cir.1989); Carl Colteryahn Dairy, Inc. v. Western Pennsylvania Teamsters & Employers Pension Fund, 847 F.2d 113, 120-22 (3d Cir.1988), cert. denied, 488 U.S. 1041, 109 S.Ct. 865, 102 L.Ed.2d 989 (1989); Van Orman v. American Ins. Co., 680 F.2d 301, 311-314 (3d Cir.1982); Murphy v. Heppenstall Co., 635 F.2d 233, 237-39 (3d Cir.1980), cert. denied, 454 U.S. 1142, 102 S.Ct. 999, 71 L.Ed.2d 293 (1982)). Lynch then argues: Stevens should, therefore be, ordered to restore its illegal profits plus a 9 percent (9%) assumed investment rate of return on top of such restored figure since such figure was used as an actuarial assumption. This equitable restitution, however, only provides for restoration of ill-gotten gains and the disgorgement of such profits. The Court should also fashion a remedy of punitive damages in order to discourage such wrongdoing in the future and serve as a lesson to deter future fiduciary breaches. Opposition at 66-67. Lynch does not state in his complaint that he seeks the equitable restitution of the reversion to the On-Going Plan. He states he seeks injunctive relief “that [Stevens] salaried employees pension plan be fully funded,” Complaint at 15-16, apparently seeking payment by Stevens of alleged delinquencies. The claim for equitable restitution of the reversion is not within the parameters of the Complaint and is therefore not before this court for decision. However, even if Lynch had presented this claim in the Complaint, he would not be entitled to equitable restitution. ERISA is a “comprehensive and reticulated statute” adopted by Congress after careful study of private retirement pension plans. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510, 101 S.Ct. 1895, 1899, 68 L.Ed.2d 402 (1981) (quoting Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980)). Therefore, “[w]here Congress has established an extensive regulatory network and has expressly announced its intention to occupy the field, federal courts will not lightly create additional rights under the rubric of federal, common law.” Van Orman, 680 F.2d at 312. The courts in the cases cited by Lynch found common law rights of action under ERISA only after determining that the plaintiffs claim was based on a violation of law by the defendant or on a right of the plaintiff provided by law or contract and that such a right of action would not be inconsistent with ERISA. See, e.g., Plucinski, 875 F.2d at 1056 (finding common law right of action by employer to equitable restitution of contributions made because of mistake of fact or law, finding that 29 U.S.C. § 1103(c) permitted the return to the employer of contributions mistakenly made); Carl Colteryahn Dairy, 847 F.2d at 118-19 (following merger of two plans and subsequent withdrawal by one, court found common law right existed for withdrawing plan to recover withdrawal penalty against second plan because second plan fraudulently represented prior to the merger it was adequately funded); Van Orman, 680 F.2d at 313 (finding no common law right of action for plan participants to recoup share of surplus assets attributable to their contributions prior to plan termination, finding ERISA, 29 U.S.C. § 1344(d)(2), and pension agreement provided only for post-termination distribution surplus); Murphy, 635 F.2d at 237 (finding common law right of action for employees to recover difference between benefits guaranteed by PBGC and benefits promised by collective bargaining agreement). In the instant case, Lynch does not allege he is entitled to demand restoration of the reversion based on a right provided by law or contract. Rather, his claim is based on his assertion of illegal activity by the Defendants. Lynch may not, therefore, demand the equitable restitution of the reversion if the conduct of the Defendants was not illegal as a matter of law. As will be explained, Lynch has not shown the conduct of the Defendants was illegal. Lynch also seems to rely on section 1109 of Title 29 as a basis for demanding restoration of assets recaptured by Stevens to the On-Going Plan. Lynch quotes section 1109, and then states: “Lynch submits that Stevens, through its Board of Directors, who acted as the investment fiduciary for the Stevens Salaried Employee Pension Plan, is liable to restore the profits which have been made through the abuse of its fiduciary duties.” Opposition at 65. See also Complaint at 14. As will be discussed, Lynch has not shown the Defendants breached their fiduciary duties to Salaried Plan participants. The above referenced contentions of Lynch are but a few general examples of why it is so difficult to understand just what conduct of the Defendants with respect to the restructuring and reversion or with respect to the management of the Salaried Plan Lynch alleges was illegal and how such conduct was illegal. Nevertheless, each assertion which appears to constitute an allegation of illegal activity is considered in turn. 2. The Restructuring and Reversion— ERISA’s Exclusive Benefit Rule and Provisions on Fiduciary Duties Lynch appears to contend the restructuring and reversion violated ERISA’s exclusive benefit rule and the provisions governing fiduciary duties because they benefit-ted the company and because Durst participated in their implementation under a conflict of interest. a. Benefits Protected Under ERISA The purpose of ERISA is to ensure pension plan participants “actually receive benefits and do not lose benefits as a result of unduly restrictive forfeiture provisions or failure of the pension plan to retain sufficient funds to meet its obligations.” Wright v. Nimmons, 641 F.Supp. 1391, 1406 (S.D.Tex.1986) (quoting 1974 U.S.Code Cong. & Admin.News 4676-77)). ERISA is intended to protect only benefits which a participant has been promised and for which the conditions of eligibility have been met. Alessi, 451 U.S. at 510, 101 S.Ct. at 1899. ERISA renders only accrued vested benefits nonforfeitable. 29 U.S.C. § 1053(a); Alessi, 451 U.S. at 511, 101 S.Ct. at 1900. Accrued benefits are defined in ERISA as a participant’s right to a retirement benefit “determined under the plan ... expressed in the form of an annual benefit commencing at normal retirement age.” 29 U.S.C. § 1002(23)(A). Accordingly, accrued benefits are comprised of the interest in a retirement benefit a participant earns each year, as calculated by the formula specified by the plan. Hoover v. Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977, 981-82 (3d Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985). “Normal retirement age” is defined in ERISA as the date so specified by the plan or the later of either the attainment of age 65 or 10 years participation in the plan. 29 U.S.C. § 1002(24). b. Plan Terminations Under ERISA and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions A single employer plan may be terminated pursuant to section 1341. 29 U.S.C. § 1341. Section 1344 governs the allocation of plan assets upon termination of the plan. 29 U.S.C. § 1344. Section 1344(a) contains an ordering provision which prioritizes the parties to whom the assets must be distributed. 29 U.S.C. § 1344(a). Upon plan termination, section 1344(d)(1) permits an employer to recoup surplus assets remaining after the liabilities to parties listed in section 1344(a) have been met, if the recapture does not contravene any provision of law and if the plan permits the recapture of surplus assets. 29 U.S.C. § 1344(d)(1). See also Blessitt v. Retirement Plan for Employees of Dixie Engine Co., 848 F.2d 1164, 1170 (11th Cir.1988); Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 261 (D.D.C.1983), aff’d, 729 F.2d 863 (D.C.Cir.1984); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132 (E.D.Pa.1977), aff’d, 582 F.2d 1275 (3d Cir.1978) (plan included language necessary to reserve the employer’s right to the remaining trust assets). Section 1344 ensures employers will “not be penalized for overfunding ‘in an abundance of caution’ or as a result of a miscalculation on the part of an actuary. Accordingly, employees will continue to be protected to the extent of their specific benefits but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis.” In re C.D. Moyer Co. Trust Fund, 441 F.Supp. at 1132-33. See also Chait v. Bernstein, 835 F.2d 1017, 1027 (3rd Cir.1987); Wright, 641 F.Supp. at 1406-07. Title II of ERISA allows reversion of surplus assets to the employer upon termination of a plan without loss to the plan of its tax exempt status. See 26 U.S.C. § 401(a)(2). Treasury Regulation § 1.401-2(b)(1) defines “surplus” as “any balance remaining in the trust which is due to erroneous actuarial computations,” i.e., “arising because actual requirements differ from the expected requirements.... ” 26 C.F.R. § 1.401-2(b)(1). Title II of ERISA requires the vesting of all accrued benefits upon termination of a plan, not withstanding the vesting provisions contained by the plan, in order for the plan to retain tax-exempt status. 26 U.S.C. § 411(d)(3). In addition, the Treasury, the PBGC and the Department of Labor issued on 23 May 1984 joint administrative guidelines (the “Joint Guidelines”). The Joint Guidelines require employers to vest benefits of plan participants prior to terminating and spinning off a plan and prior to recapturing surplus assets. The Joint Guidelines require employers to cover accrued benefits prior to such spin-off and termination with annuity contracts. PBGC News Release 84-23 (23 May 1984), reprinted at 11 Pens.Rep. (BNA) 724 (28 May 1984). The Joint Guidelines provide: “[Wjhen an employer terminates a defined benefit pension plan, it may not recover any surplus assets until it has fully vested all participants' benefits and has purchased and distributed annuity contracts to protect participants against the risk that their accrued benefits may be jeopardized by future market fluctuations or other factors.” Id. at 111. ERISA, 29 U.S.C. § 1104(a)(1), imposes on plan fiduciaries certain duties to participants. One court has described these duties as having three components: a “duty of loyalty” to plan participants, a duty of care to administer the plan “with the ... skill, prudence, and diligence ... [of] a prudent [person]” and a duty to act “for the exclusive purpose” of providing benefits to plan participants. Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1162 (6th Cir.1988). In addition, section 1103(c)(1) contains ERISA’s “exclusive benefit rule” which provides that plan assets “shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan.” 29 U.S.C. § 1103(c)(1). The ERISA exclusive benefit rule, 29 U.S.C. § 1103(c)(1), specifically makes an exception for the recapture of surplus assets by employers pursuant to section 1344(d)(1) following termination of a plan. Courts therefore generally hold the exclusive benefit rule does not prohibit employers from recouping assets in excess of those required to meet plan liabilities prior to termination. See, e.g., Audio Fidelity Corp. v. Pension Ben. Guaranty Corp., 624 F.2d 513 (4th Cir.1980); Walsh v. Great Atlantic & Pacific Tea Co., 96 F.R.D. 632 (D.N.J.1983), aff’d, 726 F.2d 956 (3d Cir.1983); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. at 1128. A plan which contains language parroting the language of the ERISA exclusive benefit rule will not be found to prohibit reversion of surplus assets to an employer. Fechter v. HMW Industries, Inc., 879 F.2d 1111, 1117 (3d Cir.1989); Chait, 835 F.2d at 1026 (“A rule that read ERISA ‘exclusive benefit’ language to prohibit reversion to the employer might tempt employers to be overly cautious in funding their plans[,] ... a result that would benefit no one.”); Wright, 641 F.Supp. at 1406-07 (“Common sense dictates that employers which fund plans under ERISA guidelines should not be penalized for overfunding in an abundance of caution or as a result of miscalculation by the actuary.”). Only where the language of a plan clearly prohibits all reversions to an employer or prohibits any amendment to the plan which permits such reversions will a plan be held to prohibit the recapture of surplus assets despite the allowance of section 1344(d)(1). See, e.g., Bryant v. International Fruit Products Co., 793 F.2d 118, 122-23 (6th Cir.), cert. denied, 479 U.S. 986, 107 S.Ct. 576, 93 L.Ed.2d 579 (1986); Delgrosso v. Spang and Co., 769 F.2d 928, 935 (3d Cir.1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 692 (1986); Rosenbaum v. Davis Iron Works, Inc., 669 F.Supp. 813, 818-20 (E.D.Mich.1987), aff’d in part and rev’d in part, 871 F.2d 1088 (6th Cir.), cert. denied, — U.S. —, 110 S.Ct. 235, 107 L.Ed.2d 186 (1989). Section 1104(a)(1) governing fiduciary duties under ERISA also makes specific exception for the recapture of surplus assets by employers pursuant to section 1344(d)(1) following termination of a plan. The recapture of excess assets following the termination of a plan, therefore, has been held to not constitute a breach of fiduciary duties. See, e.g., Amalgamated Clothing & Textile Workers Union v. Murdock, 861 F.2d 1406 (9th Cir.1988); International Union, United Automobile, Aerospace and Agricultural Implement Workers v. Dyneer Corp., 747 F.2d 335 (6th Cir.1984); Washington-Baltimore Newspaper Guild, 555 F.Supp. at 257; Pollock v. Castrovinci, 476 F.Supp. 606 (S.D.N.Y.1979), aff’d, 622 F.2d 575 (2d Cir.1980). c. Transfers of Plan Assets Under ERISA and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions In addition to permitting the termination of a plan and the recapture of excess assets, ERISA also permits the transfer of assets from one plan to another. 29 U.S.C. § 1058. Transfer of assets may only be accomplished, however, where sufficient assets are transferred to cover the extent of the liabilities which would exist had the plan been terminated. Id.; United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 199 (6th Cir.1988). Where a transfer is effected by moving assets of a defined benefit plan into a spun-off plan, the spun-off plan is only required to cover benefits calculated “on a termination basis,” or benefits accrued through the date of the spin-off. 26 C.F.R. § 1.414(1)-1(n); Cyclops Corp., 860 F.2d at 199. The Joint Guidelines set forth what conditions must be met by an employer in a spin-off and termination of a plan in order for the employer to recoup excess assets without violating the Exclusive Benefit Rule. In addition to fully vesting benefits and covering all benefits accrued as of the date of termination by the purchase of annuity contracts, an employer must provide participants with “advance notice of the transaction in similar time and manner as if the entire similar plan were being terminated.” Joint Guidelines, 11 Pens. Rep. (BNA) at 724. A transfer of assets pursuant to section 1058 and recoupment of surplus assets by the employer does not violate the ERISA exclusive benefit rule. In Holliday v. Xerox Corp., 732 F.2d 548 (6th Cir.), cert. denied, 469 U.S. 917, 105 S.Ct. 294, 83 L.Ed.2d 229 (1984), employees formerly employed by companies acquired by the employer (“Xerox”) deposited pension accounts acquired in the course of their previous employment into the “optional” pension fund of Xerox. Xerox transferred these accounts into its Retirement Income Guarantee Plan (“RGIP”) to offset contributions to the RGIP. The employees whose accounts were so transferred claimed the transfer was done in order to reduce contributions to the RGIP by Xerox in violation of the exclusive benefit rule. The court determined Xerox did not violate the exclusive benefit rule, holding: The language of ERISA stating that “the assets of a plan shall never inure to the benefit of any employer” cannot be read as a prohibition against any decisions of an employer with respect to a pension plan which have the obvious primary purpose and effect of benefitting the employees, and in addition the incidental side effect of being prudent from the employer’s economic perspective. As the legislative history makes clear, ERISA recognizes the inherent tension between the desire that employees retire with adequate retirement income and the practical internal pressures exerted on the trustees charged with preserving the assets of the pension fund_ Congress did not intend the Act to penalize employers for exercising their discretion to make rational economic decisions which are both in the best interests of the preservation of the fund and which are also not adverse to the employer’s interests. Id. at 552. The transfer of assets by employers pursuant to section 1058 and recoupment of surplus assets following transfer do not constitute a breach of fiduciary duties where plan liabilities have been satisfied. In Bigger v. American Commercial Lines, Inc., 862 F.2d 1341, 1343-44 (8th Cir.1988), the participants of a spun-off plan claimed the employer breached its fiduciary duty under section 1104(a) to act for the exclusive purpose of providing benefits to participants when it recouped assets above the amount needed to satisfy plan liabilities rather than allocate them to the spun-off plan. Bigger, 862 F.2d at 1343-44. The court phrased the issue as whether a general provision of ERISA such as section 1104(a) supersedes a specific provision such as section 1058 containing the standard to apply in the transfer context. The court found: A well-established principle of statutory construction ... is that a specific statutory provision prevails over a more general provision. See Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944) (quoting Ginsberg & Sons v. Popkin, 285 U.S. 204, 52 S.Ct. 322, 76 L.Ed. 704 (1932)). This rule applies with special force with regard to a reticulated statute such as ERISA. Given this complicated statutory scheme, it seems reasonable to conclude that Congress, whenever possible, attempted to clarify what conduct satisfies the fiduciary standards. Section 1058 provides such guidance in the context of transferring plan assets. Id. at 1344 (parallel citations omitted). The Bigger court therefore held the transfer and recoupment of excess assets following the transfer did not violate the employer’s fiduciary duties. It added: “It would seem anomalous for Congress to permit total recoupment of excess assets upon termination but to prohibit recoupment during a spinoff.” Id. at 1345. See also Cyclops Corp., 860 F.2d at 201 (failure to fund transferee plan with more assets than required to cover benefits calculated on a termination basis was not a violation of section 1103 or section 1104); Bass v. Retirement Plan of Conoco, Inc., 676 F.Supp. 735, 745 (W.D.La.1988) (“It is no violation of a trustee’s fiduciary duties to take a course of action which reasonably promotes the interest of plan participants simply because it incidentally also benefits the corporation”) (quoting Morse v. Stanley, 732 F.2d 1139, 1146 (2d Cir.1984)). In the instant case, Lynch concedes Stevens satisfied its obligations with respect to the accrued benefits of Salaried Plan participants as of 30 June 1984, the effective date of the restructuring, by its purchase of the MONY annuity contracts. See Nadler Cert, at 17 (“[T]he MONY annuity contracts ... covered the accrued benefits up to June 30, 1984.”); Nadler Cert, at 7 (“Stevens provided only for the accrued benefits of the plan participants through June 30, 1984....”); Opposition at 53 (“[T]he pension asset reversion [left] Lynch’s pension benefits unprotected after July 1, 1984_”) (emphasis added). Lynch also concedes the recaptured assets were surplus asse