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Romero v. Allstate Corporation

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


April 14, 2005

GENE ROMERO; JAMES T. BEVER; ROGER T. BOYD; RICHARD A. CARRIER; PAUL R. COBB; CRAIG K. CREASE; SYLVIA CREWS-KELLY; DWIGHT F. ENGLISH; DOUGLAS F. GAFNER; RONALD W. HARPER; MICHAEL P. KEARNEY; THOMAS A. KEARNEY; LARRY H. LANKFORD, SR.; DAVID C. LAWSON; NATHAN R. LITTLEJOHN, II; REBECCA R. MASLOWSKI; CRAIG A. MILLISON; JAMES E. MOOREHEAD; EDWARD T. MURRAY, III; CAROLYN L. PENZO; CHRISTOPHER L. PERKINS; RICHARD E. PETERSON; JAMES P. PILCHAK; PAULA REINERIO; PAULA M. SCHOTT; DONALD L. TRGOVICH; RICHARD S. WANDNER; TIMOTHY WEISMAN; ERNIE P. WENDT; ANTHONY T. WIKTOR; JOHN W. WITTMAN; RALPH J. WOLVERTON, APPELLANTS
v.
THE ALLSTATE CORPORATION; ALLSTATE INSURANCE COMPANY; AGENTS PENSION PLAN; ADMINISTRATIVE COMMITTEE, IN ITS CAPACITY AS ADMINISTRATOR OF THE AGENTS PENSION PLAN

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 01-cv-06764) District Judge: Honorable John P. Fullam

The opinion of the court was delivered by: Fisher, Circuit Judge

PRECEDENTIAL

Argued January 24, 2005

Before: SCIRICA, Chief Judge, RENDELL, and FISHER, Circuit Judges.

OPINION OF THE COURT

A group of plaintiffs seeking to represent different classes of current and retired insurance agents of the Allstate Insurance Company brought this action alleging four counts under the Employee Retirement Income Security Act of 1974 ("ERISA") against The Allstate Corporation, the Allstate Insurance Company, the Agents Pension Plan ("Pension Plan") and the Administrative Committee in its capacity as administrator of the Agents Pension Plan ("Plan Administrator") (collectively herein "Allstate"). The three ERISA non-fiduciary duty claims, alleged under 29 U.S.C. §§ 1054(g)(2) and (h), were dismissed by the United States District Court for the Eastern District of Pennsylvania as time-barred on the face of the complaint. The ERISA breach of fiduciary duty claim, alleged under 29 U.S.C. § 1104(a), was also dismissed on the ground that it was duplicative of claims in two related actions then pending before the District Court. We will reverse and remand for further proceedings and in so doing make explicit that the federal discovery rule should be used to determine the date of accrual of the nonfiduciary duty claims alleged here.

I. FACTS

For many years Allstate typically hired, as employees, the agents who sold its policies and handled its claims. These "employee agents" operated under one of two types of employment contracts known as "R830" and "R1500." At some point, Allstate determined it would be better served by agents operating as "independent contractors," and thereafter, all newly hired agents were independent contractors providing services to Allstate under a contract known as "R3001." Beginning in the early 1990's, Allstate also set out to persuade current employee agents to convert to independent contractor status.

Allstate maintained a Pension Plan subject to ERISA. Prior to 1991, full-time employee agents became participants in the Pension Plan after one year of service and were fully vested after five years. The pre-1991 version of the Pension Plan contained an attractive early retirement feature under which agents with at least 20 years of continuous "credited service" could opt to retire at age 55 and receive an enhanced early retirement benefit which assumed the retiree had continued to work until age 63. That version of the Pension Plan provided that "[a]ll service" with Allstate "shall count as 'Credited Service'" for purposes of accruing retirement benefits, including the enhanced early retirement benefit.

In November 1991, Allstate amended the Pension Plan (retroactive to January 1, 1989) to phase out the enhanced early retirement benefit over a period of eight years ("Phase-Out Amendment"). *fn1 The Phase-Out Amendment was re-adopted in December 1994. Plaintiffs contend that at this time, however, they could not have been affected by the Phase-Out Amendment because they had not yet reached 55 years of age and completed 20 years of credited service.

Also in December 1994, the Pension Plan was amended to alter the definition of "credited service." The new definition provided that only "an Agent's employment [by Allstate] as an employee shall count as 'Credited Service'" ("Credited Service Amendment"). A new appendix added to the written Pension Plan explained that agents who entered into an agreement to provide "substantially similar" services to Allstate as independent contractors under an R3001 contract would be denied early retirement. Thus, newly hired agents and former employee agents who had converted to the R3001 contract would no longer have their service to Allstate count for purposes of early retirement. In January 1996, Allstate amended the Pension Plan again, this time adding a new provision to make "employee" a defined term, and to exclude therefrom any person providing services to Allstate under an R3001 contract ("Employee Definition Amendment").

As the decade advanced, Allstate stepped up it efforts to persuade remaining employee agents to convert to independent contractor status. In 1996, Allstate announced it would terminate the contracts of some 1,600 employee agents in California unless they converted or retired. In November 1999, Allstate embarked on a nationwide conversion effort, in the wake of which most remaining employee agents either converted and signed a comprehensive release of all claims against Allstate in conjunction therewith, or retired. Plaintiffs contend that it was only at this time that they could have known how the Credited Service Amendment would affect them because it was only then that they converted from employee to independent contractor status and only then that they were denied credited service under the Plan. Allstate and its plan administrator consistently represented to the employee agents considering conversion during this time period that any service to Allstate provided after conversion would not count towards early retirement under the Pension Plan.

II. PROCEDURAL HISTORY

On December 20, 2001, thirty-two named plaintiffs, seeking to represent three different classes, instituted the present action. Plaintiffs in the first group, who had converted to the R3001 contract at a time when they had accrued less than 20 years of credited service, sought to represent a class of "converted agents." Plaintiffs in the second group, who had retired rather than convert to the R3001 contract at a time when they had accrued less than 20 years of credited service, sought to represent a class of "retired agents." Plaintiffs in the third group (which included all of the named plaintiffs) sought to represent a class of employee agents who (1) were hired by Allstate as employee agents before January 1, 1992, (2) remained in Allstate's service as employee agents after December 31, 1991, and (3) had not yet attained age 55 by December 31, 1991 (the "enhanced early retirement benefit class").

The Complaint contained four counts under ERISA. In Count I, plaintiffs seeking to represent the class of converted agents alleged that the 1994 Credited Service Amendment to the Pension Plan and the 1996 Employee Definition Amendment to the Pension Plan violated ERISA § 204(g)(2), 29 U.S.C. § 1054(g)(2), because the amendments had the effect of "eliminating or reducing an early retirement benefit." *fn2 In Count II, plaintiffs seeking to represent the class of retired agents alleged that Allstate and its plan administrator violated the fiduciary duty provision of ERISA § 404(a), 29 U.S.C. § 1104(a), during the conversion efforts in representing to employee agents choosing between conversion or retirement that any service provided under an R3001 contract would not count towards the Pension Plan. In Count III, plaintiffs seeking to represent the enhanced early retirement benefit class alleged that the 1991 Phase-Out Amendment violated ERISA § 204(g) because it too had the effect of "eliminating or reducing an early retirement benefit." *fn3 In Count IV, the same plaintiffs as in Count III (i.e., the enhanced early retirement benefit class) alleged that Allstate and its plan administrator violated ERISA § 204(h), 29 U.S.C. § 1054(h), *fn4 by failing to provide notice to plan participants when it added the 1991 Phase-Out Amendment, which was alleged to have the effect of significantly reducing "the rate of future benefit accrual." See A. 65 (Compl. ¶ 120) ("The November 1991 amendments, under which Allstate purported to phase out and ultimately eliminate the [enhanced] early retirement benefits, caused a significant reduction in early retirement benefits or subsidies that agents accrued under the Pension Plan"); see also ERISA § 204(h)(9), 29 U.S.C. § 1054(h)(9). Allstate moved to dismiss each of the four counts under Fed.R.Civ.P. 12(b)(6) on numerous grounds, including that the non-fiduciary duty claims alleged in Counts I, III and IV were time-barred.

Pending before the District Court at the same time as the present action were two other actions challenging the legality of Allstate's conduct over the course of the conversion process. In the first action – dubbed " Romero I " – twenty-nine plaintiffs (including almost all of the same plaintiffs in the present action), also seeking to represent various classes, alleged seven counts against Allstate and its President/Chief Executive Officer. The Romero I plaintiffs sought to invalidate the comprehensive release signed by agents who had converted on the grounds that it violated ERISA § 510, 29 U.S.C. § 1140, *fn5 the Age Discrimination in Employment Act ("ADEA"), and the common law. They also alleged interference with employment and retaliation in violation of ERISA § 510, discriminatory treatment in violation of the ADEA, breach of the R830 and R1500 contracts, and breach of a fiduciary duty described in the Romero I complaint as one of "good faith and fair dealing" said to have arisen from the "special confidence" reposed in Allstate by class members. In the second pending action – dubbed "the EEOC action" – the Equal Employment Opportunity Commission brought suit against the Allstate Insurance Company, alleging violations related to the conversion process of Title VII of the Civil Rights Act of 1964, Title I of the Civil Rights Act of 1991, the ADEA, and the Americans with Disabilities Act.

The District Court dismissed the present action in a single paragraph of a larger memorandum opinion addressing motions then pending in all three actions, reasoning:

To the extent that the plaintiffs in [the present action] complain about the amendments to the pension plan made in 1991, 1994, and 1996, their complaint, filed December 20, 2001 is, on its face, time-barred. To the extent that they lost pension entitlements when they became independent contractors or former employees, that consequence would be an element of damages if they establish that their change of status was a breach of contract or otherwise illegal – claims which are being asserted in Romero I and the EEOC action. I conclude that [the present action] should be dismissed in its entirety.

(emphasis added). This appeal followed.

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over the present action pursuant to 28 U.S.C. § 1331 and ERISA §§ 502(e)(1) and (f), 29 U.S.C. §§ 1132(e)(1) & (f). This Court has appellate jurisdiction to review the final order of the District Court pursuant to 28 U.S.C. §§ 1291 and 1294(1). We exercise plenary review of the District Court's dismissal of Counts I, III and IV of the Complaint on statute of limitations grounds under Fed.R.Civ.P. 12(b)(6). Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). For purposes of conducting this review, we take all facts alleged in the Complaint as true and afford plaintiffs, as the non-movants, the benefit of all reasonable inferences to be drawn therefrom. See id. We also exercise plenary review over the District Court's determination that Count II was duplicative of the claims then pending in Romero I and the EEOC action, as that conclusion was based on a legal characterization of the Complaint.

IV. ACCRUAL

A. Applicable Limitations Periods

ERISA contains a statute of limitations for claims, like Count II here, alleging breach of fiduciary duty under ERISA § 404(a).*fn6

ERISA does not, however, contain a statute of limitations for nonfiduciary duty claims, such as those alleged in Counts I, III, and IV. In Gluck v. Unisys Corp., 960 F.2d 1168, 1180 (3d Cir. 1992), this Court instructed that the "limitations period applicable to the forum state claim most analogous to the ERISA claim at hand" is to be borrowed and applied to an ERISA non-fiduciary duty claim. In Gluck, this Court held that an ERISA § 204(g) claim, said to involve "complex issues of statutory interpretation," had no counterpart in Pennsylvania law, and therefore the applicable statute of limitations was Pennsylvania's general six-year period. See 960 F.2d at 1181-82 (applying 42 Pa. C.S.A. § 5527 (Purdons Supp. 1991)). Gluck thus dictates that Counts I and III of the Complaint in the present action, which allege violations of ERISA § 204(g), are subject to a six-year limitations period.

This Court has never addressed the limitations period applicable to an ERISA § 204(h) claim; indeed it does not appear that any court has done so. The parties in the present action appear to assume that Pennsylvania's six-year limitations period applicable to Count III applies also to the ERISA § 204(h) claim alleged in Count IV, as both challenges involve the same plan amendment. The first step in borrowing a local time limitation is to determine the "state claim most analogous to the ERISA claim pursued." Gluck, 960 F.2d at 1179. The parties have not identified an analogous state law claim and we have not found one. We do note, however, that as pleaded, and as characterized by plaintiffs before this Court, the claims in Count III and IV appear to be intrinsically tied together in that it is the effect of the amendment challenged in Count III that plaintiffs say triggered the notice requirement alleged to have been violated in Count IV. In this situation, we deem it appropriate to apply Pennsylvania's six-year limitations period. See 42 Pa.C.S. § 5527 ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years"); see also Gluck, 960 F.2d at 1182.*fn7

B. Date of Accrual

The principal issue before us is when the causes of action alleged in Counts I, III, and IV accrued for limitations purposes – in other words, when the clock on the applicable six-year statute of limitations began to tick. The date of accrual of the ERISA nonfiduciary duty claims asserted is determined as a matter of federal common law. See PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1066-67 (3d Cir. 1995) (stating, in context of a claim to compel arbitration under the Federal Arbitration Act, "[w]hile a state statute of limitations may be 'borrowed' for a federal claim, federal, not state, law governs as to when the cause of action accrues"); see also Admin. Comm. of the Wal-Mart Stores, Inc. v. Soles, 336 F.3d 780, 785 (8th Cir. 2003) (stating in ERISA action, "[f]ederal law also determines when the cause of action accrues"); Union Pacific R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir.) (stating in ERISA action, "despite determining the limitations period by analyzing state law, this Court looks to federal common law to determine the time at which a plaintiff's federal claim accrues"), cert. denied, 525 U.S. 817 (1998).

The District Court did not explicate its reasoning for dismissing Counts I, III and IV of the Complaint as time-barred. We assume, as do the parties before us, that the decision was based at least in part on this Court's decision in Gluck. To the extent, however, that the District Court interpreted Gluck to dictate that Counts I, III and IV accrued on the date the challenged amendments were made to the Pension Plan, we reject this reading. Gluck held only that the ERISA § 204(g) claim alleged in that case accrued, at the earliest, on the date of the plan amendment. See 960 F.2d at 1182 ("The employees' claims asserting failure to vest the residual, failure to distribute the surplus, and improper reduction of early retirement benefits are claims founded on complex issues of statutory interpretation. They are subject to Pennsylvania's six-year statute of limitations. Because they accrued at the earliest on July 1, 1984 – the effective date of the amendment – they have been timely interposed.") (emphasis added). There was no need to determine in Gluck exactly when the claim accrued because, even assuming the earliest date (i.e., the date the plan was amended), the claim was timely interposed. *fn8 Having clarified that Gluck does not dictate the dismissal of Counts I, III, and IV, we turn now to identifying the proper standard for determining when those claims accrued for limitations purposes.

Typically in a federal question case, and in the absence of any contrary directive from Congress, courts employ the federal "discovery rule" to determine when the federal claim accrues for limitations purposes. See Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127-28 (3d Cir. 1988) (citing, e.g., Sandutch v. Muroski, 684 F.2d 252 (3d Cir. 1982)), abrogated on other grounds by Klehr v. A.O. Smith Corp, 521 U.S. 179 (1997); see also Union Pacific, 138 F.3d at 330-31 (citing, inter alia, Conners v. Hallmark & Son Coal Co., 935 F.2d 336, 342 (D.C. Cir. 1991) (listing cases (including Houghton ) in which eight federal courts of appeals had held that "the discovery rule is the general accrual rule in federal courts... [and] is to be applied in all federal question cases") and Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990) (holding that the discovery rule is "read into statutes of limitations in federal-question cases (even when those statutes of limitations are borrowed from state law)")); see also Admin. Comm. of the Wal-Mart Stores, 336 F.3d at 786 (citing Union Pacific and applying the discovery rule). Under the general formulation of the discovery rule, a claim will accrue when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim. See, e.g., Union Pacific, 138 F.3d at 330. The rule that has developed in the more specific ERISA context is that an ERISA non-fiduciary duty claim will accrue after a claim for benefits due under an ERISA plan has been made and formally denied. See id. at 330 (citing Cotter v. Eastern Conf. of Teamsters Retirement Plan, 898 F.2d 424 (4th Cir. 1990)); see also Daill v. Sheet Metal Workers' Local 73 Pension Fund, 100 F.3d 62, 65 (7th Cir. 1996); Tanzillo v. Local Union 617, Int'l Broth. of Teamsters, 769 F.2d 140, 143-44 (3d Cir. 1985). Occasionally, however, an ERISA non-fiduciary claim will accrue before a formal application is made and/or before benefits are formally denied, such as "when there has been a repudiation [of the benefits] by the fiduciary which is clear and made known to the beneficiar[y]." Miles v. N.Y. State Teamsters Conf. Pension and Retirement Fund, 698 F.2d 593, 598 (2d Cir.) (internal citations omitted, emphasis in the original), cert. denied, 464 U.S. 829 (1983). See also Daill, 100 F.3d at 65-67 ("a cause of action accrues upon a clear and unequivocal repudiation of rights under the pension plan which has been made known to the beneficiary"); Union Pacific, 138 F.3d at 330-31 (citing Miles ); Carey v. Int'l Broth. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47-48 (2d Cir. 1999) (listing cases using the clear repudiation standard in the absence of a formal application for benefits). This "clear repudiation" concept is consistent with the federal discovery rule and, in the specific context of ERISA, avoids a myriad of ills that would accompany any rule that required the denial of a formal application for benefits before a claim accrues. See, e.g., Daill, 100 F.3d at 66-67; Carey, 201 F.3d at 48-49. We too have applied the "clear repudiation" concept in numerous cases involving ERISA, s ee Henglein v. Colt Industries Operating Corp., 260 F.3d 201, 214 (3d Cir. 2001) ("In the circumstances here, where there was an outright repudiation at the time the employees' services were terminated, it is reasonable to expect that the statute of limitations [on plaintiffs' claim that they were entitled to shut-down benefits under an ERISA-governed plan] began to run at that point."), cert. denied, 535 U.S. 955 (2002); see also In re Unisys Corp. Med. Ben. ERISA Litigation, 242 F.3d 497 (3d Cir.) (applying the federal common law discovery rule in the context of ERISA fiduciary duty claim), cert. denied, 534 U.S. 1018 (2001), and find it appropriate to do so here. Accordingly, we hold that when an ERISA plan is amended but the fact that the amendment actually affects a particular employee or group of employees cannot be known until some later event, the cause of action of the employee will not accrue until such time as the employee knew or should have known that the amendment has brought about a clear repudiation of certain rights that the employee believed he or she had under the plan.

We have not had a prior opportunity to consider whether the discovery rule should govern in the specific context of an ERISA § 204(g) claim or whether such a claim should be deemed to have accrued as of the date of adoption or effective date of the challenged plan amendment. The basic policies undergirding limitations periods generally, such as rapid resolution of disputes, repose for defendants, and avoidance of litigation involving lost or distorted evidence, may be said to favor a rule that would tie the date of accrual to the date of the plan amendment, and such concerns are magnified in the context of an ERISA pension plan funded on a long-term, prospective basis. Additionally, there is intrinsic appeal to adopting such a rule for an ERISA § 204(g) claim because a claim pursuant to that provision challenges the amendment itself as having the effect of "eliminating or reducing an early retirement benefit." Other courts, however, have rejected a rule that would tie the date of accrual to the date of amendment, both in the context of claims alleged under ERISA § 204(g) and other ERISA non-fiduciary duty claims. See, e.g., Meagher v. Int'l Assoc. of Machinists and Aerospace Workers Pension Plan, 856 F.2d 1418 (9th Cir. 1988) (reversing dismissal of ERISA § 204(g) claim as time-barred from the date of amendment and reasoning that plaintiffs were harmed by the wrongful application of the challenged amendment, not by its enactment), cert. denied, 490 U.S. 1039 (1989); Laurenzano v. Blue Cross and Blue Shield of Mass., Inc. Retirement Income Trust, 134 F. Supp.2d 189 (D. Mass. 2001) (refusing to find ERISA challenge to lump sum distribution paid in lieu of an annuity that did not include a cost of living adjustment component commenced in 1999 time-barred even though the lump sum option had been in place since 1976); DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F. Supp. 258 (S.D.N.Y. 1997) (refusing to find ERISA challenge to pension benefit calculation formula commenced in 1990 time-barred even though formula had been in place since 1976), abrogated on other grounds by Strom v. Goldman, Sachs & Co., 202 F.3d 138 (2d Cir. 1999)). We find the reasoning of these cases to be persuasive. A rule that unwaveringly ties the date of accrual to the date of amendment would have the undesirable effect of requiring plan participants and beneficiaries "likely unfamiliar with the intricacies of pension plan formulas and the technical requirements of ERISA, to become watchdogs over potential [p]lan errors and abuses." DeVito, 975 F. Supp. at 265. It would also tend to preclude claims by those who commenced employment after the limitations period applicable to the particular ERISA claim has elapsed. See id. at 265 n.9. Additionally, it would impose an unfair duty of clairvoyance on employees, such as those in this case, who allege that an amendment's detrimental effect on them was triggered not at the time of its adoption, but rather at some later time by a subsequent event. We eschew such a rule in light of the underlying purposes of ERISA and its disclosure requirements, see In re Unisys Corp. Retiree Med. Ben. ERISA Litigation, 58 F.3d 896, 901 (3d Cir. 1995) ("ERISA is a comprehensive statute enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits") (internal citations omitted); see also Hunger v. AB, 12 F.3d 118, 119 (8th Cir. 1993) ("Congress enacted ERISA to ensure that an employee would not lose fully vested, accrued benefits in the event the employer terminated or amended its pension plan"), and accordingly hold that the federal discovery rule, which includes the "clear repudiation" concept, applies in the specific context of the ERISA § 204(g) claims alleged here.

Use of the federal discovery rule to discern the date of accrual does not necessarily prevent the date of amendment from serving as the accrual date for an ERISA § 204(g) claim, as there may be circumstances under which benefits are clearly repudiated as of that date. On the face of this Complaint, however, one cannot determine when such clear repudiation occurred. As to that portion of Count I which challenges the 1994 Credited Service Amendment, the Complaint does not allege when or if the plaintiffs were notified that such amendment had been adopted and does not allege, or allege other facts from which it might be inferred, that plaintiffs knew or should have known that they would someday be forced to convert to independent contractor status prior to the conversion drive of 1999, such that they might understand that the amendment would apply to them. *fn9 While facts may be developed from which one could conclude that clear repudiation did occur before the actual act of conversion, it is premature at this point to dismiss Count I on limitations grounds. As to Count III, which challenges the Phase-Out Amendment, the Complaint specifically alleges that notice was not given to participants and further did not allege facts from which it might be inferred that plaintiffs knew or should have known the effect such amendment would have on their benefits at some point before (roughly) December 1995 (i.e., six years before the Complaint was filed in December 2001). Again, while facts may be developed from which one could conclude that clear repudiation did occur at a time which renders the subsequent assertion of the claim untimely, it is premature at this point to dismiss Count III on limitations grounds.

The ERISA § 204(h) claim in Count IV is certainly of a different character than the ERISA § 204(g) claims raised in Counts I and III, and for that reason, Allstate urges this Court to recognize an accrual date tied to the procedural requirement of the statute as opposed to one discerned using the federal discovery rule. Specifically, relying on the language of ERISA § 204(h), Allstate contends that the date of accrual should be the date on which notice should have been given – i.e., 15 days before the effective date of the Phase-Out Amendment. See ERISA § 204(h) ("[a] plan... may not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice setting forth the plan amendment and its effective date") (emphasis added). Plaintiffs, however, urge that the federal discovery rule be used also to discern the date of accrual for Count IV, arguing that "[a] participant cannot have knowledge that he has not been given the notice required under [ERISA § 204(h)] without first learning of the existence of the benefit reducing amendment itself." We agree with the plaintiffs. It would make no sense, and indeed do a remarkable disservice to the underlying purposes of ERISA and its disclosure requirements, to deem a notice claim to have accrued before a plaintiff knows or should have known that an amendment has the effect which triggers the notice requirement. Thus, it is appropriate to use the federal discovery rule to discern the date of accrual of the ERISA § 204(h) claim made here.

Again, as with the claim alleged in Count III, it may be that facts exist to demonstrate that plaintiffs knew or should have known that the Phase-Out Amendment had the effect which triggered the notice requirement at a time which would render the subsequent assertion of Count IV untimely. Here, however, the Complaint alleges that notice of the Phase-Out Amendment was not given, and further alleges no other facts from which to infer that plaintiffs otherwise knew or should have known the effect of the amendment on their benefits and, correspondingly, that they had not received the required notice. As with the claim in Count III, it would be premature to dismiss Count IV on limitations grounds at this point in the litigation.*fn10

V. THE FIDUCIARY DUTY CLAIM

The District Court appears to have dismissed the ERISA fiduciary duty claim alleged in Count II for the reason that it was duplicative of the claims pending in Romero I and the EEOC action.*fn11

We fail to see an overlap between the actions of a kind reasonably necessary to support a dismissal based on duplication. First, the Complaint in the present action names thirty-two plaintiffs, of which only twenty-nine are also plaintiffs in Romero I. Obviously, the three individuals involved in the present action but not in Romero I would not necessarily be entitled to relief should the plaintiffs in Romero I succeed. Second, the fiduciary duty claim alleged in this case is different from that alleged in Romero I which is not premised on ERISA. Thus, even if the plaintiffs in Romero I succeed on their fiduciary duty claim, it does not necessarily follow that Allstate breached a fiduciary duty under ERISA. Count II deserves to be considered in its own right and in the context of this case which sounds solely in ERISA.

Allstate also asks that we affirm the dismissal of Count II on the alternative ground that it fails to state a claim. "[I]n order to make out a breach of fiduciary duty claim..., a plaintiff must establish each of the following elements: (1) the defendant's status as an ERISA fiduciary acting as a fiduciary; (2) a misrepresentation on the part of the defendant; (3) the materiality of that misrepresentation; and (4) detrimental reliance by the plaintiff on the misrepresentation." Daniels v. Thomas & Betts Corp., 263 F.3d 66, 73 (3d Cir. 2001). "[W]hen a plan administrator affirmatively misrepresents the terms of a plan or fails to provide information 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." In re Unisys Corp. Retiree Med. Ben. ERISA Litigation, 57 F.3d 1255, 1264 (3d Cir. 1995). Allstate's theory in support of a merits-based dismissal is that it and its plan administrator cannot be understood to have made any mis representations to employee agents considering retirement during the 1996 and 1999 conversion efforts because the employee agents were told exactly what the Pension Plan then stated.

We decline as premature Allstate's invitation to affirm the dismissal of Count II on this ground. The Complaint puts at issue Allstate's knowledge at the time it made the challenged representations. See A. 62-63 (Compl. ¶¶ 109 ("The representation... that former 'employee agents'... who continued to provide compensated 'service' to Allstate under the R3001 contract would no longer be eligible to accumulate 'service' for purposes of eligibility for early retirement benefits and [enhanced early retirement] benefits under the Pension Plan was materially false and misleading...."); 110 ("At the time [the representations were made], Allstate and/or [the Plan Administrator] knew or should have known of the falsity of th[ose] representation[s]"); and 112 ("the [Plan Administrator] had a duty to correct the aforementioned misrepresentation, [and]... failed to do so...")). Even assuming the representations accurately described the terms of the written Pension Plan, if the representations were made for the purpose of intentionally misleading those considering conversion or retirement, then these representations may still give rise to a breach of fiduciary duty under ERISA.

Accordingly, dismissal of Count II at this early stage of the litigation is inappropriate.

V. CONCLUSION

For the foregoing reasons, that portion of the order of the District Court entered on March 31, 2004, which dismissed Civil Action No. 01-6764 in its entirety with prejudice will be reversed and the matter will be remanded for further proceedings consistent with this opinion.


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