Allbaugh v. California Field Ironworkers Pension Trust et al

Filing 187

ORDER that 137 Motion for Reconsideration is DENIED; that 142 Motion for Summary Judgment is GRANTED as to to the portion of Count 1 alleging claims under 29 U.S.C. § 1132(a)(1)(B) and the portion of Count 5 seeking statutory damages for the failure to timely provide Allbaugh with a copy of the actuarial tables; it is DENIED in all other respects; that 144 Request for Judicial Notice is DENIED; that 145 Motion for Summary Judgment is DENIED; that 178 Motion to Supplement is GRANTED; and that 150 Motion to Seal the declaration of Leanne Vance and exhibit 1 thereto is GRANTED in part and DENIED in part; the Clerk of Court is directed to SEAL exhibit 1 [ECF No. 150-1 at 520] only.FURTHER ORDERED that this case is referred to a Magistrate Judge to schedule a MANDATORY SETTLEMENT CONFERENCE. Signed by Judge Jennifer A. Dorsey on 10/19/16. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 Donald Allbaugh, individually and on behalf of all similarly situated, Plaintiff 6 7 v. 8 California Field Ironworkers Pension Trust; Board of Trustees of the California Field Ironworkers Pension Trust, Plan Administrator of the California Field Ironworkers Pension Trust, 9 10 11 2:12-cv-00561-JAD-GWF Order Denying Allbaugh’s Motion for Reconsideration; Granting the Defendants’ Motion for Summary Judgment in Part; Denying Allbaugh’s Motion for Summary Judgment; Granting the Defendants’ Motion to Seal in Part; Granting Allbaugh’s Motion to Supplement; and Referring this Case to a Magistrate Judge for Mandatory Settlement Conference [ECF Nos. 137, 142, 144, 145, 150, 178] Defendants 12 13 This is an action for withheld benefits, equitable relief, and statutory penalties under the 14 Employee Retirement Income Security Act (“ERISA”). Donald Allbaugh has been a participant 15 in the California Field Ironworkers Pension Trust’s pension plan since 1970. He reached normal 16 retirement age under the plan (age 65) in August 2007. He then continued working as a safety 17 manager for the same employer and also part time as an instructor for the union until he retired 18 two years later. Allbaugh did not receive benefit payments while he continued to work past 19 normal retirement age, but he did continue to accrue pension credits. In calculating Allbaugh’s 20 monthly benefit payment, the plan’s administrator interpreted the plan and determined that 21 Allbaugh’s post-normal-retirement-age employment required his benefit payments to be 22 permanently withheld during the months that Allbaugh had been engaged in that employment. 23 Thus, the administrator did not actuarially increase the amount of accrued benefit that Allbaugh 24 had earned at normal retirement age for each month that his benefits were withheld. 25 Allbaugh sues the California Field Ironworkers Pension Trust and the Board of Trustees 26 on behalf of himself and similarly situated workers, claiming that he is entitled to greater pension 27 benefits than he is currently receiving to account for the deferred benefits that he accumulated 28 after reaching retirement age. He separates his claims into five counts and seeks to recover 1 withheld benefits under 29 U.S.C. § 1132(a)(1)(B) in Counts 1, 2, and 4, equitable relief under 2 29 U.S.C. § 1132(a)(3) in Counts 1–3, and statutory penalties under 29 U.S.C. § 1132(c)(1)(B) in 3 Count 5. I certified a class of participants and their eligible beneficiaries to pursue Counts 2 and 3.1 4 5 But I denied certification of a separate class of participants who worked after normal retirement 6 age and whose benefits are or had been suspended without receiving a suspension-of-benefits 7 notice (“Class 1”) to pursue Counts 1, 3, and 4 because it faltered at FRCP 23(a)’s commonality 8 and typicality prerequisites.2 Allbaugh now moves me to reconsider that denial, arguing that it is 9 clearly erroneous and that newly discovered evidence warrants certification.3 Because Allbaugh 10 has not left me with a definite and firm conviction that a mistake has been committed, and the 11 newly discovered evidence is not relevant to the reasons that I found Class 1 unsuitable for 12 certification, I deny his motion. The parties also move for summary judgment on all five of Allbaugh’s claims.4 I grant 13 14 the defendants summary judgment on the portion of Count 1 alleged under § 1132(a)(1)(B) 15 because, as I held more than two years ago in this case, recovery of withheld benefits is not a 16 viable remedy for a plan’s failure to provide a suspension notice.5 As for the other denial-of- 17 benefit claims (Counts 2 and 4), I review them de novo because the defendants have not 18 established that the plan’s terms unambiguously grant them discretion to make eligibility 19 determinations or to interpret the plan, and I find that triable issues of fact preclude summary 20 21 1 ECF No. 86 at 14. 22 2 Id. at 6–9. 23 3 ECF No. 137. 24 4 25 26 27 28 ECF Nos. 142, 145. In conjunction with their summary-judgment motion, the defendants filed a separate request that I take judicial notice under FRE 201 of declarations, pleadings, orders, and a notice of errata that have been filed in this case. ECF No. 144. Judicial notice is not required for me to consider the contents of any of those documents—and I have considered them. Accordingly, the defendants’ request is denied. 5 ECF No. 70 at 11. 2 1 judgment. I deny the defendants’ motion to summarily adjudicate the claims seeking equity 2 under § 1132(a)(3) (Counts 1, portions of 2, and 3) as duplicative of the denial-of-benefit claims 3 under § 1132(a)(1)(B) because pleading alternative theories is permitted. But I grant summary 4 judgment on the portion of Count 5 seeking statutory remedies for the defendants’ failure to 5 timely furnish Allbaugh copies of actuarial tables because statutory relief is not legally available 6 for that delay. 7 Allbaugh also moves for leave to supplement his briefs to discuss a new ERISA decision 8 from the Ninth Circuit,6 and the defendants move to seal the declaration of Leanne Vance and 9 exhibit 1 thereto.7 I grant both Allbaugh’s motion for leave to supplement and the defendants’ 10 motion to seal exhibit 1.8 And, finally, I refer this case to a Magistrate Judge to schedule a 11 mandatory settlement conference. 12 13 Analysis I. 14 Motion to Amend Class Certification Order Allbaugh moves for reconsideration of my order denying certification for his proposed 15 Class 1 under FRCP 23, which provides that orders granting or denying class certification “may 16 be altered or amended before final judgment.”9 While Rule 23 authorizes courts to alter or 17 amend class-certification orders, it does not supply the reconsideration standard. Because they 18 are interlocutory, class-certification orders fall under the court’s “inherent power to reconsider an 19 interlocutory order for cause, so long as [it] retains jurisdiction.”10 Cause for reconsideration 20 may exist if “(1) there is newly discovered evidence that was not available when the original 21 motion or response was filed, (2) the court committed clear error or the initial decision was 22 6 ECF No. 178. 24 7 ECF No. 150. 25 8 I find all of the pending motions suitable for disposition without oral argument. L.R. 78-1. 26 9 ECF No. 137 at 6 (quoting FRCP 23(c)(1)(C)). 23 27 28 10 LR 59-1(a); accord City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (collecting cases). 3 1 manifestly unjust, or (3) if there is an intervening change in controlling law.”11 2 The defendants argue that I should reject Allbaugh’s reconsideration motion because he 3 does not invoke the correct legal standard.12 But I reach its merits because Allbaugh argues that: 4 (1) newly discovered evidence of the defendants’ systematic failure to provide suspension-of- 5 benefits notices to participants when they reached normal retirement age warrants certification of 6 Class 1; and (2) I committed clear error by (a) relying on the preamble to the DOL’s regulation, 7 (b) failing to consider that proof of reliance is not required in this circumstance, and (c) finding 8 that the failure to send a suspension-of-benefits notice does not give rise to a substantive claim 9 for withheld benefits. I address these arguments in reverse order and, because they do not 10 concern the deficiency that I found with Count 4,13 I limit my analysis to Counts 1 and 3. 11 A. 12 13 Allbaugh has not demonstrated that the denial of class certification was based on a clearly erroneous understanding of when employment qualifies as § 203(a)(3)(B) service. Allbaugh’s theory under Count 1 is that he suffered an unlawful forfeiture when the plan 14 suspended benefit payments to participants who continued to work past normal retirement age 15 without first notifying them that it was suspending their benefits. Allbaugh claims that he and 16 the members of Class 1 are entitled to recover the actuarial equivalent of the unlawfully withheld 17 benefits plus any additional benefits that accrued under 29 U.S.C. § 1132(a)(1)(B) or equitable 18 relief under § 1132(a)(3). 19 20 ERISA and the implementing regulations recognize that benefit payments often will be deferred.14 ERISA requires pension plans to “provide that an employee’s right to his normal 21 22 11 LR 59-1(a). 23 12 ECF No. 148 at 4–5. 24 13 25 26 27 28 I previously found that Allbaugh had not established commonality and typicality for Class 1’s claims in Count 4 because the lack of suspension notice that defines Class 1 does not correspond with the systematic miscalculation in benefits due under the plan’s formula that is vaguely alleged in Count 4. ECF No. 86 at 8:5–14. Allbaugh fails to establish that the grounds he offers for reconsideration cure that defect. See generally ECF No. 137. 14 Contilli v. Local 705 Int’l Bhd. of Teamsters Pension Fund, 559 F.3d 720, 722 (7th Cir. 2009). 4 1 retirement benefit is nonforfeitable upon the attainment of normal retirement age. . . .”15 Thus, 2 the general rule under ERISA is that an employer must provide an actuarial increase for the time 3 that an employee delays receipt of benefits past normal retirement age to reflect that his 4 retirement will be shorter.16 An exception to this general rule—when an actuarial increase is not 5 required and an unlawful forfeiture does not occur—is when the employee’s benefits are 6 suspended under 29 U.S.C. § 1053(a)(3)(B),17 which “allows plans to contain provisions 7 requiring the suspension of benefit payments where an employee works in certain jobs after his . . 8 . normal retirement date.”18 “Employees who fall in this category are commonly referred to being 9 in ‘Section 203(a)(3)(B) service.’”19 The Department of Labor’s (“DOL’s”) implementing 10 regulation states that “the employment of an employee subsequent to the time the payment of 11 benefits commenced or would have commenced if the employee had not remained in or returned 12 to employment results in section 203(a)(3)(B) service . . . .”20 13 Allbaugh does not dispute that he continued to work in what constitutes § 203(a)(3)(B) 14 service after he attained normal retirement age. He contends instead that, because the plan failed 15 to provide him with notice that it was suspending his benefit payments, his employment did not 16 qualify as § 203(a)(3)(B) service. Allbaugh’s theory is viable only if the sending of a 17 18 15 29 U.S.C. § 1053(a). 16 See 29 U.S.C. § 1054(c)(3). 19 20 17 24 Section 1053(a)(3)(B) states that “A right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that the payment of benefits is suspended for such period as the employee is employed, subsequent to the commencement of payment of such benefits . . . in the case of a multiemployer plan, in the same industry, in the same trade or craft, and the same geographic area covered by the plan, as when such benefits commenced.” 25 18 21 22 23 26 Canada v. Am. Airlines, Inc. Pilot Ret. Ben. Program, No. 3:09-0127, 2010 WL 4877280, at *12 (M.D. Tenn. Aug. 10, 2010), aff’d 572 Fed. Appx. 309 (6th Cir. 2014). 27 19 Id. 28 20 29 C.F.R. § 2530.203-3(c)(2). 5 1 suspension-of-benefits notice is a condition precedent to an employee being in § 203(a)(3)(B) 2 service. Allbaugh argues that the DOL’s regulations unambiguously provide that it is, and that I 3 committed clear error when I found otherwise and further erred when I based that decision, in 4 part, on language in the preamble to the regulations.21 But if there is any ambiguity in the 5 regulation, Allbaugh continues, then deference should be given to an advisory opinion that the 6 DOL issued on March 15, 1984, a provision in the Internal Revenue Manual, and a News Release 7 that the IRS issued on December 3, 1982.22 8 The defendants do not address any of these arguments; they instead respond that Allbaugh 9 ignores the caselaw that I relied on in addition to the regulation’s preamble in reaching my ruling, 10 and that other courts have since likewise found that damages are not available for a plan’s failure 11 to provide a suspension-of-benefits notice.23 To alter or amend my class certification order for 12 clear error, Allbaugh must leave me with a “definite and firm conviction that a mistake has been 13 committed.”24 He has not met this “‘very exacting standard.’”25 14 I disagree with Allbaugh’s position that the regulations unambiguously provide that an 15 employee cannot be characterized to be in § 203(a)(3)(B) service until and unless the plan 16 provides him with notice that it is suspending his benefits. For his argument, Allbaugh relies on 17 a single provision in the regulation that reads, “No payment shall be withheld by a plan pursuant 18 to this section unless the plan notifies the employee by personal delivery or first class mail during 19 the first calendar month or payroll period in which the plan withholds payments that his benefits 20 21 22 21 ECF No. 137 at 23–24. 23 22 Id. at 24–26. 23 ECF No. 148 at 10–11. 24 See United States v. Ruiz-Gaxiola, 623 F.3d 684, 693 (9th Cir. 2010) (collecting cases). 24 25 26 27 28 25 Campion v. Old Republic Home Protection Co., Inc., No. 09-cv-748, 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011) (quoting Hopwood v. Texas, 236 F.3d 256, 273 (5th Cir. 2000) (discussing clear error standard in context of the law-of-the-case doctrine)). 6 1 are suspended.”26 But the regulation authorizes a plan to “deduct from benefit payments to be 2 made by [the plan] payments [that had] previously [been] made by [it] during those calendar 3 months or pay periods in which the employee was employed in section 203(a)(3)(B) service. . . 4 .”27 Within the provision that Allbaugh relies on, the regulation requires a plan intending to 5 “offset any suspendible amounts actually paid during the periods of employment in section 6 203(a)(3)(B) service” to “specifically identify the periods of employment, the suspensible 7 amounts [that] are subject to the offset, and the manner in which the plan intends to offset the 8 suspendible amounts” within the suspension-of-benefits notice.28 9 Allbaugh’s interpretation violates the cannons of statutory interpretation that require a 10 regulation to “be read as a whole” and “construed so that effect is given to all its provisions, so 11 that no part will be inoperative or superfluous, void or insignificant.’”29 When read as a whole, 12 the regulations plainly provide that a suspension notice is not required for an employee to be 13 considered in or have been in § 203(a)(3)(B) service. So the failure to provide a suspension 14 notice does not give rise to a substantive claim for withheld benefits. Other courts that have 15 examined this issue have come to similar conclusions,30 and Allbaugh has provided me no 16 compelling reason to depart. 17 Moreover, the preamble to the regulations states that the notice provision: 18 affects only the plan’s right to begin withholding payments—it does not affect the plan’s entitlement to ultimately withhold or recoup all payments which it is entitled to withhold under § 2530.203-3. Thus, the effect of this provision is that, solely for 19 20 21 26 ECF No. 137 at 23 (emphasis removed) (quoting 29 C.F.R. § 2503.203-3(b)(4)). 27 29 C.F.R. § 2530.203-3(b)(3). 28 Id. at § 2530.203-3(b)(4). 22 23 24 25 26 29 Corley v. U.S., 556 U.S. 303, 314–15, n.5 (2009) (quotation marks and references omitted) (collecting authorities). 30 27 28 See, e.g., Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992) (recognizing that “ERISA provides that any actuarial increase in benefits during the delay caused by continued work may be used to offset the statutorily mandated accrual of retirement benefits past retirement age”); Monks v. Keystone Powdered Metal Co., 78 F. Supp. 2d 647 (E.D. Mich. 2000) (finding that ERISA does not authorize an affirmative damage recovery to remedy a notice failure). 7 1 purposes of a plan’s entitlement to commence the withholding of benefits, a retiree will not be deemed to be employed in section 203(a)(3)(B) service until the plan has complied with the notice requirements of paragraph (b)(4) of the regulation.31 2 3 4 Allbaugh argues that my reliance on the preamble was clearly erroneous, and that I should give 5 deference instead to a 1984 DOL advisory opinion,32 a provision in the Internal Revenue 6 Manual,33 and a news release issued by the IRS.34 Allbaugh provides a string of citations for the 7 proposition that relying on extra-regulation interpretation is permitted only when the regulation 8 itself is ambiguous.35 And he concludes that the interpretations he supplies merit greater 9 deference than the DOL’s preamble.36 But Allbaugh does not articulate what level of deference, 10 if any, should be afforded to these items, tacitly inviting the court to conduct the deference 11 analysis for him. I decline that invitation—except to note that DOL advisory opinions only bind 12 the parties to the letter, have no precedential value, and are not entitled to deference37; the 13 Internal Revenue Manual does not have the force of law38; and the IRS news release does not add 14 anything to this discussion. 15 16 In sum, I cannot say that the regulations clearly provide that an employee cannot be considered to be in § 203(a)(3)(B) service until and unless the plan provides him notice that it is 17 18 31 19 32 20 46 FED. REG. 8894-01, 8901, 1981 WL 158784 (Jan. 27, 1981) (emphasis added). Mr. Frank B. Reilly, Jr., Opinion No. 84-13A (E.R.I.S.A.), 1984 WL 23428 (U.S. Dept. Labor Mar. 15, 1984). 21 33 2A I.R.M. Abr. & Ann. § (Thomson Reuters current through Sept. 2016). 22 34 IR-82-139 (I.R.S.), 1982 WL 210486 (Internal Revenue Serv. Dec. 3, 1982). 23 35 See ECF No. 137 at 23–24. 36 See id. at 26. 24 25 37 26 27 28 Barker v. Pick N Pull Auto Dismantlers, Inc., 819 F. Supp. 889, 896 n.11 (E.D. Cal. 1993) (citing Keystone Consolidated Indust. v. C.I.R., 951 F.2d 76, 79 (5th Cir. 1992); Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 n.5 (1992)). 38 Fargo v. C.I.R., 447 F.3d 706, 713 (9th Cir. 2006) (collecting cases). 8 1 suspending his benefits. Nor do I find that the regulations are ambiguous about what effect the 2 act or omission of sending a suspension notice has on a plan’s entitlement to ultimately withhold 3 or recoup benefit payments made while an employee was in § 203(a)(3)(B) service. Because it 4 has no effect, the failure to provide a suspension notice does not give rise to a substantive claim 5 for withheld benefits under ERISA.39 Even if I were to find that the regulations are ambiguous in 6 that regard, Allbaugh has not left me with a definite and firm conviction that I made a mistake 7 when I found that he does not have a substantive claim for withheld benefits. 8 B. 9 10 Allbaugh has not shown that the denial of certification was based on a clearly erroneous understanding of the relief available and the standard of proof required to obtain it. Allbaugh next takes aim at my determination—conveyed first in my order granting his 11 motion to amend his complaint, and which later formed a foundation of my order denying 12 certification of proposed Class 140—that the members of proposed Class 1 may recover only 13 consequential or equitable damages, and the need to prove these damages individually renders 14 the class members’ claims under this theory atypical and bars class certification.41 To do this, 15 Allbaugh attempts to recharacterize Class 1’s claims as the type of claims that do not require 16 individual proof. He likens them to the “[i]nformation-related” ERISA claims in CIGNA Corp. 17 v. Amara that the Supreme Court held may not require individual proof of harm.42 18 Amara is materially distinguishable. The plaintiff in Amara sued for material plan-based 19 20 21 22 23 24 25 39 As I previously found, the effect of this decision is that failed notice gives rise only to consequential or equitable damages associated with the defendants’ improperly commencing to withhold benefit payments—harms, if any, that would be unique to each member of the proposed class. ECF No. 86 at 7–8. Thus, the proposed class cannot satisfy the commonality and typicality prerequisites. 40 ECF No. 70 at 11; ECF No. 86 at 7. 27 41 Id. 28 42 ECF No. 137 at 18 (citing CIGNA Corp. v. Amara, 563 U.S. 421 (2011)). 26 9 1 misrepresentations and omissions that violated ERISA §§ 102(a), 104(b), and 204(h).43 The 2 district court granted relief for those violations in the form of reformation and equitable damages 3 under ERISA § 502(a)(1)(B) and 29 U.S.C. § 1132(a)(1)(B).44 The Supreme Court found that 4 this relief was not authorized by ERISA § 502(a)(1)(B) and 29 U.S.C. § 1132(a)(1)(B), but it was 5 authorized by ERISA § 502(a)(3) and 29 U.S.C. § 1132(a)(3), “to which the District Court also 6 referred.”45 The essential holding of Amara is that some of ERISA’s provisions authorize 7 traditional equitable remedies that may be awarded without a showing of detrimental reliance.46 8 Exactly which remedies are available depends on which ERISA provision applies; and whether a 9 claimant must show detrimental reliance will depend on the individual facts and circumstances of 10 each case.47 11 But the theory that Allbaugh asserts on behalf of Class 1 in Count 1 is exclusively based 12 on the failure to provide notice required by 29 C.F.R. § 2530.203-3(b)(4)—not one of the ERISA 13 provisions that the High Court evaluated in Amara.48 Allbaugh has not shown that the failure to 14 give the suspension notice required by 29 C.F.R. § 2530.203-3(b)(4) can or should be treated like 15 the claims for material misrepresentations made in the plan descriptions, summaries of material 16 17 18 19 20 21 22 23 43 ERISA §§ 102(a) and 104(b) require plan administrators to “provide beneficiaries with summary plan descriptions and with summaries of material modifications, ‘written in a manner calculated to be understood by the average plan participant,’ that are ‘sufficiently accurate and comprehensive to reasonably apprise participants and beneficiaries of their rights and obligations under the plan.’” Amara, 536 U.S. at 432 (quoting 29 U.S.C. §§ 1022(a), 1024(b)). ERISA § 204(h) forbids “amendment of a pension plan that would ‘provide for a significant reduction in the rate of future benefit accrual’ unless the plan administrator also sent a ‘written notice’ that provided either the text of the amendment or summarized its likely effects.” Id. (quoting 29 U.S.C. § 1054(h); TREAS. REG. § 1.411(d), 63 FED. REG. 68682 (1998)). 44 Amara, 563 U.S. at 431–32. 45 Id. at 425. 46 Id. at 444–45. 27 47 Id. at 425; 444–45. 28 48 See ECF No. 72 at 13–15, ¶¶ 64–74. 24 25 26 10 1 modifications, and plan-amendment notices that were alleged in Amara. And even if the claims 2 in Amara could be construed as analogous to Class 1’s claims, Amara is still not dispositive of 3 the issue here: whether the nature of relief sought is amenable to class-wide proof. The Amara 4 Court did not assess typicality or any class-certification issues; it only evaluated the correct legal 5 standard for determining whether the notice violations had caused the participants “sufficient 6 injury to warrant legal relief.”49 Allbaugh’s reliance on Amara is thus misplaced. 7 The Ninth Circuit’s recent decision in Moyle v. Liberty Mut. Ret. Ben. Plan does not 8 change this analysis.50 When acquiring Old Golden Eagle Insurance Company, Liberty Mutual 9 orally represented to Golden Eagle’s employees that their past service with Golden Eagle would 10 be credited under Liberty Mutual’s pension plan.51 Induced by the promise, many employees 11 remained on and became Liberty Mutual employees after the sale.52 But when Liberty Mutual 12 amended the plan four years later, it revised it to state that the employees’ past service with 13 Golden Eagle would be credited “only for the purposes of eligibility, vesting, early retirement 14 and spousal benefits.”53 15 The employees sued for withheld benefits under § 1132(a)(1)(B), civil penalties for 16 failing to provide documents under 29 C.F.R. § 2560.503-1(h)(2)(iii), failing to meet the 17 requirements for summary plan descriptions required by 29 C.F.R. § 2520.102-2(a), and 18 equitable relief of surcharge and reformation under § 1132(a)(3).54 In certifying a class for those 19 claims, the district court presumed that the class members had relied on Liberty Mutual’s oral 20 representations about the plan’s provisions. Liberty Mutual appealed the class-certification 21 22 49 Amara, 563 U.S. at 425. 50 Moyle v. Liberty Mut. Ret. Ben. Plan, 823 F.3d 948 (9th Cir. 2016). 51 Id. at 964. 52 Id. at 955. 27 53 Id. at 959. 28 54 Id. at 956. 23 24 25 26 11 1 order; on review, the Ninth Circuit panel found that it “need not decide whether the district court 2 erred in presuming Appellants’ reliance to certify the class. Instead, [it affirmed] the district 3 court on the ground that where the defendant’s representations were allegedly made on a uniform 4 and classwide basis, individual issues of reliance do not preclude class certification.”55 5 Moyle is distinguishable because—as Allbaugh makes clear in the introduction of his 6 reply—defendants’ representations were not made on a uniform and classwide basis. Rather, 7 Allbaugh alleges that the defendants failed to send an individualized notice that was crafted to 8 the unique employment circumstances of each member of the proposed class.56 9 I am also not persuaded that the plaintiffs are entitled to the presumption of reliance that 10 the Supreme Court recognized in the securities context in Affiliated Ute Citizens of Utah v. 11 United States.57 The Ninth Circuit has recognized that the Affiliated Ute presumption of reliance 12 applies only when the claims are primarily based on omissions instead of active 13 misrepresentations.58 But the Ninth Circuit has not advised whether it would apply the 14 presumption in an ERISA case, and the trial courts that have considered the question have been 15 16 17 55 18 56 19 20 21 22 23 ECF No. 154 at 2 (arguing that the class members can be “presumed to have suffered the same injuries: their normal retirement benefits were permanently withheld upon retirement and would not have been withheld if Defendants had timely disclosed Defendants’ determination that each class member’s post- normal retirement age employment was subject to suspension and permanent forfeiture” (emphasis added)). The harm of withheld benefits cannot be recovered following my continued finding that the failure to provide a suspension notice “only gives rise to consequential or equitable damages associated with improperly commencing withholding payments. . . .” ECF No. 86 at 7. 57 24 25 26 27 28 Id. at 964–65 (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)). Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153–54 (1972). 58 Binder v. Gillespie, 184 F.3d 1059, 1063–64 (9th Cir. 1999) (noting that the Ninth Circuit has applied the Affiliated Ute presumption of reliance “to cases that ‘are, or can be, cast in omission or non-disclosure terms,’” which suggests that this presumption “should be confined to cases that primarily allege omissions”). Accord, Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 940 (9th Cir. 2009) (putative class members cannot avail themselves of the Affiliated Ute presumption of reliance unless they primarily allege omissions). 12 1 reluctant to do so.59 Even if I were to conclude that the Affiliated Ute presumption should extend 2 to ERISA cases, I would not apply it here because I cannot conclude that Allbaugh’s claims are 3 “primarily” omissions-based. Accordingly, Allbaugh has not demonstrated that my decision to 4 decline certification for Class 1 was clearly erroneous. 5 C. 6 This leaves the issue of the newly discovered evidence—that the defendants have The newly discovered evidence does not cure Class 1’s defects. 7 systematically failed since approximately April 1998 to provide suspension notices to 8 participants when they reach normal retirement age. Even assuming that Allbaugh’s 9 interpretation of this disputed evidence is correct, it does not alter my analysis or finding that 10 Class 1 is not suitable for certification. The defendants’ pattern and practice of notice violations 11 does not create a substantive claim for withheld benefits. This evidence also does not change the 12 nature of Allbaugh’s case to one that is primarily about omissions—he has always alleged this 13 was the defendants’ practice, and the omission count does not rise in tandem with the number of 14 participants who did not receive the information. Because this evidence is not relevant to those 15 inquiries, it does not warrant reconsideration of my prior decision not to certify Class 1. 16 Accordingly, Allbaugh’s motion for reconsideration of the class-certification order60 is denied in 17 its entirety. 18 II. Cross-motions for Summary Judgment 19 A. 20 The legal standard governing the parties’ motions is well settled: a party is entitled to 21 Legal standard summary judgment when “the movant shows that there is no genuine issue as to any material fact 22 23 24 25 26 27 28 59 See, e.g., Kenney v. State St. Corp., 754 F. Supp. 2d 288, 293 (D. Mass. 2010) (declining to apply the presumption because “it is unclear whether” Affiliated Ute applies to ERISA cases and, “even if it did, it would provide not support for the plaintiff” in that case because his claims were based “primarily” on “an affirmative misrepresentation on which the plaintiff must prove he relied”). 60 ECF No. 137. 13 1 and the movant is entitled to judgment as a matter of law.”61 An issue is “genuine” if the 2 evidence would permit a reasonable jury to return a verdict for the nonmoving party.62 A fact is 3 “material” if it could affect the outcome of the case.63 4 When considering a motion for summary judgment, I view all facts and draw all 5 inferences in the light most favorable to the nonmoving party.64 The purpose of summary 6 judgment is “to isolate and dispose of factually unsupported claims”65 and to determine whether a 7 case “is so one-sided that one party must prevail as a matter of law.”66 It is not my role to weigh 8 evidence or make credibility determinations.67 If reasonable minds could differ on material facts, 9 summary judgment is inappropriate.68 10 If the moving party shows that there is no genuine issue as to any material fact, the 11 burden shifts to the nonmoving party, who must “set forth specific facts showing that there is a 12 genuine issue for trial.”69 The nonmoving party “must do more than simply show that there is 13 some metaphysical doubt as to the material facts”; the nonmoving party “must produce specific 14 evidence, through affidavits or admissible discovery material, to show that” there is a sufficient 15 16 17 18 19 61 FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing FED. R. CIV. P. 56(c)). 62 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 63 Id. at 248. 64 Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 65 Celotex Corp., 477 U.S. at 323–24. 24 66 Anderson, 477 U.S. at 252. 25 67 Id. at 249, 255. 26 68 20 21 22 23 27 28 Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); see also Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). 69 Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 323. 14 1 evidentiary basis on which a reasonable fact finder could find in his favor.70 When reviewing the 2 parties’ papers, I only consider properly authenticated, admissible evidence.71 3 B. 4 Allbaugh alleges in Count 1 that the defendants violated ERISA and the plan by 5 withholding benefit payments before first sending a suspension notice. He seeks to recover the 6 withheld benefits, an equitable surcharge, and a permanent injunction. He alleges in Count 2 that 7 the defendants violated ERISA by amending the plan: (a) in 1991 to provide for the suspension 8 of benefits for participants who worked more than 40 hours in any month after the age of 65 and 9 setting 65 as the upper-age limit for the accrual of benefits, and (b) in 1992 to reduce benefits Summary of the parties’ summary-judgment positions 10 earned by participants who delay their retirement past age 65 by offsetting actuarial adjustments 11 that would become due with additional benefits earned after age 65. In Count 3, he alleges that 12 the defendants breached their ERISA fiduciary duties by failing to provide suspension notices, 13 materially misrepresenting the effect of the 1991 and 1992 amendments, and in retroactively 14 adopting those amendments. In Count 4, he claims that the defendants violated the terms of the 15 plan by committing the bad acts alleged in Count 3 and, thus, also miscalculated Allbaugh’s 16 benefits. And in Count 5, Allbaugh alleges that the defendants violated ERISA by failing to 17 furnish him with the trust agreement and actuarial tables used to calculate his benefits. 18 The defendants move for summary judgment on all five of Allbaugh’s claims. They 19 argue that Counts 1–4 are barred by statutes of limitation and under the doctrine of laches. They 20 add that Count 1 fails as a matter of law because the failure to provide a suspension notice does 21 not give rise to a substantive claim for benefits. The portions of Counts 1 and 2 alleged under § 22 1132(a)(3) must be summarily adjudicated in the defendants’ favor because they are duplicative 23 of the portions of those claims alleged under § 1132(a)(1)(B), they contend. Counts 2 and 3 fail 24 because the 1991 and 1992 amendments did not reduce an accrued benefit or the rate of future 25 26 27 28 70 Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 248–49. 71 FED. R. CIV. P. 56(c); Orr, 285 F.3d at 773–74. 15 1 benefit accruals and, thus, the defendants were not required to provide an ERISA § 204(h) notice. 2 And, finally, defendants argue that they are entitled to summary judgment on Count 5 because 3 Allbaugh received the operative plan documents on numerous occasions prior to his request. 4 Allbaugh countermoves for summary judgment on Counts 2–5. He argues that judgment 5 is warranted on Counts 2–4 because the plain language of the plan prior to the 1991 and 1992 6 amendments allowed participants to continue working in covered employment without the 7 suspension of their benefits and with the ability to continue accruing pension credits. He adds 8 that the record shows that the plan was amended in 1991 and 1992 to sweep active participants 9 into the plan’s suspension rules. Allbaugh argues that I must apply the de novo standard of 10 review because the plan does not grant the defendants discretionary authority to determine 11 eligibility for benefits or to construe the terms of the plan. Finally, he contends that he is entitled 12 to summary judgment on Count 5 because the defendants unreasonably delayed his access to the 13 trust agreement and the actuarial tables used to calculate his benefits. 14 C. 15 Plaintiff’s claims are not barred by statutes of limitation or the doctrine of laches. 16 The defendants argue that Counts 1–4 are barred on statute of limitations grounds or the 17 doctrine of laches. Different standards apply to claims alleged under § 1132(a)(1)(B) and those 18 alleged under § 1132(a)(3) or for the breach of an ERISA fiduciary duty, so I evaluate these 19 claims separately. 20 1. 21 Claims under 29 U.S.C. § 1132(a)(1)(B)—Count 4 and portions of Count 2 “ERISA does not provide its own statute of limitations for suits to recover benefits under 22 23 29 U.S.C. § 1132(a)(1)(B). Under Ninth Circuit precedent, district courts must apply the state 24 statute of limitations that is most analogous to an ERISA benefits-recovery program.”72 In an 25 ERISA case, the court “ordinarily borrow[s] the forum state’s statute of limitations so long as 26 27 28 72 Withrow v. Halsey, 655 F.3d 1032, 1036 (9th Cir. 2011) (quoting Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Prog., 222 F.3d 643, 646 (9th Cir. 2000)). 16 1 application of the state statute’s time period would not impede effectuation of federal policy.”73 2 The defendants argue that California is the forum state because that is where the plan is 3 administered, the union is located, and most of the board members, employees, and class 4 members reside.74 But they do not point to any choice of law provision in the plan documents 5 that calls for California law to apply, nor do they demonstrate that the application of Nevada’s 6 limitations periods would impede the effectuation of federal policy. I thus decline the 7 defendants’ request to consider California the forum state, and I apply Nevada law. The parties 8 agree that the most analogous limitations period for the claims alleged under § 1132(a)(1)(B) is 9 the limitation period for claims arising from a breach of a written contract. In Nevada, a breach- 10 of-written-contract claim is subject to a six-year limitation period.75 11 While state law supplies the limitation period, when a cause of action accrues is a 12 question of federal law.76 Federal law provides that “an ERISA claim ‘accrues either at the time 13 benefits are actually denied, or when the [participant] has reason to know that the claim has been 14 denied.’”77 “A claimant has a ‘reason to know’ under the second prong of our accrual test when 15 the plan communicates a ‘clear and continuing repudiation of a claimant’s rights under a plan 16 such that the claimant could not have reasonably believed but that his . . . benefits had been 17 finally denied.’”78 18 19 There is no dispute that Allbaugh’s claims are timely under the first prong of the test. The defendants argue that they are untimely under the second prong, however, because Allbaugh 20 21 22 73 Wang Laboratories, Inc. v. Kagan, 990 F.2d 1126, 1128 (9th Cir. 1993) (citing United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 705 (1966)). 74 ECF No. 142 at 18. 24 75 NEV. REV. STAT. § 11.190(1)(b). 25 76 Wise v. Verizon Comm., Inc., 600 F.3d 1180, 1188 (9th Cir. 2010). 26 77 23 27 28 Id. (quoting Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Prog., 222 F.3d 643, 649 (9th Cir. 2000)). 78 Id. (quoting Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1031 (9th Cir. 2006)). 17 1 had reason to know well before his benefits were denied that he was subject to the suspension 2 rules if he continued to work in covered employment after age 65. The defendants point to the 3 plan amendments that were adopted in 1991 and 1992 and argue that several rounds of notice 4 about those amendments were provided to the participants in the 20 years since they were 5 adopted.79 6 Taking the facts in the light most favorable to Allbaugh, the record reveals that the 7 defendants did provide summary plan descriptions (SPDs) and copies of the plan to those 8 participants that the defendants had a current addresses for in 1995, 1997, and 2004. The record 9 also reveals that publishing and mass mailing of plan documents was conducted by the 10 defendants in-house in 1995 and 1997 and by outside vendors in 2004. However, it is unclear 11 whether—and if so, how—the participants were provided with copies of the SPDs, plans, or 12 notices of amendments before that time. This evidence gap is material because two key 13 components of Allbaugh’s theory of the case are that: (a) the 1991 and 1992 amendments 14 significantly and detrimentally altered what the plan previously provided regarding active 15 participants who continued to work past age 65, and (b) the notices, SPDs, and plans since sent 16 materially misrepresented the effect of those amendments. 17 There are also questions of fact about whether Allbaugh received any of this information. 18 Allbaugh has denied in deposition testimony and sworn responses to requests for admission that 19 he received any of this information.80 The defendants’ response to Allbaugh’s denial—that he 20 acknowledged receiving pamphlets over the years but could not recall exactly what they were and 21 he did not retain them because he was an ironworker and not in document retention—effectively 22 asks the court to make a credibility determination.81 I cannot find on this record that there was a 23 24 79 ECF No. 142 at 21–22. 80 ECF No. 161-4 at 3–4; ECF No. 161-6 at 3–4 (at 18:10–19:25 of the transcript). 25 26 27 28 81 Neither party has demanded a jury trial, but I am not entitled to make credibility determinations or weigh conflicting evidence in ruling on the parties’ summary judgment motions; those factual disputes are best left for the bench trial. See Anderson, 477 U.S. at 252. 18 1 clear and continuing repudiation of Allbaugh’s claimed rights under the plan that would render 2 his belief that his benefit payments were not subject to permanent withholding unreasonable. 3 Accordingly, the defendants’ motion for summary judgment on statute-of-limitations grounds as 4 to the claims alleged under 29 U.S.C. § 1132(a)(1)(B) is denied. 5 2. 6 7 Claims under 29 U.S.C. § 1132(a)(3)—Counts 1 and 3 and portions of Count 2 Claims alleging a breach of an ERISA fiduciary duty or seeking equity under 29 U.S.C. § 8 1132(a)(3)82 are governed by ERISA’s three- or six-year statute of limitations, depending on the 9 circumstances: 10 No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of— 11 12 (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or 13 14 15 (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; 16 except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.83 17 18 19 The defendants do not move under this standard for the remaining portion of Count 1 and the 20 portion of Count 2 that is alleged under § 1132(a)(3); they move under this standard only as to 21 the breach-of-fiduciary-duties claim in Count 3.84 I therefore limit my analysis to Count 3. 22 The defendants repeat for Count 3 the argument that they made for Counts 2 and 4: 23 Allbaugh had actual knowledge of the alleged breaches and violations long ago because the first 24 25 82 26 27 28 To obtain equitable relief under 29 U.S.C. § 1132(a)(3), the plaintiff must establish that the defendant is an ERISA fiduciary who, acting in a fiduciary capacity, “violate[d] ERISA-imposed fiduciary obligations.” Mathews v. Chevron Corp., 362 F.3d 1172, 1178 (9th Cir. 2004). 83 29 U.S.C. § 1113. 84 See ECF No. 142 at 24–25. 19 1 occurred in 1991 and he was provided SPDs and rules and regulations when the plan was 2 amended and restated in 1992, 1995, 1997, and 2004. But for the reasons explained above, 3 genuine issues of fact remain about what notice the participants received about the plan prior to 4 the 1991 and 1992 amendments and if Allbaugh had knowledge of them until after his benefits 5 were finally determined. 6 Further, the last action that constituted a part of the breach was the failure to send a 7 suspension notice when Allbaugh reached normal retirement age but continued working and had 8 his benefit payments suspended. Allbaugh reached that age in August 200785 and filed suit five 9 years later,86 within the six-year statutory window. Accordingly, the defendants’ motion for 10 summary judgment on statute-of-limitations grounds as to Count 1 and 3 and the portions of 11 Count 2 alleged under 29 U.S.C. § 1132(a)(3) is denied. 12 3. Laches 13 Defendants contend that, even if Allbaugh’s claims may be technically timely, they are 14 barred by the doctrine of laches. “Laches is an equitable defense that prevents a plaintiff, who 15 ‘with full knowledge of the facts, acquiesces in a transaction and sleeps on his rights.’”87 “To 16 prove laches, the ‘defendant must prove both an unreasonable delay by the plaintiff and prejudice 17 to itself.’”88 The triable issues of fact that preclude summary judgment on statutes-of-limitation 18 grounds likewise prevent me from determining, as a matter of law, that Allbaugh unreasonably 19 delayed this lawsuit. Accordingly, the defendants’ motion for summary judgment as to Counts 20 1–4 under the doctrine of laches is denied. 21 22 23 24 85 ECF No. 145 at 12, ¶ 3. 25 86 ECF No. 1. 26 87 27 28 Evergreen Safety Council v. RSA Network, Inc., 697 F.3d 1121, 1126 (9th Cir. 2012) (quoting Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–51 (9th Cir. 2001)). 88 Id. (quoting Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir. 2000)). 20 1 D. 2 Defendants are entitled to summary judgment on Allbaugh’s 29 U.S.C. § 1132(a)(1)(B) claim in Count 1. 3 The defendants seek summary judgment on Count 1, arguing that neither ERISA nor its 4 implementing regulations authorizes a substantive claim for benefits for the failure to provide a 5 suspension notice.89 As I concluded in my May 20, 2014, order, Allbaugh legally cannot recover 6 the withheld benefits themselves under § 1132(a)(1)(B) for the defendants’ alleged failure to 7 comply with that notice regulation,90 so that claim fails as a matter of law. But he also seeks 8 equitable relief under § 1132(a)(3), which may be available if he can demonstrate that he suffered 9 actual harm from the improper commencement of the suspension of his benefits.91 Accordingly, 10 I grant summary judgment in defendants’ favor on the portion of Count 1 alleged under § 11 1132(a)(1)(B), but I deny it as to the portion alleged under § 1132(a)(3). 12 E. 13 The defendants next argue that they are entitled to summary judgment on Allbaugh’s 14 claims brought under § 1132(a)(3)—ERISA’s catchall provision—because he also seeks the 15 same relief under more specific ERISA statutes, and equitable relief is unavailable when a 16 plaintiff’s claim is covered by a discrete ERISA statute.92 The Ninth Circuit recently analyzed 17 this issue in Moyle and concluded that, while caselaw prohibits plaintiffs from recovering under 18 duplicate theories, they may “present § 1132(a)(1)(B) and § 1132(a)(3) as alternative—rather that 19 duplicative—theories of liability.”93 Summary judgment is not available based on duplicative relief. 20 21 89 22 90 ECF No. 142 at 27–28. 24 ECF No. 70 at 11 (“although no substantive claim for benefits is available to Plaintiff and the proposed class, they may still be entitled to consequential or equitable damages—if they can prove those damages—for Defendant’s unauthorized commencement of withholding benefit payments”). 25 91 Id. 26 92 ECF No. 142 at 28–30. 23 27 28 93 Moyle, 823 F.3d at 960–62 (adopting the Eighth Circuit’s approach to the Supreme Court’s decisions in Varity Corp. v. Howe, 516 U.S. 489 (1996), and CIGNA Corp. v. Amara, 563 U.S. 21 1 Neither Allbaugh nor the class has yet recovered under any theory; I have denied 2 Allbaugh’s ability to recover on Count 1 under § 1132(a)(1)(B); and the § 1132(a)(3) claims are 3 pleaded as alternative, rather than duplicative, theories of liability. If Allbaugh and the class are 4 “unable to recover benefits based on an interpretation and enforcement” of the plan under § 5 1132(a)(1)(B), they might still seek equitable remedies like reformation, surcharge, estoppel, and 6 restitution under § 1132(a)(3). Accordingly, the defendants are not entitled to summary 7 judgment on Allbaugh’s § 1132(a)(3) claims. 8 F. 9 Summary judgment on Counts 2, 3, and 4 is not available. 1. 10 Standard of review To properly evaluate the parties’ summary-judgment arguments regarding Allbaugh’s 11 denial-of-benefits claims (Counts 2 and 4) and his breach of ERISA fiduciary duty claim (Count 12 3), I must first decide whether the administrator’s interpretation of the plan and benefit-eligibility 13 determinations are subject to deference. “[A] denial of benefits challenged under § 14 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the 15 administrator or fiduciary discretionary authority to determine eligibility for benefits or to 16 construe the terms of the plan.”94 For a plan to alter the default de novo standard of review, it 17 “must unambiguously provide discretion to the administrator.”95 The defendants argue that this 18 plan does;96 they bear the burden to show it.97 19 To discharge their burden, the defendants identify provisions in the 2004, 1992, and 1987 20 21 22 421 (2011)). 94 23 24 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 95 Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (quoting Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999) (en banc)). 25 96 26 27 28 See e.g. ECF No. 155 at 13. 97 Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109, 1112 (9th Cir. 2001) (quoting Kearney, 175 F.3d at 1090). 22 1 plan documents.98 The 2004 provision that they rely on is contained in the “Message from the 2 Board of Trustees” that precedes the summary plan description (“SPD”).99 This document 3 provides: “Please remember that only the full Board of Trustees is authorized to interpret the 4 Plan. Information you receive from the Union or individual employers or their representatives 5 should be regarded as unofficial. Any information or opinion concerning your rights under the 6 Plan, to be official, must be communicated to you in writing, signed on behalf of the full Board 7 of Trustees.”100 It further provides that, “[i]f there is any discrepancy between the SPD and the 8 Rules and Regulations, the Rules and Regulations will govern.”101 9 The first of the 1992 provisions that the defendants rely on—like the 2004 provision—is 10 contained in “A Message from the Board of Trustees of the California Ironworkers Field Pension 11 Trust” that precedes the SPD and includes similar language as the 2004 provision.102 The other 12 1992 provision is contained in a portion of the plan documents entitled “Employee Retirement 13 Income Security Act of 1974” and is either part of the SPD or is an extraneous document itself.103 14 15 16 17 18 19 20 21 98 ECF No. 155 at 13:19–22, 22:3–6. 99 ECF No. 145-6 at 3; accord ECF No. 76-4 at 113. Gloria Loot, benefits manager of the Ironworkers Employees’ Benefit Corporation and custodian of the plan documents, attests that the copies of each booklet attached to her declaration contain both the “Summary Plan Descriptions (‘SPD’) and the Restatements of the Rules and Regulations of the Pension Plan for the California Ironworkers Field Pension Trust (‘Plan’).” ECF No. 76-1 at 1–2. Loot provides copies of each for the 1978, 1982, 1987, 1992, and 2004 years. Id. at 2. 100 Id. 22 101 Id. 23 102 ECF No. 76-3 at 4. 24 103 25 26 27 28 Compare ECF No. 76-3 at 5 (table of contents identifying the “Employee Retirement Income Security Act of 1974” portion as being separate from the “Rules and Regulations” portion, which is how the defendants appear to identify the plan’s terms) with ECF No. 76-3 at 23 (heading identifying the beginning of the “Restatement of the Rules and Regulations of the Pension Plan for the California Ironworkers Field Pension Trust,” which immediately follows the portion of the 1992 plan documents that the defendants rely on); accord ECF 76-1 at 2, ¶ 4 (custodian of the plan documents declaring that the restatements of the “Rules and Regulations” are the “Plan”). 23 1 This document provides that “Only the Board of Trustees of the Plan has the authority to 2 determine eligibility for benefits and . . . interpretation and application of the Rules and 3 Regulations of the Plan.”104 The 1987 provisions that the defendants rely on are identical to the 4 1992 provisions and contained either in the SPD or another extraneous document.105 But extraneous documents like SPDs are not part of a plan’s terms.106 The defendants do 5 6 not identify a single provision in the plan itself—the “Rules and Regulations”—that 7 unambiguously gives the trustees the authority to interpret the plan’s terms or to make eligibility 8 determinations. Nor do they argue that the plan incorporates any of the extraneous documents by 9 reference. Several courts have considered—and rejected—the notion that an SPD or other 10 extraneous document can “secure deferential judicial review when the policy itself is silent.”107 I 11 agree with the reasoning of these courts. Because the defendants have failed to show that the 12 plan unambiguously gives the trustees the discretion to interpret the plan’s terms or to make 13 benefit-eligibility determinations, the proper standard of review is de novo. 14 2. 15 Disputed facts preclude summary judgment on Counts 2–4. Resolution of Counts 2–4 turns on whether the defendants breached their fiduciary duties 16 or otherwise violated ERISA or the terms of the plan when they amended it in 1991 and 1992. 17 Overarching those issues is the parties’ dispute about whether, before those amendments, the 18 plan suspended benefit payments to active participants who continued to work after normal 19 retirement age in covered employment. Allbaugh argues that I do not have to look any further 20 21 104 ECF No. 76-3 at 23. 105 ECF No. 76-2 at 3, 24. 22 23 106 24 Amara, 563 U.S. at 438; accord Oldoerp v. Wells Fargo & Co. Long Term Disability Plan, 500 Fed. Appx. 575, 577 (9th Cir. 2012). 25 107 26 27 28 McHenrey v. PacificSource Health Plans, 643 F. Supp. 2d 1236, 1241–43 (D. Or. 2009) (collecting cases); accord Noah U. v. Tribune Co. Med. Plan, 138 F. Supp. 3d 1134, 1143–46 (C.D. Cal. 2015) (collecting cases) (“other documents may constitute Plan documents where they are incorporated by reference”); Ingorvaia v. Reliastar Life Ins. Co., 944 F. Supp. 2d 964, 965–67 (S.D. Cal. 2013) (same). 24 1 than the plain language of the plan to determine that it unambiguously excludes a “Participant” 2 like him from the suspension provision because it discusses only “Pensioners.” The defendants 3 respond that I have to consider extrinsic evidence to determine what the suspension provision 4 means because “Pensioner” and “Participant” are used ambiguously in the plan. The parties 5 focus their arguments on the plan as amended and restated as of July 1, 1987, which appears to 6 have been the plan in effect before the 1991 and 1992 amendments.108 I follow their cue and 7 restrict my analysis to the 1987 version of the plan. 8 9 “Courts construe ERISA plans, as they do other contracts, by ‘looking to the terms of the plan’ as well as to ‘other manifestations of the parties’ intent.’”109 “The words of a plan may 10 speak clearly, but they may also leave gaps. And so a court must often ‘look outside the plan’s 11 written language’ to decide what an agreement means.”110 12 The suspension provision in the 1987 plan provides: 13 (a) Except as provided herein, if a Pensioner who is younger than Normal Retirement Age subsequently becomes employed in [covered work], his pension payments shall be suspended for any calendar month in which he is so employed. . . . 14 15 (b) If a Pensioner who has attained Normal Retirement Age subsequently becomes employed in [covered work], his pension payments shall be suspended for any calendar month in which he is so employed. After that period, his pension shall again become payable. 16 17 18 (c) If a Pensioner becomes employed in [covered work], he must notify the Trustees, in writing, within 15 days following commencement of such employment. If he fails to give such written notice with[in] such 15-day period and . . . (ii) he has attained Normal Retirement Age[,] it will be presumed, unless and until the Pensioner provides evidence to the contrary, that he was employed in [covered work] for as long as the employer by whom he is employed has been engaged in the project on which he is working. 19 20 21 22 23 24 25 108 26 109 27 28 ECF No. 76-2. U.S. Airways v. McCutchen, — U.S. —, 133 S.Ct. 1537, 1549 (2013) (quoting Firestone Tire & Rubber Co., 489 U.S. 101, 113 (1989)). 110 Id. (quoting Amara, 563 U.S. at 436). 25 1 (d) A Pensioner shall provide the Trustees with such information as they may request in order to establish the nature and extent of any employment by the Pensioner after the date of commencement of benefits. Any pension payments otherwise due may be withheld pending adequate response by the Pensioner to such request. 2 3 4 (e) A Participant whose pension has been suspended shall advise the Trustees in writing when disqualifying employment has ended. Benefit payments shall be held back until such notice is filed with the Trustees. 5 6 (f) A Participant may, in writing, request of the Trustees a determination whether contemplated employment will be disqualifying and the Trustees shall provide the Participant with their determination. 7 8 9 (g) The Trustees shall inform a Participant of any suspension of benefits by notice given by personal delivery or first class mail during the first calendar month in which his benefits are withheld. Such notice shall include a description of the specific reasons for the suspension, a description and a copy of the relevant plan provisions, reference of the applicable regulations of the U.S. Department of Labor, and a statement of the procedure for securing a review of the suspension. 10 11 12 13 (h) A Participant shall be entitled to a review of a determination suspending his benefits by written request filed with the Trustees within 180 days of the notice of suspension of benefit. The same right of review shall apply, under the same terms, to a determination by or on behalf of the Trustees that contemplated employment will be disqualifying.111 14 15 16 17 The suspension provision confusingly transitions at paragraph (e) from “Pensioner” to 18 “Participant.” “Pensioner” is defined in the plan to mean “a person who is retired and who is 19 receiving pension benefits under this Plan, or to whom a pension would be paid but for the time 20 for administrative processing.”112 “Participant” means “an Active Participant, (b) a Pensioner, (c) 21 Beneficiary, or (d) a Vested Participant.”113 Paragraph (e) is particularly confusing because it 22 discusses a “Participant” whose “pension has been suspended,” but the suspension provision as a 23 whole does not provide the context in which it would be suspended, other than for a “Participant” 24 25 111 ECF No. 76-2 at 41–42, Art. 8, § 9(a)–(h) (emphasis added). 27 112 ECF No. 76-2 at 26, Art. 1, § 15. 28 113 Id. at § 13. 26 26 1 who also qualifies as a “Pensioner.”114 2 A reasonable interpretation of this suspension provision is that Pensioners and 3 Participants alike will have their benefit payments suspended while they are employed in covered 4 work. But equally reasonable is that when “Participant” is used in this provision, it is in the more 5 encompassing sense—its definition includes a “Pensioner”— so the entire suspension provision 6 applies only to a “Participant” who is also a “Pensioner.” 7 The defendants identify paragraphs 9(b) and (e) as examples of inconsistent use of the 8 terms “Pensioner” and “Participant” in the plan documents.115 They also identify three other 9 places in the plan documents where “Pensioner” and “Participant” are used inconsistently: in 10 order to retire before normal retirement age, “a Pensioner must withdraw completely and refrain 11 from any employment”; the SPD provides that a “Participant” can obtain an advanced 12 determination from the trustees whether contemplated employment would be covered work and 13 thus excludes “Pensioners”; and the “Prohibited Employment After Age 65” portion of the SPD 14 uses “Pensioner” and “Participant” interchangeably.116 15 This suspension provision is ambiguous. “An ambiguity exists when the terms or words 16 of a pension plan are subject to more than one reasonable interpretation.”117 “[O]nly by 17 excluding all alternative readings as unreasonable may [a court] find that a plan’s language is 18 plain and ambiguous.”118 The terms “Pensioner” and “Participant” are ambiguously used in the 19 plan documents, especially in the suspension provision, and I cannot narrow it down to a single 20 interpretation. I thus look to extrinsic evidence to determine the meaning of this provision. 21 To show that the suspension provision had previously been applied to both “Pensioners” 22 114 Compare ECF No. 76-2 at 41, Art. 8, § 9(e) with ECF No. 76-2 at 41, Art. 8, § 9(a)–(b). 24 115 ECF No. 155 at 23. 25 116 Id. at 23–24. 26 117 23 27 28 McDaniel v. Chevron Corp., 203 F.3d 1099, 1110 (9th Cir. 2000) (citing Vizcaino v. Microsoft Corp., 97 F.3d 1187, 1194 (9th Cir. 1997) (en banc)). 118 Id. (citing Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999)). 27 1 and “Participants,” the defendants identify a notice that they purport was sent to all participants 2 regarding the 1992 amendment. It stated: “Previously, benefits were suspended for each month 3 after Normal Retirement Age in which a Participants works more than 40 hours” in covered 4 employment.119 5 Allbaugh counters with evidence that suggests that the claim made in that notice might 6 not be accurate. He offers a resolution that was adopted at the trustees’ May 16, 1991, board 7 meeting “To suspend benefits for participants that have attained Normal Retirement Age (NRA) 8 and continue working over 40 hours per month. A participant will receive full benefit accrual for 9 all work and an actuarial adjustment for each month he works 40 hours or less.”120 Allbaugh also 10 shows that the 1991 amendment was adopted after the plan’s consultant advised that the absence 11 of a provision authorizing a suspension for active participants, combined with the failure to pay 12 actuarial increases for delayed normal retirement benefits, could constitute a “vesting violation 13 for which the trustees could be sued and the fund could lose it tax-favored status.”121 Allbaugh 14 adds that defendants notified the DOL in 1991 that the plan was modified “to suspend benefits 15 for participants that have reached Normal Retirement Age (NRA) and continue working over 40 16 hours per month.”122 And, finally, he shows that the defendants’ person most knowledgeable 17 testified that, prior to the 1991 amendment, actuarial adjustments were paid to participants who 18 worked past age 65 in covered employment.123 19 The net effect of this evidence is a record that reveals triable issues of fact about whether 20 the suspension provision was intended to apply to both “Pensioners” and “Participants” before 21 the 1991 and 1992 amendments were adopted. Accordingly, summary judgment is not warranted 22 23 119 ECF No. 170 at 25. 120 ECF No. 171 at 15. 121 Id. at 17. 27 122 Id. 28 123 ECF No. 161 at 41. 24 25 26 28 1 on Counts 2–4. 2 G. 3 4 Defendants are entitled to summary judgment on the portion of Count 5 seeking penalties for delayed access to actuarial tables, but issues of fact preclude summary judgment on the remainder of this claim. Allbaugh moves for summary judgment on Count 5 and seeks statutory penalties in the 5 total amount of $18,150 for the 88 days that the defendants allegedly delayed in his access to the 6 trust agreement and the 77-day delay in access to the actuarial tables that were used to calculate 7 his benefit payments.124 ERISA authorizes courts to penalize a plan administrator who “fails or 8 refuses to comply” with a participant’s request for any information that the administrator is 9 required to furnish in an amount of up to $110 per day from the date of the failure or refusal.125 10 The documents that the plan administrator is required to furnish upon request include the current 11 summary plan description, the “latest annual report, any terminal report, the bargaining 12 agreement, trust agreement, contract, or other instruments under which the plan is established or 13 operated.”126 14 1. Delayed actuarial tables are not actionable. 15 Allbaugh has shown that he requested a copy of the actuarial tables on September 28, 16 2009,127 and he did not receive them until December 14, 2009.128 But actuarial tables are not 17 among the enumerated documents that a plan administrator like the Board of Trustees of the 18 California Field Ironworkers Pension Trust is required to provide under ERISA, and I do not find 19 that those documents qualify under the statute’s catchall “other instruments under which the plan 20 is established or operated.”129 ERISA regulation 29 C.F.R. § 2560.503–1(h)(2)(iii) states that 21 22 124 ECF No. 145 at 52–53. 125 29 U.S.C. § 1132(c)(1). 126 29 U.S.C. § 1024(b)(4). 127 ECF No. 145-2 at 5, ¶ 16; ECF No. 145-2 at 9. 27 128 ECF No. 145-2 at 5, ¶ 19; ECF No. 145-2 at 16. 28 129 29 U.S.C. § 1024(b)(4). 23 24 25 26 29 1 employee benefits plans like California Field Ironworkers Pension Trust here must provide to a 2 claimant “upon request and free of charge, reasonable access to, and copies of, all documents, 3 records, and other information relevant to the claimant’s claim for benefits.”130 And the actuarial 4 tables were arguably relevant to Allbaugh’s claim for benefits. But statutory penalties under 5 ERISA “can only be assessed against ‘plan administrators’ for failing to produce documents that 6 they are required to produce as plan administrators.”131 7 Because “29 C.F.R. § 2560.503– 1(h)(2)(iii) does not impose any requirements on plan 8 administrators, [it] . . . cannot form the basis for a penalty under 29 U.S.C. § 1132(c)(1).”132 9 Thus, Allbaugh is not entitled to relief under 29 U.S.C. § 1132(c)(1) for the defendants’ delay in 10 providing him copies of the actuarial tables. Accordingly, the defendants are entitled to summary 11 judgment on the portion of Count 5 that seeks statutory penalties for their failure to timely 12 furnish the actuarial tables. 13 2. A delayed trust agreement is actionable, but issues of fact remain. 14 Allbaugh has also shown that he requested a copy of the trust agreement on January 7, 15 2010.133 Trust agreements are among the documents that plan administrators can be penalized 16 under 29 U.S.C. § 1132(c)(1) for failing to timely provide upon request. It is not clear, however, 17 when Allbaugh received a copy of the trust agreement. Allbaugh provides an email from a plan 18 employee dated February 17, 2010, stating that Allbaugh had already received the trust 19 agreement, which had been sent to him via registered mail along with other information that he 20 requested.134 But Allbaugh does not “believe that the entire trust agreement was enclosed with” 21 22 23 130 Lee v. ING Groep, N.V., 829 F.3d 1158, 1160–61 (9th Cir. 2016). 131 Id. at 1162. 132 Id. 27 133 ECF No. 145-2 at 6, ¶ 22; ECF 145-2 at 18. 28 134 ECF No. 145-2 at 7, ¶ 30; ECF 145-2 at 34. 24 25 26 30 1 that letter,135 and he is “not exactly sure when [he] received a complete copy of” that 2 agreement.136 Because the parties genuinely dispute when Allbaugh received a copy of the trust 3 agreement, summary judgment is not available on this remaining portion of Count 5. 4 III. 5 Motion for Leave to Supplement Allbaugh moves for leave to supplement his already voluminous briefs with additional 6 argument concerning how the Ninth Circuit’s recent decision in Moyle137 further supports his 7 arguments.138 The defendants do not object to Allbaugh’s request but ask to file a response if I 8 intend to grant Allbaugh leave to supplement.139 9 I considered Moyle in my analysis of Allbaugh’s motion for reconsideration,140 and I took 10 his supplement into consideration. But because I do not find that Moyle changes anything, and I 11 am denying Allbaugh’s reconsideration request (and defendants will thus suffer no prejudice by 12 not getting to chime in further), I do not find that response briefing by the defendants is 13 necessary. Accordingly, I grant Allbaugh’s motion for leave to supplement, but without 14 entertaining further briefing from the defendants on Moyle.141 15 IV. 16 Motion to Seal Finally, I consider the defendants’ request to seal the declaration of Leanne Vance and 17 exhibit 1 to that declaration, submitted as part of defendants’ opposition to Allbaugh’s motion to 18 alter or amend the class certification order.142 “The public has a ‘general right to inspect and 19 20 135 ECF No. 145-2 at 7, ¶ 30. 21 136 Id. 22 137 823 F.3d 948. 138 ECF No. 178. 139 ECF No. 181. 140 See supra at pp. 11–12. 27 141 ECF No. 177. 28 142 ECF No. 150-1 at 2–3 (Vance decl.); 5–20 (exhibit 1 thereto). 23 24 25 26 31 1 copy public records and documents including judicial records and documents.’”143 “Although the 2 common law right of access is not absolute, ‘[courts] start with a strong presumption in favor of 3 access to court records.’”144 “A party seeking to seal judicial records can overcome the strong 4 presumption of access by providing ‘sufficiently compelling reasons’ that override the public 5 policies favoring disclosure.”145 6 “When ruling on a motion to seal court records, the district court must balance the 7 competing interests of the public and the party seeking to seal judicial records.”146 “To seal the 8 records, the district court must articulate a factual basis for each compelling reason to seal[,] 9 [which] must continue to exist to keep judicial records sealed.”147 The Ninth Circuit has, 10 however, “‘carved out an exception to the presumption of access’ to judicial records” that is 11 “‘expressly limited to’ judicial records ‘filed under seal when attached to a non-dispositive 12 motion.’”148 “Under the exception, ‘the usual presumption of the public’s right is rebutted[,]’” so 13 “a particularized showing of ‘good cause’ under [FRCP] 26(c) is sufficient to preserve the 14 secrecy of sealed discovery documents attached to non-dispositive motions.”149 I find that the 15 lower “good cause” standard applies in this context—the response that the defendants seek to 16 seal documents in conjunction with is not dispositive because the motion that it addresses seeks 17 18 19 20 21 22 143 In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1118–19 (9th Cir. 2012) (quoting Nixon v. Warner Commcns., Inc., 435 U.S. 589, 597 (1978)). 144 Id. at 1119 (quoting Foltz v. St. Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). 145 Id. (quoting Foltz, 331 F.3d at 1135). 24 146 Id. (citing Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). 25 147 Id. (citing Kamakana, 447 F.3d at 1179; Foltz, 331 F.3d at 1136). 26 148 Id. (quoting Foltz, 331 F.3d at 1135). 23 27 28 149 Id. (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002); Foltz, 331 F.3d at 1135, 1138). 32 1 to alter or amend the class-certification order.150 2 Defendants have demonstrated good cause to seal exhibit 1 but not the declaration itself. 3 Exhibit 1 contains a selection of benefit-suspension and reinstatement letters that were sent to the 4 participants.151 Those letters contain private personal information like names, addresses, ages, 5 benefit-dispute details, and portions of social security numbers. Releasing the information 6 contained in those letters could result in the invasion of the participants’ privacy. But the same 7 cannot be said for Vance’s declaration. It contains no personal information regarding the 8 participants or non-parties, and it does not appear to contain any other form of confidential 9 information. Accordingly, I grant the motion to seal as to exhibit 1 [ECF No. 150-1 at 5–20], but 10 I deny the motion as to Vance’s declaration [ECF No. 150-1 at 2–3]. 11 Conclusion 12 Accordingly, IT IS HEREBY ORDERED that: 13 C Allbaugh’s motion for reconsideration [ECF No. 137] is DENIED; 14 C Defendants’ motion for summary judgment [ECF No. 142] is GRANTED as to 15 to the portion of Count 1 alleging claims under 29 U.S.C. § 1132(a)(1)(B) and the 16 portion of Count 5 seeking statutory damages for the failure to timely provide 17 Allbaugh with a copy of the actuarial tables; it is DENIED in all other respects; 18 C Defendants’ request for judicial notice [ECF No. 144] is DENIED; 19 C Allbaugh’s motion for summary judgment [ECF No. 145] is DENIED; 20 C Allbaugh’s motion to supplement [ECF No. 178] is GRANTED; and 21 C Defendants’ motion to seal the declaration of Leanne Vance and exhibit 1 thereto 22 [ECF No. 150] is GRANTED in part and DENIED in part: the Clerk of 23 Court is directed to SEAL exhibit 1 [ECF No. 150-1 at 5–20] only. 24 25 26 27 150 Allbaugh does not oppose the motion. 28 151 ECF No. 150. 33 1 2 3 IT IS FURTHER ORDERED that this case is referred to a Magistrate Judge to schedule a MANDATORY SETTLEMENT CONFERENCE. DATED: October 18, 2016 4 _______________________________ ____________________ _ __ _ _ __ _ _ __ Jennifer A. Dorsey ennifer A ni ni y United States District Judge ed States District Judg d t trict 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34

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