The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion of defendants U.S. Bank Pension Plan and U.S. Bancorp, Inc. (collectively, "U.S. Bank") to dismiss the claims of plaintiffs Edward W. Sunder III and Louis R. Jarodsky with prejudice on the basis of res judicata (Doc. 71). Instead of responding to the motion, Sunder and Jarodsky filed a motion to dismiss their claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) (Doc. 78), to which U.S. Bank responded (Doc. 80).
A. Conversion to Cash Balance Account Plan This matter involves provisions in the Mercantile Bancorporation Inc. ("Mercantile") Retirement Plan ("Plan"), a predecessor of the U.S. Bank Pension Plan,*fn1 that governed the transition between Mercantile's prior traditional "final average pay" defined benefit pension plan to a cash balance defined benefit pension plan on or around December 31, 1998. As part of the conversion from the traditional defined benefit plan to the cash balance plan, the Plan calculated the opening balance of each participant's cash balance account using a whipsaw type calculation. It first projected the annuity to which the participant would have been entitled as of December 31, 1997, under the prior Plan at age 65 (the Plan's normal retirement age) using the statutory annual interest rate of 5.05%. It then discounted that sum using a discount rate of 7% for those under 45 years old and 8% for those 45 years old and older. Finally, the Plan added to those amounts "pay credits" and "interest credits" for the year of 1998 to arrive at the participant's opening balance of his cash balance account. On December 14, 1998, the Plan distributed notice and a new Summary Plan Description ("SPD") to participants describing the conversion from the traditional defined benefit plan to the cash balance plan.
B. Sunder and Jarodsky's Litigation On July 25, 2006, Sunder and Jarodsky, Plan participants at the time of the conversion to a cash balance account plan, sued the Plan. See Sunder v. U.S. Bancorp Pension Plan, No. 05-cv-1153-ERW (E.D. Mo. 2005). They claimed the Plan amendments were age discriminatory because younger workers had more years to earn interest credits on their cash balances before reaching the normal retirement age than older workers did, impermissibly backloaded benefit accruals, impermissibly decreased participants' accrued benefits from the prior Plan because the discount rate applied was excessive, improperly calculated retirement lump-sum payouts because the discount rate applied was excessive, and failed to give adequate notice of the Plan amendments because the notice given was not timely. See Sunder v. U.S. Bancorp Pension Plan, No. 05-cv-1153-ERW, 2007 WL 541595, * 1 (E.D. Mo. Feb. 16, 2007)
The District Court granted summary judgment for the defendants on all the claims except the allegation of improper calculation of lump-sum retirement payouts. See id. at 13. After a trial, the District Court found in favor of U.S. Bank on the lump-sum calculation claim and reconsidered its ruling on the anti-cutback claim. See Sunder v. U.S. Bancorp Pension Plan, No. 05-cv-1153-ERW, 2007 WL 2811078, * 8-* 9(E.D. Mo. Sept. 24, 2007). However, on appeal the Court of Appeals reversed the anti-cutback claim judgment, finding no impermissible cutback had occurred, see Sunder v. U.S. Bancorp Pension Plan, 586 F.3d 593, 600-03 (8th Cir. 2009).
The case at bar challenges the same notice and conversion calculations at issue in Sunder. The plaintiffs here allege that the Plan:
* was age discriminatory because it applied a higher discount rate to calculate the opening cash balance account balances of participants 45 years old or older;
* impermissibly decreased participants' accrued benefits under the prior Plan by using an excessive discount rate to calculate the opening cash balances;
* did not provide adequate notice of the Plan conversion;
* provided a misleading and inaccurate SPD with the notice of conversion; and
* because of the foregoing, failed to provide participants benefits to which they were entitled. U.S. Bank asks the Court to dismiss Sunder and Jarodsky's claims in Mezyk with prejudice based on the doctrine of res judicata, that is, that their claims were brought or could have been brought in the Sunder action. The plaintiffs did not respond to U.S. Bank's motion. Instead, they ask the Court to dismiss Sunder and Jarodsky's claims ...