In Re: Unisys Corp (Mem Op) ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-28-1995
In Re: Unisys Corp (Mem Op)
Precedential or Non-Precedential:
Docket 94-1875
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-1875
___________
IN RE: UNISYS CORP. RETIREE
MEDICAL BENEFIT "ERISA" LITIGATION
Unisys Corporation,
Appellant
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. MDL 969)
___________
Argued
May 4, 1995
Before: MANSMANN, SCIRICA and McKEE, Circuit Judges.
(Filed June 28, l995)
___________
Alan M. Sandals, Esquire
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Joseph R. Roda, Esquire
36 East King Street
301 Cipher Building
Lancaster, PA 17602
J. Dennis Faucher, Esquire
Miller, Faucher, Chertow,
Cafferty & Wexler
One Penn Square West
Suite 1801
Philadelphia, PA 19102
Seymour J. Mansfield, Esquire
Mansfield & Tanick
900 Second Avenue South
Suite 1560
Minneapolis, MN 55402
Sarah E. Siskind, Esquire (Argued)
Davis, Miner, Barnhill & Galland
44 East Mifflin Street
Suit 803
Madison, WI 53703
Counsel for Appellees
Gerald E. Pickering, Fred Tonnies,
William Leonhardt, Evelyn Schmidt,
Dudley Keyes, David Kahl, Paul Wright,
Robert Wilt, Clay Bernichon, Edward Valle,
Robert B. Welsh, Solveig Tschann,
Ludson F. Worsham, Edwin Marjala,
Warren J. Hall, individually and on behalf of
all members of the Sperry Class previously
certified by the Court whose claims have not been
settled
James F. Roegge, Esquire
Julie L. Levi, Esquire
Meagher & Geer
33 South Sixth Street
4200 Multifoods Tower
Minneapolis, MN 55402
Counsel for Appellees
Gerald E. Pickering, Fred Tonnies,
William Leonhardt, Evelyn Schmidt,
Dudley Keyes, David Kahl, Paul Wright,
Robert Wilt, Clay Bernichon, Edward Valle,
Robert B. Welsh, Solveig Tschann,
Bernard J. Jansen, Donald I. Klippenstein,
Frederick W. Hoppe
Joseph J. Costello, Esquire
Francis M. Milone, Esquire (Argued)
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
Joseph A. Teklits
UNISYS Corporation
P.O. Box 500
M.S. C2NW 14
Blue Bell, PA 19424
Counsel for Appellant
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
We are asked to decide whether a claim for breach of
fiduciary duty may be maintained under section 502(a)(3)(B) of
ERISA, 29 U.S.C. § 1132(a)(3)(B), where, despite reservation
clauses that the company retained the right to terminate the
plans "at any time" and for "any reason," summary plan
descriptions informed retired employees that the duration of
their retiree medical benefits was for life, and company
representatives misinformed employees that once they retired,
their medical benefits would "be continued for the rest of your
life." Because we hold that a breach of fiduciary claim may be
maintained under these circumstances, we must also decide whether
equitable relief is available under ERISA to individual plan
participants. We hold that, assuming a breach of fiduciary duty
can be proven, equitable relief is available to individual plan
participants pursuant to 29 U.S.C. § 1132(a)(3)(B).
I.
This class action, filed on behalf of former employees
of Sperry Corporation, arises out of the termination of post-
retirement medical plans, sponsored by Unisys for retirees and
disabled former employees of Unisys and its corporate
predecessors, Sperry Corporation and Burroughs Corporation. The
retirees sought to recover post-retirement medical benefits under
the terms of their benefit plans and under ERISA's provisions for
appropriate equitable relief.
In September of 1986, Sperry Corporation and Burroughs
Corporation merged to form Unisys Corporation. Prior to the
merger, Sperry consisted of a number of business units or
divisions. Until 1984 each Sperry division maintained its own
medical benefits program, with each described in a separate
summary plan description. In 1984, in an attempt to streamline
the medical benefits plans and in response to rising medical
costs, Sperry implemented Medflex, a corporate-wide medical
benefits plan that applied to the entire Sperry Corporation.14
Medflex was applied to future retirees only; existing retirees
continued to receive coverage under the pre-Medflex plans which
applied when they retired.
Following the merger in 1986, Unisys continued the
Medflex plan for active employees and those who retired after its
implementation but prior to April 2, 1989. Unisys also continued
all of the pre-Medflex plans for those who retired prior to
Medflex's implementation. In 1989, Unisys effected the
consolidation of its retiree medical benefit plans when it
created the Unisys Post-Retirement and Extended Disability
Medical Plan to cover all employees who retired after April 1,
1989, most of whom were former Sperry and Burroughs employees.
14
. Medflex applied to all Sperry business units by January
1, 1984, with the exception of one sub-group of the Sperry
Division, which commenced participation in Medflex on January 1,
1985.
On November 3, 1992, Unisys publicly announced that
effective January 1, 1993, it was terminating all existing
medical benefit plans and replacing all of the pre-existing
medical plans with the new Unisys Post-Retirement and Extended
Medical Disability Plan. Under the new plan, retirees would be
responsible for increasing levels of contributions until January
1, 1995, when they would have to pay the full cost of their
premiums. Thus, the new plan sharply contrasted with earlier
plans, under the majority of which Unisys paid the entire premium
for an individual's life and provided benefits for the
individual's spouse as well.15
15
. Unisys' decision to terminate the benefit plans under
which it had provided coverage and to replace those plans with
the new Unisys Post-Retirement and Extended Disability Medical
Plan was challenged in nine separate actions which the Judicial
Panel on Multidistrict Litigation transferred to the Eastern
District of Pennsylvania and consolidated for disposition. On
June 9, 1993, after determining that Unisys "acted on grounds
generally applicable to the class," the district court certified
the case as a class action pursuant to Fed. R. Civ. P. 23(b)(2).
The class consists of approximately 21,000 former non-union
employees of Sperry, Burroughs and Unisys. The court certified
three distinct classes: Unisys retirees, Sperry retirees or
Burroughs retirees and the claims of each class were adjudicated
separately. Further, the retirees asserted two sets of claims:
general claims on behalf of all retirees, and separate claims on
behalf of "early" retirees who retired under various early
retirement incentive programs offered by the company throughout
the 1980s.
This appeal concerns some of the claims of the Sperry
regular retirees, and the claims of a sub-group of Sperry early
retirees. The appeals docketed at Nos. 94-1800, 94-1801, 94-1912
and 94-2216 concern the claims of the Unisys and Burroughs
retirees, as well as the remaining claims of the Sperry retirees.
In appeal No. 94-1800 the Sperry regular retirees and certain
early retirees have appealed from an adverse judgment rendered
after trial on their claims for breach of contract and estoppel.
The claims of the Burroughs early retirees and many of the claims
The appellees in this appeal are former employees of
Sperry corporation (and their eligible dependents) who retired
between 1969 and April 1, 1989, from Sperry Corporation or
Unisys, Sperry's successor. Following Unisys' termination of
their post-retirement medical benefit plans in late 1992, the
retirees sought relief based on three theories: breach of
contract, equitable estoppel, and breach of fiduciary duty. The
Sperry retirees argued that Unisys' termination of their
respective medical plans violated ERISA. They argued first that
Unisys had denied them "vested" benefits in violation of 29
U.S.C. § 1132(a)(1)(B) because the summary plan descriptions
("SPDs") explaining their medical benefits contained the term
"lifetime" benefits. Regarding their contract claims, the
retirees relied on the explicit lifetime language in the plans,
e.g., "when you retire, your medical benefit will be continued
(..continued)
of the Sperry early retirees were settled pursuant to a partial
settlement agreement between Unisys and these retirees. In
appeal No. 94-1801 the Unisys early retirees have appealed from
an adverse judgment rendered after trial on their claims for
breach of contract, breach of fiduciary duty and estoppel. In
appeal No. 94-1912 the Burroughs and Unisys regular retirees have
appealed from the district court's grant of summary judgment in
favor of Unisys on their breach of contract and estoppel claims.
In appeal No. 94-2166, a sub-group of Sperry retirees attempted
to challenge the partial settlement between Unisys and the Sperry
and Burroughs early retirees which did not include them. On
October 3, 1994, we granted the parties' joint motion to
consolidate appeals Nos. 94-1800, 94-1801, 94-1875 and 94-1912
for purposes of filing a single joint appendix and for
disposition. All of these appeals have now been resolved, either
by our decisions in published opinions, see Nos. 94-1800 and 94-
1875, or by memorandum opinions rendered in Nos. 94-1801, 94-1912
and 94-2216.
for the rest of your life," and on statements to the same effect
made by the company both orally and in writing.
The Medflex SPD is illustrative. A Sperry employee who
retired during the period January 1, 1984, through April 1, 1989,
received medical benefits under this plan. The SPD for medical
benefits is set forth in a booklet titled, "Your Company and
You." Included in this plan was the following description of
retiree medical benefit coverage:
If you're eligible, Medical Plan benefits
continue without cost after you terminate
active employment. Benefits also may
continue on a contributory basis for your
eligible dependents who are covered when your
employment terminated. . . . Coverage
continues for you for life and for your
dependents while they remain eligible
provided you don't stop the contributions for
their coverage. After your death, your
eligible dependents may continue coverage by
making the require contributions. Their
coverage continues until your spouse dies or
remarries.
(A 2227)(emphasis added). Second, the retirees argued that even
if Unisys had the legal right to terminate the plans (pursuant to
the reservation of rights clause located in other sections of the
plans), Unisys had breached its fiduciary duty by affirmatively
misleading plan participants regarding the duration of their
retiree medical benefits. Lastly, the retirees asserted claims
based on equitable estoppel.16
16
. The Sperry retirees' contract and estoppel claims are
not implicated in this appeal. They are the subject of an appeal
docketed at 94-1800.
Unisys' response to these arguments was that it had
reserved the right to terminate the retirees' medical plans due
to a "reservation of rights clause" or "ROR" located in another
section of the plan. Typical of these clauses is the one set
forth in the SPD describing the Medflex plan. The Medflex SPD
booklet, "Your Company and You," was distributed to all employees
and contained the following reservation of rights clause:
Plan Continuation
The Company expects to continue the Plans,
but reserves the right to change or end them
at any time. The Company's decision to
change or end the Plan may be due to changes
in federal or state laws governing welfare or
retirement benefits, the requirements of the
IRS or ERISA, the provisions of a contract or
policy involving an insurance company or any
other reason . . . .
(A 2750) (emphasis added).
In addition to the provisions set forth in the SPDs,
information about retiree medical benefits was also conveyed to
the Sperry retirees through various informal oral and written
communications. As in the SPDs, the duration of medical benefits
was described as being "for life" or for the "lifetime" of the
retiree and his or her spouse. Sperry did not include in these
informal communications a reference to the reservation of rights
clause.
Notwithstanding these communications, Unisys denied
having created vested medical benefits through its use of the
word "lifetime," and early in this litigation filed a motion for
summary judgment seeking dismissal of all of the regular
retirees' claims based on the unambiguous reservation of rights
clauses in the plans.17 On October 13, 1993, the district court
granted summary judgment in favor of Unisys on the Sperry
retirees' claim that Unisys had breached its fiduciary duties.
In re Unisys, 837 F. Supp. at 670, 679-80 (E.D. Pa. 1993).
At the trial conducted on their contract claim, the
Sperry retirees moved for reconsideration of their breach of
fiduciary duty claim in light of our decision, rendered during
trial, in Bixler v. Central Pa. Teamsters Health and Welfare
Fund, in which we held that a direct action for breach of
fiduciary duty is available under section 1132(a)(3)(B).18
Bixler, 12 F.3d 1292 (3d Cir. 1994). The retirees argued that
"even if the reservation of rights clause in the SPDs were
intended to apply to existing retirees [as opposed to active
employees], Sperry and later Unisys, had a fiduciary duty to make
this point clear." (A 2284). The district court observed:
17
. Although the district court granted Unisys' motion on
the retirees' breach of fiduciary duty and estoppel claims, it
denied summary judgment on the retirees' contract claim. The
district court found that the internal inconsistency between the
lifetime promises and the RORs made the Sperry plans ambiguous
and that under Mellon Bank N.A. v. Aetna Business Credit, 619
F.2d 1001 (3d Cir. 1980), a trial on the extrinsic evidence was
necessary to resolve the ambiguity. In re Unisys, 837 F. Supp.
at 679. After trial, the district court reversed its position on
both the contract and breach of fiduciary duty claims, entering
judgment against the Sperry retirees on the contract claim and
reversing its earlier dismissal of the breach of fiduciary duty
claim.
18
. The district court opined that the Sperry retirees had
presumably brought their breach of fiduciary duty claim pursuant
to the "other equitable relief" clause in 29 U.S.C. §
1132(a)(3)(B).
This is not a case where one or two low level
benefits counselors told a few retirees that
their benefits would continue for life. The
message that medical benefits would last for
life was confirmed repeatedly and
systematically throughout the Sperry
organization, by all levels of management, in
writing and verbally. In fact, as the
Findings make clear, several high level
corporate executives, as well as personnel
managers, testified that they believed the
[reservation of rights clause] was
inapplicable to retirees and counseled
individuals accordingly.
(A 2284). Although the district court also observed that the
summary plan description is the controlling document upon which
plan participants must rely and that informal communications
cannot alter the terms of a written plan, the court discerned "a
strong current in the Third Circuit that recognizes that an ERISA
fiduciary may not ``affirmatively mislead' plan participants."
Id. (citing Bixler, 12 F.3d 1292, and Fischer v. Phila. Elec.
Co., 994 F.2d 130 (3d Cir.), cert. denied, 114 S. Ct. 622(1993)).
Unisys argued that Bixler, supra, and Fischer, supra,were inapposite in a situation where the summary plan description
itself informs the participants of the answer to their inquiry
regarding benefits. After reviewing Fischer and Bixler, the
district court concluded that the evidence supported a breach of
fiduciary duty claim. The court stated, "First, it is clear that
the highest levels of corporate management at Sperry, and later
Unisys, recognized that employees might be under the mistaken
belief that ``lifetime' meant forever."19 The evidence suggested
to the court that "by the mid-1980's, defendant understood the
potential for confusion concerning the meaning of ``lifetime
benefits.'" The court further observed that the "Defendant then
exacerbated this potential [for confusion] with numerous informal
communications that discussed lifetime benefits without explicit
reference to the [reservation of rights clause]."20 (A 2289).
19
. The court found that this was evidenced in part by a
confidential letter in which John Loughlin, who was then staff
Vice President, Employees Benefits for Sperry, wrote:
It is important to determine the implied promise that
has been made regarding post-retirement medical
benefits. Recent court cases have impaired the
employer's ability to reduce these benefits after
retirement. The Company should consider how the
promise can be limited so as to control the impact on
Company costs of future medical inflation and Federal
cost-shifting.
(A 2288). The second letter upon which the district court relied
was a confidential 1988 memorandum from J.A. Blain, then Vice-
President of Human Resources for Unisys, to W.M. Blumenthal, then
CEO of Unisys, which cautioned:
Although we have not suggested to either active
employees or current retirees that we may consider
changes in Post Retirement Medical for those already
retired, we feel our analysis would be incomplete if we
did not address possible changes to the Post-Retirement
Medical Plans of our 16,000 current retirees. . . .
Many retirees will undoubtedly suggest that when they
retired, they felt that their medical program would
continue without changes. . . .
(A 2288).
20
. The district court found that "Unisys could have easily
put an explicit [reservation of rights clause] in each informal
communication given to employees rather than only use the
lifetime language; also, when employees made specific inquiries
to benefit counselors during exit interviews and at group
retirement sessions, the company could have instructed the
The court found that the retirees had presented
credible testimony that some individuals specifically asked if
their benefits would continue for life and were told they would,
without any mention of the reservation of rights clause. (A
2290). When faced with a specific inquiry as to the explanation
of benefits, the district court held that "an employer cannot
give vague or incorrect answers, especially on a repeated and
pervasive basis." Id. Because the breach of fiduciary duty
claim was not directly before the court at trial, it did not hold
that a breach in fact occurred. In granting reconsideration of
this issue though, the district court concluded that "based on
the evidence and the law in this circuit, it seems possible that
at least some plaintiffs will be able to sustain a breach of
fiduciary duty claim."21 (A 2291). Given the complexity of the
legal question involved and its uncertainty of the contours of
Bixler, the district court certified its decision for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On July
22, 1994, Unisys filed a petition for permission to appeal
(..continued)
counselors to tell prospective employees that although the word
``lifetime' is used, the company always reserves its right to
terminate the plans." (A 2289-90).
21
. Because the court believed that some plaintiffs had
stronger cases than others based on their specific inquiries and
the information given to them personally, the court found that
subclasses, and possibly even individual hearings, would be
necessary to adjudicate the breach of fiduciary duty claims. The
court did not express an opinion as to what damages would be
recoverable and recognized that the parties would brief the issue
at a later time.
pursuant to 28 U.S.C. § 1292(b). We granted Unisys' petition on
August 8, 1994.22
II.
Section 404(a)(1) of ERISA provides that "a fiduciary
shall discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries . . . ." 29
U.S.C. § 1104(a)(1).23 Recognizing this statutory obligation, we
22
. The district court certified for immediate appeal and
we accepted the following controlling questions of law:
(a) May a breach of fiduciary duty
claim be maintained under ERISA where:
(1) the applicable summary plan
descriptions ("SPDs") informed class members
that the duration of retiree medical benefits
was for life, but reservation clauses in the
SPDs stated that the company reserved the
right to terminate the plans at any time and
for any reason; and
(2) company representatives
misinformed class members that once they
retired, their medical benefits would
continue for life, as detailed in the Court's
Opinion of June 23, 1994?
(b) Assuming that a breach of fiduciary
duty claim may be maintained under the above
circumstances, is equitable relief available
to individual participants under ERISA?
23
. ERISA broadly defines a fiduciary as any person who
"exercises any discretionary authority or discretionary control
respecting management of such plan . . . or has any discretionary
authority in the responsibility in the administration of the
plan." 29 U.S.C. § 1002(21)(A).
There is no question that both Sperry and later Unisys
were acting as plan administrators, and thus were acting in a
fiduciary capacity, when they made the material
have held that in the exercise of these duties, the fiduciary
"may not materially mislead those to whom the duties of loyalty
and prudence . . . are owed." Fischer, 994 F.2d at 135; Bixler,
12 F.3d at 1300; Curcio v. John Hancock Mutual Life Insurance
Co., 33 F.3d 226, 238 (3d Cir. 1994).
In Fischer, we held that a plan administrator may not
make affirmative material misrepresentations to plan participants
about changes to employee benefit plans. Fischer involved
employees who retired shortly before their employer offered an
early retirement plan or "retirement sweetener." Although the
company had announced that it might offer such a plan, when
employees inquired about its availability, they were told by
benefits counselors that "no plan was being considered."
Fischer, 994 F.2d at 132. The benefit counselors were
technically telling the truth, since they had not been informed
by the corporation that a retirement sweetener was under serious
(..continued)
misrepresentations that support the claim for breach of fiduciary
duty in this case. Our decisions firmly establish that when a
plan administrator explains plan benefits to its employees, it
acts in a fiduciary capacity. See, e.g., Genter v. ACME Scale
and Supply Co., 776 F.2d 1180 (3d Cir. 1985) (holding that ACME
Scale and Supply met the ERISA definition of fiduciary as an
employer-administrator of the plan at issue); Fischer v. Phila.
Elec. Co., 994 F.2d 130, 133 (3d Cir. 1993) (finding employer to
have fiduciary status solely on the basis of its role as plan
administrator under ERISA); Hozier v. Midwest Fasteners, Inc.,
908 F.2d 1155, 1158 (3d Cir. 1990) (holding that when employers
serve as plan administrators, they assume the role of fiduciary
under ERISA). When a corporate plan administrator speaks about
benefits to its employees, the administrator acts in a fiduciary
capacity even if he speaks about a non-fiduciary decision such as
the business decision to terminate a welfare benefit plan. See
Hozier, supra.consideration. Nonetheless, we held that a material issue of
fact existed as to whether the employer had breached its
fiduciary duty to its employees by responding in a misleading
fashion to their questions about the sweetener. Id. at 135. We
held that, "Put simply, when a plan administrator speaks, it must
speak truthfully." Id.
We affirmed this principle in Bixler in holding that a
plan administrator has an affirmative duty to "speak when it
knows that silence might be harmful." There the widow of a plan
participant contacted her husband's employer while the COBRA
election period was still open, to ask whether there was a death
benefit to which she was entitled. We held that:
If [the employer's agent] knew that Mr.
Bixler's death left Mrs. Bixler with
substantial unpaid medical expenses and that
she could receive reimbursement for those
expenses under the Drivers' plan by signing
and returning the COBRA notice that [he] had
sent to her husband, we believe the failure
to advise her of the available benefits might
be found to be a breach of fiduciary duty
despite the fact that her inquiry was limited
to the availability of a death benefit.
12 F.3d at 1302. Although we did not decide whether a breach of
fiduciary duty in fact occurred, we observed that the fiduciary's
duty to inform "entails not only a negative duty not to
misinform, but also an affirmative duty to inform when the
trustee knows that silence might be harmful." Id. at 1300.
Significantly, we held that the employer's failure to advise Mrs.
Bixler regarding her COBRA rights could constitute a breach of
its fiduciary duty even though the employer had previously
provided the information in a written COBRA notice24 and even
though the employer's omission in that case concerned facts about
which Mrs. Bixler had not specifically inquired.
Similarly in Curcio v. John Hancock Mutual Life
Insurance Co., 33 F.3d 226 (3d Cir. 1994), we held that an
employer's misrepresentations regarding the existence of
supplemental accidental death and dismemberment insurance, in
representations made to employees during solicitations for
enrollment in a new life insurance program which provided only
for supplemental life insurance, established a breach of
fiduciary claim. See also Smith v. Hartford Ins. Group, 6 F.3d
131 (3d Cir. 1993) (employer's erroneous representations that
Smith would receive some level of coverage under new plan gives
rise to a breach of fiduciary duty claim under ERISA); Taylor v.
Peoples Natural Gas Co., 49 F.3d 982 (3d Cir. 1995) (a plan
administrator may be liable for the material misrepresentations
made by individuals who have been selected as non-fiduciary
agents by the plan administrator to assist it in its fiduciary
obligation to administer a plan).
Unisys argues that the district court's decision in
this case is based on an unwarranted extension of our holding in
Bixler. Unisys points to the fact that Sperry and later Unisys
24
. Mrs. Bixler received the requisite notice that she had
a right to elect "COBRA" contribution coverage at her own
expense, but she did not do so, believing that the COBRA notice
did not apply to her since her husband was already in the
hospital and she mistakenly believed that this precluded him from
being eligible for coverage. Bixler, 12 F.3d at 1302.
unambiguously advised employees in summary plan descriptions that
the company had reserved the right to terminate its retiree
medical benefit plans. Thus, Unisys contends that Bixler did not
address the principal issue in this appeal which Unisys frames as
"whether an employer has a fiduciary duty to remind its employees
of its right to modify or terminate a benefit plan when it
already disclosed that information in an SPD." Appellants' brief
at p. 19. We reject Unisys' characterization of the fiduciary
duty involved as "one to remind" and of the cases upon which
Unisys relies.
Under ERISA, fiduciaries have certain duties which
include "the disclosure of specified information." Massachusetts
Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 142-45 (1985). A
fiduciary's statutory disclosure obligations are set forth in
ERISA, 29 U.S.C. §§ 1102, 1021 and 1022. Under 29 U.S.C. §
1102(a)(1), "[e]very employee benefit plan shall be established
and maintained pursuant to a written instrument . . . ." Under
section 1022(a), "[a] summary plan description of employee
benefit plan is to be furnished to plan participants" and the
plan description "shall be sufficiently accurate and
comprehensive to reasonably apprise such participants and
beneficiaries of their rights and obligations under the plan."
29 U.S.C. § 1022(a)(1). Further, ERISA requires that the summary
plan description "explain the circumstances which may result in
disqualification, ineligibility, or denial or loss of benefits,"
29 U.S.C. § 1022(b), "in a manner that is calculated to be
understood by the average plan participant." 29 U.S.C. §
1022(a)(1).25 A summary plan description "must not have the
effect [of] misleading, misinforming or failing to inform
25
. § 1021. Duty of Disclosure and Reporting
(a) Summary plan description and information to
participants and beneficiaries
The administrator of each employee benefit plan
shall cause to be furnished in accordance with
section 1024(b) of this title to each participant
covered under the plan and to each beneficiary who
is receiving benefits under the plan --
(1) a summary plan description described
in section 1022(a)(1) of this title; and
* * * *
§ 1022. Plan Description and summary plan description
(a)(1) A summary plan description of any employee
benefit plan shall be furnished to participants
and beneficiaries as provided in section 1024(b)
of this title. The summary plan description shall
include the information described in subsection
(b) of this section, shall be written in a manner
calculated to be understood by the average plan
participant, and shall be sufficiently accurate
and comprehensive to reasonably apprise such
participants and beneficiaries of their rights and
obligations under the plan. A summary of any
material modification in terms of the plan and any
change in the information required under
subsection (b) of this section shall be written in
a manner calculated to be understood by the
average plan participant and shall be furnished in
accordance with section 1024(b)(1) of this title.
* * * *
(b) The plan description and summary plan
description shall contain the following
information: The name and type of administration
of the plan; the name and address of the person
designated as agent for the service of legal
process, if such person is not the administrator;
the name and address of the administrator; names,
participants and beneficiaries." 29 C.F.R. § 2520-102-2(b)
(1987).
Unisys argues that we should reject the notion that
Bixler can be interpreted as imposing a broad duty to inform
"upon a fiduciary that has satisfied its statutory disclosure
obligations." Unisys is correct that we have held that a
fiduciary may satisfy its statutory disclosure obligations
regarding the terms of a plan by distributing a summary plan
description that complies with ERISA. See, e.g., Stahl v. Tony's
Bldg. Materials Inc., 975 F.2d 1404 (9th Cir. 1989) (holding
employee trust fund did not breach its fiduciary duty to a union
member by failing to warn him individually that his pension
benefits could be drastically reduced where the rule that applied
was adequately explained in the summary plan description); Allen
(..continued)
titles, and addresses of any trustee or trustees
(if they are persons different from the
administrator); a description of the relevant
provisions of any applicable collective bargaining
agreement; the plan's requirements respecting
eligibility for participation and benefits; a
description of the provisions providing for
nonforfeitable pension benefits; circumstances
which may result in disqualification,
ineligibility, or denial or loss of benefits; the
source of financing of the plan and the identity
of any organization through which benefits are
provided; the date of the end of the plan year and
whether the records of the plan are kept on a
calendar, policy, or fiscal year basis; the
procedures to be following in presenting claims
for benefits under the plan and the remedies
available under the plan for the redress of claims
which are denied in whole or in part (including
procedures required under section 1133 of this
title).
v. Atlantic Richfield Retirement Plan, 480 F. Supp. 848 (E.D. Pa.
1979), aff'd, 633 F.2d 209 (3d Cir. 1980) ("Congress did not
intend to impose a duty to provide the kind of individualized
attention urged by plaintiff here, but rather envisioned that a
fiduciary could discharge its obligations through the use of an
explanatory booklet"); Schlomchik v. Retirement Plan of
Amalgamated Ins. Fund, 502 F. Supp. 240 (E.D. Pa. 1980), aff'd,
671 F.2d 496 (3d Cir. 1981) ("no duty on the part of defendants
to provide this particular employee with individualized attention
. . . ."); Schiffer v. Equitable Assurance Sec. of the U.S., 838
F.2d 78 (3d Cir. 1988) (rejecting argument that a fiduciary owed
an obligation to a beneficiary to explain the terms of a written
plan). These cases, however, are inapplicable here. In each of
them, breach of fiduciary duty claims were rejected because the
plan documents clearly explained the benefits in question; none
involved allegations that a breach of fiduciary duty had occurred
because a plan administrator had affirmatively and materially
misrepresented the terms of a plan. Furthermore, satisfaction by
an employer as plan administrator of its statutory disclosure
obligations under ERISA does not foreclose the possibility that
the plan administrator may nonetheless breach its fiduciary duty
owed plan participants to communicate candidly if the plan
administrator simultaneously or subsequently makes material
misrepresentations to those whom the duty of loyalty and prudence
are owed.
Contrary to Unisys' claim, this is not a case involving
an employer's "duty to remind". Instead, this case is more
accurately characterized as a dispute over an employer's duty, as
an ERISA fiduciary, not to misinform employees through material
misrepresentations and incomplete, inconsistent or contradictory
disclosures. In the present context, a misrepresentation is
material if there is a substantial likelihood that it would
mislead a reasonable employee in making an adequately informed
retirement decision. Fischer v. Philadelphia Elec. Co., 994 F.2d
at 135. Here the district court found that Unisys affirmatively
and systematically represented to its employees that once they
retired, their medical benefits would continue for life -- even
though as the district court concluded in rejecting the retirees'
contract claim, the plans clearly permitted the company to
terminate benefits.26 We have no doubt that the conduct Unisys
engaged in, based on the findings of the district court, would
constitute a breach of fiduciary duty in its most basic form.
Our decisions in Bixler, Fischer, Curcio and Smith firmly
establish that when a plan administrator affirmatively
misrepresents the terms of a plan or fails to provide information
26
. We have previously held that the Sperry retirees did
not have a claim for relief based on breach of contract due to
the unambiguous language of the reservation of rights clauses.
See In re Unisys, No. 94-1800, slip opinion (3d Cir. June 28,
1995). This decision does not foreclose the retirees' claims for
relief based on a breach of fiduciary duty. In Curcio, supra, we
upheld Mrs. Curcio's claim for breach of fiduciary duty, even
though we had rejected her contract claim arising out of the same
set of circumstances. See also Howe v. Varity Corp., 36 F.3d
746, 753 (8th Cir. 1994), cert. granted, 115 S. Ct. 1792 (April
24, 1995) (Howe I, in which plaintiffs' contract-type claims that
benefits had vested were rejected, does not bar plaintiffs from
urging in Howe II that they were entitled to relief on the basis
of breach of fiduciary duty or estoppel).
when it knows that its failure to do so might cause harm, the
plan administrator has breached its fiduciary duty to individual
plan participants and beneficiaries.
Imposing upon an employer a fiduciary duty in this case
does not threaten or contradict our well-established policy
disfavoring informal plan amendments.27 We recently recognized
27
. Unisys argues that we recently recognized the
"troubling implications" of a misrepresentation claim based upon
alleged oral misrepresentations to plan participants where
accurate information was available in a summary plan description.
(Unisys brief at pp. 31-32). Unisys directs our attention to a
footnote in our decision in Haberern v. Kaupp Vascular Surgeons
Ltd Defined Benefit Pension Plan, 24 F.3d 1491, 1501 n.6 (3d Cir.
1994) in which we stated:
Thus, we do not reach the question whether
Haberern's misrepresentation argument could
be upheld under Section 502(a)(3). [citation
omitted]. We do note, however, that
Haberern's misrepresentation argument has
troubling implications because the summary
plan description pages given to her made it
clear that the retirement benefit was based
on compensation and the compensation did not
include bonuses. [citations omitted]. Of
course, the summary plan description mirrored
the plan itself. Thus, Haberern effectively
is relying on parol evidence to contradict
clearly defined terms of a plan revealed to
her in writing. Accordingly, if we adopt her
approach we will create a precedent for any
beneficiary to make claims for benefits
beyond those provided in a plan. It would be
difficult to reconcile that result with our
cases holding that oral or informal
amendments to ERISA benefit plans are
precluded. See Confer v. Custom Eng'g Co.,
952 F.2d 41, 43 (3d Cir. 1991); Frank v. Colt
Indus. Inc., 910 F.2d 90, 98 (3d Cir. 1990);
Schoonejongen v. Curtiss-Wright Corp., 18
F.3d 1034, 1040 (3d Cir. 1994), rev'd and
remanded on other grounds, ___ U.S. ___, 115
S. Ct. 1223 (1995) ("Unless and until the
written plan is altered in a manner, and by a
in Curcio, supra, that our equitable theories of relief under
ERISA (breach of fiduciary duty and estoppel) are "not to be
construed as conflicting with our precedent precluding oral or
informal amendments to ERISA benefit plans. 33 F.3d at 236 n.17.
The retirees here do not argue that Unisys'
misrepresentations modified their retiree medical benefit plans.
Rather, for purposes of their breach of fiduciary claim, they
assume the plans did not contractually vest benefits, and claim
instead that the company breached its fiduciary duty by leading
employees to believe that the plans did. This claim is distinct
from a claim for benefits under the terms of the plan because it
requires different proof (proof of fiduciary status,
misrepresentations, company knowledge of the confusion and
resulting harm to the employees) than would be required for a
contract claim that the plans had been modified.
In recognizing the retirees' breach of fiduciary claim
here, we do not intend to "create a precedent for any beneficiary
to make claims beyond those provided in a plan." See Haberern,
24 F.3d 1492, 1501 n.6 (3d Cir. 1994). However, the facts and
circumstances in this case clearly warrant our recognition of a
(..continued)
person or persons authorized in the plan,
neither the plan administrator nor a court is
free to deviate from the terms of the
original plan.").
However, as the district court in Haberern observed, Haberern's
claim (with respect to her bonus) was brought pursuant to section
502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B) and not under
section 1132(a)(3)(B), the provision of ERISA pursuant to which
the retirees' claims are brought here.
claim of a fiduciary breach. Here the district court found that
virtually the entire company management had consistently
misrepresented the plan, not just on one occasion or to one
employee, but over a period of many years and both orally (in
group meetings) and in writing (in newsletters) as well. Under
these circumstances, we do not find a conflict with our policy
against informal plan modification.28
28
. Finally, Unisys attempts to distinguish Bixler from
this case "because in Bixler, the information which allegedly was
not supplied to the participant involved current facts which if
brought to the attention of the participant, would have avoided a
current loss of benefits under the plan." Unisys thus urges us
to limit Bixler's application to a breach of fiduciary duty based
upon a failure to disclose present circumstances that may affect
an employee's present right to specific benefits under the terms
of a plan. Unisys maintains that there is no evidence that at
the time of the oral and written communications regarding retiree
medical benefit coverage, anyone within the company knew that
Unisys would be terminating its retiree medical benefit plans in
November, 1992. (See Appellants' brief at pp. 35-36: "at the time
the lifetime benefits were provided to retirees the company was
not anticipating discontinuing them.")
We have previously held that ERISA does not "impose a
duty of clairvoyance" under which employers would be required to
advise participants and beneficiaries of the risk of plan changes
not even being contemplated. See Curtiss-Wright, 18 F.2d at
1042, n. 7. See also Fischer, 994 F.2d at 135 (an ERISA
fiduciary is under no obligation to offer precise predictions
about future changes to its plan). Our holding today should not
be interpreted as creating a fiduciary obligation to predict and
disclose future possibilities or potentialities to plan
participants.
We accept Unisys' contention that at the time lifetime
benefits were promised, no one at Sperry ever intended or
anticipated that there would one day be the need to reduce or
eliminate retiree medical benefits. Nonetheless, an ERISA
fiduciary does have an obligation to "answer participants'
questions forthrightly," Fischer, 994 F.2d at 135, and "a duty to
communicate complete and accurate information about a
beneficiary's status." Eddy v. Colonial Life Insurance, 919 F.2d
746, 751 (D.C. Cir. 1990). This was the obligation that was
We turn now to the evidence adduced at trial on the
breach of contract claim to see if sufficient evidence would
support the other elements of the breach of fiduciary duty claim,
specifically, Unisys' knowledge that its employees were mislead
by Unisys' misrepresentations and Unisys' knowledge that its
misrepresentations were material to the beneficiaries'
circumstance because the misrepresentations influenced their
decisions to retire.
(..continued)
breached in this case. The district court found that the
retirees had presented credible testimony that some individuals
specifically asked if their benefits would continue for life and
were told they would, without any mention of the reservation of
rights clauses. (A 2290 n.69). Employees were told, "Once you
retire and take your first pension check from the company . . .
that's it." (A 2534). Thus, while Unisys may not have
anticipated ending the plans, it knew that it had the ability to
do so and it knew that its employees were receiving answers to
their specific inquiries that were vague, misleading and
contradictory.
Unisys' situation was not completely unanticipated.
Indeed, the company had the foresight to draft and incorporate
reservation of rights clauses into its retiree medical plans,
which expressly gave the company the right to terminate the plans
if they became onerous. Unisys was aware of the retirees'
confusion regarding the applicability of these clauses to their
benefits and the retirees' mistaken belief that their benefits
could not be terminated once an employee retired. Under these
circumstances, we find a duty to convey complete and accurate
information arose.
III.
In detailed and well-supported findings, the district
court found that Unisys had knowledge that its employees believed
the assurances of lifetime benefits they had been given and were
making retirement decisions based on their understanding that
when they retired, the benefits that they had at the time they
retired would continue for life. Uncontroverted evidence
established that Unisys' executives were aware that the lifetime
medical benefit was an important consideration for employees who
were considering when to retire. This evidence established that
the company knew that employees accelerated their retirement
plans because of the belief that by retiring at a certain point
in time, they would "lock in" the lifetime coverage that they had
under the current plan.29 Further, the district court found that
once Unisys was aware of the fact that retirees were electing to
retire based on this understanding, Unisys failed to do anything
to correct the misinformation, and instead reinforced the
misunderstanding by continuing to repeat the same assurances that
upon retirement a retiree's benefits would continue for life.
29
. The district court quoted testimony from Sperry's
former Senior Vice President for Personnel, Frank Sweeten, who
acknowledged that the lifetime promises made by Unisys to
retiring employees was an influence in retirement decisions:
We said that this is yours for life. You
have got it for life. And people made
decisions on that. They decided whether to
go [i.e., retire] or not go on the basis that
they were told this is for life.
(A 2230 n.19).
The district court found that the company, both
actively and affirmatively, systematically misinformed its
employees about the duration of their benefits by stating over
and over again, without qualification, that their benefits would
continue for life:
There is no question that the defendant
routinely spoke of the medical benefits as
continuing "for life". This message was
conveyed time and time again throughout
informal communications that were sent out to
retirees, and by oral statements that were
made to these individuals both at private
exit interviews and in group retirement
sessions.
(A 2281-82). In addition to these communications in individual
correspondence and company newsletters, the district court also
cited examples of evidence that Unisys consistently responded to
specific inquiries about whether a retiree's benefits could
change by telling employees that they could not. (A 2290).
Given these findings, we hold that the district court
did not err as a matter of law in concluding that the duty to
convey complete and accurate information that was material to its
employees' circumstance arose from these facts since the trustees
had to know that their silence might cause harm. The district
court's findings that the company actively misinformed its
employees by affirmatively representing to them that their
medical benefits were guaranteed once they retired, when in fact
the company knew this was not true and that employees were making
important retirement decisions relying upon this information,
clearly support a claim for breach of fiduciary duty under ERISA.
We turn now to the remaining issue in this appeal,
whether relief is available to individual plan participants under
ERISA.
IV.
In Bixler v. Central Pa. Teamsters Health-Welfare Fund,
12 F.3d 1292 (3d Cir. 1993), we held that where a fiduciary
breach causes harm to a beneficiary, that beneficiary has a claim
for equitable relief pursuant to section 502(a)(3) of ERISA,
which authorizes suits by participants for "appropriate equitable
relief" to redress violations of ERISA.30 Relying on our
30
. Section 502 of ERISA provides:
(a) Persons empowered to bring a civil
action
A civil action may be brought --
(1) by a participant or beneficiary --
(A) for the relief provided for in
subsection (c) of this section, or
(B) to recover benefits due to him
under the terms of his plan, to
enforce his rights under the terms
of the plan, or to clarify his
rights to future benefits under the
terms of the plan;
(2) by the Secretary, or by a participant,
beneficiary or fiduciary for appropriate
relief under section 1109 of this title;
(3) by a participant, beneficiary, or
fiduciary (A) to enjoin any act or practice
which violates any provision of this
subchapter or the terms of the plan, or (B)
to obtain other appropriate equitable relief
decision in Bixler, the district court concluded that equitable
relief was available to individual plan participants for breach
of fiduciary duty under section 502(a)(3)(B).
In Bixler, we considered both the source and the scope
of an ERISA fiduciary's duty to one of its beneficiaries and held
that a direct action for breach of fiduciary duty exists in the
"other appropriate equitable relief" clause of section
502(a)(3)(B) of ERISA, 29 U.S.C. § 1132(a)(3)(B). Recognizing
that "undoubtedly there will be instances in which a fiduciary's
actions harm an individual beneficiary, but do not harm the
plan," we adopted the approach of Justice Brennan's concurrence
in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134(1985) to hold that "section 502(a)(3) authorizes the award of
``appropriate equitable relief' directly to a participant or
beneficiary to ``redress' any act or practice which violates any
provision of this title including a breach of the statutorily
created fiduciary duty of an administrator." Bixler, 12 F.3d at1298 (citing Massachusetts Mutual, 473 U.S. at 153).31 We held
(..continued)
(i) to redress such violations or (ii) to
enforce any provisions of this subchapter or
the terms of the plan. . . .
31
. In Massachusetts Mutual, the Supreme Court addressed
the question whether an ERISA fiduciary could be held personally
liable to a participant or beneficiary for extra contractual
damages caused by the improper or untimely processing of benefits
claims. The plaintiff had sued only under ERISA's fiduciary duty
section, section 409(a), and its civil enforcement section,
section 502(a)(2); thus the court's holding was similarly
limited. After examining the statutory language of these
provisions, Justice Stevens, speaking for the majority,
concluded: "The entire text of section 409 persuades us that
Congress did not intend that section to authorize any relief [for
that the principles of section 404(a), which serve as the
touchstone for understanding the scope and object of an ERISA
fiduciary's duties, are given effect by section 502(a)(3) which,
in the language of the statute, authorizes the award of
"appropriate equitable relief" directly to a participant or
beneficiary to redress any act or practice which violates the
provision of ERISA. We observed, of course, that this relief is
independent of that established in section 409, authorizing
recovery for breach of fiduciary duty on behalf of the plan.
Unisys suggests that our conclusion in Bixler is called
into question by the Supreme Court's decision in Mertens v.
Hewitt Assoc., ___ U.S. ___, 113 S. Ct. 2063 (1993), in which the
Supreme Court held that money damages are not available under
(..continued)
breach of fiduciary duty] except for the plan itself."
Massachusetts Mutual, 473 U.S. at 144.
Justice Brennan, joined by Justices White, Marshall and
Blackmun, wrote separately to emphasize the limited reach of the
majority opinion and to outline the proper approach for courts to
take in construing other ERISA provisions. In full agreement
with the majority that section 409 did not authorize recovery to
an individual, Justice Brennan explained that individual recovery
for breach of fiduciary duty is available elsewhere in the
statute, in the "other appropriate equitable relief" clause of
section 502(a)(3), reasoning that allowing an injured beneficiary
recourse through the courts is essential to fulfilling the
purpose of ERISA. Explaining that Congress intended this result,
Justice Brennan found the fundamental purpose of the statute was
the "enforcement of strict fiduciary standards of care in the
administration of all aspects of pension plans and promotion of
the best interests of participants and beneficiaries." 473 U.S.
at 158. See also id. at 152-53, citing H.R. Conf. Rep. No. 1280,
93rd Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 5030, 5106
(emphasizing that section 502 permits beneficiaries to bring a
"civil action to recover benefits due under the plan, to clarify
rights to receive future benefits under the plan, and for relief
from breach of fiduciary responsibility") (emphasis added).
section 502(a)(3), which, by its very terms, authorizes only
equitable relief. Although Unisys acknowledges that the Supreme
Court in Mertens never addressed the question of whether, in the
event of a breach of fiduciary duty, a plan participant could
seek equitable relief on his own behalf (rather than on behalf of
a plan), Unisys maintains that the Supreme Court in Mertens
expressed an unwillingness to infer causes of action in the ERISA
context. See id. at 2067.32
We do not read Mertens as precluding the retirees'
claim for equitable relief. In a post-Mertens decision, the
Court of Appeals for the Seventh Circuit reached the same
conclusion and reversed the district court's holding that
individual relief was not available under section 502(a)(3),
holding instead, based on Mertens, that section 502(a)(3)
authorized such relief. Anweiler v. Amer. Elec. Power Serv.
Corp., 3 F.3d 986, 993 (7th Cir. 1994).
In Mertens, the Court held that the
"appropriate equitable relief" in section
[502(a)(3)] included only typical remedies
available in equity and not "legal remedies"
like compensatory damages or monetary relief.
The court limited its holding to the "narrow
32
. Unisys observes that we did not mention Mertens in our
opinion in Bixler, and that two other courts since Mertens have
held that only the plan, and not individual plan participants or
beneficiaries, are entitled to relief for a breach of a fiduciary
duty based on their conclusion that the sole and exclusive bases
for such relief are sections 409 and 502(a)(2) of ERISA, 29
U.S.C. §§ 1109 and 1132(a)(2). See Richards v. General Motors
Corp., 850 F. Supp. 1325 (E.D. Mich. 1994), and Kaiser Permanente
Employees Pension Plan v. Bertozzi, 849 F. Supp. 692, 700 (N.D.
Cal. 1994) (concluding that recovery under section 502(a)(3) is
limited to "relief that inures to the benefit of the plan as a
whole").
battleground" chosen by the parties and
decided the issue of "what forms of relief
are available" under section 1132(a)(3), not
to whom the relief can go or whether a
remedial wrong had even been alleged.
Nevertheless, Mertens clearly indicates the
importance and availability of equitable
relief. Moreover, the Secretary of Labor in
an amicus curiae brief argues [that] Mertens
dictates the availability of relief to an
individual under section 1132(a)(3) for a
fiduciary's breach of duty. Therefore, in
light of Mertens and in deference to the
Secretary's interpretation of the law which
he is authorized to enforce, we hold that an
individual may seek equitable relief from a
breach of fiduciary duty under Section
1132(a)(3).
Id. (citations omitted). The Court of Appeals for the Eighth
Circuit reached the same result in Howe v. Varity Corp., 36 F.3d
746 (8th Cir. 1994), cert. granted, 115 S. Ct. 1792 (April 24,
1995).33 Thus, our decision in Bixler is consistent with the
33
. Interestingly, the Court of Appeals in Howe relied on
Mertens to vacate the district court's award of punitive and
compensatory damages, but upheld its equitable remedies in the
form of monetary restitution for back benefits and an injunction
restoring future benefits under the plaintiffs' former medical
plan. With respect to Mertens, the court of appeals opined:
Mertens simply holds that only "equitable
relief" is available under section 502(a)(3),
29 U.S.C. § 1132(a)(3), and that this phrase
does not include the collection of damages
from persons who are not fiduciaries but act
in concert with those who are fiduciaries.
Nothing in Mertens precludes an award of
traditional equitable relief, including an
injunction, restitution, and the like. As
plaintiffs now concede . . . after Mertens,
compensatory damages are not recoverable
under section 1132(a)(3). But the case by no
means bars equitable relief for individual
participants who have suffered a breach of
trust.
decisions of the Courts of Appeal for the Seventh and Eighth
Circuits.34 Accordingly, we reaffirm our conclusion in Bixler
that equitable relief running to an individual falls within the
scope both of section 1132(a)(3)'s language and of ERISA's broad
remedial purpose. See 29 U.S.C. § 1001(b).
A question left unanswered by Bixler is the form of
equitable relief available under section 502(a)(3). Both the
district court and the Sperry retirees agree that the retirees
are not entitled to money damages for a breach of fiduciary duty.
Instead, the retirees seek an injunction ordering specific
performance of the assurances Unisys made, restitutionary
reimbursement for back benefits, and restoration of the status
quo ante for the Sperry early retirees by rescinding their
retirement agreements. These are remedies which are
restitutionary in nature and thus equitable. See Curcio, 33 F.2d
at 238-39 ("[W]e hold that Mrs. Curcio's alternate argument [that
Capital Health breached its fiduciary duty] provides additional
support for our conclusion that Capital Health is liable to Mrs.
Curcio for the $150,000 in supplemental AD&D", representing full
enforcement of the promise that had been made); Howe v. Varity
Corp., 36 F.3d at 756 (award of monies plaintiffs would have
received if they had remained members of the M-F plan could not
properly be characterized as damages; rather, the payments were
34
. The Court of Appeals for the Ninth Circuit, in a pre-
Mertens decision, held to the contrary. Sokol v. Bernstein, 803
F.2d 532 (9th Cir. 1986) (beneficiary was not entitled to recover
extra contractual damages for emotional distress caused by
arbitrary and capricious acts of plan trustee).
restitution). It will be for the district court to determine
which of these remedies are appropriate under the circumstances
of these individual claims.
V.
For the foregoing reasons, the order of the district
court dated June 23, 1994, reinstating the retirees' claims for
breach of fiduciary duty which was certified for appeal pursuant
to 28 U.S.C. § 1292(b) by order entered July 12, 1994, will be
affirmed. This cause is remanded to the district court for
further proceedings.