Godinez

MEMORANDUM *

Luis Godinez and the other Appellants failed to submit probative evidence that CBS Corporation violated either the Employee Retirement Income Security Act of 1974 (“ERISA”) or the Age Discrimination in Employment Act (“ADEA”).

1. Appellants’ ERISA fiduciary claim fails because ERISA’s fiduciary duty provisions are not implicated where the employer, acting as the Retirement Plan’s settlor, changes the form or structure of the Plan. See Bins v. Exxon Co., 220 F.3d *950 1042, 1047 (9th Cir.2000) (holding that an employer does not act as a fiduciary when it chooses to alter its retirement plan).

2. Appellants’ claim under 29 U.S.C. § 1054 (g) fails because Appellants did not put forth any substantive evidence to show a decrease in their benefit accruals. As CBS carried its burden of production on summary judgment, Appellants were required to present specific evidence in response. See Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.2001). The closest Appellants came to offering evidence of a decline in their accrual rate was their experts’ promise that future study and analysis of the Cash Balance Plan would establish that the Appellants’ pensions would…