Full opinion text
OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter comes on before this Court on four consolidated appeals and cross-appeals from an order of the District Court dated March 29, 2007, and entered on March 30, 2007, denying defendants’ motion for summary judgment and granting in part and denying in part plaintiffs’ cross-motion for summary judgment. See Shaver v. Siemens Corp., No. 2:02cv1424, 2007 WL 1006681 (W.D.Pa. Mar. 29, 2007). Plaintiffs, now the appellees/cross-appellants in this appeal, Ronald Shaver, William Whitney, Joe Fedele, Ralph Riberich, and Anthony Katz, on behalf of themselves and others similarly situated, brought this class action against defendants, now appellants/eross-appellees, Siemens Corporation (“Siemens”), appellees’ former employer, and its retirement plans, Siemens Westinghouse Retirement Plan for Union Employees and Siemens Westinghouse Retirement Plan, alleging that those entities violated the Employee Retirement Income Security Act of 1974 (“ERISA”) by refusing to provide appellees with Permanent Job Separation pension benefits (“PJS benefits”) when Siemens terminated their employment. Appellees’ action has been partially successful in the District Court but remains unresolved as to the rest of the case. For the reasons that follow, we will reverse on one of Siemens’ appeals to the extent that the District Court denied it summary judgment for we conclude that Siemens was entitled to summary judgment on the entire case with respect to all appellees, and we will remand the case to the District Court for entry of judgment in favor of Siemens and its retirement plans. Entry of the order on the remand will bring this litigation to a close with respect to the substantive matters at issue. II. FACTUAL and PROCEDURAL HISTORY On November 14, 1997, Westinghouse Electric Corporation (“Westinghouse”) agreed to sell its Power Generation Business Unit (“PGBU”) to Siemens in a transaction to be effectuated through an Asset Purchase Agreement (“APA”). There was, however, a delay in the consummation of the transaction, and Siemens and Westinghouse did not execute the APA until approximately nine months later, on August 19, 1998. As the APA contemplated, Siemens hired all Westinghouse PGBU employees who, on August 19, 1998, had been working actively, were on vacation, or were on short-term disability (“legacy employees”). Appellees are 227 legacy employees who transferred employment from Westinghouse to Siemens. At the time that Siemens and Westinghouse executed the APA, Westinghouse sponsored and maintained a defined benefit pension plan for its employees, including the soon-to-be legacy employees (the ‘Westinghouse Plan”). Under section 19 of the Westinghouse Plan, employees who satisfied certain age and service requirements, but did not qualify for normal retirement benefits, and who were terminated by an “Employer, an Affiliated Entity, or Excluded Unit because of job movement or product line relocation or location close-down” were entitled to PJS benefits. J.A. 292, 345. Stated succinctly, PJS benefits provide for payment of an employee’s normal retirement benefit without actuarial reduction prior to normal retirement age, an additional monthly payment of $10.00 multiplied by the employee’s years of credited service if the employee’s special retirement date was on or before January 1, 1995, and an additional monthly payment of $100.00 if the employee had 25 years of eligibility service and his special retirement date was on or before January 1, 1995. See id. 345-50. As we later will explain, it is highly significant that the Westinghouse Plan defined an “Employer, Affiliated Entity, or Excluded Unit” as Westinghouse or any Westinghouse subsidiary or joint venture participating in the Westinghouse Plan. Id. 284, 288, 292. The definition did not, however, include any future employer, here Siemens, of Westinghouse employees. The Westinghouse Plan also contained two critical express limitations on the availability of PJS benefits: (1) a provision providing that “in no event shall a Permanent Job Separation occur if an Employee is offered continued employment by ... a successor employer,” and (2) a so-called “sunset provision” providing that “[i]n no event shall a Permanent Job Separation occur after August 31, 1998.” Id. 293. Thus, in the absence of an amendment of the Westinghouse Plan, the plan would not provide for PJS benefits to an employee offered employment by a successor to Westinghouse, as happened here, or by reason of a separation after August 31, 1998, as was also the case here. The APA included many specific provisions governing the pensions and benefits of the legacy employees, which, so far as germane to this appeal, we explain in more detail below. At its broadest, however, the APA required that Siemens establish a defined benefit pension plan for the legacy employees “that contain[ed] terms and conditions that are substantially identical with respect to all substantive provisions to those of the Westinghouse Pension Plan as in effect as of the Closing Date” of the APA and that Siemens was to provide “compensation and benefit plans and arrangements which in the aggregate are comparable” to those of the Westinghouse Plan as of the closing date. Id. 137-38. Thus, Westinghouse and Siemens contemplated that the pension benefits for legacy employees essentially would continue unabated after consummation of the sale of the PGBU. There is, however, no suggestion in the APA or in any other document elsewhere in the record that Westinghouse and Siemens contemplated that the consummation of the sale would result in enhancement of the legacy employees’ pension benefits. Although Westinghouse and Siemens did not execute the APA until August 19, 1998, prior to that date they adopted an amendment to the APA that provided that the closing date of the APA, though only for the purpose of pensions and benefits, would be September 1, 1998. In the same amendment Westinghouse and Siemens also amended the APA to provide that Westinghouse would amend its pension plan to offer the legacy employees, though only for benefit accrual purposes, credit for service and compensation from August 19 through August 31, 1998, even though Siemens would become their employer as of August 19. In turn, Siemens agreed not to terminate any legacy employee other than for cause prior to September 1, 1998, and agreed that if it nevertheless did so it would “reimburse [Westinghouse] for any actuarial pension loss caused by any such termination.” Id. 156. Thereafter, Westinghouse amended its plan to reflect this amendment to the APA. On October 29, 1998, Siemens adopted separate but virtually identical defined benefit pension plans for union and nonunion employees, which were made effective retroactively to September 1, 1998, the plans thereby becoming activated as of the time the Westinghouse Plan no longer would give the legacy employees credit for service and compensation. Consequently, the consummation of the Westinghouse-Siemens transaction left the legacy employees in the same position in which they had been prior to the closing of the transaction with regard to PJS benefits because under the Westinghouse Plan separation from service after August 31, 1998, could not result in a terminated employee being eligible for PJS benefits. As we have indicated, notwithstanding the sale of the PGBU to Siemens and the adoption of the Siemens Plans, after execution of the APA and to this day, the Westinghouse Plan has remained in existence and it continues to provide legacy employees the pension benefits they accrued under the Westinghouse Plan. Legacy employees who qualify for benefits thus receive two pension payments: one from the Westinghouse Plan for benefits accrued prior to September 1, 1998, and another from a Siemens Plan for benefits accrued from September 1, 1998 forward. In 1999, Siemens closed certain PGBU facilities and consequently terminated the employment of numerous legacy employees, including the appellees in this case. Upon their termination, 207 of the 227 appellees signed severance agreements in which they released Siemens from liability and promised not to sue it for any claims related to or arising out of their employment or termination. In exchange for their signing the agreement, Siemens paid the signatories varying amounts of severance pay. Though the validity of the releases was a major issue in the District Court, as will be seen we need not address that issue on this appeal. Notwithstanding having executed these releases, in March 2002 appellees submitted claims to the Siemens Plans for PJS benefits, but the Siemens Plans’ administrative committees denied those claims on the ground that neither Plan provided for PJS benefits, an undoubtedly correct decision so far as the terms of the Siemens Plans were concerned. On August 15, 2002, appellees filed a complaint in the District Court against Siemens and the Siemens Plans, alleging that those entities’ denial of their claims for PJS benefits violated ERISA. The Court assigned the case to a Magistrate Judge for pretrial proceedings in accordance with the Magistrate Act, 28 U.S.C. § 636(b)(1)(A). Following discovery, the parties filed cross-motions for summary judgment, which led to the Magistrate Judge’s filing a report and recommendation on December 13, 2005, with the District Court. After the parties filed objections and responses, the Court entered the order which is the subject of this appeal. The Magistrate Judge recommended that the District Court grant appellees’ motion as to the 20 class members who had not signed releases (the “Non-Release Plaintiffs”) and grant Siemens’ motion as to the 207 members who had signed releases (the “Release Plaintiffs”). The Magistrate Judge concluded that Siemens violated ERISA sections 208, 29 U.S.C. § 1058, and 204(g), 29 U.S.C. § 1054(g), a decision she based on two theories which we address in detail below. The Magistrate Judge determined, however, that Siemens had satisfied its initial burden with respect to the Release Plaintiffs of proving the waivers’ validity and further determined that appellees had failed to provide evidence that they did not knowingly and voluntarily execute the waivers. Consequently, the Magistrate Judge recommended that the Court grant summary judgment in Siemens’ favor with respect to the Release Plaintiffs. Thus, the gravamen of the Magistrate Judge’s recommendation was that Siemens wrongfully denied all appellees PJS benefits but to the extent that appellees had waived their PJS claims by executing the severance agreements including releases of their PJS claims Siemens avoided liability. The parties filed cross-objections and responses in the District Court to the report and recommendation as both sides were satisfied in part and dissatisfied in part with the report and recommendation. On March 29, 2007, the Court granted appellees’ summary judgment motion with respect to the Non-Release Plaintiffs and denied summary judgment to Siemens as to both classes of plaintiffs. Apparently adopting both of the Magistrate Judge’s theories of liability, the Court determined that Siemens violated ERISA in denying PJS benefits and that in the absence of their signing releases all appellees would be entitled to PJS benefits. The Court denied summary judgment to appellees as to the Release Plaintiffs, as it concluded that a determination of whether they knowingly and voluntarily waived their right to bring their claims for PJS benefits required a fact-intensive inquiry inappropriate for resolution on summary judgment proceedings as there were material disputes of fact on the waiver issue. The District Court entered a final judgment pursuant to Federal Rule of Civil Procedure 54(b) on October 15, 2010, awarding the Non-Release Plaintiffs approximately $2 million in damages but denying a claim they asserted for certain retiree health and life insurance benefits that they contended should accompany PJS benefits. On October 15 the Court certified the portion of its March 29, 2007 opinion and order denying appellees’ motion for summary judgment as to the Release Plaintiffs for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Court also certified for interlocutory appeal Siemens’ appeal from the Court’s denial of its motion for summary judgment with respect to the Release Plaintiffs. The Court characterized the issue for the proposed interlocutory appeals as whether the Release Plaintiffs’ claim to PJS benefits could be waived as a matter of law and, if so, what proof must be presented to demonstrate that there had been a valid waiver. Both appellees and Siemens petitioned in this Court for permission to appeal, and on December 13, 2010, we granted both petitions. These appeals followed. III. JURISDICTION and STANDARD of REVIEW The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e) and (f). We have jurisdiction over the parties’ cross-appeals of the District Court’s entry of final judgment as to the Non-Release Plaintiffs pursuant to 28 U.S.C. § 1291 and over the interlocutory appeals with respect to the Release Plaintiffs pursuant to 28 U.S.C. § 1292(b). “We exercise plenary review of a district court’s order granting or denying summary judgment, applying the same standard as the district court....” Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir.2011). We will affirm only if “drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Id. (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n. 6 (3d Cir.2007)). Because the District Court adopted in substance the Magistrate Judge’s report and recommendation, with the modifications we have set forth, in most respects effectively we are reviewing the Magistrate Judge’s proposed disposition of the case. We thus reference primarily the Magistrate Judge’s report and recommendation rather than the opinion of the District Court though to a degree we treat the documents interchangeably. IV. LEGAL BACKGROUND Due to the complexity of this ERISA case, we think it best to set forth the background legal framework that governs this matter before we turn to a review of the District Court’s disposition of this case. We start from the core principle that it is well-established that “ERISA does not mandate the creation of pension plans.” Dade v. North Am. Philips Corp., 68 F.3d 1558, 1561 (3d Cir.1995). “Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan.” Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S.Ct. 1783, 1788, 135 L.Ed.2d 153 (1996); see also Smith v. Contini, 205 F.3d 597, 602 (3d Cir.2000) (“ERISA neither mandates the creation of pension plans nor in general dictates the benefits to be afforded once a plan is created.”). Instead, Congress enacted ERISA to ensure that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he will actually receive it.” Spink, 517 U.S. at 887, 116 S.Ct. at 1788 (internal quotation marks omitted). Thus, “[o]nly the plan itself can create an entitlement to benefits.” Bellas v. CBS, Inc., 221 F.3d 517, 522 (3d Cir.2000). “Accordingly, we are required to enforce the [p]lan as written unless we find a provision of ERISA that contains a contrary directive.” Dade, 68 F.3d at 1562; see also Smith, 205 F.3d at 602 (same). By their plain terms, the Siemens Plans do not provide for PJS benefits. The Magistrate Judge found, however, that ERISA sections 208 and 204(g) controlled the transactions that led to the creation of the Siemens Plans and that by reason of those sections appellees are entitled to PJS benefits. We thus turn to those provisions. ERISA section 208 provides, in relevant part: A pension plan may not merge or consolidate with, or transfer its assets or liabilities to, any other plan after September 2, 1974, unless each participant in the plan would (if the plan then terminated) receive a benefit immediately af~ ter the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation, or transfer (if the plan had then terminated). 29 U.S.C. § 1058. In Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1150 (3d Cir.1993), then-judge Alito summarized in his concurring opinion the operation of section 208: [Section 208 and its Internal Revenue Code counterpart, 26 U.S.C. § 414(l)] require us to compare (a) the benefits, if any, that the [participants] would have received if the [original] [p]lan had terminated just before the [merger or transfer] ... with (b) the benefits, if any, that the [participants] would have received if the [successor] [p]lan had terminated just after the [merger or] transfer. In order to determine the benefits that the [participants] would have received upon termination of the plans at these two points in time, it is necessary to look to Section 4044 of ERISA, 29 U.S.C. § 1344, which prescribes the order in which the assets of a single-employer defined benefit plan are allocated among participants and beneficiaries at termination. The effect of all of these provisions' — 26 U.S.C. § 414(Z) and 29 U.S.C. §§ 1058 and 1344 — when read together [is] to require that any allocation of assets to the [participants’] early retirement benefits that would have occurred upon termination of the [original] [p]lan just before the [merger or] transfer not exceed the allocation of assets to those benefits that would have occurred upon termination of the [successor] [p]lan just after the [merger or] transfer. Id. Thus, section 208 essentially requires that a plan participant receive no less benefits upon a hypothetical termination of the successor plan just following the merger or transfer of assets or liabilities than the participant would have received upon a hypothetical termination of his or her original plan just prior to the merger or transfer. Section 204(g), known as the anti-cutback rule, “prohibits an employer from decreasing or eliminating a participant’s accrued benefits by plan amendment.” Bellas, 221 F.3d at 522. Thus, section 204(g) follows the principles of section 208 in protecting plan participants. In the case of a defined benefit plan, ERISA defines, in a somewhat circular fashion, an “accrued benefit” as a participant’s “accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age.” 29 U.S.C. § 1002(23)(A). Because early retirement benefits by definition commence prior to normal retirement age, those benefits were not considered “accrued” under ERISA prior to 1984. See Bellas, 221 F.3d at 523 n. 2 (citing Bencivenga v. Western Pa. Teamsters and Emp’rs Pension Fund, 763 F.2d 574, 577 (3d Cir.1985)). In 1984, however, Congress amended section 204(g) and extended the protection it afforded to early retirement benefits and retirement-type subsidies. See Retirement Equity Act of 1984, Pub.L. No. 98-397, § 301(a)(2), 98 Stat. 1426, 1450-51. As amended, section 204(g) now provides: (g) Decrease of accrued benefits through amendment of plan (1) The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment described in section 1082(d)(2) or 1441 of this title. (2) For purposes of paragraph (1), a plan amendment which has the effect of— (A) eliminating or reducing an early retirement benefit or a retirement-type subsidy (as defined in regulations), or (B) eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits. In the case of a retirement-type subsidy, the preceding sentence shall apply only with respect to a participant who satisfies (either before or after the amendment) the preamendment conditions for the subsidy. 29 U.S.C. § 1054(g). Although section 204(g) prohibits cutback of accrued benefits by plan amendment, a determination under section 208 of a participant’s pension and benefits entitlement on a hypothetical termination basis requires that a court also consider section 204(g) because a plan termination is regarded as an “amendment” for the purposes of section 204(g). See Gillis, 4 F.3d at 1145. As Judge Alito observed in his concurring opinion in Gillis, “[w]hile neither [s]ection 204(g) of ERISA ñor [s]ection 414(l) of the Internal Revenue Code expressly states that a termination must be regarded as an amendment for these purposes,” the Internal Revenue Service has concluded in a Revenue Ruling that plan terminations are subject to the provisions of section 204(g). Id. at 1150 (Alito, J., concurring) (citing Revenue Ruling 85-6). Furthermore, the Treasury-regulations implementing the Internal Revenue Code counterpart to ERISA section 204(g), 26 U.S.C. § 411, provide that “[t]he prohibition against the reduction or ehmination of section 411(d)(6) protected benefits already accrued applies to plan mergers, spinoffs, transfers, and transactions amending or having the effect of amending a plan or plans to transfer plan benefits.” 26 C.F.R. § 1.411(d)-4, A-2(a)(3)(i). Those Treasury regulations apply with equal force to section 204(g). 29 U.S.C. § 1202(c) (“Regulations proscribed by the Secretary of the Treasury under sections 410(a), 411, and 412 of Title 26 ... shall also apply to [their ERISA counterparts].”); see also Heinz, 541 U.S. at 746-47, 124 S.Ct. at 2237 (observing that section 411 regulations are applicable to section 204(g)). Accordingly, a plan participant’s benefits protected by section 204(g) under a plan amendment must be preserved and funded upon a hypothetical termination under section 208 and thus not decreased or eliminated by virtue of a plan merger or a transfer of assets or liabilities. The present case is unusual in that we already have had occasion to consider whether section 204(g) protects the precise benefits at issue here. In Bellas, a former employee brought suit against Westinghouse, by then CBS, and the Westinghouse Pension Plan, contending that certain amendments to the plan that narrowed the class of persons eligible for PJS benefits and enacted the sunset provision present also in the Westinghouse Plan at issue in this case violated ERISA section 204(g). 221 F.3d at 520-21. On interlocutory appeal, we considered whether the PJS benefits constituted an early retirement benefit or retirement-type subsidy protected by section 204(g). Id. at 518. At that time, the Treasury had not, as section 204(g) contemplated that it would do, promulgated regulations defining these terms. Id. at 524. We first noted that “[b]ecause the $10.00 multiplied by [credited [s]ervice and the additional $100.00 benefit do not continue beyond normal retirement age, they cannot properly be considered a retirement-type subsidy as contemplated by section 204(g),” and thus “could be the subject of amendment or elimination without violating section 204(g).” Id. at 536 n. 17. Turning to the early payment of unreduced normal retirement benefits, we concluded that the portion of the PJS benefits that continues beyond normal retirement age and “that is equal to the actuarially reduced normal retirement benefit, constitutes an early retirement benefit protected by section 204(g) but is not a retirement-type subsidy,” and that the value of the PJS benefits that continue beyond normal retirement age “over and above the actuarially reduced value” is a retirement-type subsidy protected by section 204(g). Id. at 538. We further determined that those benefits “are accrued upon their creation rather than upon the occurrence of the unpredictable contingent event [i.e., the plan shutdown].” Id. at 532. We accordingly held that section 204(g) protects the PJS benefits from cutback and therefore affirmed the district court’s conclusion that Westinghouse violated section 204(g) through enactment of the amendments. Id. at 540. We also point out that, as we discuss at length below, in Bellas we invalidated the sunset provision as to Westinghouse. V. ANALYSIS As we have already noted, the Magistrate Judge reached her conclusion that ERISA required Siemens to offer PJS benefits on the basis of two independent theories. First, the Magistrate Judge determined that Siemens created an ERISA “transition” plan for the legacy employees through the extension of the Westinghouse Plan from August 19 to August 31, 1998. See Shaver, 2007 WL 1006681, at *21-23. The Magistrate Judge concluded that adoption of the Siemens Plans functioned as an amendment of the ERISA “transition” plan and the amendment eliminated the legacy employees’ PJS benefits in violation of section 204(g). See id. at *24-27. Second, the Magistrate Judge determined that Westinghouse transferred to Siemens through the APA a portion of Westinghouse Plan’s liabilities, thereby triggering the applicability of section 208. See id. at *20. The Magistrate Judge appeared to conclude that independently of section 204(g), section 208 required that the Siemens Plans “provide equal or greater benefits” than those of the Westinghouse Plan. See id. at *27. Turning to section 204(g), the Magistrate Judge concluded also that in light of our holding in Bellas that PJS benefits under the Westinghouse Plan are protected from cutback, section 204(g) also required that Siemens offer PJS benefits. Id. at *27-28. We first consider whether Siemens established an ERISA “transition” plan, the less complex of the two theories. We then proceed to the hyper-complicated question of the applicability of ERISA sections 208 and 204(g). A. AN ERISA TRANSITION PLAN ERISA applies to “any employee benefit plan if it is established or maintained ... by any employer engaged in commerce....” 29 U.S.C. § 1003(a). Surprisingly, however, ERISA does not define the term “plan.” In the absence of a congressional definition, we have “adopted the test developed in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982) (en bane), to determine whether informal written or oral communications ... constitute a plan.” Smith v. Hartford Ins. Grp., 6 F.3d 131, 136 (3d Cir.1993) (citing Deibler v. United Food & Commercial Workers’ Local Union 23, 973 F.2d 206, 209 (3d Cir.1992); Henglein v. Informal Plan For Plant Shutdown Benefits, 974 F.2d 391, 399-400 (3d Cir.1992)). Under Donovan, an ERISA plan “is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” 688 F.2d at 1373. Looking to these factors, the Magistrate Judge concluded that Siemens adopted an ERISA “transition” plan for the thirteen-day period from August 19 to August 31, 1998, by virtue of Westinghouse’s extension of its pension plan to cover the legacy employees during that time. Siemens challenges this conclusion on multiple grounds. It contends that ERISA plans are permanent or at least long-term programs and that the patently temporary nature of the thirteen-day extension precludes it from being classified as an ERISA plan. Appellants’ br. at 53-54. Siemens also contends that even if a temporary extension of one ERISA plan could qualify as the establishment of a second and distinct ERISA plan, Westinghouse — not Siemens — was the plan sponsor and administrator during the thirteen-day period. Id. at 54-55. In this vein, Siemens points to the facts that Westinghouse was liable for any benefits that came due to a beneficiary under the plan during the thirteen-day period and Siemens’ only obligation with respect to that period was to reimburse Westinghouse for any actuarial pension losses caused by Siemens’ termination of a legacy employee without cause during that time. Id. at 56. For the thirteen-day period at issue, a reasonable person could have ascertained the benefits under the Westinghouse Plan, identified the beneficiaries, the source of financing, and procedures for receiving benefits. We thus concur with the Magistrate Judge and, by extension with the District Court, that there was an ERISA plan in place from August 19 to August 31, 1998, for the legacy employees. The critical question, however, is not whether there was a sponsor maintaining an ERISA plan during the thirteen-day period; it is whether Siemens “established or maintained” that plan, 29 U.S.C. § 1003(a), i.e., whether, in ERISA parlance, Siemens was the “plan sponsor,” see 29 U.S.C. § 1002(16)(B). The District Court found that Siemens maintained the plan because it determined that Siemens had administrative and financial responsibilities with respect to the plan during the thirteen-day period. But in reaching this conclusion, the Court relied solely on the fact that Siemens was obligated to reimburse Westinghouse for any actuarial pension loss that Siemens’ termination of a legacy employee caused during the period. We, however, are satisfied that, contrary to the District Court’s conclusion, Siemens’ duty to reimburse Westinghouse for any losses that Siemens caused by termination of a legacy employee from August 19 to August 31, 1998, demonstrates quite clearly that Siemens was not responsible for the pension obligations that came due during this time period under the Westinghouse Plan. In fact, there is no factual dispute that at all times of the Westinghouse Plan’s existence, including the thirteen-day period, Westinghouse has been and is currently responsible for the maintenance, administration, and funding of its plan. Siemens’ singular promise of reimbursement to Westinghouse in the event that Siemens terminated a legacy employee describes the entirety of Siemens’ obligations in relation to the Westinghouse Plan from August 19 to August 31, 1998, and plainly does not constitute the administrative undertaking that an ERISA plan requires. After all, an obligation to make payments to a plan sponsor cannot possibly be equated with the obligations attendant to establishing or maintaining a plan. On this issue, we take instruction from the Supreme Court’s seminal ERISA opinion in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), in which the Court considered an ERISA preemption claim. Under ERISA, any state law that “relate[s] to any employee benefit plan described in [section] 1003(a)” is preempted. 29 U.S.C. § 1144(a). In Fort Halifax, the Court considered whether ERISA preempted a Maine statute requiring employers to provide a one-time severance payment to employees in the event of a plant closing. 482 U.S. at 4-5, 107 S.Ct. at 2213-14. The Court concluded that ERISA did not preempt the Maine statute because it was not an ERISA “plan,” and in this regard stated: The requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation. The employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control. Rather, the employer’s obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves making a single set of payments to employees at the time the plant closes. To do little more than write a check hardly constitutes the operation of a benefit plan. Once this single event is over, the employer has no further responsibility. The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits. Id. at 12, 107 S.Ct. at 2218 (emphasis in original). Fort Halifax thus makes clear that the payment of benefits “do[es] not implicate ERISA unless [it] require[s] the establishment and maintenance of a separate and ongoing administrative scheme.” Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538 (3d Cir.1992); see also Kulinski v. Medtronic Bio-Medicus Inc., 21 F.3d 254, 257 (8th Cir.1994) (“The pivotal inquiry is whether the plan requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits.”). To contrast with the simplicity of the single payment that the statute that the Court considered in Fort Halifax required, the Court provided substantial guidance on what constitutes an ERISA “administrative scheme,” an obligation that goes far beyond making a single payment. The Court elaborated: An employer that makes a commitment systematically to pay certain benefits undertakes a host of obligations, such as determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of funds for benefit payments, and keeping appropriate records in order to comply with applicable reporting requirements. 482 U.S. at 9, 107 S.Ct. at 2216. Thus, an ERISA administrative scheme “may arise where the employer, to determine the employee’s eligibility for and level of benefits, must analyze each employee’s particular circumstances in light of the appropriate criteria.” Kulinski, 21 F.3d at 257; Bogue v. Ampex Corp., 976 F.2d 1319, 1323 (9th Cir.1992) (An ERISA “administrative scheme” is one in which “the circumstances of each employee’s termination [are] analyzed in light of [certain] criteria.”) (internal quotation marks and citation omitted). Factors relevant to determining whether an employer’s undertakings have created an ERISA plan also include whether the “undertaking requires managerial discretion, that is, whether the undertaking could not be fulfilled without ongoing, particularized, administrative, analysis of each case” and whether “a reasonable employee would perceive an ongoing commitment by the employer to provide some employee benefits.” Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 737 (2d Cir. 2001) (internal quotation marks and citation omitted). On the other hand, “[sample or mechanical determinations do not necessarily require the establishment of such an administrative scheme.” Kulinski, 21 F.3d at 257. The narrow scope of Siemens’ obligations with respect to the thirteen-day period when considered against the “administrative scheme” analysis of Fort Halifax makes it quite clear that Siemens did not establish or maintain the ERISA plan that was in place from August 19 to August 31, 1998. Westinghouse — not Siemens — determined a plan participant’s eligibility for benefits arising under the Westinghouse Plan from August 19 to August 31, 1998, and Westinghouse calculated the quantum of those benefits and disbursed the funds due to the participants in that period. Further, Westinghouse funded the plan during that time and engaged in the extensive financial monitoring and record-keeping that the plan required. In contrast, during the thirteen-day period Siemens had only the contingent, discrete obligation to reimburse Westinghouse Plan in the event Siemens terminated a legacy employee without cause prior to September 1, 1998, and the terminated employees, if any, were merely a subset of the entirety of the legacy employees. That contingent financial burden — which notably Siemens never incurred as it did not terminate any legacy employee prior to September 1 — was “predicated on the occurrence of a single contingency that may never [and in this case did not] materialize.” See Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2218. Siemens’ contingent obligation to reimburse Westinghouse after the fact did not require Siemens to make any administrative determination, see id., much less require it to analyze the legacy employees’ particular circumstances and eligibility for benefits. While contingent or one-time pension or benefit obligations that require an administrative undertaking for their effectuation may, in some circumstances, constitute an ERISA plan, see Pane v. RCA Corp., 868 F.2d 631, 633-35 (3d Cir.1989), in this case Siemens’ contingent, one-time obligation to reimburse Westinghouse did not. Although we are unaware of any earlier case in which we have considered an arrangement quite like the one here, in which after a successor employer employed legacy employees the original employer continued to offer for a brief period the legacy employees benefit credit for service and compensation, we find additional guidance from our decision in Angst. In that case, we considered whether a company’s offer of a one-time, lump-sum $75,000 severance payment and a one-year extension of benefits under its pension plan pursuant to a “buyout plan” aimed at encouraging senior employees to leave their employment voluntarily constituted an ERISA plan. 969 F.2d at 1532-33. We concluded that in light of Fort Halifax the $75,000 payment was not an ERISA plan because the arrangement “would require no ongoing administrative scheme.” Id. at 1538. We further determined that because the one-year extension of benefits was administered pursuant to a benefits plan that was already in existence and the extension “did not require the creation of a new administrative scheme, and did not materially alter an existing administrative scheme,” that facet of the buyout plan similarly did not implicate ERISA. Id. at 1539. As in Angst, here the extension of the already-extant Westinghouse Plan for thirteen days did not require Siemens to create a separate, new administrative scheme. Nor did that extension alter the Westinghouse Plan’s existing administrative scheme; it merely added a contingent step subsequent to the operation of the plan. Although we conclude that Siemens did not establish an ERISA “transition” plan by virtue of the thirteen-day arrangement from August 19 to August 31, 1998, because that arrangement did not require Siemens to perform the administrative undertaking that is the hallmark of an ERISA plan, we note that the short duration of the arrangement likewise counsels against finding that, if there had been any plan, it was Siemens that established the plan. We have made clear that “[t]he crucial factor in determining whether a ‘plan’ has been established is whether [the employer has expressed an intention] to provide benefits on a regular and long-term basis.’ ” Deibler, 973 F.2d at 209 (quoting Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1083 (1st Cir.1990)). Consistent with this pronouncement, the relevant Treasury regulations provide: The term ‘plan’ implies a permanent as distinguished from a temporary program. Thus ... the abandonment of the plan for any reason other than business necessity within a few years after it has taken effect will be evidence that the plan from its inception was not a bona fide program for the exclusive benefit of employees in general. 26 C.F.R. § 1.401-1(b)(2) (emphasis added); see also 26 C.F.R. § 1.401-1(b)(1)(i) (“A pension plan within the meaning of section 401(a) is a plan established and maintained by an employer primarily to provide systematically for the payment of definitely determinable benefits to his employees over a period of years, usually for life, after retirement.”). Although we cannot draw a bright temporal line dividing ERISA plans from short-term, discrete benefit arrangements that do not implicate ERISA, we are confident that the thirteen-day arrangement here is of the latter type. We note finally on the “transition” plan issue that Siemens’ status as the legacy employees’ actual employer during the thirteen-day window does not preclude us from concluding that Westinghouse maintained an ERISA plan for those persons during that time. ERISA defines an employee pension benefit plan as one “established or maintained by an employer or by an employee organization, or by both.” 29 U.S.C. § 1002(2)(A). Under ERISA, however, “[t]he term ‘employer’ means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan.” 29 U.S.C. § 1002(5) (emphasis added). ERISA thus recognizes that entities other than the participant’s employer may establish or maintain an ERISA plan. See also Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 1228, 131 L.Ed.2d 94 (1995) (“Employers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.”) (emphasis added). Here, Westinghouse acted “indirectly in the interest of an employer [i.e., Siemens], in relation to an employee benefit plan” for the thirteen-day period. 29 U.S.C. § 1002(5). The circumstance that the beneficiaries of the Westinghouse Plan during that time period included persons whom Siemens then employed does not thereby make Siemens a co-sponsor of the plan when in reality Siemens neither fundéd nor administered the plan. In short, although there was an ERISA plan in place for legacy employees from August 19 to August 31, 1998, that plan was the Westinghouse Plan, which Westinghouse sponsored, funded, operated and administered. We thus conclude that Siemens did not establish an ERISA “transition” plan. Consequently, Siemens did not provide PJS benefits to its employees during that time, and its later adoption of the Siemens Plans, which lacked PJS benefits, could not constitute an “amendment” of a “transition” plan in violation of section 204(g), as Siemens had not established any plan to amend. Therefore, we reject the Magistrate Judge’s first theory supporting Siemens’ liability because she founded that theory on the incorrect conclusion that Siemens created an ERISA “transition” plan containing PJS benefits for the period from August 19 to August 31,1998. B. A TRANSFER OF LIABILITIES UNDER SECTION 208 We now turn to the Magistrate Judge’s second theory supporting her belief that Siemens would be liable in the absence of the releases. She predicated this conclusion on her belief that Westinghouse through the APA transferred a portion of the Westinghouse Plan’s liabilities to the Siemens Plans and thus we now turn our attention to section 208. In considering this second theory we first address the applicability of section 208, which applies where a plan “merge[s] or consolidate[s] with, or transfer[s] its assets or liabilities to” another plan. 29 U.S.C. § 1058. Though appellees concede that the APA did not provide for a plan consolidation, merger, or a transfer of plan assets, they contend that section 208 applies because the APA provided for the Westinghouse Plan to transfer liabilities to the Siemens Plans. The District Court accepted this argument. Section 208 does not set forth explicitly the circumstances in which there is a transfer of liabilities, nor do ERISA’s other provisions provide a definition of the term. We are not, however, without guidance on this point as the corresponding Treasury Regulation states: A ‘transfer of assets or liabilities’ occurs when there is a diminution of assets or liabilities with respect to one plan and the acquisition of these assets or the assumption of these liabilities by another plan. For example, the shifting of assets or liabilities pursuant to a reciprocity agreement between two plans in which one plan assumes liabilities of another plan is a transfer of assets or liabilities. 26 C.F.R. § 1.414(i) — 1(b)(3). To determine whether there has been a transfer of plan liabilities within this definition in this case, we turn to the APA. 1. RELEVANT PROVISIONS OF THE APA At its broadest, the APA provided in paragraph 5.5(a)(ii) that Notwithstanding the more specific provisions set forth in this Section 5.5, [Siemens] shall provide compensation and benefit plans and arrangements which in the aggregate are comparable ... to the compensation, Plans and Benefit Arrangements in effect for [the legacy employees] on [September 1, 1998] for a period of not less than two years following [September 1, 1998]. J.A. 137 (emphasis added). Paragraph 5.5(d)(i) provided in more precise terms that Siemens shall establish a defined benefit pension plan intended to qualify under Section 401(a) of the Code for the benefit of [the legacy employees] (the ‘Purchaser Pension Plan’) that contains terms and conditions that are substantially identical with respect to all substantive provisions to those of the Westinghouse Pension Plan as in effect as of [September 1, 1998] ... and that credits compensation ... and service for purposes of eligibility (including early retirement eligibility and any early retirement supplemental benefit), and vesting which was credited under the [Westinghouse] Pension Plan, provided, however, that the [Siemens] Pension Plan will include provisions which are consistent with (ii) through (iv) below and will be administered ... so that the aggregate of the benefits under the [Westinghouse] Pension Plan and the [Siemens] Pension Plan are the same with respect to [the legacy employees] as if the ... [e]mployees continued employment with [Westinghouse or one of its sold subsidiaries]. Id. at 138 (emphasis omitted and added). The Magistrate Judge found that “the contractual obligation to provide substantially identical benefits to the transferring employees can be construed to be a transfer of [p]lan liability.” Shaver, 2007 WL 1006681, at *19. While paragraph 5.5(d)(i) may suggest that the parties intended to impose liabilities on Siemens, Siemens’ contractual promise to provide substantially identical benefits surely does not constitute an assumption of Westinghouse Plan’s liabilities, as an agreement to provide benefits is discrete from an agreement to assume another employer’s obligation to provide benefits. Indeed, as we have noted already, after September 1, 1998, the Westinghouse Plan remained in existence and continued to provide legacy employees with benefits that they accrued prior to that date. We therefore consider the more specific provisions of the APA, which require close examination. Section 2.8 of the APA provides, in relevant part: (a) Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement ..., [Siemens] hereby agrees to assume, effective as of [September 1, 1998], and agrees to pay, perform and discharge when due all of the following Liabilities of [Westinghouse] (except Excluded Liabilities) arising out of, relating to or otherwise in respect of the Acquired Assets, the Business or the operations of the Business before, on or after [September 1, 1998] (collectively, the Assumed Liabilities ’): (vii) all liabilities arising under or in connection with any Plan or Benefit Arrangement; (b) Excluded Liabilities. Any provision of this Agreement to the contrary notwithstanding ..., the following liabilities (the ‘Excluded Liabilities ’) of [Westinghouse] and [its] Sold Subsidiaries are excluded and shall not be assumed or discharged by [Siemens]: (x) any Liabilities with respect to Plans and Benefit Arrangements retained by [Westinghouse] under Section 5.5; and (xi) any other Liabilities not assumed by [Siemens] pursuant to the provisions of Section 2.3(a). J.A. 133-35 (some emphasis added). Under paragraph 2.3(a)(viii), Siemens assumed “[a]ll [l]iabilities arising under or in connection with any Plan or Benefit Arrangement.” The APA defines “Plan” as: any plan, program, agreement or arrangement, whether or not written, that is or was an ‘employee benefit plan’ as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA and whether or not maintained in the U.S., and (a) which is maintained by [Westinghouse] or [its] Sold Subsidiaries, (b) to which [Westinghouse] or [its] Sold Subsidiaries contribute or fund or provide benefits; or (c) which provides or promises benefits to any person who performs or who has performed services for [Westinghouse] or [its] Sold Subsidiaries and because of those services is or has been (i) a participant therein or (ii) entitled to benefits thereunder. Id. 127. The Westinghouse Plan is a “plan” within the meaning of paragraph 2.3(a)(viii). Accordingly, Siemens assumed all of Westinghouse Plan’s liabilities except those which Westinghouse retained under section 5.5. In relevant part, section 5.5 provided that the “[Westinghouse] Pension Plan shall retain liability with respect to [the legacy employees] for their accrued benefit calculated as of [September 1, 1998], subject to [certain adjustments].” Id. 138-39. Paragraph 5.5(d)(iv), however, qualifies Westinghouse’s retention of accrued-benefit liability by stating: [Siemens] Pension Plan shall be solely responsible for (and the [Westinghouse] Pension Plan shall not provide for) (A) any early retirement supplement that becomes payable with respect to a [legacy employee] retiring after [September 1, 1998] that is the result of a ‘Pension Event’ as defined in subsection (v)[] ..., (B) any benefits pursuant to Section 19 [the PJS provision] of the [Westinghouse] Pension Plan and the corresponding provision of the [Siemens] Pension Plan, in excess of the benefits that would otherwise be payable if those sections did not apply, with respect to a [legacy employee] who retires or terminates employment with [Siemens] and its Affiliates after [September 1, 1998], and (C) any other early retirement subsidy or supplement with respect to [legacy employees] that is not described in [Section 5 of the Westinghouse Pension Plan]. Id. 139-40. The additional provisions of section 5.5 added by amendment to the APA delineate further Siemens’ and Westinghouse’s respective scopes of liability from August 19 to August 31, 1998; however, they do not alter the pre-existing provisions of section 5.5 recited above. Taken together, paragraphs 2.3(a)(viii), 5.5(d)(iii), and 5.5(d)(iv) demonstrate that Siemens assumed a portion of Westinghouse Plan’s pension obligations. Specifically, after adoption of the APA, Siemens was and is liable for the early retirement supplements that come due because of a “Pension Event,” for any PJS benefits payable under the Westinghouse Plan with respect to a legacy employee who retires after September 1, 1998, and any other early retirement subsidy or supplement besides that provided for in section 5 of the Westinghouse Plan. In this regard, the Westinghouse Plan’s liabilities have been diminished, thus triggering the applicability of section 208. Siemens presents an array of arguments that it contends precludes a finding that the APA provided for the Westinghouse Plan to transfer liabilities to the Siemens Plans in accordance with section 208. It contends that because paragraph 5.5(d)(iv) “addressed only a tiny subset of retirement benefits offered by Westinghouse— those providing special early retirement for certain employees who retired prior to age 62 — that are not claimed by [appellees] here and are not at issue in this case,” any liabilities transferred for those benefits are irrelevant. Appellants’ br. at 47. In a somewhat contradictory argument, Siemens contends that even if Westinghouse transferred some obligations to Siemens, “the contingent and inchoate responsibility for PJS benefits and early retirement supplements ... [are] not ‘liabilities’ within the meaning of [s]ection 208.” Id. at 50. Finally, Siemens contends that the APA could not have provided for a transfer to Siemens of a portion of Westinghouse Plan’s liabilities because a transfer of liabilities without a transfer of equivalent assets “would leave both plans out of compliance with statutory and regulatory requirements.” Id. at 41. These contentions are unconvincing. Though the events here differ from the ordinary scenario that triggers the applicability of section 208, we can find nothing within section 208 or the applicable Treasury regulations indicating that only a transfer of all of a plan’s assets or liabilities will activate that provision. Indeed, 26 C.F.R. § 1.414(i) — 1(b)(3) defines a transfer of liabilities as “a diminution of ... liabilities,” not a total elimination of liabilities. See Black’s Law Dictionary 524 (9th ed. 2009) (Diminution means “[t]he act or process of decreasing, lessening, or taking away.”). Furthermore, as shown above, Siemens assumed liability for any PJS benefits that became payable under the Westinghouse Plan for an employee who was terminated after September 1, 1998. Siemens’ contention that responsibility for PJS benefits and other early retirement benefits do not constitute liabilities within the meaning of section 208 is likewise unavailing. As we have indicated, section 208 does not define liabilities. In the Senate Report to the 1984 amendments, however, Congress made clear its view that contingent or otherwise putative obligations constitute “liabilities” on a plan termination basis under ERISA. See S.Rep. No. 98-575, at 31, 1984 U.S.C.C.A.N. at 2577 (“[A] plan is not to be considered to have satisfied all of its liabilities to participants and beneficiaries until it has provided for the payment of contingent liabilities with respect to a participant who, after the date of the termination of a plan, meets the requirements for a subsidized benefit.”) (emphasis added); see also Gillis, 4 F.3d at 1147 (treating liability for early retirement benefits as “liabilities” under section 208). Finally on this point, we note that section 208 applies when a pension plan “transferís] its assets or liabilities” to another plan, 29 U.S.C. § 1058 (emphasis added), and thus plainly does not require a transfer of assets to trigger its provisions. The question of whether Westinghouse’s transfer of liabilities without a concomitant transfer of assets rendered the Westinghouse Plan and Siemens Plans non-compliant under ERISA is not the issue before us on appeal. Inasmuch as we have concluded that Westinghouse transferred liabilities to the Siemens Plans within the meaning of section 208, we turn to the distinct question of what effect, if any, that transfer had on Siemens’ obligation, vel non, to provide PJS benefits. As noted, the Magistrate Judge appeared to conclude that, without regard for section 204(g), because Westinghouse transferred liabilities to Siemens, section 208 required that the Siemens Plans “provide equal or greater benefits,” including PJS benefits, to the benefits of the Westinghouse Plan. See Shaver, 2007 WL 1006681, at *27. The Magistrate Judge also determined that section 208 triggered section 204(g), which required Siemens to offer PJS benefits. We review each of these conclusions in turn. 2. THE REQUIREMENTS OF SECTION 208 As we described above, section 208 guarantees that if a pension plan consolidates with another plan or transfers its assets or liabilities to another plan, the benefits to which plan participants are entitled will not be reduced and the actual value of those benefits will not be diminished. See Bigger v. Am. Commercial Lines, 862 F.2d 1341, 1344 (8th Cir.1988) (Section 208 “establishes a ‘rule of benefit equivalence.’ The value of the benefit before and after the [transaction triggering section 208] must be equal.”) (citing 26 C.F.R. § 1.414(l)-10(n)). In the House Report to section 208, Congress explained the effect of section 208 and the hypothetical termination analysis it requires: Under the bill as passed by the House, a plan must provide protection to participants in the case of a merger of the plan with another plan or the transfer of assets or liabilities from a plan. The value of benefits to the participant and the extent to which the benefits have been funded is to be protected by comparing what the participant’s benefit would be if the plan had terminated immediately before the merger and what the participant’s benefits would be under the merged plan had the merged plan been terminated just after the merger. The postmerger termination benefit may not be less than the premerger termination benefit. H.R.Rep. No. 93-1280, at 385 (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N. 5038, 5163. Most often, section 208 is implicated in cases of plan mergers or so-called “spinoff’ plans, in which one plan splits into two or more plans, see 26 C.F.R. § 1.414(l) — 1(b)(4). See, e.g., Bigger, 862 F.2d at 1344 (Section 208 “provides a specific standard that employers can rely upon in allocating assets to spunoff plans.”). In these circumstances, “[section 208 essentially requires the employer to contemplate a hypothetical plan termination, take a ‘snapshot’ of the benefits each participant of the plan would receive in the event of a termination, and then provide the aggregate present value of these benefits to the spun-off plan.” Systems Council EM-3 v. AT&T Corp., 159 F.3d 1376, 1380 (D.C.Cir.1998). There is, however, no basis to hold that the APA contemplated the creation of a spinoff plan. The Westinghouse Plan retained liability for the majority of the legacy employees’ accrued benefits, and Siemens is not responsible for those benefits. The Treasury regulation counterpart to section 208 provides, however, that “[a]ny transfer of assets or liabilities will for purposes of section 414(l) be considered as a combination of separate mergers and spinoffs....” 26 C.F.R. § 1.414(l)-1(o). “First, the transfer is treated as a spin-off of a new plan ... [and] [a]ssets are therefore to be allocated to participants’ benefits on a termination basis.” Stephen R. Bruce, Pension Claims: Rights and Obligations 511 (2d ed.1993). “Second, the transfer of these assets and the associated benefit liabilities to the second plan is treated as a merger of the spun-off plan and the second plan.” Id. Thus, as in the case of a plan spinoff or merger, to ascertain whether and to what extent Siemens was obligated to provide appellees PJS benefits we necessarily must determine the extent to which the legacy employees would have been entitled to those benefits upon a hypothetical termination of the Westinghouse Plan prior to Westinghouse’s transfer of its liability for those benefits. Cf. Brillinger v. Gen. Elec. Co., 130 F.3d 61, 63 (2d Cir.1997) (“[Section [208] deals with the level of post-merger benefits, and in dealing with this issue resort must be had to those parts of the termination provisions which deal with the analogous subject — ie. the level of benefits following termination.”). As we explained previously, that determination necessarily entails reference to section 204(g), which protects accrued benefits, including early retirement benefits and retirement-type subsidies, in the event of a plan amendment or a plan termination. This is all to say that section 208 is more nuanced than the Magistrate Judge recognized. The section does not, as the Magistrate Judge determined, impose a blanket requirement that Siemens adopt verbatim the Westinghouse Plan (or a more generous pension plan). Rather, it protects appellees’ accrued benefits with those benefits determined as of a hypothetical termination of the Westinghouse Plan just prior to the transfer of liabilities. Whatever else may be said about this case, the determination of those benefits so far as the Westinghouse Plan by its terms provided for them is not complicated. 3. THE LEGACY EMPLOYEES’ ENTITLEMENT ON A TERMINATION BASIS At this stage of our opinion and before we turn to the required hypothetical termination analysis we have described above, we address our description of PJS benefits in Bellas for it is obvious that our characterization of the benefits in that case clouded the disposition of this case in the District Court. For the purposes of section 204(g), early retirement benefits and retirement-type subsidies are considered accrued benefits and therefore section 204(g) protects them from cutback. See 29 U.S.C. § 1054(g