Kifafi v. Hilton Hotels Ret. Plan, Civil Action No. 98-1517 (CKK)

• Decision Date: 07 December 2015
• Docket Number: Civil Action No. 98-1517 (CKK)
• Citation: 124 F.Supp.3d 27
• Court: U.S. District Court — District of Columbia
• Parties: Jamal J. Kifafi, individually and on behalf of all others similarly situated, Plaintiff v. Hilton Hotels Retirement Plan, et al., Defendants

124 F.Supp.3d 27

Jamal J. Kifafi, individually and on behalf of all others similarly situated, Plaintiff

v.Hilton Hotels Retirement Plan, et al., Defendants

Civil Action No. 98-1517 (CKK)

United States District Court, District of Columbia.

Signed December 7, 2015

Stephen Robert Bruce, Allison C. Pienta, Stephen R. Bruce Law Offices, Washington, DC, for Plaintiff.

Andrew M. Lacy, Simpson Thacher & Bartlett, LLP, Washington, DC, Jonathan K. Youngwood, Simpson Thacher & Bartlett LLP, New York, NY, Thomas C. Rice, Cooley LLP, San Francisco, CA, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

In an Order issued June 4, 2015, ECF No. 413, the Court granted in part, denied in part, and held in abeyance in part Plaintiff's Motion for Reconsideration with respect to the Court's February 4, 2015, [399] Order, through which the Court had granted Defendants' [382] Motion for Release of Bond Obligation and denied Plaintiff's [384] Motion for Post-Judgment Discovery and Motion to Modify the Judgment in Aid of Enforcement. Through this Order, the Court resolves the remaining issues with respect to that motion, denying the motion insofar as it was held in abeyance previously. The Court also discusses and resolves the various issues raised by the parties in the many status reports filed between the issuance of the Court's reconsideration Order and today. See ECF Nos. 415–431. As explained further below, the Court's jurisdiction over this matter has now concluded—more than 17 years after this action was filed—and this case is dismissed in its entirety .

1. Background

The Court presumes familiarity with the Court's numerous previous Orders and Opinions issued over the many years this case has been pending. See Kifafi v. Hilton Hotels Retirement Plan , 79 F.Supp.3d 93, 97 (D.D.C.2015) (citing previous opinions); see also Kifafi v. Hilton Hotels Retirement Plan , 701 F.3d 718, 722 (D.C.Cir.2012) (referring to twelve prior district court opinions). The Court presents the limited background necessary to explain this Order.

On August 31, 2011, the Court issued its final remedial order in this case, and "retained 'continuing and exclusive jurisdiction over the parties and over the administration and enforcement of this Order for a period of two (2) years.' " Kifafi , 79 F.Supp.3d at 97 (citing Order, dated Aug. 31, 2011, ECF No. 258). The Court subsequently granted a stay pending the parties' cross-appeals to the D.C. Circuit Court of Appeals. Id. The stay was granted contingent on Defendants posting a bond in the amount of $75.8 million. Id. The Court of Appeals affirmed in all respects, and this Court's two-year continuing and exclusive jurisdiction over the parties and over the administration and enforcement of its final remedial order began to run on February 22, 2013, the date on which the stay in this case was automatically lifted by virtue of the issuance of the mandate of the Court of Appeals. Id.

Through a Memorandum Opinion issued on February 4, 2015, the Court concluded that "Defendants are in compliance such that they satisfied the terms of the Court's August 31, 2011, judgment." Id. at 111. The Court additionally concluded that it was "satisfied that there are no systemic problems or failures in Defendants' implementation of the judgment, only a few refinements to Defendants' forms and procedures that will further facilitate Defendants reasonable efforts to implement the judgment." Id. Accordingly, the Court the granted Defendants' Motion for Release of Bond Obligation and denied Plaintiff's Motion for Post-Judgment Discovery and Motion to Modify the Judgment in Aid of Enforcement. Finally, in that order, the Court confirmed that the two-year period of jurisdiction would terminate on February 23, 2015, and the Court required Defendants to take certain additional discrete steps before the Court's jurisdiction terminated. Id. at 111–12.

Shortly after the issuance of the Court's February 4, 2015, Order—and before the Court's jurisdiction terminated on February 23, 2015—Plaintiff filed a motion for reconsideration. In setting a briefing schedule on that motion, the Court indicated that its jurisdiction would "continue as to the issues the Court engaged in resolving in its February 4, 2015, Order to ensure the judgment is implemented properly." Order, dated Feb. 19, 2015, ECF No. 399, at 1-2. On June 4, 2015, the Court resolved the motion for reconsideration, granting it in part (requiring an amendment to Defendants' denial letter), held it in abeyance with respect to Defendants' efforts to locate class members' addresses and to obtain address information from Caesars Entertainment, and denying the motion in all other respects. Order, dated June 4, 2015, ECF No. 413. Specifically, the Court required that Defendants follow certain processes for locating participants in the Hilton Hotel Retirement Plan ("Plan") specified in the Order and the accompanying Memorandum Opinion. See id. In addition, the Court required Defendants to file "a certification that they have or will comply with the address location process ordered by the Court for each class member for whom an address has not yet been confirmed" and to file "a sworn affidavit from Caesars Entertainment explaining why Caesars located addresses for only 98 class members and what efforts were made to locate the addresses."Id. The Court also stated that "the jurisdiction over the implementation of the judgment in this matter shall continue only for the purpose of resolving the discrete issues relating to Defendants' address location process and obtaining addresses from Caesars Entertainment." Id. It is those issues—which have been the subject of numerous filings by the parties over the past six months—that are now before the Court.

2. Caesars Entertainment

In Plaintiff's Motion for Reconsideration, Plaintiff pointed to an arrangement with Caesars Entertainment to fund approximately one-third of the liabilities of the Plan. In the briefing on the Motion for Reconsideration, Defendants indicated that Caesars—not a party to this action—searched its records for any class members that had not yet been located and that Caesars had located 98 class members. Memorandum Opinion, ECF No. 414, at 19. Plaintiff argues that it was implausible that Caesars had located only 98 members given that (1) the Plan had filed a separate action seeking to recover approximately one-third of the Kifafi liabilities from Caesars and that (2) approximately 500 of the not-yet-located class members were associated with states where Caesars operated facilities. See id. In light of that dispute between the parties, the Court ordered Defendants to obtain a sworn affidavit from Caesars explaining why Caesars located addresses for only 98 class members and explaining what efforts were made to locate the addresses. See id. at 19–20. After some difficulty obtaining such an affidavit, Defendants ultimately obtained such an affidavit and filed it with the Court. See Defs.' Notice of Compliance, ECF No. 420, Affidavit of Brittany Davis ("Davis Aff."). Plaintiff continues to dispute whether the affidavit is sufficient. However, after reviewing the affidavit and the additional materials the parties have submitted, the Court concludes that the affidavit is sufficient and that Defendants have adequately explained why the number of addresses provided by Caesars was limited.

Davis explained the search that was conducted in her affidavit as follows:

8. On Friday, January 30th, 2015, Mary Nell Billings—Director of Global Retirement Programs for Hilton Worldwide—reached out to Jeremy Galinat of CES by email. (Email attached at Exhibit A.) In her email, Ms. Billings asked Mr. Galinat to assist her with filling in addresses for a list of Plan participants. The email does not indicate that the request has any relation to a court order.

9. Using the Social Security numbers provided in the Excel spreadsheet attached to Ms. Billings' email, I ran a search for addresses contained in our Harrahsl database system. Of 1,315 Social Security numbers searched, only 98 were found in the Harrahs1 database. This is likely because the remaining 1,217 persons in the plan were not employed by CEOC or its affiliates as of or subsequent to the date the Harrahsl system went live.

10. On July 15, 2015, I was informed that Plaintiff's counsel in this matter had requested an additional search on 543 names.

11. Using the Social Security numbers provided by Plaintiff's counsel, I ran a search for addresses contained in our Harrahs1 database system. Of 543 Social Security numbers searched, only 61 were found in the Harrahs1 database. Based on the limited information available to me, I believe we only have information for a fraction of this group because the majority of these individuals were never employed by CEOC or its affiliates and thus their personal information was never stored in our systems.

Davis Aff. ¶¶ 8-11. In addition, in the affidavit, Davis provides some background to her explanation of her search and states that Park Place, effectively a predecessor of Caesars, took on pension obligations when it "acquired a casino located in New Orleans called the 'Queen of New Orleans at the Hilton,' and later named the 'Flamingo New Orleans.' " Id. ¶ 5. Davis does not mention any other casino facilities by name in the affidavit. Based on this reference to the Queen of New Orleans, Plaintiff infers that the search only encompassed former employees of that facility rather than of all Caesars facilities. Defendants disagree. The Court agrees with Defendants that the affidavit indicates that the Caesars conducted a search that encompassed all facilities.

Davis states that Defendants were seeking addresses on the list of people provided, and the email attached to her affidavit indicates that Defendants stated that they were attempting to "locate plan participants in the Hilton Hotels Retirement Plan that are/were Caesar's employees...