Yost v. Anthem Life Insurance Company

REPLY BRIEF re MOTION to Dismiss Plaintiff's Amended Complaint

M.D. Pa.October 31, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ERIC YOST, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. ANTHEM LIFE INSURANCE COMPANY, Defendant. : : : : : : : : : : : : No. 3:16-cv-00079-RDM (JUDGE ROBERT D. MARIANI) DEFENDANT ANTHEM LIFE INSURANCE COMPANY’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Dan J. Hofmeister, Jr. (IL 6204299) REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606-7507 Telephone: 312-207-1000 Facsimile: 312-207-6400 John N. Ellison (PA 51098) Douglas R. Widin (PA 40074) (admitted pro hac vice) Miranda A. Jannuzzi (PA 311396) REED SMITH LLP 1717 Arch Street, Suite 3100 Philadelphia, PA 19103 Telephone: 215-851-8100 Facsimile: 215-851-1420 Attorneys for Defendant Anthem Life Insurance Company Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 1 of 21 - i - TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 2 A. Count IV Should Be Dismissed Because Plaintiff Has Not Alleged All Elements of a Misrepresentation Claim. ......................................................... 2 B. Count V Fails Because It Alleges At Least One Non-Fiduciary Act, Does Not State a Cognizable Ground for Breach of Fiduciary Duty, and, In Any Event, Contains Only Conclusory Allegations That Anthem Life Breached Its Duty of Loyalty. .................................................... 7 C. Plaintiff’s 29 U.S.C. §1109(a) Claims in Counts IV and V Must Be Dismissed Because Only Plans, Not Plan Participants, Can Receive Relief Under §1109........................................................................................ 11 D. Many of the Remedies Plaintiff Seeks Should Be Dismissed. ...................... 12 CONCLUSION ........................................................................................................ 15 Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 2 of 21 - ii - TABLE OF AUTHORITIES Page(s) Cases Anthuis v. Colt Industries Operating Corp., 971 F.2d 999 (3d Cir. 1992) ............................................................................... 13 CIGNA Corp. v. Amara, 563 U.S. 421 (2011) ............................................................................................ 13 Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226 (3d Cir. 1994) ................................................................................... 5 Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73 (1995) ................................................................................................ 8 Daniels v. Thomas & Betts Corp., 263 F.3d 66 (3d Cir. 2001) ............................................................................... 3, 6 Edmonson v. Lincoln National Life Insurance Co., 725 F.3d 406 (3d Cir. 2013) ....................................................................... 7, 9, 15 First National Bank of Pennsylvania v. Flanagan, 528 A.2d 134 (Pa. 1987) ....................................................................................... 3 Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002) ............................................................................................ 14 Hein v. F.D.I.C., 88 F.3d 210 (3d Cir. 1996) ................................................................................. 11 Lockheed Corp. v. Spink, 517 U.S. 882 (1996) .......................................................................................... 8, 9 Marshall v. Aetna Casualty & Surety Co., 643 F.2d 151 (3d Cir. 1981) ................................................................................. 4 Mertens v. Hewitt Associates, 508 U.S. 248 (1993) ...................................................................................... 13, 14 Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 3 of 21 - iii - Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan, 136 S. Ct. 651 (2016) .......................................................................................... 14 Pegram v. Herdrich, 530 U.S. 211 (2000) .............................................................................................. 8 Santos v. Insurance Placement Facility of Pennsylvania, 626 A.2d 1177 (Pa. Super. Ct. 1993) ................................................................ 3, 4 Saxton v. Cent. Pa. Teamsters Pension Fund, No. Civ.A. 02-CV-986, 2003 WL 22952101 (E.D. Pa. Dec. 9, 2003) ..................................................................................................................... 7 Skretvedt v. E.I. Dupont De Nemours, 372 F.3d 193 (3d Cir. 2004) ......................................................................... 12, 13 In re Unisys Corp. Retiree Med. Benefits ERISA Litig. v. Unisys Corp., 579 F.3d 220 (3d Cir. 2009) ..................................................................... 5, 14, 15 Statutes 40 P.S. § 1600.01 ....................................................................................................... 4 29 U.S.C. §1002(21)(A) ............................................................................................. 7 29 U.S.C. §1102(a)(3) .............................................................................................. 14 29 U.S.C. § 1109 ...................................................................................................... 11 29 U.S.C. § 1109(a) ................................................................................................. 11 29 U.S.C. § 1132(g)(1)............................................................................................. 12 Other Authorities MVFRL §1720 ............................................................................................... 1, 3, 4, 5 Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 4 of 21 - 1 - INTRODUCTION Defendant Anthem Life submits this Reply Brief in further support of its motion to dismiss the Amended Complaint in this action. The issue of preemption has been fully briefed by the parties and it is not addressed further here, except to emphasize that Anthem Life firmly believes that §1720 of the Pennsylvania Motor Vehicle Financial Responsibility Act (“MVFRL”) is preempted by ERISA as supported by Third Circuit case law. Turning to Plaintiff’s breach of fiduciary duty claims, they fail on several grounds. The misrepresentation claim fails because Plaintiff has not adequately stated two elements of his claim: (1) a misrepresentation by Anthem Life; and (2) detrimental reliance thereon. First, Plaintiff has not alleged any misrepresentation of the Policy terms as written. His challenge centers instead on the effect that application of state law may have on the application of the Policy’s terms. Regardless of whether the state law may apply in interpreting Plaintiff’s claim under the Policy, Anthem Life cannot be charged with a misrepresentation under ERISA under the circumstances. Second, Plaintiff does not allege that he relied on any purported misrepresentation made by Anthem Life. Indeed, he cannot do so given that he never accepted the representation he challenges. The duty of loyalty claim also fails. At least one of the acts Plaintiff challenges was undertaken by Anthem Life in its capacity as a “settlor” and not a Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 5 of 21 - 2 - fiduciary, and thus cannot support Plaintiff’s claim. Further, even if the other challenged acts are deemed fiduciary in nature, the sole ground for the alleged breach of loyalty rests on a purported violation of state law, which is an insufficient basis for breach of an ERISA fiduciary duty. The Amended Complaint is also devoid of any factual, as opposed to conclusory, allegations that Anthem Life acted in a manner contrary to the interests of any plan participants or beneficiaries. In the event the Court does not dismiss this action in its entirety, it should minimally dismiss several of Plaintiff’s claimed remedies. Plaintiff concedes this point as to many of the remedies. Nevertheless, the Court should also dismiss Plaintiff’s claims for interest on all claims as well as compensatory damages, punitive damages, disgorgement, restitution, and imposition of a constructive trust with respect to the fiduciary duty claims. ARGUMENT A. Count IV Should Be Dismissed Because Plaintiff Has Not Alleged All Elements of a Misrepresentation Claim. Contrary to Plaintiff’s assertions, the Amended Complaint does not adequately allege an ERISA misrepresentation claim. To make out a breach of fiduciary duty claim for misrepresentation, “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 Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 6 of 21 - 3 - 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). Plaintiff fails to allege at least two of these elements. First, Plaintiff does not allege Anthem Life misrepresented any term within the four corners of the Policy. The allegations are instead premised solely on: (i) Plaintiff’s argument that §1720 of the state MVFRL prohibits a right to recovery; and (ii) Plaintiff’s erroneous contention that the Policy was “amended by operation of law to conform” with §1720 of the MVFRL. See Am. Compl. ¶¶ 22, 73. Even if Plaintiff’s contention regarding the ultimate effect of §1720 is deemed correct, there is simply no misrepresentation alleged. As noted in Anthem Life’s opening brief, there is nothing in the MVFRL that automatically amends the Policy if its terms conflict with §1720. Plaintiff’s bare claim that “pertinent statutory provisions of Pennsylvania insurance law are deemed incorporated into insurance policies” does not contradict this point. The “incorporation” cases Plaintiff relies upon are factually distinguishable. They do not control the issue before this Court. Initially, First National Bank of Pennsylvania v. Flanagan, 528 A.2d 134 (Pa. 1987), did not even concern an insurance policy, rendering the opinion of no persuasive value. See id. (concerning loan contract). In addition, unlike the Policy here, the policy in Santos v. Insurance Placement Facility of Pennsylvania, 626 A.2d 1177 (Pa. Super. Ct. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 7 of 21 - 4 - 1993), was a single-insured policy issued in Pennsylvania. See id. (involving policy issued pursuant to the Pennsylvania Fair Plan Act, 40 P.S. § 1600.01 et al., which addresses insurance coverage for Pennsylvania properties). While it makes sense that relevant Pennsylvania insurance law provisions were deemed incorporated into the Santos policy, it does not automatically follow that §1720 of Pennsylvania’s Motor Vehicle Financial Responsibility Law is incorporated into and actually amends an insurance policy issued in another jurisdiction applying to multiple insureds in virtually every state with respect to a federal ERISA plan. Even if the MVFRL is deemed “incorporated” into the Policy for purposes of Plaintiff’s claim in Pennsylvania, that “incorporation” would, at most, result in a different interpretation of Plaintiff’s rights and remedies in light of the MVFRL’s mandates. It would not result in a literal “amendment” of the Policy or its terms as Plaintiff contends. Cf. Marshall v. Aetna Cas. & Sur. Co., 643 F.2d 151, 152-53 (3d Cir. 1981) (rejecting insurer’s argument that the Pennsylvania Insurance Code requires a mandatory insurance term to be “read into” the policy despite the fact that the policy itself omitted such term). To credit Plaintiff’s argument would effectively subject the content of every ERISA plan to the varying laws of each of the fifty states and run completely counter to ERISA’s purpose in providing uniform regulation over federal employee benefit plans. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 8 of 21 - 5 - Because Plaintiff has set forth no legal basis supporting the claim that the Policy was “amended by operation of law,” Plaintiff’s allegations that Anthem Life made statements contrary to the terms of the plan or Policy are specious and cannot support the misrepresentation requirement. Even if Anthem Life was wrong about §1720’s application, ERISA simply does not federalize state laws so that a state law violation somehow constitutes a breach of an ERISA, federal fiduciary duty. As the supposed amendment of the Policy by application of §1720 is the sole basis for Plaintiff’s allegation of misrepresentation, the claim must fail. Plaintiff also cites no cases in the ERISA breach of fiduciary context that support its position here. See Pl.’s Opp’n Br. 4-5. All of the misrepresentation cases cited by Plaintiff involved claims that the defendants misrepresented the terms of plans or policies as they were written, not as the terms may potentially be affected by interpretations of state law. See In re Unisys Corp. Retiree Med. Benefits ERISA Litig. v. Unisys Corp., 579 F.3d 220, 229 (3d Cir. 2009) (noting plaintiffs’ claims were that defendant: “(1) misrepresented that their retiree medical benefits were vested and could not change despite clauses in certain plan documents reserving the right to modify or terminate those benefits, and (2) failed adequately to advise them of that reserved right”) (emphasis added); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 236-37 (3d Cir. 1994) (involving claims that employer misrepresented terms of insurance policy in presentations Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 9 of 21 - 6 - made and written materials distributed to employees regarding benefit options); Daniels, 263 F.3d at 69, 71 (involving claim that employer misrepresented terms of insurance policy in written materials distributed to employee). Because Plaintiff has not alleged misstatements of the terms of the Policy as set forth in the document’s four corners, he cannot satisfy the required misrepresentation element of his claim. Second, Plaintiff has not alleged detrimental reliance on any supposed misrepresentations made by Anthem Life. In fact, the allegations and email communication attached as Exhibit G to the Original Complaint (and incorporated as Exhibit G in the Amended Complaint) demonstrate the opposite. Plaintiff refused to rely on Anthem Life’s representations regarding the right of recovery, and instead challenged the propriety of the representation. See Am. Compl. ¶ 17 (“By email dated December 11, 2014, counsel for Eric Yost advised Vikki Harvey that no valid right of recovery existed under Pennsylvania law . . . .”). Plaintiff also refused to pay back any monies to Anthem Life.1 See generally id. Because 1 With respect to the purported class action allegations, one of the purported classes is alleged to have reimbursed monies to Anthem Life, while the other only received a claim for reimbursement. See Am. Compl. ¶¶ 41-42. Like Plaintiff, the latter class has not alleged a detrimental reliance, thus defeating any misrepresentation claim. With respect to the former class, there are no class representatives identified in the Amended Complaint that actually reimbursed monies to Anthem Life based on reliance on an alleged misrepresentation. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 10 of 21 - 7 - Plaintiff has not alleged any reliance on Anthem Life’s representations, he has not stated the fourth element of his claim. In light of these deficiencies, Count IV should be dismissed. B. Count V Fails Because It Alleges At Least One Non-Fiduciary Act, Does Not State a Cognizable Ground for Breach of Fiduciary Duty, and, In Any Event, Contains Only Conclusory Allegations That Anthem Life Breached Its Duty of Loyalty. Despite Plaintiff’s claims to the contrary, Count V does not adequately allege a breach of loyalty claim. Generally, to state a claim for breach of fiduciary duty under ERISA, a plaintiff must allege that: (1) “the defendant undertook the challenged actions in a fiduciary capacity;” and (2) “the action taken constituted a breach of that duty.” Saxton v. Cent. Pa. Teamsters Pension Fund, No. Civ.A. 02- CV-986, 2003 WL 22952101, at *5 (E.D. Pa. Dec. 9, 2003), attached hereto as Exhibit 1. Plaintiff’s duty of loyalty claim fails to allege both elements. First, at least one of the actions challenged by Plaintiff was not undertaken by Anthem Life in a fiduciary capacity. In relevant part, “a person is a fiduciary with respect to a plan to the extent . . . he exercises any discretionary authority or discretionary control respecting management of such plan or . . . has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. §1002(21)(A). More simply, “[o]nly discretionary acts of plan administration or management trigger fiduciary duties.” Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 421-22 (3d Cir. 2013). Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 11 of 21 - 8 - As set forth in Anthem Life’s opening brief, Anthem Life’s inclusion of specific provisions when drafting the Policy was not a fiduciary act. See Pegram v. Herdrich, 530 U.S. 211, 226 (2000) (“[D]ecisions about the content of a plan are not themselves fiduciary acts.”) (citing Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996)).2 The United States Supreme Court has stated that: Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss- Wright Corp. v. Schoonejongen, 514 U.S. 73, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995), “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” When employers undertake those actions, they do not act as fiduciaries, but are analogous to the settlors of a trust. This rule is rooted in the text of ERISA’s definition of fiduciary. As the Second Circuit has observed, “only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration,” does a person become a fiduciary under § 3(21)(A). “[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review.” 2 While the direct question presented in Pegram was whether the treatment decisions of HMOs are fiduciary acts, the Court addressed more than this specific issue in reaching its holding. Noting that the allegations that identified “the claimed fiduciary breach are difficult to understand,” the Court also found, inter alia, that the specific payout detail of the plan at issue could not serve as the basis of a breach of fiduciary duty claim “since an employer’s decisions about the content of a plan are not themselves fiduciary acts.” Pegram, 530 U.S. at 226-27. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 12 of 21 - 9 - Lockheed Corp., 517 U.S. at 890 (internal citations omitted). In light of this binding precedent, Plaintiff’s challenge to Anthem Life’s inclusion of the right of recovery provision cannot serve as the basis for his breach of fiduciary duty claim. Second, even if Anthem Life acted in a fiduciary capacity with respect to other challenged actions, the sole ground for the alleged breach of loyalty rests on a purported violation of state law. As set forth, supra, this is an insufficient basis for breach of an ERISA fiduciary duty. Third, Plaintiff has failed to make factual allegations to support that any of Anthem Life’s acts constitute a breach of the duty of loyalty. The duty of loyalty requires that fiduciaries act solely in the interest of plan participants and beneficiaries. See Edmonson, 725 F.3d at 423 (noting §1104(a)(1) provides “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries” and §1106(b)(1) prohibits a fiduciary from “deal[ing] with the assets of the plan in his own interest or for his own account”). Thus, in order to state a breach of this duty, Plaintiff must allege facts to support that Anthem Life acted with an interest contrary to the interests of Plan participants and beneficiaries. At pages 18-19 of his Opposition Brief, Plaintiff argues that the Amended Complaint sets forth two allegations that satisfy this requirement: Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 13 of 21 - 10 - 114. The Defendant’s actions to misrepresent that Anthem was legally entitled to lien, subrogation and/or repayment as from Plaintiff’s pain and suffering personal injury recoveries is part of a systemic plan to recover money for defendant’s own gain and advantage. . . . 124. Defendant further breached its duty to avoid conflicts of interest by administering the Plan in a way favorable to itself and adversely to the participants and beneficiaries and by otherwise placing their own and/or the Company’s interests above the interests of the participants and beneficiaries. Am. Compl. ¶¶ 114, 124 (emphasis added). These allegations do not, however, adequately state a breach because they are merely conclusory in nature. Indeed, Plaintiff asserts no factual allegations to support a purported “systemic plan” by Anthem Life to recover monies for its own advantage. For instance, Plaintiff has not alleged the existence of any communications or documents establishing or executing such a plan. Plaintiff also asserts no factual allegations that Anthem Life placed its own or Finisar’s interests above those of the participants or beneficiaries There are no allegations, for example, that Anthem Life tried to divert funds from the Plan to itself or to Finisar, or that its recovery efforts were not for the benefit of Plan participants and beneficiaries. Because the Amended Complaint is devoid of any factual allegations that Anthem Life acted to serve an improper interest, it fails to state a claim for breach of the fiduciary duty of loyalty. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 14 of 21 - 11 - C. Plaintiff’s 29 U.S.C. §1109(a) Claims in Counts IV and V Must Be Dismissed Because Only Plans, Not Plan Participants, Can Receive Relief Under §1109. In the event Counts IV and V are not dismissed in their entirety, this Court should, at a minimum, strike and dismiss these counts to the extent they seek relief pursuant to 29 U.S.C. §1109(a). Section 1109(a) imposes liability for fiduciary breaches that result in losses to the plan. It is well-established that only plans, not plan participants, can receive relief under §1109. See, e.g., Hein v. F.D.I.C., 88 F.3d 210, 222-23 (3d Cir. 1996). In his Opposition Brief, Plaintiff does not contest these points, instead, arguing only that he has a right to bring his breach of fiduciary duty claims as a participant pursuant to a different ERISA provision. See Pl.’s Opp’n Br. 10-14 (“Under ERISA §404, Plaintiffs can bring claims for his own Breach of Fiduciary claims and not plan losses.”). This lack of opposition supports the dismissal and striking of Plaintiff’s §1109 claims. Further, an independent review of the Amended Complaint leads to the same result. Plaintiff only seeks relief for participants, not the Plan. He also fails to allege a loss to the Plan. Therefore, he has not adequately stated a claim under §1109. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 15 of 21 - 12 - D. Many of the Remedies Plaintiff Seeks Should Be Dismissed. While Plaintiff does not contest dismissal of many of the remedies asserted in his Amended Complaint, the parties still dispute the availability of several remedies. Anthem Life addresses each challenged remedy in turn. First, contrary to the bare bones assertion in his Opposition Brief, Plaintiff’s claims for interest are not proper in this case. As noted in Anthem Life’s opening brief, neither 29 U.S.C. §1132(g)(1) nor any binding federal common law provides for interest where, as here, the action is devoid of allegations that benefits were not paid when due. While Plaintiff cites to Skretvedt v. E.I. Dupont De Nemours, 372 F.3d 193 (3d Cir. 2004), to support his position, that case is factually distinguishable and thus does not control. Indeed, although Skretvedt held that courts may, in the exercise of their discretion, award interest on §502(a)(1)(B) or §502(a)(3)(B) claims, that decision was made under circumstances where the beneficiary was not paid the benefits to which he was entitled at the time they were due. 372 F.3d at 195, 207-208, 209-10. Further, in remanding the case to the district court to evaluate whether to award interest, the Third Circuit noted that courts should consider two factors in exercising this discretion: [a]s a general rule, prejudgment interest is to be awarded when the amount of the underlying liability is reasonably capable of ascertainment and the relief granted would otherwise fall short of making the claimant whole Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 16 of 21 - 13 - because he or she has been denied the use of the money which was legally due. Id. at 208 (quoting Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1010 (3d Cir. 1992)) (emphasis added). Unlike in Skretvedt, Plaintiff clearly alleges he was paid the disability benefits to which he was entitled and that his counsel is presently holding the disputed funds (presumably in an interest-bearing account). See Am. Compl. ¶¶ 9, 26. While Plaintiff claims to have been deprived of unfettered use of these recovered monies, they are not benefits that should have been, but were not, paid. Plaintiff has the money and can earn interest on it. Thus, there is no legal or factual basis to support an award of interest here. Second, with respect to Counts IV and V, Plaintiff’s claims for money damages fail because they are compensatory or punitive, as opposed to equitable, in nature. See Mertens v. Hewitt Assocs., 508 U.S. 248, 255, 257 (1993). For instance, the relief requested in paragraph (2) for each count seeks “monetary relief to . . . compensate, . . . and atone for defendant’s breach of its fiduciary duties.” See Am. Compl. at 30, 32 (emphasis added); see also id. at paragraphs (1), (3) (seeking monetary relief). Such relief is compensatory or punitive, and thus unavailable. While Plaintiff claims that CIGNA Corp. v. Amara, 563 U.S. 421 (2011), permits his monetary damages as an equitable surcharge, the Supreme Court’s Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 17 of 21 - 14 - recent opinion in Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan, 136 S. Ct. 651 (2016), places serious doubt on Plaintiff’s position. Indeed, in discussing the permissible scope of equitable relief under 29 U.S.C. §1102(a)(3), the Montanile Court noted that CIGNA’s discussion of equitable relief was mere dicta and that the holding in Mertens v. Hewitt Associates, supra, remains unchanged: the Court’s discussion of § 502(a)(3) in CIGNA was not essential to resolving that case, and-as our later analysis in US Airways, Inc. v. McCutchen, 569 U.S. ----, 133 S.Ct. 1537, 185 L.Ed.2d 654 (2013), reinforces-our interpretation of “equitable relief” in Mertens, Great- West, and Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006), remains unchanged. Montanile, 136 S. Ct. at 660 n.3. Plaintiff also fails to state a claim for disgorgement of ill-gotten profits. A plaintiff “cannot recover under this theory without first identifying the profit generating property or money wrongly held” by the fiduciary. In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 238 (3d Cir. 2009). A plaintiff must “identify ‘money or property ... belonging in good conscience’ to them and clearly ‘trace[able] to particular funds or property in the defendant’s possession.’” Id. (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002)). Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 18 of 21 - 15 - Plaintiff’s demands for restitution or to compose a constructive trust similarly fail. Like disgorgement, these remedies presume the defendant holds money belonging to the plaintiff. See id. at 235 (“Crucial to the question of whether restitution lies in equity is if the action seeks ‘to restore to the plaintiff particular funds or property in the defendant’s possession, as opposed to seeking to impose personal liability on the defendant.”); Edmonson, 725 F.3d at 435 (“Entitlement to a constructive trust in turn, requires that ‘the defendant (i) has been unjustly enriched (ii) by acquiring legal title to specifically identifiable property (iii) at the expense of the claimant or in violation of the claimant’s rights....’”). Here, Plaintiff has not alleged that Anthem Life is in possession of monies owed to him.3 Therefore, the remedies of disgorgement, restitution, and imposition of a constructive trust must be dismissed. CONCLUSION For the foregoing reasons, Anthem Life’s Motion to Dismiss Plaintiff’s Amended Complaint should be granted, and this action should be dismissed. 3 With respect to the purported class action allegations, while one of the purported classes is alleged to have reimbursed monies to Anthem Life, there are no class representatives identified in the Amended Complaint who share this factual predicate. Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 19 of 21 - 16 - Dated: October 31, 2016 Respectfully submitted, /s Douglas R. Widin . Dan J. Hofmeister, Jr. (IL 6204299) REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606-7507 Telephone: 312-207-1000 Facsimile: 312-207-6400 dhofmeister@reedsmith.com John N. Ellison (PA 51098) Douglas R. Widin (PA 40074) (admitted pro hac vice) Miranda A. Jannuzzi (PA 311396) REED SMITH LLP 1717 Arch Street, Suite 3100 Philadelphia, PA 19103 Telephone: 215-851-8100 Facsimile: 215-851-1420 jellison@reedsmith.com dwidin@reedsmith.com mjannuzzi@reedsmith.com Attorneys for Defendant Anthem Life Insurance Company Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 20 of 21 CERTIFICATE OF SERVICE I, Miranda A. Jannuzzi, do hereby certify that on this 31st day of October 2016, a true and correct copy of the foregoing Reply Brief in Further Support of Anthem Life’s Motion to Dismiss Plaintiff’s Amended Complaint and Certification Pursuant to Local Rule 7.8(b)(2) were filed with the Court using the ECF system, which will send notification of such filing to the following counsel of record: Charles Kannebecker, Esquire 104 W. High Street Milford, PA 18337 James C. Haggerty, Esquire 1835 Market Street, Suite 2700 Philadelphia, PA 19103 Attorneys for Plaintiff /s Miranda A. Jannuzzi . Miranda A. Jannuzzi Case 3:16-cv-00079-RDM Document 33 Filed 10/31/16 Page 21 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ERIC YOST, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. ANTHEM LIFE INSURANCE COMPANY, Defendant. : : : : : : : : : : : : No. 3:16-cv-00079-RDM (JUDGE ROBERT D. MARIANI) CERTIFICATION PURSUANT TO LOCAL RULE 7.8(b)(2) Defendant Anthem Life Insurance Company’s Reply Brief in Further Support of its Motion to Dismiss Plaintiff’s Amended Complaint does not exceed 5,000 words. The body of the Reply Brief, excluding the cover page, tables, and signature block, contains 3,616 words. Dated: October 31, 2016 Respectfully submitted, /s Douglas R. Widin . Dan J. Hofmeister, Jr. (IL 6204299) REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606-7507 Telephone: 312-207-1000 Facsimile: 312-207-6400 dhofmeister@reedsmith.com Case 3:16-cv-00079-RDM Document 33-1 Filed 10/31/16 Page 1 of 2 - 2 - John N. Ellison (PA 51098) Douglas R. Widin (PA 40074) (admitted pro hac vice) Miranda A. Jannuzzi (PA 311396) REED SMITH LLP 1717 Arch Street, Suite 3100 Philadelphia, PA 19103 Telephone: 215-851-8100 Facsimile: 215-851-1420 jellison@reedsmith.com dwidin@reedsmith.com mjannuzzi@reedsmith.com Attorneys for Defendant Anthem Life Insurance Company Case 3:16-cv-00079-RDM Document 33-1 Filed 10/31/16 Page 2 of 2 EXHIBIT 1 Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 1 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2003 WL 22952101 United States District Court, E.D. Pennsylvania. Drake SAXTON, Jimmy Little, and Thomas C. Dudley, individually and on behalf of all others similarly situated, Plaintiffs, v. CENTRAL PENNSYLVANIA TEAMSTERS PENSION FUND; the Central Pennsylvania Teamsters Pension Fund Trustees-William Shappell, Keith Noll, Kevin M. Cicak, Tom J. Ventura, Thomas K. Wotring, and Peter Hassler; and the Fund Administrator-Joseph J. Samolewicz; Jointly and Severally, Defendants. No. Civ.A. 02-CV-986. | Dec. 9, 2003. Attorneys and Law Firms Alan M. Sandals, Sandals & Associates PC, Philadelphia, PA, Ann Curry Thompson, Kelman, Loria, Will, Harvey & Thompson, Detroit, MI, for Plaintiffs. Paul C. Evans, Morgan, Lewis & Bockius Llp, Philadelphia, PA, for Defendants. OPINION AND ORDER VANANTWERPEN, J. I. Introduction *1 We have before us Defendants' Motion to Dismiss Plaintiffs' Amended Complaint for failure to state cognizable claims pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs Drake Saxton, Jimmy Little, and Thomas C. Dudley, acting on behalf of themselves and all others similarly situated, allege that Defendants Central Pennsylvania Teamsters Pension Fund, Trustees, and Fund Administrator violated various provisions of ERISA, including breach of fiduciary duty provisions, § 404(a)(1)(A)-(D), 29 U.S.C. § 1104(a)(1)(A)-(D); unlawful reduction of accrued benefits, § 204(g), 29 U.S.C. § 1054(g); unlawful forfeiture of accrued benefits, § 203(a), 29 U.S.C. § 1053(a); illegal transfers of plan assets, § 4231, 29 U.S.C. § 1411; and prohibited transactions, § 406(a), 29 U.S.C. § 1106(a). Plaintiffs also assert violations under the LMRA, § 302, 29 U.S.C. § 186, as well as a violation of collective bargaining agreements. For the reasons set forth below, the Defendants' Motion to Dismiss is granted in part and denied in part. II. Jurisdiction This case arises under ERISA, 29 U.S.C. § 1001 et seq.: thus, we have federal question jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). III. Background We present the relevant facts as Plaintiffs allege them in their brief. Defendant, the Central Pennsylvania Teamsters Fund (“Fund” or “Pension Plan”) is a multi-employer pension fund governed by the Employee Retirement Income Securities Act (“ERISA”), 29 U.S.C. § 1001 et seq. Plaintiffs are participants in the Fund, which is administered by three union Trustees, and three employer Trustees, as well as a Fund Administrator appointed by the Trustees. The Fund itself, a trust, is comprised of three distinct pension sub-plans, or sub-trusts, all of which qualify as separate ERISA benefit plans. These sub-plans include the Defined Benefit Plan (“DB Plan”), the Retirement Income Plan 1987 (“RIP 87 Plan”), and the Retirement Income Plan 2000 (“RIP 2000 Plan”). Each sub-plan is governed by the Central Pennsylvania Teamster Pension Fund Trust Agreement, as restated December 9, 1999 (“1999 Trust Agreement” or “Trust Agreement”), as well as by its own plan document. The DB Plan is a defined benefit plan, whereas the RIP 87 Plan and the RIP 2000 Plan are defined contribution or individual account plans, as defined by ERISA § 3(34), 29 U.S.C. § 1002(34). 1 1 Defined benefit plans generally provide for fixed benefits payments as provided by the plan's terms. See 29 U.S.C. § 1002(35). Defined contribution, or individual account plans, create an individual account for each plan participant. The benefits paid to the participant are based entirely on the amount contributed to the participant's account, “and any income, expenses, gains and losses, and any EXHIBIT 1Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 2 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 forfeitures of accounts of other participants which may be allocated to such participant's account.” 29 U.S.C. § 1002(34). Plaintiffs filed the instant action as a class action lawsuit. Named Plaintiffs Drake Saxton, Jimmy Little, and Thomas C. Dudley are participants in both the DB and RIP 87 Plans. In addition to asserting claims against the Fund, Plaintiffs' Amended Complaint alleges various ERISA violations against the Trustees and the Fund Administrator. Briefly, Count 1 of the Amended Complaint seeks declaratory and injunctive relief to clarify and enforce Plaintiffs' rights to future benefits under the DB Plan and the RIP 87 Plan upon this Court's resolution of Plaintiffs' remaining statutory based claims. Count II alleges that Defendant Trustees and Defendant Fund Administrator breached their fiduciary duties through various measures. Counts III and IV aver that the plan amendments adopted by Defendant Trustees in 2002 violated the “anti-cut back” rule of ERISA § 204(g)(1), 29 U.S.C. § 1054(g)(1) and constituted unlawful forfeitures of Plaintiffs' accrued benefits under § 203(a), 29 U.S.C. § 1053(a), respectively. Count V contends that the Trustees flouted ERISA § 4231(a), 29 U.S.C. § 1411(a) by causing illegal transfers of plan assets without meeting certain specified requirements. Count VI alleges that Defendants breached collective bargaining agreements with employers. The employers' obligations to contribute to the Fund arise from these agreements. Finally, Count VII sets forth claims pursuant to the Labor Management Relations Act (“LMRA”) and seeks to hold Defendant Trustees and Defendant Fund Administrator personally liable for committing prohibited transactions in connection with the violations alleged throughout the Amended Complaint. *2 The Fund was created in 1955 by its settlors, the Transport Employers Association (“TEA”) and the Teamsters, Chauffeurs, Warehouseman, and Helpers Local Union No. 429 (“Local 429”). Since then, the Fund and its sub-plans have been amended on multiple occasions. In 1986, the Fund documents were amended to phase out the DB Plan over a three year span, and establish a new “Retirement Income Plan,” which, after the RIP 2000 plan was created, became known as the RIP 87 Plan. The DB Plan and RIP 87 Plan had overlapping, but not identical participation. As the collective bargaining agreements (“CBA”) governing employer contributions into the DB Plan expired during the three-year window, 95% of future employer contributions were directed into the RIP 87 Plan, and the remaining 5% were directed into the old DB Plan. This apportionment of employer contributions between the two plans was made pursuant to a formula set forth the Trust Agreement. The DB Plan was thereafter amended in 1989, effective January 1990, to direct all employer contributions into the RIP 87 Plan. The amendment was implemented based on the Trustees' incorrect assumption that the DB Plan was “fully funded” and thus required no further employer contributions to meet its existing benefit obligations to beneficiaries. By 1999, however, it became evident that the DB Plan was in danger of not meeting ERISA's minimum funding requirements. The Fund's Settlors, TEA and Local 429, therefore amended the Fund's Trust Agreement in 1999. This agreement, known as the 1999 Second Amended and Restated Central Pennsylvania Teamsters Pension Trust Agreement, contained two important amendments. First, the RIP 2000 Plan was spun off from the RIP 87 Plan. The RIP 2000 Plan was established as a separate defined contribution plan for employers who had joined the Fund since 2000 and whose employees had never participated in the DB Plan. Second, to ameliorate the DB Plan's funding problems, an amendment allocated a certain amount of future contributions of RIP 87 Employers from the RIP 87 Plan into the DB Plan for the years 2000 to 2005. The quantity of contributions reallocated was calculated from the total forfeitures 2 of RIP 87 Plan employees from the previous year. Significantly, the previous year's forfeitures remained in the RIP 87 Plan. The quantity of forfeitures merely served as a guide for determining the portion of future contributions from RIP 87 Employers that would be allocated to the DB Plan. Thus, while the employers' overall contribution obligations did not diminish, a portion of those contributions were directed into the DB Plan. These amendments to the Trust Agreement were signed by both TEA and Local 429, the Fund's settlors. 2 A forfeiture occurs when a RIP 87 Plan participant terminates membership prior to his/her benefits becoming vested. In another attempt to surmount the DB Plan's underfunding issue, the Trustees announced two proposals to the membership in 2001. The first involved freezing the RIP 87 Plan, and reactivating the DB Plan for receipt of future employer contributions. The second option reallocated a additional percentage of future Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 3 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 contributions of RIP 87 Plan employers into the DB Plan pursuant to a formula based on the participant's age and years of service. The Trustees ultimately selected this latter option, deemed Amendment No. 4, effective March 1, 2002. 3 Amendment No. 4 also contained a second, separate amendment. The Trustees added to the amendment provisions of the Trust Agreement the statement, “[n]othing in this Trust Agreement shall preclude the Trustees from acting in their Settlor-capacity as appropriate by law.” (1999 Trust Agreement, Art. XI, Sec. 11.1.) Amendment No. 4 was signed and issued by the Trustees, without the signatures of Local 429 and the TEA. Several months later, however, the Trustees reversed their position and adopted Amendment No. 6 to the 1999 Second Amended and Restated Trust Agreement. This amendment, effective January 2003, froze the RIP 87 Plan and allocated all future contributions of RIP 87 Plan employers into the DB Plan. 4 Plaintiffs' allegations stem primarily from these amendments. 3 Amendment No. 4 provides in relevant part: Section 2.3. Contributions to RIP 1987. Beginning January 1, 2000, all Contributions paid to the Fund by RIP 87 Employers shall be allocated to RIP 1987, except as otherwise provided in Section 2.4, herein. Section 2.4. Contributions to the Defined Benefit Plan. A portion of the Contributions that each RIP 1987 Employer pays to the Fund will be allocated to the Defined Benefit plan, as follows: A. Forfeitures. Effective January 1, 2000, the Contributions for each RIP 1987 Employer that would otherwise be allocated to RIP 1987 will be reduced by the dollar value of the Forfeitures that its Employees incurred in RIP 1987 as of the first day of each Fund year.... B. In addition to the Contributions allocated to the Defined Benefit Plan under subsection (A) above, a portion of the Contributions to the Fund of each RIP 1987 Employer for hours worked by Participants on and after March 1, 2002, will be allocated to the Defined Benefit Plan in accordance with the following formula ... (emphasis added). 4 Amendment No. 6 provides in pertinent part: Section 2.3 Contributions to RIP 1987. Effective January 1, 2000 until December 31, 2002, all Contributions owed to the Fund by RIP 1987 Employers shall be allocated to RIP 1987, except as otherwise provided in Section 2.4, herein. Effective January 1, 2003, all Contributions to RIP 1987 will cease and all Contributions paid to the Fund by RIP 1987 Employers will be allocated to the Defined Benefit Plan. IV. Standard of Review *3 A motion to dismiss, pursuant to Fed.R.Civ.P. 12(b) (6), tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, an action will be dismissed under 12(b)(6) only when the plaintiff has failed to state a claim upon which relief can be granted. The criteria for deciding whether a plaintiff has met this standard have been clearly established. “In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party.” Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). This Court need not credit, however, any conclusory allegations of law, unsubstantiated conclusions, and/or unwarranted factual inferences. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). In addition, a complaint should be dismissed only if it appears to a legal certainty that a plaintiff could prove no set of facts which would entitle him or her to relief. D.P. Enterprises v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984). Generally, a court may not take into account materials extraneous to the pleadings when considering a motion to dismiss. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.1985). If, however a document is “integral to or explicitly relied upon in the complaint,” it may be considered “without converting the motion [to dismiss] into one for summary judgment.” Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1 st Cir.1996), superceded by statute on other grounds, as noted in Greebel v. FTP Software, Inc., 194 F.3d 185, 197 (1 st Cir.1999); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997) (finding district court's reliance on document provided by defendants in ruling on motion to dismiss appropriate because plaintiff's complaint was based on that document, even though complaint did not explicitly refer or cite to it); In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n .9 (3d Cir.1993) (“a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 4 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 the plaintiff's claims are based on the document”) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1996)). Plaintiffs' allegations, as set forth in the Amended Complaint, are heavily based upon the 1999 Trust Agreement, and the February 2002 and December 2002 amendments thereto, the 1999 RIP 1987 Plan Document, the 1994 DB Plan Document, and the collective bargaining agreements governing the named Plaintiffs' employment. These documents are attached as exhibits to both Plaintiffs' and Defendants' supporting Memoranda. The authenticity of these documents is not in dispute. Thus, it is proper for this Court to consider these documents in adjudicating Defendants' Motion to Dismiss. Notably, if the plan documents are unambiguous, we may construe them as a matter of law. Kemerer v. ICI Americas, Inc., 70 F.3d 281, 288-89 (3d Cir.1995). V. Discussion A. Count 1 *4 Pursuant to 29 U.S.C. § 1132(a)(1)(B), Count 1 of the Plaintiffs' Amended Complaint seeks declaratory relief to clarify and enforce their rights to future benefits under the DB Plan and the RIP 87 Plan. (Am.Compl.¶ 59.) § 1132(a) (1)(B) enables ERISA plan participants or beneficiaries to institute a civil enforcement action “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.” Before a federal court may entertain a claim under this provision, however, the Third Circuit requires that a plaintiff first exhaust any remedies available under the plan. Harrow v. Prudential Ins. Co., 279 F.3d 244, 252 (3d Cir.2002) (citing Zipf v. Am. Tel. & Tel., 799 F.2d 889, 891 (3d Cir.1986)). The exhaustion requirement applies “to ERISA benefit claims, but not to claims arising from violations of substantive statutory provisions.” Id. Courts require exhaustion of administrative remedies “to help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all concerned.” Id. at 249 (quoting Amato v. Bernard, 618 F.2d 559, 567 (9 th Cir.1980)). The exhaustion requirement, however, is not absolute. If a plaintiff can provide a “clear and positive” showing that exhaustion would be futile, the requirement is excused. Brown v. Cont'l Baking Co., 891 F.Supp. 238, 241 (E.D.Pa.1995); see Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir.1990) (“Although the exhaustion requirement is strictly enforced, courts have recognized an exception when resort to the administrative process would be futile”). Plaintiffs admit that they have not exhausted their claim. Because the determination and clarification of benefits under the plans depend upon this Court's resolution of Plaintiffs' remaining statutory claims, 5 they allege that exhaustion under the plans' administrative claim procedures would be futile. (Am.Compl.¶¶ 59, 60.) To support this argument, Plaintiffs characterize Count 1 as a “claim for benefits” not under the current plans' terms, but rather under the terms of the plans as ultimately determined by this Court. This distinction is unavailing because it does not overcome the fundamental nature of the Count as a claim for the clarification and enforcement of future benefits. 5 Plaintiffs' Brief explains that Count 1, seeking a declaration of their rights to benefits, becomes relevant only upon this Court's adjudication of their remaining claims: “Hence, the legality under the ERISA statute of the plan terms are first placed in issue under Counts II through VII. It is only after these statutory claims are decided that the parties and the Court can determine the consequences of these rulings for the actual benefits entitlements of plaintiffs ...” (Pls.' Br. at 20.) In essence, Plaintiffs first seek reconstitution of the plans' terms through this Court's adjudication of their remaining statutory-based counts before any resolution of claims for benefits. Thus, in one sense, it would be futile to require Plaintiffs to exhaust any claims for benefits before these statutory issues are resolved, because the changes in the plans' terms constitute the gravamen of the Amended Complaint. But all this means is that Plaintiffs' claim for clarification and enforcement of future benefits is premature. It does not provide a basis to apply the futility exception. Once this Court rules on Plaintiffs' remaining counts, they are then free to exhaust claims for benefits under the reconstituted plans' internal administrative procedures. Because such a claim must first be exhausted through the plans' internal administrative procedures before being brought in federal court, and because the futility exception is inapplicable, Count 1 must Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 5 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 be dismissed at this time, without prejudice for Plaintiffs to refile the claim if and when appropriate. B. Count II *5 Count II of the Amended Complaint alleges that Defendant Trustees and Defendant Fund Administrator, acting as “fiduciaries” within the meaning of 29 U.S.C. § 1002(21)(A)(1), 6 breached their ERISA mandated fiduciary obligations through various measures. 6 This provision provides in relevant part: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets. To state a claim for breach of fiduciary duty under ERISA, a plaintiff must allege that the defendant undertook the challenged actions in a fiduciary capacity, and that the action taken constituted a breach of that duty. 29 U.S.C. §§ 1109(a), 1132(a)(3). An ERISA fiduciary, properly identified, must employ within the defined domain “the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use.” 29 U.S.C. § 1104(a)(1)(B). The fiduciary should act “solely in the interest of the participants and beneficiaries,” and must discharge his duties “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [ERISA].” §§ 1104(a)(1)(A), (D). 29 U.S.C. § 1109(a) authorizes a beneficiary to bring suit against a fiduciary who has violated any of the fiduciary obligations ERISA imposes. Specifically, Plaintiffs assert nine separate violations of Defendants' fiduciary duties. (Am.Compl.¶¶ 64(a)-(j).) For purposes of the following analysis, the alleged violations are grouped as follows: (1) inappropriately amending the 1999 Trust Agreement on several occasions in 2002 without the requisite signatures; (2) improperly issuing to retired DB Plan participants the “thirteenth check” through 2000; and (3) failing to prudently and effectively monitor the performance of investment advisors and managers responsible for the investment of plan assets. 1. Trust Amendments For the reasons set forth below, Plaintiffs' claims relating to Defendants' implementation of the 2002 Amendments to the 1999 Trust Agreement are dismissed with prejudice. i. Trustees' Failure to Abide by the Amendment Provisions Of The Trust Agreement In Undertaking Amendment 4 Plaintiffs' Amended Complaint asserts that Defendant Trustees and Defendant Fund Administrator: [f]ailed to discharge their duties in accordance with the documents and instruments governing the plans by again purporting to amend the 1999 Trust Agreement in February 2002 to arrogate to themselves broad powers to act as settlors in amending the Trust Agreement, again without the authorizing signatures of Fund settlors, Local 429 and TEA, as required by the 1999 Trust Agreement. (Am.Compl.¶ 64(i).) Specifically, “[a]mendment No. 4 was signed solely by the Fund Trustees, but not by the TEA or by Local 429, as required by the 1999 Restated Trust Agreement, the document purportedly being amended.” (Am.Compl.¶ 51.) Thus, Plaintiffs claim that Defendants' failure to comply with the appropriate Trust Agreement amendment procedures in implementing Amendment No. 4 constituted a breach of their fiduciary obligations. For the following reasons, we find that Plaintiffs have failed to state a claim upon which relief can be granted. *6 Article XI, section 11.1 of the 1999 Trust Agreement gives the power of amendment to the Trustees or Settlors, and explicitly sets forth the appropriate procedures to be employed when the amending party seeks to amend the Agreement: The Trustees or the Settlors may amend the Trust Agreement in any manner and at any time, subject to the provisions of the Trust Agreement, ERISA and other federal and/or state law; provided, however, that no amendment Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 6 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 shall prejudice the rights of any Participant or Beneficiary with respect to claims which have been opened and are in being pursuant to the rules and regulations of the Fund; provided, further, that no amendment shall cause any of the assets of the Fund to revert to any Employer. Any amendment shall be effective as of the date set by resolution of the Trustees. Amendments shall be in written form. Notwithstanding anything to the contrary set forth herein, any amendment to the Trust Agreement which would affect any rights or obligations of the Trustees or of TEA, as a Settlor, or of the Union, as a Settlor, shall not be effective unless approved in writing by the party or parties affected. (1999 Trust Agreement, Art. XI, Sec. 11.1 (emphasis added).) Section 402(b)(3) of ERISA requires that every employee benefit plan provide (1) a “procedure for amending [the] plan and (2) “[a procedure] for identifying the persons who have authority to amend the plan.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 82, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995). So long as these minimal requirements are met, “ERISA [ ] follows standard trust law principles in dictating only that whatever level of specificity a company ultimately chooses, in an amendment procedure or elsewhere, it is bound to that level.” Id. at 84, 514 U.S. 73, 115 S.Ct. 1223, 131 L.Ed.2d 94; see 29 U.S.C. § 1104(a) (1)(D). Thus, a plan sponsor's failure to act in accordance with the amendment procedures of the governing plan document when implementing an amendment constitutes a breach of fiduciary duty possibly warranting judicial annulment of the amendment. Curtiss-Wright Corp., 514 U.S. at 84-85, 115 S.Ct. 1223, 131 L.Ed.2d 94. In the case at bar, Plaintiffs note that the February 2002 (and presumably December 2002) amendments to the Trust Agreement were promulgated without the signatures of TEA or Local 429. As the 1999 Trust Agreement indicates, however, the Trustees need only obtain the signatures of TEA and Local 429 if the amendment being adopted somehow impacts the rights or obligations of those parties as settlors. Thus, Defendants' adoption of the 2002 amendments without the signatures of either TEA or Local 429 constituted a failure to act in accordance with the Trust Agreement's amendment procedures only if the amendments impacted the settlors as such. Plaintiffs, however, fail to allege that the contested 2002 amendments affected the rights or obligations of TEA and Local 429 as settlors. 7 To state a claim for breach of fiduciary duty in this context, it must be alleged that the defendant neglected to administer the plan in accordance with its terms. The absence of any specific allegation that Defendants did not obtain the signatures required by the Trust Agreement despite the fact that the 2002 amendments implicated the rights and obligations of TEA and Union as settlors renders Plaintiffs' breach of fiduciary duty claim fatal. This claim of Count II is accordingly dismissed with prejudice for the aforementioned reasons. 7 Plaintiffs' claim that the amendments “severely reduced the accrued benefits of plaintiffs and the members of the Class and their accrual of future benefits under the pre-amendment RIP 87 Plan” (Am.Compl.¶ 64(h)) does not suggest that TEA or Local 429's rights or obligations as settlors were affected by the amendments. ii. Plan Amendments As A Fiduciary Act *7 Plaintiffs allege that Defendant Trustees and Defendant Fund Administrator violated their fiduciary duties under ERISA by adopting various amendments to the 1999 Trust Agreement in 2002. ERISA, a comprehensive statutory scheme, is intended to protect employees enrolled in pension and benefit plans. The responsibility of administering a plan in the best interests of its participants and beneficiaries resides with plan trustees, who are obligated under § 404 of ERISA to act in accordance with a standard of fiduciary conduct. 29 U.S.C. § 1104(A)-(D). Specifically, Plaintiffs aver that the 2002 amendments to the 1999 Trust Agreement violated ERISA § 404 because the amendments “severely reduc[ed] the accrued benefits of plaintiffs and the members of the class and their accrual of future benefits under the terms of the pre-amendment RIP 87 Plan.” (Am.Compl.¶ 64(h).) Before we may consider whether Plaintiffs have stated a claim for breach of fiduciary duty, we must first decide whether the Trustees' adoption of the 2002 amendments invoked ERISA's fiduciary duty provisions. In urging that we answer this question in the affirmative, Plaintiffs argue Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 7 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 that in the context of this multi-employer Pension Plan, the Trustees' actions in implementing amendments which affected the allocation of a finite asset pool constituted administrative and fiduciary functions. Defendants, in turn, counter with the proposition that a plan sponsor acts within its power as a settlor when amending any plan. As the following discussion reveals, the issue is not clear-cut. Upon careful consideration, we find that the Trustees functioned as settlors when amending the Pension Plan. 8 They were, consequently, free to amend without the restraints imposed by ERISA § 404. 8 We reach our decision today regardless of the November 2002 Department of Labor Bulletin. In ascertaining whether plan sponsors act in a settlor or fiduciary capacity when amending ERISA-governed benefit plans, courts have drawn distinctions between multi-employer and single-employer plans, and between those plans that “affect the allocation of a finite plan asset pool” to which each participating employer has contributed. Musto v. Am. Gen. Corp., 861 F.2d 897, 912 (6 th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989). Undoubtedly, the general rule is that the ERISA fiduciary obligations do not apply to a plan amendment. But, as the below discussion indicates, by no means has this general rule been unequivocally applied by courts. Plaintiffs' argument is premised upon the rationale articulated by the Second Circuit in Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498 (2d Cir.1995). Former employees brought suit challenging the defendant corporation's adoption of an amendment to a single- employer pension plan. The plaintiffs argued that the plan amendment, which excluded the plaintiffs from a selective early retirement program, constituted a breach of fiduciary duty to act for the sole benefit of plan participants. Id. at 500. In holding that the plan trustees' amendment of the single-employer plan did not invoke ERISA's fiduciary obligations, the Second Circuit explained that “[i]n the single-employer setting, where plan trustees are also corporate officers, their actions must be made in the interest of both the plan's participants and the employer.” Id. at 506. Because the trustees have dual responsibilities in this regard, subjecting them to fiduciary obligations in their adoption of plan amendments would discourage the creation of benefit plans, a result ERISA intended to prevent. In setting forth its rationale, the Second Circuit distinguished cases where plan amendments were held to be fiduciary functions. 9 Those cases involved multi-employer pension plans. 9 In Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032, 1038 (2d Cir.1985), the Second Circuit recognized the existence of a fiduciary breach cause of action against the trustees of a multi-employer pension fund who amended a vested pension plan. *8 The cases holding plan amendment to be an administrative and fiduciary task concern multiemployer pension plans, jointly administered by trustees representing the employers and trustees appointed by and representing the union. In the multiemployer setting, trustees amending a pension plan “affect the allocation of a finite plan asset pool” to which each participating employer has contributed. For that reason trustees administering a multiemployer plan are expected to act solely for the benefit of beneficiaries and are barred from acting on the employers' behalf. Id. (internal citations omitted). In drawing a distinction between single-employer plans and multi-employer plans implicating a finite plan asset pool, the Second Circuit garnered support from the Sixth Circuit's dicta in Musto, 861 F.2d at 912, that “[i]n amending a multi-employer plan, where the level of contributions of each participant employer has generally been set by collective bargaining, the trustees ‘affect the allocation of a finite plan asset pool between participants' ... and hence act as plan administrators subject to a fiduciary duty.” The Sixth Circuit, however, subsequently refused to treat single-employer and multi- employer plans differently in Pope v. Central States S.E. & S.W. Areas Health and Welfare Fund, 27 F.3d 211, 213- 214 (6 th Cir.1994). In Pope, the Court of Appeals held that the trustees of a multiemployer welfare-benefit plan were not subject to fiduciary standards in amending a plan to reduce benefits in order to protect its financial stability. The Third Circuit recognized Pope’ s impact on the fine distinction drawn by Musto as well: “Pope stands for the proposition that the Sixth Circuit, despite its authorship of Musto, is prepared to treat single- and multi- employer plans similarly in the absence of some other salient difference.” Walling v. Brady, 125 F.3d 114, 118 (3d Cir.1997). In the aftermath of these decisions, the Supreme Court has had occasion to address the issue of whether ERISA's Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 8 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 fiduciary obligations apply to plan sponsors who amend plan agreements. These decisions, however, arose in the context of single-employer plans. See, e.g., Lockheed Corp. v. Spink, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). In Lockheed, the Court counseled that: Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans ... “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” When employers undertake those actions, they do not act as fiduciaries, but are analogous to the settlors of a trust. Id. at 890, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (citations omitted). This is because “ ‘only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration,’ does a person become a fiduciary under § 3(21)(A),” and ERISA's definition of fiduciary does not include plan design. Id. (quoting Siskind, 47 F.3d at 505). The Court stated that this reasoning applied to both pension and welfare benefit plans. Id. Despite the categorical language characterizing the Supreme Court's pronouncement, the Third Circuit expressly refused to recognize that the rule would apply in all situations. *9 Lockheed speaks of “plan sponsors,” a term that applies to both single-employer sponsors and multi-employer sponsors under ERISA, and the opinion lacks any hint that single- and multi- employer plans should be analyzed differently. At the same time, the silence of Lockheed on this topic could arguably be a result of its subject matter, a single-employer plan. The Court did not mention multiemployer plans nor state that its decision was intended to reach them or to address their particular characteristics.... [W]e do not read Lockheed to be the definitive word that there are never valid occasions on which to distinguish between the two types of plans.... Walling, 125 F.3d at 117. Walling involved an amendment to a multi-employer pension fund that lacked a finite asset pool. In no uncertain terms, the Court of Appeals held that “the simple fact that the plan at issue is a multiemployer plan is insufficient to cause the fiduciary duty to attach to the Trustees' actions.” Id. at 120. Nevertheless, the Third Circuit took notice that “[t]he plan feature (a finite asset pool) on which Siskind based its deviation from this bright-line rule is not present here” and concluded that “[t]he rationale for having the fiduciary duty of loyalty apply is therefore absent, because the Trustees have the power to incur unfunded liabilities.” Id. at 118. Thus, while the Third Circuit's refusal to impose fiduciary burdens on the trustees before it was grounded in the logic of Lockheed, the underlying analysis reveals the court's reluctance to consider the principle articulated in Lockheed to be unequivocally independent of the type of plan involved. Following the Walling decision, however, the Supreme Court reaffirmed the general principle that a plan sponsor's decision to amend a plan concerns the composition or design of the plan itself and thus does not implicate ERISA's fiduciary obligations in Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Hughes clarified that the prior holding in Lockheed does not turn on “the type of plan being amended for the simple reason that the plain language of the statute defining fiduciary makes no distinction.” Id. Notably, the issue arose before the Supreme Court once again in the context of a single-employer benefit plan. Id. Thus, while it does not necessarily diminish the import of Walling, it does undermine the notion that the type of plan at issue informs the decision of whether a plan sponsor acts as a fiduciary in undertaking a plan amendment. The Court's textual approach places emphasis on ERISA's definition of fiduciary. Because the term fails to distinguish between various plan permutations, and because it fails to include plan design as a defined function, a plan sponsor is free to amend any employee benefit plan without beings subject to fiduciary review. Lockheed, 517 U.S. at 890, 116 S.Ct. 1783, 135 L.Ed.2d 153. Indeed, the Hughes Court stressed that “[o]ur conclusion applies with equal force to persons exercising authority over a contributory plan, a noncontributory plan, or any other type of plan .” 525 U.S. at 444-45, 119 S.Ct. 755, 142 L.Ed.2d 881. Thus, the Court held that the plaintiffs' fiduciary claims were directly foreclosed “by Spink's holding that, Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 9 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 without exception, ‘[p]lan sponsors who alter the terms of a plan do not fall into the category of fiduciaries.” ’ Id. at 445, 525 U.S. 432, 119 S.Ct. 755, 142 L.Ed.2d 881 (emphasis added). Admittedly, the Court's decision in Hughes does not directly dispose of the issue facing this Court, because the Pension Plan sub judice is a multi-employer plan involving the allocation of finite plan assets. But the reasons underpinning the Court's decision appear to preclude imposition of fiduciary duties on the Trustees in this instance. To prevail, Plaintiffs must address the definition of “fiduciary” set forth in the statute. Yet it appears that under any plausible reading of the term, a plan sponsor's amendments to ERISA governed plans do not fall within its purview. Moreover, the Court's analysis appears to foreclose consideration of any policy driven distinctions premised upon the unique features of the particular plan under review. Therefore, we cannot recognize a legal claim for breach of fiduciary duty stemming from Defendants' promulgation of the 2002 amendments. 10 10 We are aware that a strong argument can be made that specific plan features should inform the fiduciary inquiry, and thus that fiduciary obligations should be imposed on plan sponsors who implement amendments to multi-employer pension funds implicating a finite asset pool. What we do learn from the Supreme Court's pronouncements on this issue is that the critical inquiry lies in determining whether the plan sponsors exercised discretionary authority or control over plan management or administration. While tinkering with plan design does not fall within this definition, the thrust of Plaintiffs' complaint is not simply that the Trustees amended the “form or structure” of the Pension Plan, Hughes Aircraft, 525 U.S. at 444, 119 S.Ct. 755, 142 L.Ed.2d 881, but rather that the plan was amended to the detriment of Plaintiffs' present and future accrued benefits. Unlike in the former scenario, a rationale for having fiduciary duties apply in the latter case is present. Unquestionably, ERISA is intended to promote the creation of employee benefit plans, and its provisions should be read with this goal in mind. This explains the Supreme Court's reluctance to inflict on single-employer sponsors the burden of fiduciary obligations when such employers undertake to amend a plan that they have no obligation to provide in the first instance. There is, of course, another important competing goal: “to mak[e] sure that if a worker has been promised a defined pension benefit upon retirement-and if he has fulfilled whatever conditions are required to obtain a vested benefit-he actually will receive it.” Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 375, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980); see generally, 29 U.S.C. § 1001. It is important that employees enrolled in a benefit plan not be deprived of compensation that they reasonably anticipate under the plan's purported coverage. Indeed, this competing element may at times run up against ERISA's first purpose. As explicated above, the Pension Fund under review is a multi-employer plan that involves a finite asset pool. The fact that a multi-employer pension plan involves a finite asset pool could justify the imposition of fiduciary obligations on trustees that adopt plan amendments because, in this setting, trustees are charged with administering allocation of the finite plan asset pool. Consequently, the trustees' decision to amend a plan in such manner as to alter the benefits could be interpreted as a fiduciary exercise of their administrative discretion under ERISA. Plaintiffs contend that, through various purported amendments, Defendants reallocated employer contributions among several distinct, protected plans, to the immediate disadvantage of plan participants, who partake in the RIP 87 defined contribution plan. Although Defendants diverted future RIP 87 employer contributions to the defined benefit plan, Plaintiffs' reasonably anticipated receipt of benefits from these contributions plus their investment returns. This scenario may pose conflicting choices on the part of the Trustee Defendants as to each class of participants in the separate plans, who do not have identical economic interests. An argument can be made that these actions involve administering the allocation of employer contributions and plan assets, and justify imposition of fiduciary obligations. On the other hand, it is the job of sponsors to make difficult choices, not the courts, and as explicated above the Supreme Court's pronouncements on the subject do not leave room for this type of policy-based analysis. *10 Neither the Third Circuit's decision in Walling or the Supreme Court's opinions analyzing this matter directly control the situation where trustees of a multiemployer pension fund reallocate a finite asset pool among various sub-plans through an amendment. Yet an examination of the rationales espoused by the Supreme Court in its teachings on the matter support the view that plan sponsors act as settlors in such setting. 11 Thus, we find that the Trustees' promulgation of the 2002 amendments to the Trust Agreement constitutes settlor conduct Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 10 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 unrestrained by the obligations set forth in 29 U.S.C. § § 1104(a)(1)(A)-(D). Accordingly, we grant Defendants' Motion on this issue, and dismiss this claim of Count II with prejudice. 11 As settlors, the Trustees are “free to make any amendment that [does] not run afoul of relevant ERISA regulations.”Walling, 125 F.3d at 120. In Hozier v. Midwest Fasteners, Inc., the Third Circuit explained that “an employer's decision to amend or terminate an employee benefit plan is unconstrained by the fiduciary duties that ERISA imposes on plan administration. Our conclusion does not imply that an employer has unfettered discretion to amend or terminate plans at will. In the case of pension plans, ERISA's detailed accrual and vesting provisions substantially limit this power.” 908 F.2d 1155, 1162 (3d Cir.1990). Thus, the Court of Appeals determined that although the defendant could have effected an invalid amendment, he could not have breached any fiduciary duties in deciding to amend the plan because he was simply not acting as an ERISA fiduciary. Id. 2. The Thirteenth Check Plaintiffs assert that, in contrast to the explicit terms of the Trust Agreement, Defendant Trustees and Defendant Fund Administrator paid to DB Plan retirees a “thirteenth check” from 1987 through 2000. (See Am. Compl. ¶ 64(a)- (f).) Defendants move to dismiss this allegation on the ground that it fails to state a claim for breach of fiduciary duties. For the following reasons, we find that Plaintiffs have stated a claim for breach of fiduciary duties in this context. The DB Plan required that its participants be issued an additional benefit check, known as the “thirteenth check” so long as certain funding prerequisites were met. Specifically, the DB Plan provided that: For certain retired participants and their Beneficiaries, an additional retirement benefit check in the form of a bonus check shall be paid ... [This benefit] is payable only to those retired Participants ... who are entitled to receive a monthly benefit check for each month of the calendar year with respect to which the thirteenth check is being paid. Notwithstanding the preceding, the “thirteenth check” shall only be payable if the Fund Actuary certifies that the unfunded vested liability of the Fund, as calculated for MPPAA purposes as of the last day of the calendar year preceding distribution of the Additional Retirement Benefit check, does not exceed $85,000,000. (1994 DB Plan, Art. IV, Sec. I(1)(j).) (emphasis added). Plaintiffs, who were not members of the DB Plan at the time and thus never received any of the additional benefits, do not claim that the Fund Actuary failed to make the requisite certifications. Rather, they aver that the Defendant Trustees and Defendant Fund Administrator encouraged and permitted the Fund Actuary “to use outdated and improper 1951 mortality tables to calculate the funding liability of the DB Plan, thereby distorting and concealing the true funding status of the Plan, depriving it of needed and legally required funding, and jeopardizing the security of the accrued pension benefits of plaintiffs and the members of the Class.” (Am.Compl.¶ 64(e).) In response, Defendants argue that their decision to issue the check was a settlor decision not falling within the ambit of ERISA's fiduciary duty provisions. (Defs.' Reply Mem. at 22 .) Because the Fund Actuary made the requisite certifications, Defendants assert that the DB Plan term afforded them no choice but to pay to DB participants the additional benefits. (Id.) *11 As noted above, ERISA deems a person to be a fiduciary with respect to a plan “to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets....” 29 U.S.C. § 1002(21)(a)(I). Thus, “[f]iduciary obligations can apply to managing, advising, and administering an ERISA plan.” Pegram v. Herdich, 530 U.S. 211, 223, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). ERISA Section 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D) imposes upon fiduciaries the requirement that they discharge their duties solely in the interest of plan participants and beneficiaries and in accordance with plan documents insofar as such documents are consistent with ERISA. These obligations further include monitoring the plan's solvency and adjusting benefit levels if and when appropriate. See Dippel v. Joint Bd. Of Trustees of the Operating Engineers Trust Fund, No. 80-0271, 1982 Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 11 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 WL 2085, at *7 (D.D.C. May 6, 1982) (“The Board obviously retains the discretionary authority and indeed the fiduciary obligation to alter existing types and levels of medical benefits available under the Plan when the financial solvency of the Fund so requires.”) (dicta); cf. Baum v. Nolan, 853 F.2d 1071, 1074-75 n. 2 (2d Cir.1988) (possibility that payment of pension benefits may affect fund's solvency is a matter of fiduciary duty) (dicta). We find that Plaintiffs' claim passes muster under Rule 12(b)(6). Because Plaintiffs do not allege that Defendants paid out thirteenth checks in the absence of the Fund Actuary's certification, Defendants have technically adhered to a DB Plan term that affords them no discretion. They have complied with a term that demands issuance of the check upon meeting a specified prerequisite-the actuary's certification. Nevertheless we must at this point take as true Plaintiffs' factual allegations in the Amended Complaint that Defendants did exercise improper discretion, and thus acted in a fiduciary capacity, in their effort to ensure that the term's prerequisite was met, despite knowledge that the actual circumstances reflected otherwise. Cf. Fechter v. Conn. Gen. Life Ins. Co., 798 F.Supp. 1120, 1124 (E.D.Pa.1991) ( “[P]laintiffs allege that Connecticut General transcended their usual role as an actuary and became a fiduciary by purposely using an allocation formula that, contrary to the plain language of the Plan, would permit most of the surplus assets to revert to the Company so that the Company would not question Connecticut General's excessively high premium. We have no doubt that if plaintiffs can prove their allegations, then as a matter of law, Connecticut General is an ERISA fiduciary”). Defendants have a fiduciary duty to faithfully administer the terms of the DB Plan, and to act prudently in determining whether the payment of a benefit was in fact authorized. See Gruby v. Brady, 838 F.Supp. 820, 829 (S.D.N.Y.1993) (denying motion to dismiss fiduciary breach claim that trustees maintained benefits at excessive levels in plan that was in financial difficulty despite trustees following dictates of plan documents because “if the benefits levels as set forth in the Fund's governing plan documents are excessive, the Trustee Defendants may not avoid their fiduciary duties to Members by hiding behind documents which are inconsistent with ERISA”). Permitting or encouraging the Fund Actuary to use an improper assumption in calculating the unfunded vested liability of the DB Plan in order to satisfy the term's prerequisite which subsequently necessitates a certain result, all with the knowledge that continued payments were imprudent and would put the entire Fund in financial jeopardy, states a claim for breach of fiduciary duty. 12 12 Dicta contained in Concrete Pipe and Products of California v. Construction Laborers Pension Trust For Southern California, 508 U.S. 602, 633 n. 19, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) buttresses our finding that Plaintiffs' allegations state a cognizable breach of fiduciary duty claim. In the context of holding that the MPPAA's presumptions in favor of multi-employer plans did not deny employer access to an impartial decision maker and thus did not violate due process rights, the Supreme Court noted that: we know of no [case] in which a plan sponsor was found to have replaced an actuary's actuarial methods or assumptions with different ones of its own. Although we express no view on the question whether a plan sponsor must adopt the assumptions used by the actuary, we note that the legislative history of § 1082, which was enacted as part of ERISA in 1974, suggests that the acturarial [sic] assumptions must be “independently determined by an actuary,” and that it is “inappropriate for an employer to substitute his judgment ... for that of a qualified actuary” with respect to these assumptions. Id. (quoting S.Rep. No. 93-383, p. 70 (1973)). *12 Defendants may not avoid their fiduciary obligations by circumventing a term that purportedly provides them with no discretion. Accordingly, Defendants' Motion to Dismiss this claim of Count II is denied. 3. Imprudent Investment of Plan Assets Plaintiffs' last breach of fiduciary duty claim is premised on the allegation that Defendant Trustees and Defendant Fund Administrator: [f]ailed to prudently and effectively monitor and oversee the performance of the investment advisors and managers who were responsible for the investment of plan assets, and instead continued to employ the services of the same investment advisors and managers despite their unusually poor results from 1998-2000, thereby causing a significant loss of assets to the plans, Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 12 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 further jeopardizing the funding of the DB Plan and diminishing the values of the individual accounts of plaintiffs and the members of the Class in the RIP 87 Plan itself and as transferred into the reformulated DB Plan. (Am.Compl.¶ 64(g).) As explained below, we find that Plaintiffs have adequately alleged a breach of fiduciary duty claim. Specifically, Plaintiffs assert that the DB Plan and RIP 87 Plan performed poorly because of mismanagement of plan assets by the Trustee appointed investment managers. During this same period, however, other similar multi-employer pension funds experienced a rapid growth in the values of assets held and invested. (Am.Compl.¶ 41.) Although “[t]his sub-par performance and mismanagement was either known to the Trustees and Fund Administrator, or would have been discovered by them had they made prudent and proper efforts to monitor and supervise the performance of the managers who had been engaged to invest plan assets,” (Id.), Defendants “did not investigate, consider pursuing, or pursue a legal cause of action or other remedies either against the plans' investment advisors or managers ... or against the current and former Trustees who failed to take prudent action....” (Am.Compl.¶ 42.) Defendants' Motion to Dismiss challenges whether Plaintiffs have met the liberal pleading requirements of Fed.R.Civ.P. 8(a) (2), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that “contains only conclusory allegations and lack[s] any factual assertions for support fails even the liberal standard of Federal Rule of Civil Procedure 12(b) (6).” Crowley v. Corning, Inc., 234 F.Supp.2d 222, 230 (W.D.N.Y.2002). Few cases discuss the adequacy of pleading a breach of fiduciary duty claim in this specific context. Indisputably, Defendants' investment conduct is governed by ERISA's fiduciary provisions. See 29 U.S.C. §§ 1104(a)(1)(B)- (C). 13 With respect to the Defendants' fiduciary duties when they retain outside professional assistance, the Third Circuit has stated: 13 29 U.S.C. §§ 1104(a)(1)(B)-(C) provide in pertinent part: (1) [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and - (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances if is clearly prudent not to do so. While we would encourage fiduciaries to retain the services of consultants when they need outside assistance to make prudent investments and do not expect fiduciaries to duplicate their advisers' investigative efforts, we believe that ERISA's duty to investigate requires fiduciaries to review the data a consultant gathers, to assess its significance and to supplement it where necessary. *13 In re Unisys Corp. Sav. Plan Litig., 74 F.3d 420, 435 (3d Cir.1996). We find that Plaintiffs' breach of fiduciary duty claim, as alleged in the Amended Complaint, satisfies the pleading requirements of Fed.R.Civ.P. 8. The essential elements of the claim are alleged. In addition to alleging the fiduciary status of Defendants, the Amended Complaint sets forth Defendants' fiduciary duties and specifies the Defendants' involvement in breaching those duties. (See Am. Compl. ¶¶ 41-42, 64(g).) As summarized above, the Amended Complaint rests on more than mere conclusory allegations. Defendants' reliance on Crowley is inapposite. Unlike the situation confronting the district court in Crowley, the crux of Plaintiffs' claim here is that if Defendants were actually unaware of the Fund's poor investment performance, they would have been aware had they done the type of investigation and oversight that the Third Circuit demands of fiduciaries who employ outside consultants. If, on the other hand, Defendants did possess knowledge of the Fund's inadequate performance, and yet failed to take any remedial measures, this too constitutes a breach of fiduciary duty. Because Plaintiffs set forth sufficient facts under which relief could be granted, Defendants' Motion to Dismiss this claim of Count II is denied. 14 14 Defendants further argue that, as a matter of law, a breach of fiduciary duty claim cannot arise from Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 13 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 a fund's poor investment performance over a short period of time. Defendants' Reply Memorandum references two cases in support of this proposition. (See Defs.' Reply Mem. at 23 (citing Lalonde v. Textron, Inc., 270 F.Supp.2d 272, 280 (D.R.I.2003); Wright v. Or. Metallurgical Corp., 222 F.Supp.2d 1224, 1234 (D.Or.2002)).) Defendants, however, fail to note that both decisions adjudicated the validity of plaintiffs' breach of fiduciary duty claims in the context of an ESOP plan. These plans, unlike other ERISA benefit plans, involve unique considerations. Indeed, “ESOPs are unlike other benefit plans, because they have competing purposes which, at times, can be in tension with one another. Any allegation of breach of a fiduciary duty must be considered in light of the special natures of ESOPs.” Textron, 270 F.Supp.2d at 278. Accordingly, we find with respect to Count II that Plaintiffs (1) have failed to state a claim for breach of fiduciary duty for Defendants' alleged inappropriate amendments to the 1999 Trust Agreement; and (2) have successfully stated a claim for breach of fiduciary duty for (a) Defendants' alleged improper issuance of the “thirteenth check,” and (b) Defendants' alleged failure to prudently and effectively monitor the performance of investment advisors and managers responsible for the investment of plan assets. C. Count III Count III of Plaintiffs' Amended Complaint alleges that Defendants unlawfully reduced accrued benefits in the RIP 87 Plan through their amendment of the 1999 Trust Agreement. For this claim, Plaintiffs rely on § 204(g)(1) of the ERISA statute, which prohibits the reduction of accrued benefits by amendment of an employee pension plan. See 29 U.S.C. § 1054(g)(1). Defendants counter that while the amendments to the RIP 87 Plan impact future employer contributions, they do not in any way affect accrued benefits. Thus the issue before us in Count III is whether the amendments to the plan constituted a reduction in “accrued benefits.” ERISA defines “accrued benefit” in an individual account plan as “the balance of the individual's account.” 29 U.S.C. § 1002(23)(B). Neither party here has identified cases that are particularly helpful in establishing how the term “accrued benefit” has been interpreted in practice. However, we believe the Third Circuit's discussion of an “accrued benefit” in Hoover v. Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977 (3d Cir.1985), though written in the context of a defined benefit plan dispute, is instructive. Hoover contains an extensive discussion of ERISA's legislative history. Of particular note is the court's citation of language in the Congressional Report accompanying the ERISA bill, which highlights the purpose behind its accrued benefit and vesting protections. The Report states: *14 Unless an employee's rights to his accrued pension benefits are nonforfeitable, he has no assurance that he will ultimately receive a pension. Thus, pension rights which have slowly been stockpiled over many years may suddenly be lost if the employee leaves or loses his job prior to retirement. Quite apart from the resulting hardships, ... such losses of pension rights are inequitable, since the pension contributions previously made on behalf of the employee may have been made in lieu of additional compensation or some other benefit which he would have received. Hoover at 987, citing S.Rep. No. 383, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4890, 4930. This language indicates that when Congress included § 204(g)(1) in ERISA, it intended to ensure that employees would receive the funds that employers had already set aside for their retirement, not to guarantee a certain amount of future employer contributions. Such a provision reflects the balance Congress undoubtedly sought to achieve between protecting employees' retirement funds and maintaining private pension plans as an attractive option for employers. That ERISA was meant to protect contributions that had already been made on behalf of employees is further substantiated in the Act's “Congressional findings and declaration of policy.” See 29 U.S.C. § 1001. This Section establishes the means by which Congress intended to protect employees' retirement income. Specifically, it sought to do so by requiring the disclosure and reporting to participants and beneficiaries of financial and other Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 14 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. 29 U.S.C. § 1001(b). Nowhere in this section or in subsequent portions does the Act require employers to make contributions on behalf of employees. Rather, it simply seeks to make employee benefit plans more transparent and predictable and to preserve their integrity and financial well-being when employers choose to contribute to them. This goal has been realized through the decisions of courts which have focused on enforcing the terms of pension plan documents, as can be seen from the cases discussed below. Hoover illustrates how ERISA's protections work in practice when applied to a defined benefit pension plan, where the employer agrees to make regular payments to participants of a fixed amount upon reaching retirement. In Hoover, the court held that the employer reduced employees' accrued benefits when it lowered the “unit multiplier” it used to calculate the amount of benefits that employees accrued each year. Id. at 980. Under the Internal Revenue Code, 26 U.S.C. § 411(a), an employer is required to state the formula by which accrued benefits are calculated in a defined benefit plan each year. Id. Since this formula “represents the interest in a retirement benefit that a participant earns each year,” it “enables a worker to mark his or her progress toward the full pension benefit due at retirement.” Id. Thus when the employer in Hoover lowered the multiplier from $25.00 to $6.00, it diminished by seventy-five percent the amount of funds that had already been theoretically set aside by the employer under the formula it created. Id. at 986. By finding the employer in violation of ERISA, the court held it liable for the level of funds it had voluntarily agreed to set aside for employees. In keeping with the purposes and principles of ERISA, the court's decision turned on the terms of the Plan documents, which obligated the employer to utilize a certain formula for calculating the benefits accrued thus far. In so doing, it effectively defined “accrued benefits” as the product of the formula set out by the employer in Plan documents, which is dependant on the amount of time thus served by employees. Courts have offered a comparable analysis when protecting accrued benefits in defined contribution plans by similarly focusing on the terms of Plan documents. In Izarelli v. Rexene Products Corp., 24 F.3d 1506 (5th Cir.1994), the plaintiffs argued that their accrued benefits were unlawfully reduced when their employer initially contributed 101,794 shares of stock to the Plan one year, but, after amending the Plan, ultimately allocated a much smaller amount to the individual accounts of Plan participants. Izarelli, 24 F.3d at 1509-16. While the district court held that the act of contributing the shares to the Plan created an accrued benefit, the Fifth Circuit reversed, drawing a distinction between contributions to the Plan and allocations to individual accounts. Id. at 1515. The court drew this distinction from the Plan document itself, which stated that “contributions initially are held in the ‘Unprorated Fund,’ i.e. ‘that portion of the assets or property in the [Plan] ... which at any particular time, has not been allocated to a particular Member's Account.” Id. at 1516. Additionally, the court noted that the Plan gave the employer “ ‘complete discretion’ to control the ‘time and manner of allocating Stock among [participants'] Accounts.” ’ Id. Thus the court held that the district court had clearly erred in finding the 101,794 share contribution an accrued benefit because the Plan specified that contributions were not the same as allocations. Id. at 1518. In so doing, the court declined to protect what it deemed were expected contributions to the individual accounts. *15 The First Circuit's approach to defining “accrued benefits” comports with those of the Third and Fifth Circuits. In Campbell v.. BankBoston, 327 F.3d 1 (1st Cir.2003), the plaintiff sued his former employer for making amendments that converted its defined benefit plan to a cash balance system because they ultimately resulted in a reduction in his retirement benefits. Campbell, 326 F.3d at 2. In implementing the amendments, the employer placed participants' accrued benefits, in other words, the amount that had been earned up until the conversion, into an account which was guaranteed a certain level of interest under the new cash balance plan. Id. at 4-5. In exchange for the guaranteed level of interest under the cash balance plan, the accounts ceased to accrue benefits under the old defined benefit plan. Id. Had the plaintiff been able to continue accruing benefits under the old plan, he would have eventually been entitled to an annual retirement benefit of $31,882.12. Id. However, as a result of the conversion, his benefits were reduced by approximately $3,000 per year. Id. The Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 15 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 court held that this was not a reduction in the plaintiff's accrued benefits, but a reduction in his expected benefits. Id. at 8-9. The employer had not reduced the amount of benefits accrued by the employee, it simply chose to guarantee a certain interest rate, in lieu of future accruals. The court concluded that the employer was within its rights under the Plan and the law to modify or eliminate future benefits, since ERISA does not offer protection for “expected benefits.” Id. Plaintiffs' reliance on John Blair Communications, Inc. v. Telemundo Group, Inc., 26 F.3d 360, 367 (2d Cir.1994), is not particularly helpful to this discussion or even applicable when determining when an accrued benefit has been reduced. We discuss it merely to explain why we do not rely on it here. The case concerned an alleged violation of ERISA § 208, which states that assets cannot be transferred to a new plan unless participants are entitled to receive a benefit that is equal to or greater to what they were entitled to under the old plan. 29 U.S.C. § 1058. The plaintiff argued that it received decreased benefits under the new plan because there was a three and a half month delay between the valuation of benefits under the old plan and when the benefits were actually transferred to the new plan. John Blair, 26 F.3d at 363-64. In spite of the fact that the funds under the old plan were appreciating and earning interest during the three and a half month period before they were actually transferred, the plaintiff's account was never credited for this increase in value. Id. The court held that the trustee had violated § 208 because the individuals' accounts post-transfer of plan assets “did not reflect the gains occurring during the interim period before the actual transfer.” Id. at 366. As stated above, we believe that the holding in this case is too abstract to be applied to the instant case, particularly since it concerns an unrelated section of ERISA. However, even if we were to attempt to apply it to this analysis, it would not be inconsistent with our discussion of accrued benefits thus far. John Blair stands for the proposition that trustees must acknowledge and credit appreciation and interest earned in defined contribution accounts. As in Hoover, Izarelli, and Campbell, the court interpreted ERISA to protect benefits as they existed prior to any alteration of the plan. Thus the participants in the plan in John Blair were entitled to any gains (and losses) that occurred up until the point of the actual transfer. We fail to see then how the holding in John Blair can be interpreted as offering protection for anything beyond the appreciation and interest earned on funds in a defined contribution plan. Since this case does not concern appreciation and interest earned in a defined contribution plan, we do not find it is an appropriate precedent. *16 Applying the foregoing discussion to the case at hand, we find that the Defendants did not reduce accrued benefits in the RIP 87 Plan. Accepting Plaintiffs' facts as true, Defendants made several amendments to the RIP 87 Plan which adversely affected its future growth. The first amendment, effective January 1, 2000, caused a portion of employer contributions intended for the RIP 87, in the amount of forfeitures incurred by employees in that fund year, to be invested into the DB Plan. The second amendment resulted in an additional portion of the funds intended for the RIP 87 Plan by employers to be diverted to the DB Plan, according to a formula based on the number of hours worked by participants after March 1, 2002. The final amendment, Amendment No. 6, caused all contributions intended for the RIP 87 to be made to the DB Plan, of which all RIP 87 Plan participants became members. Although these amendments undeniably reduced and eventually stopped future employer contributions to the RIP 87 Plan, they did not reduce the existing balances of members' individual accounts. Plaintiffs' own brief supports this conclusion. Plaintiffs described the initial reduction in contributions as a “derogation of the expectation [emphasis added] and agreement that contributions on their behalf would be made to the defined contribution RIP Plan and used to earn income to increase their individual account balances.” (Pls' Br. at 11.) As to the final amendment, in Plaintiffs' own words, it “froze the RIP 87 Plan for all future accruals of benefits after January 1, 2003 (other than those gains or losses from future investment performance), and directed all employer contributions made on behalf of all RIP 87 Plan participants on and after January 1, 2003 into the DB Plan.” (Id. at 12.) These characterizations of the amendments strongly support Defendants' claim that Plaintiffs have failed to state a claim upon which relief can be granted. However, even if Plaintiffs had not made these apparent admissions, the foregoing discussion of relevant case law leads us to the same conclusion. In each of the cases discussed above, the court looked to see if the alterations or amendments to the employers' pension plans impacted benefits retroactively or just future benefits. In Hoover, the application of a new Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 16 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 formula to benefits already earned by employees was considered a reduction of accrued benefits. In Izzarelli, however, a decision not to allocate the full amount of stock contributed to a plan was not considered a reduction in accrued benefits because the stock had not actually been applied to members' accounts and thus there was no deduction of benefits from participants' existing balances. Nor did the court in Campbell consider it a reduction in benefits when the employer decided to stop benefits from continuing to accrue, and instead replaced accruals with a guaranteed interest rate. In each of these cases, the court determined whether the amendments impacted benefits retroactively or prospectively. Only where the amendments were considered retroactive did the court find them in violation of ERISA because, as the court found in Campbell, ERISA does not protect expected benefits. *17 The Defendants here made a decision to reduce employer contributions to the RIP 87 Plan and eventually eliminate them altogether. However, it did not in any way alter the balances of the individual accounts that had accrued in the RIP 87 Plan. Plaintiffs' facts do not dispute this. Nor did the Defendants act inconsistently with Plan documents by diverting employer contributions to the DB plan, which Plaintiffs allege, had already accrued to the RIP 87 Plan. Plaintiffs argue that since Plan documents mandate direct contribution to the RIP 87 Plan, any diversion of contributions to the DB Plan is a reduction in accrued benefit. However, as correctly quoted in Plaintiffs' own brief, the Second Amended and Restated Central Pennsylvania Teamsters Pension Trust Agreement counters the notion that RIP 87 Employers contributions are deposited directly and fully to the RIP 87 Plan. Specifically, it states that “Contributions paid to the Fund by RIP 1987 Employers shall be paid to RIP 1987, except as otherwise provided in Section 2.4, herein [emphasis added].” (See Art. II, Sec. 2.3.) In other words, contributions made by RIP 87 employers to the Fund are to be paid to the RIP 87 Plan, but only in accordance with the terms of Section 2.4, which initially reduced contributions to RIP 87 and then, as amended, stopped them altogether. Other portions of the Second Amended Trust Agreement controvert Plaintiffs' contention that RIP 87 employer contributions directly accrued to the RIP 87 Plan, rather than the Fund. For example, the preamble to the Second Amended Trust Agreement makes it clear that employers make contributions to the “Fund,” not to individual pension plans or individual accounts. It notes that employers “pay contributions to the Fund on behalf of their employees who were participants of the Fund.” Furthermore, Section 7.1 of Article VII states that “[N]o Employer, Employee, Union, Local Union or other party shall have any right, title or interest in or to the Fund or any part thereof.” The relevant collective bargaining agreements conform to this principal by stating that employers obligate themselves to contribute to the Fund and not specific plans under the Fund. (See Art. 65 of the National Master United Parcel Service Agreement and Art. 50 of the National Master Freight Agreement.) Thus we find as a matter of law that employer contributions were to the Fund and not directly to the RIP 87 Plan. As such, the diversion of employer contributions to the DB Plan prior to their allocation to the RIP 87 Plan cannot be considered a reduction of accrued benefits in the RIP 87 Plan. The only way in which we could conceive of Plaintiffs making a claim upon which relief could be granted here is if Plaintiffs had alleged that the balances in participants' accounts were reduced so that they no longer reflected the rate of accrual set out in Plan documents as of the time they were amended. For example, if the balance at the time of amendment was recalculated using a monthly contribution amount for the year 1997 that was less than the amount promised under the case of the National Master United Parcel Service Agreement ($737.52), that would seem to constitute a reduction in accrued benefits. However, Plaintiffs have not made such an allegation. As such, we must conclude that with regard to Count III, Plaintiffs have failed to state a claim upon which relief can be granted and the Motion to Dismiss Count III must therefore be granted. Plaintiffs' Count III claim is dismissed with prejudice. D. Count IV *18 Plaintiffs' Count IV claim appears to be a variation of Count III, though we confess we had some difficulty understanding the basis for the claim. It relies on section § 203(a) of ERISA, which states that “each pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age.” 29 U.S.C. § 1053(a). Plaintiffs appear to argue from this, and their collective bargaining agreements, that they are entitled to “a nonforfeitable right to accrue and to ultimately Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 17 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 receive payment of the pension benefits purchased by these employer contributions on their behalf.” We do not believe that Plaintiffs have stated a claim upon which relief can be granted in Count IV. A claim under § 203(a) of ERISA is only valid if accrued benefits have been withdrawn from participants' accounts. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 441, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). It is not a guarantee that employers will make future contributions to pension plans. Since we have already found in Count III that Defendants' amendments to the pension plan did not reduce Plaintiffs' accrued benefits, we find that none of Plaintiffs' accrued benefits have been forfeited under § 203(a). Therefore Count IV must be dismissed with prejudice. E. Count V Count V of the Amended Complaint, asserted against Defendant Trustees and Defendant Fund Administrator, alleges illegal transfers of plan assets in violation of ERISA § 4231, 29 U.S.C. § 1411(a). 15 Specifically, Plaintiffs claim that the following five transactions constituted unlawful transfers of assets: 15 29 U.S.C. § 1411 is part of the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1381-1461. The MPPAA was enacted as an amendment to ERISA, and is referenced as “Subtitle E-Special Provisions for Multiemployer Plans.” 29 U.S.C. § 1411(a) provides that: Unless otherwise provided in regulations prescribed by the corporation, a plan sponsor may not cause a multiemployer plan to merge with one or more multiemployer plans, or engage in a transfer of assets and liabilities to or from another multiemployer plan, unless such merger or transfer satisfies the requirements of subsection (b) of this section. 29 U.S.C. § 1411(b) provides in pertinent part: A merger or transfer satisfies the requirements of this section if- (1) in accordance with the regulations of the corporation, the plan sponsor of a multiemployer plan notifies the corporation of a merger with or transfer of plan assets or liabilities to another multiemployer plan at least 120 days before the effective date of the merger or transfer; (2) no participant's or beneficiary's accrued benefit will be lower immediately after the effective date of the merger or transfer than the benefit immediately before that date; (4) an actuarial valuation of the assets and liabilities of each of the affected plans has been performed during the plan year preceding the effective date of the merger or transfer, based upon the most recent data available as of the day before the start of that plan year, or other valuation of such assets and liabilities performed under such standards and procedures as the corporation may prescribe by regulation. [D]efendant Trustees and Defendant Fund Administrator did not comply with the notice requirements of Section 4231(b)(1) or the valuation requirements of Section 4231(b)(4) when they (a) diverted employer contributions to and plan assets of the RIP 87 Plan to the DB Plan; (b) diverted participant forfeitures and plan assets of the RIP 87 Plan to the DB Plan; (c) transferred the RIP 2000 participants and associated assets out of the RIP 87 Plan; (d) diverted assets of the RIP 87 Plan into the DB Plan in March 2002 under Option 2; or (e) transferred all RIP 87 Plan participants and associated assets into the DB Plan in January 2003. (Am.Compl.¶ 79.) As a result, “the accrued benefits of RIP 87 Plan participants were lower immediately following each of these transfers and diversions of plan assets, in violation of Section 4231(b) (2).” (Am.Compl.¶ 80.) Significantly, all of Plaintiffs' contentions arise out of transfers from a defined contribution plan into either a defined benefit or a second defined contribution plan. Because we determine that § 4231 of ERISA does not apply to transfers of assets to or from a defined contribution plan, Plaintiffs cannot prove any set of facts warranting relief. Section 4231 of ERISA is contained within title IV of the statute, 29 U.S.C. § 1301 et seq. 29 U.S.C. § 1321(a), located in title IV, subchapter III, subtitle B, enumerates the specific plan types that title IV does and does not encompass: *19 “(a) Plans covered Except as provided in subsection (b) of this section, this subchapter applies to any plan....” Subsection (b) of § 1321 then states: Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 18 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 “This section does not apply to any plan (1) which is an individual account plan, as defined in paragraph (34) of section 1002 of this title....” Plaintiffs do not dispute that the RIP 87 and RIP 2000 Plans are defined contribution plans, as that term is delineated by § 1002(34): The term, “individual account plan” or “defined contribution plan” means a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participants's account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant's account. Defendants correctly posit that these definitions govern 29 U.S.C. § 1411, because this section is set forth in title IV, subchapter III, subtitle E of ERISA. Consequently, as title IV expressly excludes defined contribution plans from its domain, § 1411 does not regulate transfers of assets and liabilities between defined contribution plans, or between a defined contribution and a defined benefit plan. Bolstering this interpretation is a regulation promulgated by the Pension Benefit Guarantee Corporation (“PBGC”), an administrative agency within the United States Department of Labor charged with interpreting the MPPAA. The following regulation is applicable to part 2 of subsection E of ERISA, which includes 29 U.S.C. §§ 1411-1415. (a) Purpose. The purpose of this part is to prescribe notice requirements under section 4231 of ERISA for mergers and transfers of assets or liabilities among multiemployer pension plans.... (b) Scope. This part applies to mergers and transfers among multiemployer plans where all of the plans immediately before and immediately after the transaction are multiemployer plans covered by title IV of ERISA. 29 C.F.R. § 4231.1 (emphasis added). The PBGC's interpretations of MPPAA provisions, while not binding, are entitled to substantial deference. Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 169 (3d Cir.2002). We believe that the PBGC's reading of these interrelated statutory provisions represents sound statutory interpretation. See Local 1115 Pension Fund v. Local 144 Hosp. Pension Fund, 876 F.Supp. 39, 40-41 (S.D.N.Y.1994) (deferring to analogous PBGC regulation in holding that subtitle E of title IV of ERISA does not apply to multiemployer plans that are defined contribution plans). Accordingly, we defer to it. Plaintiffs do not allege that unlawful transfers of assets occurred between defined benefit plans. Instead, they allege unlawful asset transfers from a defined contribution plan into either a defined benefit or second defined contribution plan. Section 4231 is simply not implicated in the latter scenario because, “all of the plans immediately before and immediately after the transaction” are not “multiemployer plans covered by title IV of ERISA.” 29 C.F.R. § 4231.1. Plaintiffs can adduce no set of facts to substantiate a claim under § 4231 of ERISA. Defendants' Motion to Dismiss this claim is thus granted, and Plaintiffs' Count V claim is dismissed with prejudice. F. Prohibited Transaction Claims *20 In Counts II, V, and VII of the Amended Complaint, Plaintiffs have alleged that Defendant Trustees and Defendant Fund Administrator engaged in various transactions in violation of ERISA § 406(a)(1)(D), 29 U.S.C. § 1106(a)(1)(D). 16 Congress enacted this section “to bar categorically a transaction that [is] likely to injure the pension plan.” Comm'r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 160, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993). To effectuate this purpose, § 406(a)(1) “plac[es] certain transactions outside the scope of their [plan fiduciaries] lawful authority.” Lockheed v. Spink, 517 U.S. 882, 888, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). 16 29 U.S.C. § 1106(a)(1)(D) states in pertinent part that: (a) Transactions between plan and party in interest (1) A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect- Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 19 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 19 (D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan. To sustain an alleged transgression of § 406(a)(1)(D), 17 the Third Circuit requires that five elements be satisfied: 17 ERISA § 408 lists specific exceptions to the per se prohibitions in § 406. See 29 U.S.C. § 1108(b). Plaintiffs do not allege that any of these exceptions apply. (1) the person or entity is “[a] fiduciary with respect to [the] plan”; (2) the fiduciary “cause[s]” the plan to engage in the transaction at issue; (3) the transaction “use[s]” plan assets; (4) the transaction's use of the assets is “for the benefit of” a party in interest; and (5) the fiduciary “knows or should know” that elements three and four are satisfied. Reich v. Compton, 57 F.3d 270, 278 (3d Cir.1995) (quoting 29 U.S.C. § 1106(a)(1)(D)). When a fiduciary runs afoul of the rules promulgated in § 406(a)(1), ERISA § 409, 29 U.S.C. § 1109(a) 18 renders him/her personally liable for, inter alia, any losses the plan incurred as a result of the breach. 18 Section 409(a) provides: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which has been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. Specifically, Count II of the Amended Complaint states that the Defendants: Entered into, or enabled or allowed, a series of per se prohibited transactions using plan assets, as more fully specified in this Complaint, including paying to the DB Plan retirees a “thirteenth check” in violation of the established minimum funding requirements for such payments and the terms of the Plan, and diverting contributions which had been allocated to and/ or received by the RIP 87 Plan and hence were assets of that plan into the separate DB Plan. (Am.Compl.¶ 64(d).) Although we found that Plaintiffs have successfully alleged a breach of fiduciary duty claim stemming from Defendants' issuance of the “thirteenth check,” see discussion infra Part V.B., we find that they have failed to adequately plead a claim for breach of § 406(a)(1) (D). The Amended Complaint does allege elements one, two and three of the § 406(a)(1)(D) claim-namely that Defendants acted in a fiduciary capacity when they issued the thirteenth check, that Defendants, as fiduciaries, caused the challenged transaction to occur, and that the transaction used plan assets. (Am.Compl.¶¶ 37, 38, 62, 64(a).) As noted above, however, element four of the five element test requires that the challenged transaction employ plan assets “for the benefit of” a party in interest. The Third Circuit has held that this factor requires manifestation of a subjective intent to benefit a party in interest. Compton, 57 F.3d at 279. In other words, it encompasses more than merely having “the effect of benefitting” a party in interest. Id. (emphasis added). Plaintiffs do assert that the Trustees *21 on a continuing basis encouraged and allowed the Fund actuaries to improperly use outdated 1951 mortality tables ... to calculate the unfunded vested liability of the DB Plan in order to justify their conclusion that the DB Plan was ‘fully funded,” that it required no additional employer contributions to satisfy its benefits obligations to participants and their beneficiaries, and that the continued payment of the ‘thirteenth check’ to retirees of the DB Plan was permissible under the terms of the DB Plan. (Am.Compl.¶ 38.) We fail to recognize how this allegation can be construed as identifying the party in interest that was benefitted by the Defendants' issuance of the thirteenth check-a benefit paid to DB Plan participants. Certainly the allegation suggests that the employers benefitted as a result of Defendants' actions in ensuring Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 20 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 that the Fund appeared to be fully funded. It does not allege or even insinuate, however, that a party in interest benefitted through the Defendants' decision to continue to pay bonus benefits to the DB Plan participants. Plaintiffs' failure to allege this element of a § 406(a)(1)(D) renders their claim fatal. As such, this prohibited transaction claim of Count II is dismissed without prejudice to Plaintiffs' right to file a Second Amended Complaint. The second portion of the above quoted Amended Complaint also fails to state a claim warranting relief. (See Am. Compl. ¶ 64(d).) Plaintiffs contend that the 2002 amendments to the 1999 Trust Agreement, that “divert[ed] contributions which had been allocated to and/or received by the RIP 87 Plan ... into the separate DB Plan,” (Id.), constituted a prohibited transaction under ERISA § 406(a)(1)(D). 29 U.S.C. § 1106(a)(1)(D) mandates that fiduciary status must exist for a transaction to constitute a prohibited one. See 29 U.S.C. § 1106(a)(1) (D). As explicated in Part V.B.2. of this opinion, the 2002 amendments to the 1999 Trust Agreement were instituted by Defendants in their settlor capacity. See discussion infra Part V.B.2. Thus, § 406(a)(1)'s requirement of fiduciary status is not met. See Lockheed, 517 U.S. at 891, 116 S.Ct. 1783, 135 L.Ed.2d 153. As a matter of law then, Plaintiffs cannot prove any set of facts with respect to the challenged plan amendments that would justify relief under § 406(a)(1)(D). This prohibited transaction claim of Count II is thus dismissed with prejudice. Next, Count V of the Amended Complaint alleges that: Inasmuch as defendant Trustees and defendant Fund Administrator did not comply with the requirements of Section 4231(a) and (b), the transfers constitute prohibited transactions under ERISA Section 406(a), 29 U.S.C. § 1106(a), pursuant to Section 4231(c). (Am.Compl.¶ 81.) As Part V.E. of this opinion explains, ERISA § 4231 is not applicable to the circumstances presently confronting this Court. Moreover, as described above, the purported transfers were the product of Trust Amendments that we found the Defendants to have instituted in their settlor capacity. In addition, we found as a matter of law in Part V.C. of this opinion that the Trust documents provide for employer contributions into the Fund, as opposed to any of the individual plans that comprise the Fund. The Fund then distributes these employer contributions-plan assets- among the participating plans pursuant to the allocation formula set forth in the Trust Agreement. The various amendments to this Agreement reallocated a percentage of future RIP 87 employer contributions into the Fund to the DB Plan. Consequently, we determined that the existing assets of the RIP 87 Plan, a defined contribution plan, were never transferred to another plan. As discussed above, a prohibited transaction claim under § 406(a)(1) (D) requires there to be a transfer of plan assets. The unambiguous language of the plan documents precludes a finding that, by virtue of the Trust Amendments, plan assets were transferred out of the RIP 87 Plan. Accordingly, Plaintiffs have failed to state a prohibited transaction claim with respect to the supposed illegal transfer of plan assets. As such, this prohibited transaction claim of Count V is dismissed with prejudice. *22 Finally, Plaintiffs allege in Count VII of the Amended Complaint that: Defendant Trustees and defendant Fund Administrator engaged in a series of prohibited transactions by, inter alia, paying the DB retirees a “thirteenth check” in violation of the established minimum funding requirements for such benefit. (Am.Compl.¶ 87.) For the reasons set forth in the above discussion regarding the “thirteenth check,”, we find that Plaintiffs have failed to successfully state a claim for violation of ERISA § 406(a)(1)(D). Count VII continues: In addition, defendant Trustees' and defendant Fund Administrator's agreement to accept, and their acceptance of, employer contributions made on behalf of RIP 87 Plan participants but then to divert those plan assets into the different DB Plan, for the benefit of the DB Plan, violates ... ERISA Section 406, because such payments are not for the sole and exclusive benefit of the employees for whom such contributions were made and received.... Such payments and diversions are also prohibited Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 21 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 21 transactions under ERISA Section 406(a)(1)(D), 29 U.S.C. § 1106(a) (1)(D), because they constitute a direct or indirect use and transfer of assets of one plan (the RIP 87 Plan) to benefit employers who are parties in interest to that plan by reducing their independent funding obligations to another plan (the DB Plan). (Am.Compl.¶ 88.) Once again, for the reasons reiterated above, this claim must be dismissed with prejudice. For the foregoing reasons, Plaintiffs' prohibited transaction claims are dismissed. G. Count VI Count VI of Plaintiffs' Amended Complaint advances the claim that Defendant Trustees and Defendant Fund Administrator breached relevant Collective Bargaining Agreements by amending the Trust Agreement so as to reallocate employer contributions from the RIP 87 Plan to the DB Plan. Specifically, Plaintiffs aver that: Plaintiffs and other similarly situated Class members have contractual rights under their respective CBA's to employer contributions, which are made on their behalf in consideration of their current services to the employers, to be directed into their RIP 87 Plan accounts. Insofar as the CBA's define the employees' rights to pension benefits and contributions with respect to the RIP 87 Plan, the CBA's constitute documents and instruments governing the RIP 87 Plan. In violation of those rights under the Plan, defendant Trustees have purported to amend the Trust Agreement, and defendant Trustees and defendant Fund Administrator have acted, so as to divert all employer contributions from the RIP 87 Plan to the DB Plan without obtaining the necessary and corollary amendments of the relevant CBA's. In so doing, these defendants have violated the CBA instruments governing the RIP 87 Plan and breached their strict fiduciary duty to act in accordance with the CBA's. (Am.Compl.¶ 83.) The CBAs relevant to the named Plaintiffs' participation in the Fund include the National Master Freight and Central Pennsylvania Supplemental Agreement, and the 1997 and 2002 National Master United Parcel Service agreement and Central Pennsylvania Supplemental Agreement. (See Defs.' Mem. at 29.) These CBAs unequivocally provide that employer contributions be made to the Central Pennsylvania Teamsters Pension Fund in accordance with the terms of the Trust Agreement and Pension Plan. 19 Although it thus appears that the relevant CBAs do not require that participating employers' contributions be allocated specifically to the RIP 87 Plan, nonetheless we accept as true at this stage of litigation Plaintiffs' assertion that “[a]t all times following 1989, the CBA's pursuant to which employer contributions are owed to the Fund and the plan have directed that these employer contributions in varying amounts must be made into plaintiffs' and other Class members' accounts in the RIP 87 Plan.” (Am.Compl.¶ 54.) We hesitate to construe the CBAs as a matter of law despite the unambiguous language of the above- referenced CBAs only because Plaintiffs allude to other possibly relevant CBAs and employer participation agreements that they claim support their allegation, but which they have not yet received through discovery. 19 Article 50(a) of the National Master Freight Agreement provides in relevant part: “The Employer agrees to make the following contributions to the Central Pennsylvania Teamsters Pension Fund for each eligible employee, probationary and casual covered by this Agreement, in accordance with the terms of the Trust Agreement.” (emphasis added). In addition, Article 50(c) states that “[a]ll contributions shall be made at such a time and in such a manner as the Trustees require ...” Similarly, Article 65(1)(a) of the relevant UPS Agreements provided: The Employer hereby agrees to contribute to the Central Pennsylvania Teamsters Pension Fund the following monthly contributions, Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 22 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 22 in accordance with the terms of the Trust Agreement and Pension Plan executed by the Employer, subject to the qualifications hereinafter specified: ... In addition, allocations between the Defined Benefit Plan and the Retirement Income Plan shall be made by the Joint Supplemental Area Committee in the manner determined by the Settlers [sic] of the Central Pennsylvania Teamster Pension Fund, or, to the extent lawful, the Trustees of the Central Pennsylvania Teamsters Pension Fund. *23 Significantly, Plaintiffs' claim rests on the presupposition that the Trust Agreement does not conflict with the provisions in the CBAs that allegedly require employer contributions to be routed directly into the RIP 87 Plan. (See Pls.' Br. at 54 (“[n]othing in the provisions of the CBA's in this case, which expressly require that the employer contributions be paid to the RIP '87 or to the RIP 2000, in any way conflicts with the terms of the Trust Agreement.... In total, they require direction of employer contributions into particular plans and the Trustees do not have the discretion to do otherwise”).) We found as a matter of law, however, that the Trust Agreement has at all times explicitly mandated that employer contributions be paid to the Fund, and then allocated to the various sub-plans comprising the Fund as provided by the Trust Agreement's allocation formula. See discussion infra Part V.C. Thus, contrary to Plaintiffs' assumption, there exists an apparent conflict between the Trust Agreement and the CBAs, as interpreted by Plaintiffs. This conflict is pertinent because, in the absence of any provision in the Trust Agreement to the contrary, the Trust Agreement term will prevail over the conflicting CBA term. See Sinai Hosp. of Balt.v. Nat'l Benefit Fund for Hosp. & Health Care Employees, 697 F.2d 562, 567 (4 th Cir.1982) (holding that “[l]abor-management contracting parties ... cannot control expenditures from funds already vested in a trust entity where the trust instrument reposes that authority solely with the trustees. Likewise, neither an employer nor a union, singly or together, can alter the terms of a trust instrument such as the one involved in this case unless the power to do so was reserved when the trust was created or properly amended”); see also Hale v. Trustees of United Mine Workers Health & Ret. Funds, 23 F.3d 899, 902 (4 th Cir.1994) (holding that collective bargaining agreement is not enforceable against trustees of pension fund); Cent. States, Southeast and Southwest Areas Pension Fund v. Tank Transport, Inc., 779 F.Supp. 947, 951 (N.D.Ill.1991) (noting that trustees of multiemployer pension fund are not bound to arbitration provision in a collective bargaining agreement of a participating employer and its union). In short, the Trustees are bound only by the terms of the Trust Agreement. Consequently, they cannot be held liable for breaching a conflicting term in a CBA. Nothing in the 1999 Trust Agreement indicates that the provisions of any CBA prevail over the terms of the Trust. As this Court has previously noted, “ ‘[t]he provisions of the trust agreement provide the framework with which a court should analyze an employer's obligation to a ... fund.” ’ Cent. Pa.. Teamsters Pension Fund v. W & L Sales, Inc., 778 F.Supp. 820, 829 (E.D.Pa.1991) (quoting Ind. State Council of Roofers v. Adams Roofing, 753 F.2d 561, 564 (7 th Cir.1985)). The Trust Agreement itself belies Plaintiffs' argument that the Trust Agreement obligates the Trustees to comply with the terms of the CBAs insofar as the employers' contribution obligations are concerned. Indeed, the Trust Agreement sets forth the exact opposite proposition: *24 Each Employer shall make prompt contributions or payments to the Fund in such amount and pursuant to the terms and conditions set forth in this Agreement and the Collective Bargaining Agreement in effect from time to time between the Employer or his bargaining representative and the Local Union.... A Collective Bargaining Agreement or other written document that provides for Contributions to the Fund in an amount or in a manner that is not in accord with or does not comply with the Trust Agreement or with any rules promulgated by the Trustees ... is null and void to the extent of such inconsistency. (1999 Trust Agreement, Art IV, Sec. 4.1(A).) This Court employed a similar analysis in W & L Sales to reach the same conclusion that the trust agreement, rather than the conflicting CBA, controlled determination of pension eligibility. 778 F.Supp. at 829-30. Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 23 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 23 Unless the Trust Agreement expresses otherwise, and we find that it does not, Defendants cannot be held liable for breaching a CBA term that conflicts with the unambiguous provisions of Trust Agreement. Accordingly, Count VI which contains Plaintiffs' claim for violation of collective bargaining documents must be dismissed with prejudice. H. Count VII Defendants move to dismiss Plaintiffs' claim for violation of § 302 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186. 20 Specifically, Plaintiffs contend that the Fund provisions providing for the allocation of contributions from participating RIP 87 Plan employers into the DB Plan violated §§ 302(b) and (c)(5) of the LMRA because such payments were not undertaken for the “sole and exclusive benefit of the [RIP 87 Plan] employees for whom such contributions were made and received.” (Am.Compl.¶ 88.) In response, Defendants assert that § 302(e) of the LMRA does not create a private cause of action for purported violations of §§ 302(b) and (c)(5). 21 Additionally, Defendants argue that even if this Court had jurisdiction, no such transgression occurred because employer contributions to a multi- employer pension plan need only be used to benefit the Fund's beneficiaries, as opposed to the particular employee on whose behalf the employer contributed. (See Defs.' Mem. at 41-42.) 20 § 302(a) prohibits an employer, or association of employers, from, inter alia, rendering payments to any representative of its employees. This provision provides in part: “(a) ... It shall be unlawful for any employer or association of employers ... to pay, lend, or deliver ... any money or other thing of value- (1) to any representative of any of his employees, who are employed in an industry affecting commerce; or (2) to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer ...;” § 302(b)(1) prohibits employee representatives from receiving the payments proscribed by subsection (a). This provision provides: “(b) ... (1) It shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.” § 302(c) then enumerates exceptions to the broad prohibitions contained in subsections (a) and (b). This provision provides in pertinent part: “(c) ... The provisions of this section shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, ...; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund ...; and (c) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 24 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 24 funds held therein cannot be used for any purpose other than paying such pensions or annuities; ...” 21 § 302(e) states: “(e) The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 381 of title 28 (relating to notice to opposing party) to restrain violations of this section, without regard to the provisions of section 17 of title 15 and section 52 of this title, and the provisions of chapter 6 of this title.” Plaintiffs failed to adequately reply to this part of Defendants' Motion to Dismiss. 22 Therefore, we dismiss Plaintiffs' LMRA claim against Defendants pursuant to Local Rule of Civil Procedure 7 .1(c). See Toth v. Bristol Township, 215 F.Supp.2d 595, 598 (E.D.Pa.2002) (dismissing plaintiff's claim on Motion to Dismiss under Local Rule 7.1 because plaintiff did not respond to portion of defendants' motion discussing claim); Smith v. Nat'l Flood Ins. Program, 156 F.Supp.2d 520, 522 (E.D.Pa.2001) (“[B]ecause plaintiffs failed to address defendants' motion to dismiss with respect to defendants' argument that costs, interest, and attorneys' fees are not recoverable under the National Flood Insurance Act, the court will grant this aspect of the defendants' motion to dismiss as unopposed”). We suppose that, given their lack of response, Plaintiffs do not challenge this dismissal. 22 Plaintiffs' Brief In Opposition discusses the prohibited transaction claims comprising Count VII, but fails to assert any arguments in support of Count VII's LMRA claims. Plaintiffs merely state that, “[t]his [prohibited transaction claim] is true whether or not LMRA Section 302(b), 29 U.S.C. § 186(b), confers an independent basis of jurisdiction.” (Pls.' Br. at 58.) *25 Even if we were to undertake a cursory examination of the claim, however, we would find that we do not have jurisdiction to adjudicate it. Plaintiffs' claim contests Defendant Trustees and Defendant Fund Administrator's administration of the Fund's assets. (See Am. Compl. ¶ 88.) Such a claim is permissibly brought, and indeed has been brought, under, inter alia, the fiduciary duty provisions of ERISA. (See generally Am. Compl.) The Supreme Court has made clear that an attack on the actual administration of trust funds cannot be properly brought under §§ 302(b) and (c)(5) of the LMRA, because these provisions are directed towards policing the purposes for which a trust fund is established. We hold today that § 302(e) does not provide authority for a federal court to issue an injunction against a trust fund or its trustees requiring the trust funds to be administered in the manner described in § 302(c)(5). By its unmistakable language, § 302(e) provides district courts with jurisdiction “to restrain violations of this section.” A “violation” of § 302 occurs when the substantive restrictions in §§ 302(a) and (b) are disobeyed, which happens, not when funds are administered by the trust fund, but when they are “pa[id], len[t], or deliver[ed]” to the trust fund, § 302(a), or when they are “receive [d], or accept[ed]” by the trust fund, or “request[ed], [or] demand[ed]” for the trust fund, § 302(b)(1). And the exception to violation set forth in paragraph (c)(5) relates, not to the purpose for which the trust fund is in fact used (an unrestricted fund that happens to be used “for the sole and exclusive benefit of the employees” does not qualify); but rather to the purpose for which the trust fund is “established,” § 302(c)(5), and for which the payments are “held in trust,” § 302(c)(5)(A). The trustees' failure to comply with these latter purposes may be a breach of their contractual or fiduciary obligations and may subject them to suit for such breach; but it is no violation of § 302. Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 587-89, 113 S.Ct. 2252, 124 L.Ed.2d 522 (1993). Accordingly, Count VII which contains Plaintiffs' allegation under the LMRA would be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) had we not already dismissed this claim under Local Rule of Civil Procedure 7.1(c). VI. Conclusion For the foregoing reasons, Defendants' Motion to Dismiss is granted in part and denied in part. An appropriate order follows. Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 25 of 26 Saxton v. Central Pennsylvania Teamsters Pension Fund, Not Reported in F.Supp.2d... 2003 WL 22952101, 32 Employee Benefits Cas. 1126 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 25 All Citations Not Reported in F.Supp.2d, 2003 WL 22952101, 32 Employee Benefits Cas. 1126 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-00079-RDM Document 33-2 Filed 10/31/16 Page 26 of 26