In Re Unisys Corp. Retiree Medical Benefit "Erisa" Litigation

dille admitted that he never attempted to

live in In re: region of South Africa other UNISYS CORP. RETIREE MEDICAL Cape than Town and Fi- BENEFIT “ERISA” Johannesburg. LITIGATION. nally, pertinent the most pieces docu- i.e., mentary reports those re- evidence — Tonnies; Frederick E. William M. Leon vendors, lating on foreign attacks street hardt; Kahl; Wilt; David S. Robert E. supra rescribed note 14—describe such Clay Bernichon; Solveig Tschann; A. occurring assaults as areas around the Horpe; Frederick W. Ludson F. Wors Town, Elizabeth, Cape cities of Port ham; Marjala; Kenyon Edwin T. Be Johannesburg; they do not mention ment; Wagner; Donald E. Lucius O. anti-foreigner whether similar campaigns Browne, Fabry; Donald F. L. Thomas exist regions other Africa. South Durkin; Hart; Bernard J. Ronald R. Under Elias Zacarias’s deferential stan- Bennett; Hein; Herman Donald L. dard, say we cannot that such evidence Thompson, individually and on behalf compels contrary conclusion to the BIA’s Sperry, of all members Bur determination that Abdille failed estab- roughs Unisys Classes, Appel lish a well-founded fear of persecution. lants. Accordingly, the BIA’s decision as to Ab- No. 99-1929. dille’swell-founded fear must stand.

United States Court of Appeals, Third Circuit. VII. Conclusion Argued July 2000. We conclude that the BIA’s consider- Filed March question

ation of the whether Abdille re- Amended As March ceived an offer of some type permanent resettlement from the gov- South African incomplete.

ernment was willWe there- Review,

fore grant Abdille’s Petition for

and remand to the BIA for investigation

into the immigra- content of South African practice,

tion law and for resolution of the

question whether Abdille received an offer type resettlement,

of some of permanent

and for such proceedings further as are

necessary to immigra- determine Abdille’s However,

tion status. we also conclude BIA did not err in denying Abdille

asylum from ground South Africa on the

that he failed to make requisite show-

ing past persecution or a well-founded persecution,

fear of deny the Petition

for Review to that extent. Levin, Levin, Fishbein, &

Arnold Sedran Berman, PA, Philadelphia, A. Gold- Joseph Schwartz, en, Sommers, Downing, Carl B. I. Schwartz, Southfield, MI, Bryan Silver & Clobes, Miller, Faucher, Cafferty L. & procedural history The factual PA, Wexler, Philadelphia, Seymour J. this case is extensive and re- has been Mansfield, Tanick, Minne- Mansfield & counted elsewhere detail.1 ex- We will MN, Siskind, Miner, E. apolis, Sarah plain only the status of the case as it Galland, WI, Madison, Henry 'Barnhill & appeal. comes to us on this This a class Rossbacher, Associates, Rossbaeher & H. behalf of action filed on retirees and dis- Gottlieb, CA, Angeles, Gott- Los Charles employees Sperry, abled former Goren, Farms, MI, Joseph Bingham lieb & (“re- Unisys Burroughs, Corporations and Roda, Nast, Lancaster, PA, Roda & F. against “plaintiffs”) Unisys tirees” or Cor- Sandals, Sandals (Argued) Langer Alan M. poration (“Unisys”). dispute The arises PA, Taylor, Philadelphia, Attorneys & for out of Unisys’ post-re- termination of its Appellants. plans tirement medical for retirees and J. Joseph (Argued), Joseph Costello employees disabled former of three Boekius, Lewis & Fay, Morgan, Phil- B.G. companies. PA, Teklits, adelphia, Joseph A. UNISYS Bell, PA, Attorneys Blue Corporation, 3, 1992, Unisys On November an- Appellee. nounced that would all its terminate of preexisting medical benefit re- plans and MANSMANN, BEFORE: NYGAARD place them a new with one effective Janu- STAPLETON, Judges. and Circuit 1, ary majority 1993.2 Under the of plans, Unisys paid old the entire medical OF THE OPINION COURT premium for the lives of the and retirees STAPLETON, Judge: Circuit for, provided continuing benefits their areWe asked to review two orders spouses. plan, contrast, new The re- granting partial summary judgment quired escalating retirees contribute defendant this ERISA action.* Review until premiums amounts to the cost of the of order requires interpret one us to 1995, 1, at January which time the retirees ERISA’s statute of limitations for breach responsible would become for the entire claims, fiduciary duty 29 U.S.C. 1113. premium. requires Review the other to deter us Upon learning planned about fiduciary,

mine whether the defendant if benefits, change in to have made retirement retirees misrepresen found material Sperry, Burroughs, Unisys and plaintiffs, separately to the held ac tations plaintiffs eight against to those relied to filed different lawsuits Uni- countable who Unisys See In re sys making jurisdictions. their detriment decisions other four (E.D.Pa. Corp., 670, F.Supp. than decisions to retire. 1 837 672 n. * 1997); 670, Unisys Corp., two orders were F.Supp. These issued the Honor In re 837 Cahn, Judge (E.D.Pa.1993), (3d Edward N. aff'd, able former Chief 672 58 F.3d Cir. 896 1995). the United States District Court for the East Unisys Pennsylvania. ern District of re In 1986, 1997). (E.D.Pa. September Sperry Corporation and F.Supp. Corp., 957 628 The Kauffman, Burroughs Corporation merged Bruce W. Uni- Honorable United States form Judge sys Corporation. Following merger, District for the Eastern Uni- District Pennsylvania, subsequently sys preexisting certified order maintained medical benefit appealable and Rule of component as final under Federal corporations until of its 54(b). Unisys Corp., Civil Procedure In re year, Unisys created Post 1989. That its own (E.D.Pa.1999). 149 F.R.D. Disability Extended Retirement and Medical 1255, after Plan to cover who retired e.g., Unisys Corp., In re See 1989, 1, Cir.1995), nom., April most of whom were former cert. sub 1257-61 denied Burroughs Sperry employees. Unisys Pickering, v. Even 517 U.S. 116 S.Ct. however, (1996); plan, 134 L.Ed.2d of the new In re the addition (E.D.Pa. F.Supp. Corp., kept predecessor plans 631-32 intact. cases).

1993) throughout that “the conceded These lawsuits (citing employee’s as the entire trial that an active eventually consolidated. breach of always causes action: be awarded or termi- serted three benefits could contract, and breach estoppel, though language nated even lifetime duty. similarly used to describe benefit not' implicitly recognizing] lifetime is granted summary Court The District Id. synonymous with vested.” at *22. of con- judgment to respect plaintiffs’ With to the second theo- Burroughs tract claims found no ry, the District Court evidence retirees, estoppel as on as well corporate policy “locking- practice plain- claims of all retirement, noting in” that “not benefits In re F.Supp. tiffs. See single a the testi- eorroborat[ed] document trial, (E.D.Pa.1993). a non-jury After 670 mony that an distinction was active/retiree granted judgment to Court District in force.” Id. at *23. claims Sper- contract Unisys on the re See In ry retirees. The ultimate conclusion District Court’s (E.D.Pa.). WL 284079 at the trial was that plain- end of the any right tiffs contract to lifetime trial, lacked relied During it benefits. The evidence that heard and applicable plans fact ERISA and that the in Bixler (“SPDs”) v. Cent. intervening our decision descriptions con- summary plan Fund, Pa. Health & clause, Teamsters rights re- tained a reservation Welfare however, Cir.1993), it right to amend or F.3d caused serving to any any summary judgment in plan at time for to reconsider its terminate the Unisys’ Sperry plaintiffs’ retirees advanced two Sperry reason. The favor on that, The response. in first was claims. Ultimate- theories plans ERISA and it applicable ly, when the those claims.3 In the reinstated so, descriptions described summary plan doing pointed course of to evidence benefits, (1) as “lifetime” health care benefits that a “retirement counselor re- [had] convey that this intended to sponded about reservation questions provided such benefits- existing plan potential clause raised that those benefits were life but also by saying language ‘pertained vested, i.e., against guaranteed change. ”, active not to and employees and retirees’ theory although The “was (2) second “personnel manager admitted to language to describe SPDs used lifetime routinely telling inquiring retirees, actives and [both] benefits of post-retirement their medical benefits ” ‘practice’ Sperry ‘poli- an unwritten life.’ ‘guaranteed to them for retired, cy’ an that once individual his/her as “just Court described this evidence Pursuant ‘lock ‘locked in.’ this benefits on this sample small of the evidence issue.” in’ could not reduce policy, company Unisys Corp., In re 1994 WL 284079 at benefits of retirees under medical n. *34 69. The Court also referenced evi- Unisys Corp., In re circumstances.” levels indicating highest dence “the of cor- WL *23. 284079 at Sperry, at porate management and later Unisys, recognized employees might trial, the day

At District Court the seven be under the mistaken belief ‘lifetime’ evidence admitted and considered extrinsic meant forever.” Id. at *26. The Court Unisys’ promul- intent tendered to show explained reinstatement decision gating plans. The Court concluded stating and [this] “that based on evidence plans as “lifetime benefits” used circuit, possible the law in it seems and reflect intent SPDs did not benefits, at will be least some able observing lifetime create “vested” decision, roughs Unisys retirees as well. In re and After we affirmed this the District (E.D.Pa.). Unisys Corp., 1996 WL 455968 Court reinstated the similar claims of the Bur- of fiduciary duty] [breach sustain claim.” that many employees mistakenly under- declined, however, Id. at *274 The Court stood such counsel to mean that such bene- to reinstate the fits became vested at estoppel claims. the time of retire- ment, (2) 1260-61; see id. followed, interlocutory An appeal bring- representatives “affirmatively repre- ing us the judgments Unisys’ before to them sentad] that their medical bene- favor on the contract estoppel claims guaranteed retired, fits were once and the decision to reinstate the breach of company when the knew fact this was fiduciary duty claims. We found judgment not true.” Id. at 1266-67. We held that appropriate on the breach of contract such conduct could constitute a breach of claim because the provid- SPDs Unisys’ fiduciary duty administra- unambiguous ed notice that lifetime medi- tor. guaranteed, cal benefits were not even for After the breach of fiduciary duty claim those who retired when the plans pro- still was reinstated for all plaintiffs, classes of vided for such unambigu- benefits. On the Unisys filed two partial motions for sum- plans, ous face of the right there was no mary judgment. time, At the same lifetime medical benefits and extrinsic evi- Sperry retirees submitted a motion for dence should not be considered. See In re summary judgment on their claims. In its I”), Corp. (“Unisys motion, Unisys first asked the District (3d Cir.1995). 904-06 Court to grant it summary judgment found that summary judgment We was against Sperry all retirees who retired be- appropriate on the retirees’ estoppel claim (six fore November years 1986 before as well: complaint by first Sperry retirees was Due to the unambiguous reservation of filed), against all Burroughs retirees rights clauses in summary plan de- (six who retired before December 1986 scriptions by which Unisys could termi- years before the complaint first Bur- by nate its retiree plans, medical benefit filed). roughs retirees was Unisys argued the regular retirees cannot establish these were barred from hav- “reasonable” detrimental reliance based ing by their claims heard ERISA’s statute an interpretation the SPDs limitations, § 29 U.S.C. promised vested benefits. The retirees’ motion, In its second Unisys sought to interpretation providing have the grant summary District Court lifetime benefits is not reasonable as a judgment against all the plaintiffs who matter of law because it cannot be rec- prove would not be able to that Unisys’ onciled with unqualified reservation alleged breach of fiduciary duty led them rights plans. clauses they retire earlier than otherwise would I, 58 F.3d at 907. (e.g., retirees voluntarily who did not retire). argued It legally separate opinion, upheld we also cognizable harm that could have resulted the District Court’s reinstatement decision. from its alleged misrepresentations was II”), See In re Corp. (“Unisys acceleration individual decisions to re- (3d Cir.1995). F.3d 1255 We did so be- tire. Other by plain- decisions made cause the suggested record that some re- Unisys’ tiffs in reliance on misrepresenta- might tirees able be to show one or both of tions, contended, should not (1) following: representatives considered a “resulting harm” of al- they counseled them that had lifetime leged fiduciary breach of duty. medical benefits without making reference clause, to the reservation of even In support of their summary judgment though the representatives motion, were Sperry aware argued retirees time, 4. At the same the Court holding stressed that the it and that it was "not that a breach fiduciary duty claim not Id. at *27. before did in fact occur.” if we find the “fraud dispute argue of fact as to ees even no material is inapplicable provision of their breach of or concealment” the elements any of here, they timely their claims are nevertheless Accordingly, claims. six-year provided in them under the grant provision Court the District urged 1113(1)(A), begin § not to run law. which does as a matter of judgment action until “the date the last Unisys’ mo- granted Court The District part of the breach viola- constituted partial summary judgment tions tion.” The retirees contend date Sperry to the summary judgment denied constituting part of the the last action retirees on their motion. Those in this the date on which case was breach extinguished claims whose plans. old benefit Unisys terminated the judgments Unisys’ fa- summary partial successfully under Fed. then moved vor A. “Fraud or Concealment” 54(b) judg- entry for the of a final R.Civ.P. purpose of the “fraud or con prose- claims ment on their so codify portion provision cealment” is to appeal. See In re cute this common law for ERISA breach of (E.D.Pa.1999). F.R.D. 149 The issue raised claims. whether the provision simply this not

II. kind of alleged breach involved some fraud ERISA, 29 U.S.C. Section but rather whether took states, entirety: in its to hide its so that the statute steps breach under action be commenced this No begin run until the breach is should fiduciary’s subchapter with to a respect explained As we Kurz v. discovered. duty, or any responsibility, Co., Philadelphia 96 F.3d 1544 Elec. under or with re- obligation part, Cir.1996): after the part, to a violation of this spect join now our courts and hold We sister earlier § [sic] that “fraud and conceal- [1113]’s (A) (1) years six after the date of language federal applies ment” com- which last action constituted discovery mon law rule to ERISA violation, (B) or in the case of breach or In breach of claims. oth- omission, the latest date on which the words, when has been er a lawsuit de- fiduciary could the breach or have cured layed because itself has the defendant violation, or steps to breach of fiducia- taken hide its (2) years three after the earliest date on ry duty, period the limitations will knowledge plaintiff had actual date of years run six after violation; of the breach or discovery. ques- claim’s The relevant that in the fraud or con- except case of tion is therefore not whether com- cealment, may be com- such actions concealment,” plaint “sounds in but rath- years menced not later than six after er whether there is evidence discovery of or viola- date of such breach steps took affirmative hide defendant tion. fiduciary duty. breach of its § 1113. 29 U.S.C. at 1552. Id. Kurz, argue In alleged the District § respects. counseling was the con- misapplied 1113 in two

Court First, they argue sidering erred in retirement about them retirement the Court revealing the “fraud or without refusing hold under benefits those provision, pe- limitations amendments increase benefits concealment” under consideration. Be- years end until after serious riod did not six neither “wrong health ... was self- the truth about their cause discovered concealed,” alternative, actively retir- nor we ex- concealing benefits. In the care issue, pressly reserved the elsewhere de time for reason. As the District Court bated, it, § year of “whether peri aptly put [1113]’ssix ‘self-concealing’

od extends to both wrongs While ... compliance with SPD disclo- separate as well as ‘active concealment’ sure obligations does not relieve a com- underlying wrongdoing.” from the Id. at pany of duty to avoid con- context, “a self-concealing fusing participants benefits, about their act is an act during committed the course this court will not hold that the truth original fraud that has the effect of about the “lifetime” benefits was con- concealing victims, the fraud from its cealed participants from when the infor- a]ctive concealment refers [while to acts mation about the reservation of rights intended to conceal the original fraud that clause was unambiguously printed and are distinct from the original fraud.” Wol distributed [by company] in the Inc., Barney, in v. Smith SPD. (7th Cir.1996). that, We in Kurz held In re Unisys Corp., F.Supp. at 635. regardless of whether the acts to conceal Accordingly, we hold that the “fraud or the breach occur in the course of the con 1113(2) concealment” provision of is in- duct that underlying constitutes the applicable to such cases.5 independent subsequent of and to the true, It stress, as retirees breach, there must beyond be conduct equitable the doctrine of tolling can under breach itself that has the effect of conceal some prevent circumstances a limitations ing the breach from its victims. period from running favor of a trustee on a breach of fiduciary duty claim even in Here, Kurz, as in the issue is “not the absence of concealment on his part. complaint whether the ‘sounds conceal Glover, Bailey v. 21 Wall. 22 L.Ed. [i.e., ment’ not whether misadvised (1875), upon which plaintiffs heavily the retirees or counseled them without rely, provides one example such circum drawing attention to the reservation of conclude, however, stances. We that su clause], but rather whether there is perimposing equitable such tolling rules on evidence that the defendant took affima the statutory limitations scheme set forth steps any point] tive [at to hide its breach §in 1113 would be inconsistent with con fiduciary duty.” (emphasis Id. at 1552 gressional intent and the clear teachings of added). Accordingly, if all plaintiff that a Supreme the Court. can show is that a represented counselor to him that guaranteed Pleva, he had lifetime In Lampf, Lipkind, Prupis & health care benefits give Gilbertson, or failed to him Petigrow 350, v. 501 U.S. 360- 62, accurate advice knowing 2773, that he (1991), believed 111 S.Ct. 115 L.Ed.2d 321 benefits, he had such 10(b)(5) the fraud or conceal the Court held that Rule misrep- ment inapplicable. cases, clause is 9(e) such § resentation governed by claims are 18(c) Unisys cannot be § said to have taken affir of the Securities and Exchange steps, part Act, mative either origi as requires each of which that 'suit be thereafter, nal breach (a) of or to cover filed before the earlier of year one from up its breach. To contrary, pursuant the discovery the of the facts constituting the ERISA, (b) to the provisions relevant Uni violation years or three from “the viola- sys regularly (or, distributed to its employees 18(c), § tion” in the case of from the unambiguously accrued”). retirees SPDs explain date “the cause of action The ing that plan provisions the calling plaintiff argued that the doctrine of lifetime benefits could be amended at any equitable tolling apply should so that the Notwithstanding plaintiffs’ argument to the ment that steps there be affirmative to con- contrary, regard we do not the fact that the beyond misrepresentations ceal the them- alleged (as misrepresentations repeated selves. isolated) opposed satisfying require- as the

504 cutoff, serve as a we hold that period clearly not limitations three-year until fraud was discovered tolling principles apply run the do not start to taken the steps no where even where period. the fraud. The Court to conceal defendant 363, Id. at 111 S.Ct. 2773. finding it funda-

rejected argument, Although specified duration of the legislative with the mentally at odds different, periods limitations here is scheme: Congress legislative scheme is the same. note, Plaintiff-respondents correctly, has cut-off determined date in lawsuits requirements “[t]ime (a) years should be the earlier of three customarily subject to ‘equitable ... are ” from date of of the claim discovery Department tolling.’ Irwin v. Veter- (b) The years six from the violation. 89, 95, 111 Affairs, 498 U.S. S.Ct. ans difference is that ERISA’s statute makes a (1990), 453, citing 112 L.Ed.2d single exception for cases express County, v. Hallstrom Tillamook in Lampf, or concealment.” “fraud Just 20, 27, 110 S.Ct. L.Ed.2d U.S. it fundamentally would be inconsistent (1989). Thus, this Court said has statutory with to accept scheme here case, party that in the usual “where the that the argument six-year period does injured by igno- fraud remains in discovery not run begin to until fault it or want of rance of without fraud, engaged has where defendant part, on his the bar of diligence care wrongful activity beyond original until no begin run the statute does discovered, though plaintiffs’ there be fraud which the claims the fraud are Indeed, or efforts on special given no circumstances fact that based. Con- committing party gress one provided express exception in knowledge it from the 1113(2), fraud to conceal rejection § equitable tolling Glover, v. party.” Bailey other here Supreme follows from the fortiori 342, 348, (1875); 22 L.Ed. 636 see Wall. holding Lampf Court’s Armbrecht, v. 327 U.S. Holmberg also Similarly, we must in- plaintiffs’ decline 396-397, 90 L.Ed. 743 66 S.Ct. apply equitable vitation to their tolling (1946). Notwithstanding this venerable under the principles guise construing principle, equitable is evident 1113(2)’s provi- “fraud or concealment” fundamentally incon- tolling doctrine is Accepting sion. that invitation would re- l-and-3-year sistent with the structure. Kurz, quire reject us to and we are bound terms, by its 1-year The be- period, precedent. Contrary plaintiffs’ gins discovery after of the facts consti- suggestion, subsequent we do not read our violation, making tolling un- tuting the diluting significance case law as limit is necessary. 3-year period Kurz in the context of case.6 repose tolling. inconsistent One matter, end This does not however. explains: “[T]he commentator inclusion Court, unwilling can Unlike the District we are have no three-year period of th'e say based on the current record that no significance in this context other than to to successfully an limit.” will be able invoke impose Because retiree outside purpose 3-year provision limitation is the “fraud or concealment” of the "self-concealing” particular, point to "active plaintiffs 6. In this Court's as well as con- cases, Forge Corp., (full decision in v. Freedom Adams id. at cealment” 494 n. 5 citations (3d Cir.2000). expressly omitted), 204 F.3d 475 As we quotations we do internal noted, no limitations issue was be- statute of guess purporting read Adams as to second Although a appeal. fore us in that footnote in rule that the "fraud or concealment” Kurz that case makes to "issues left unre- reference provision requires steps to hide “affirmative anatomy scope solved in about Kurz Kurz, duty.” 96 F.3d [the] breach doctrine,” i.e., of the fraudulent concealment at applies whether ERISA's statute limitations 1113(2). noted, concerned, § As we have District sions retire are a retiree’s Court, deciding necessarily when to reinstate the date of retirement is the last claims, duty pointed of fiduciary upon breach to date which could have made a evidence that a suggesting “retirement misrepresentation relevant or questions counselor responded [had] a clarifying pre- communication rights about clause reservation vented detrimental reliance. by potential by saying

raised therefore affirm asks us to the District language pertained active grant summary Court’s judgment In Unisys Corp., not to retirees.” re against plaintiffs’ those members n. 1994 WL 284079 at *34 69. It seems to class than' years who retired more six be- entirely us that advice of possible this fore the date on which their case was might bring character well filed, fraud or originally in If, provision play. concealment into retirees, hand, on the other contend example, advice about reservation of that the date of the last action which con- given clause was under circum- part stituted of the breach was November employee, stances such that an who had 3, 1992, the which Unisys date on an- SPD, consulted the dissuaded from nounced the termination its “lifetime” clause, consulting regarding counsel plans. They argue that 1113 must be we appropri- believe that the advice could interpreted this manner because no ac- ately regarded step be as affirmative tual harm legitimate occurred and thus no having concealing Unisys’ the effect of claim of duty breach of arose breach. until Unisys plans terminated the that it initially had inappropriate misrepresented. though It Even would be for us to the retirees decide at whether concede that the termination stage “fraud or act, of the old non-fiduciary concealment” within was a meaning of sec 1113(2) they tion in this nevertheless insist a non-fiducia- has occurred case. We that, ry act can drawing “part hold all constitute permissible in breach if party fiduciary duty violation” of the final against seeking ferences sum is act that mary judgment, may gives rise to cause of action. retirees who will be prove able to counsel Forge Corp., Adams v. Freedom ors concealed their breach from them and (3d Cir.2000), recently F.3d 475 this Court that the limitation did not period foreclose reviewed the of a breach of fidu- elements until years suit six after the date ciary claim like that discovered the had occurred. controlling here. precepts We found the prior in our in this case: decision B. “Date of the last action An employee recover for a part which constituted if he or she of the breach” proves acting that an employer, Having six-year concluded that limi- fiduciary, misrepresen- made a material period tations applicable plaintiffs’ tation that would confuse reasonable claims, peri- we must determine when that benefits, beneficiary his or her about run, i.e., od began to “the date of the last and the acted beneficiary thereupon to action which constituted a his or her detriment. breach.” that this insists text fo- Id. at citing cuses on the the fiduciary last action of. 1264. fiduciary duty. was violation of its While it does not maintain that the current Given of a claim for these elements context, record pinpoints upon fiduciary duty the date which the breach of it made, alleged last misrepresentation necessarily it follows that breach that correctly may points completed, out that insofar as deci- have occurred was and a Unisys Corp., accrued, coverage. In re than health care no later

claim based thereon provid employee F.Supp. relied to at 639. If which the the date counsel, misrepresentations. on accurate some retire his detriment ed clear and sought who counsel Surely, any employee occurred when may not have ments retirement based early who took did, retir there is no reason to believe but pos- that she assurance Unisys’ express coverage. free As the would now have ees care, lifetime health guaranteed sessed held, right a Unisys had District Court pension the amount thereby reducing and it coverage, health care terminate free receive, bring would otherwise she non-fiduciary in a ca right exercised rescission immediately and secure suit Id. at 638.9 pacity. appropriate other or some her retirement us, however, that the clear to It is not Accordingly, seems relief.7 equitable retired Sperry retirees who for claims of all six-year period clear to us Bur- later than and all no before November commenced such their retirements.8 before Decem- dates of retirees who retired respective roughs 3, 1986, pri- are barred. While the ber the District agree with therefore We being theory liability asserted mary care of free health that the denial Court many relied on the clearly is here of the plain not an element coverage was detriment misrepresentations to their pointed District claim. As the Court tiffs’ retirement, voluntary deciding to take duty out, fiduciary alleged breach hereafter, Unisys per- has not explain we allegedly given the counsel here concerned only viable theo- suaded us that this is is no causal nexus given, or not and there well be that retirees ry liability. may free It and the denial of that counsel between cordingly, have no claim his estate would dissenting opinion that an em- assumes 7.The care benefits. guaranteed based on lost health about life ployee misled remedy to a entitled care would be benefits expectancy taking his or her “date the last action which consti- into account If the than, per- or the date of rather a of the breach” is interest in such benefits tutes to, Unisys’ misrepresentation, loss suf- it is theoreti- haps the economic last in addition begin to cally possible that the statute could changed position in detrimen- fered when he seek relief from a Unisys' The District before a retiree could conduct. run tal reliance on necessary reliance is a court since detrimental yet what remedies Court addressed has not a of this element of breach establishes a retiree who be available to however, decide, we, course, We need not whether kind. fiduciary duty, a breach of begin a year period to run before the six can availability ex- express opinion on the no fiduciary claim accrues. As any other form of pectancy compensation or noted, Court and the note, however, we the District have that there is relief. We do regarded of the last parties have the date the value of difference between material misrepresentations and the date of relevant ben- plan guaranteed lifetime health care with being the same date reliance as detrimental plan care with value of a health efits date only issue briefed is whether that and the any time for be canceled at benefits that can health care the date of the denial of free or employee Accordingly, if an any reason. coverage legally relevant date. Accord- is the expectancy remedy aas were entitled to an began to ingly, only we that the statute hold retiring being told he had the result of former, after alleged date of detrimen- latter, run no later than the he he had the when in fact reliance. tal immediately bring would be entitled to suit value he was for difference between who fortuitous that the or for It is promised value he received and the alleged counseling the em- pro- here was promise did specific performance right change ployer who exercised its plan policy guaranteed lifetime vide a however, correct, plans. had not been the administra- If health care. dissent independent plans and an adminis- bring tor of the not to a suit retiree who chose duty by mis- breached its the value trator had guaranteed benefits or lifetime retirees, thereof, more counseling it would be even any change in before and who died were not "the amendments serendipitously wound clear plan, would part which constituted a last action up position he would have been in the same breach.” misrepresentation been true. Ac- in had the voluntary retire. perceive dates relied to decision to We retired before those who basis, however, making for principled in other decisions no so cabin- their detriment all, Accordingly, ing our in II. holding those dates. the sum- After in after Bixler, there, by the District mary judgment upon heavily entered which we relied and must be re- resulting was overbroad the decision from the Court breach of for Summary judgment versed. decision was a on whether however, with appropriate, be re- purchase to insurance COBRA rather than to those who claims based spect assert a decision retirement. regarding See Bix solely on made ler, 1301-03; retirement decisions more see F.3d also Curcio v. years six before suit was filed. than Co., John Hancock Mut. Ins. Life Cir.1994) (fiduciary’s 237-39 mis III. representations a new about life insurance Unisys argues plaintiff that an essential element caused to fail to obtain ade is, duty course, claim recog- quate of the breach of coverage). It not clear prior voluntary in our is a opinion rely nized plaintiffs upon who these in decision to retire made reliance on a affidavits will to be able establish their care mistaken view health benefits relief, entitlement to but we decline Uni- guaranteed life. It necessarily sys’ adopt invitation to across the board follows, according Unisys, to that it is enti- of relief prohibition based reasonable to summary judgment respect tled to reliance in other than contexts retirement mandatorily retired anyone who was at decisions. employ left the involun- age company’s import Understanding the of our deci- disability, because or

tarily for some in Unisys recognition sion II requires other reason made no such decision. in procedural posture which that ap- response, plaintiffs insist that the noted, peal arose. As we have the District recognized category claims we earlier is Court initially granted summary judgment limited to on not claims based retirement duty on of fiduciary the breach decisions and have submitted affidavits claim. See In re that, allege from members of the who class It F.Supp. only at 679-80. after the in reliance on their had belief trial and our Bixler that it decision benefits, they guaranteed lifetime declined decided to that claim. re reinstate See In employment opportunities, other chose to Unisys 284079 at Corp., 1994 WL *25-27. opportunity purchase forego supple- It was of that propriety decision to insurance, health mental made other reinstate, propriety of that and financial for their important decisions re- decision, that us as a was before certified tirement. interlocutory appeal. issue We agreed held appropriate District Court with Un that reinstatement was isys granted summary judgment and proceedings.”10 and remanded “for further prove all who against would be unable 57 F.3d at times, that, plaintiffs appear estoppel At to read our contract and claims and when as, claims, effect, opinion directing entry reinstating it had those made no de- summary plaintiff proven judgment any on termination that had in their favor at least his duty voluntary breach of claim. On the con- retire claims. We decision to trary, quoted the District on remand opinion, not so Court do read the District following observations it had made at the point, Unisys did not Court so read it. At time of reinstatement: provided opportunity been with no had summary judgment stronger build trial or record [B]ecause some claims, opposition ruling specific Bixler than based on their cases others inquiries given the merits of those would have claims been and the information to them remand, subclasses, inappropriate. personally, On the District the court finds that Court fiduciary possibly hearings, noted claims even individual will during necessary adjudicate before the trial these been on the claims. stresses, true, fiduciary duty claim in certain limit- Unisys as that our It is case, issue for in addressed the decision ed where the opinion circumstances-in this plaintiffs having of relied context the they the retired than employees earlier making in to decisions their detriment by to might have had not been misled our focus because that That was retire. misrepresentations. the This lifetime contention, and primary plaintiffs’ the was court that the con- expanding believes of reference to other the absence cept in case “resulting of harm” this to kinds hardly be as a of reliance can taken in the retir- types alleged of reliance of could that other forms reliance ruling unjusti- ees’ would affidavits create for a valid basis relief. We provide not holdings fied of the narrow of expansion reject the District Court’s view therefore court, this rein- and would indirection II, law, Unisys a matter of limits as estoppel. claims for equitable state the fiduciary duty of recovery on the breach Unisys Corp., In re at 644. F.Supp. voluntary on deci- claims based claims to The of District Court’s characterization Moreover, we have found sions to retire. Unisys II excusing our in “un- decision as precedent supporting posi- other no reliance” is We inappropriate. reasonable tion. did not there hold that the existence of the expressed The District two relat- Court analysis SPD irrelevant granting in course of sum- ed concerns fiduciary breach em- of claims. An Unisys on mary judgment the claims ployer, fiduciary when in a acting even voluntary based on retirement deci- capacity, responsible is not for harm that opening Unisys a concern about sions: reasonably is. not foreseeable. As we a and unjustifiably broad relief concern in this pointed prior opinion out in our case with this Court’s dis- inconsistency about Adams, and in in relief to order for claims. ex- position estoppel It afforded, fiduciary the conduct must as follows: pressed those concerns be such to create a likeli- “substantial of fiduciary In breach allowing the hood that it would mislead a reasonable forward, this go claims to court and making change in employee [a decision Appeals Court of for the Third Circuit II, position].” his her 57 F.3d essentially have held that reliance Any at of whether determination employees misrepresentations on the Unisys conveyed a message that was “ma- Unisys, while not “reasonable reliance” in misleading” terially this sense cannot equitable claim of es- purposes of a simply ignore existence of SPD. a toppel, support can still claim for Rather, what we held this score in on sense, In duty. fiduciary breach Unisys II was as (1) that the SPD follows: rulings in case excuse the Unisys’ satisfy did not as a matter of law failure participants from their to read (2) responsibility; and in summary plan their documents was evidence from which a trier of fact making limited context the retirement should conclude have duty, decision: of the breach of because respect foreseen that its conduct with to at employees may retired earlier reason- least some of class would cause have, than they otherwise detriment, rely able to their the misrepre- even if their on reliance despite the existence of the Whether SPD. reasonable, sentations the reli- was not course, depends, is the case ance supports a breach message conveyed content of partially claim was at least because it it was conveyed. context which the fault Unisys. II recognize reliance We “unreasonable” excused did narrow, supports here is there are situations F.Supp. at re See can reli- life. reasonably foresee unreasonable 1266. Un- Bixler, and, accordingly, situations, ance be held accountable. a duty der these Bixler, Cir.1994), pro- F.3d the reservation advise of of clause example. arise, vides an Mrs. Bixler there ac- would and the of existence the SPD had notice knowledged that she received a would be relevant. not fiduciary to concerning right from the a Unisys II recognized We also in insurance, apply for health care COBRA duty that a to affirmatively advise mistakenly but she believed that she of rights might reservation clause have eligible her not do so husband were to in the beneficiary- arisen even absence of already because he hospitalized. was specific concerning information confusion Shortly after Mr. Bixler’s death but still record, or mistake. The then of evidence period well within when she could have suggested, we could permit finding that elected COBRA Mrs. coverage, to secure acquired knowledge of confu fiduciary’s representative Bixler called the sion so that a pervasive reasonable fiducia inquire about a death The benefit. ry simply rely would done more than fiduciary accurately informed her not, however, on its SPD. See id. didWe there was no death benefit but failed to clairvoyance require part on of advise her that she could reim- receive fiduciary. requires only law that a bursement for husband’s her considerable fiduciary fairly deal with his beneficiaries hospital expenses by signing returning and, so, doing in that it such “exercise care the COBRA notice the sent fiduciary had a man ordinary prudence skill as to her We there husband. concluded that his own affairs. Re in would exercise” which a fact evidence from trier of (Second) Trusts, § statement that the infer was aware the Bixlers’ circumstances Bix- and of Mrs. A judgment remains to be made as to ler’s mistaken belief about the unavailabili- fiduciary in Unisys’ whether a reasonable insurance. See id. at ty of COBRA 1302- position would have foreseen that its con- circumstances, OS. In these we held duct towards the various the trier of fact could find a breach important making result in decision on fiduciary duty, and we did so in- without part their based on a mistaken belief quiring Mrs. whether Bixler’s understand- they possessed guaranteed lifetime ing of the notice COBRA was reasonable In involving benefits. situations actual or unreasonable. knowledge on the that an Bixler is based Our decision employee rely was about on such a fiduciary’s duty fairly to deal bene- with its misunderstanding, with agree we the Dis- and, ficiary specifically, more “to communi- trict Court that the existence SPD cate beneficiary to the material af- facts situations, is irrelevant. other howev- fecting beneficiary the interest of the er, that Unisys the fact had distributed which he knows the does not beneficiary purported what to be an authoritative know and which the beneficiary needs guide to benefits is one of the circum- Bixler, protection.” know for his in pass- stances that must be considered (Second) quoting Restatement ing judgment this on its conduct. Trusts, (d) (1959). comment As we holding Unisys do not believe We noted in is evidence here to the kind of fair standard we dealing with respect to some from II will recognized impose an which a fact trier of could conclude that specific unfair burden it even if it is held to inquiries were made notice giving of decisions representatives employ- standard context voluntary ees could be other than expected make retirement retirement. We stress, however, decisions based on the mistaken belief that that the character of the will, their health guaranteed benefits decision made and reliance claimed they counseling rather that relied on course, important role determin- play Unisys representatives. received from Unisys’ the extent ing was breached. We and whether TV. has not District Court also note The District Court’s order dated March remedies equitable addressed what yet 10, 1997, will be and this matter reversed of the class. may be available members remanded will be to the District Court for damages law are recoverable Common proceedings further consistent ERISA for under opinion. Unisys’ fact limit duty, and this also Hewitt Assoc., See Mertens v. exposure. MANSMANN, Judge, Circuit 2063, 124 L.Ed.2d S.Ct. 508 U.S. concurring part, concurring in in the and (1993). part. result in foresee- insistence on reasonable Our my pleased join colleagues I am with prerequisite legal responsi- ability as III majority opinion, in Part of the the breach of bility on recognizes fiduciary that an ERISA who our resolu- is not inconsistent with claims created about has confusion under in plaintiffs’ estoppel the claims tion of has plan ongoing responsibility benefit an I. As our above quotation earlier stemming for harm from beneficiaries’ de- demonstrates, prior opinion those from our that cisions attributable confusion. allegation predicated claims were on in agree holding I also Part While with to their detri- relied summary majority opinion II of the text of the and SPD. ment on reversed, I judgment must am be unable 907, supra. See F.3d at On that occa- reasoning of to subscribe that Part sion, fol- holding we summarized our as II because threatens to undercut fidu- lows: ciary’s by allowing a responsibility safe any require Because our decisions long breaching fiduciary harbor so as plan language reliance on detrimental in arranges keep the beneficiaries “reasonable,” finding be our also years they rely on dark for six after his of rights clauses] are [reservation I that the ma- misrepresentations. believe the reasonable- unambiguous undercuts jority’s analysis the statute limita- by any ness of detrimental reliance protection tions affords too little for trust- hold that Accordingly, retirees. we workers an artificial notion ing using concluding, did district court not err statutory period, by to start the detriment summary judgment, the retirees’ on ongoing disregarding fiduciary’s obli- claim matter of law. estoppel failed as a misunderstanding, to correct known gation I, 58 F.3d at here, by effectively writing The claim out of the stat- and however, discovery relied on until tolling is not the retirees ute the doctrine of SPDs, self-concealing wrong.1 or the but of a the text contemplates participants majority opinion all of these and beneficiaries det- 1. Part II of the summary judgment against entry of retirees rimentally Unisys’s ongoing improp- relied on (i) solely retire- are on whose claims ment decisions made more before concealed that based misrepresentations er omission to correct years than six declining they ultimately to sue before filed, (ii) this action were not brought action. Unisys's It is not clear advice. Unisys’s person’s light scope meet actual claim will these wide al- criteria, recog- majority concealment, however. As the perva- leged potentially nizes, may presence rely beyond presence of acts of reliance sive many coverage making medical life's decision, disagreement my retirement beyond the Most decisions decision to retire. may majority's analysis be Part II of no background— people probably take vital such theoretical, may well be that more than as it consideration, at financial circumstances into solely on no claims at issue are "based retire- tacitly, everything do. least decisions”, fall that all claims with- ment Moreover, below, explained I believe that as

5H I. cation if it rests ‘contingent future events that not occur as anticipated, applicable statute of limitations re ”) or indeed may not occur at all.’ (quoting quires brought that claims be within six Thomas v. Agric. Union Carbide Prod. years of “date of the last action which Co., 568, 580-81, 473 U.S. 105 S.Ct. constituted a the breach or viola (1985)). Here, 87 L.Ed.2d 409 1113(1)(A). resulting tion.” 29 U.S.C. As the harm was contingent on company’s majority acknowledges, the “last action” future conduct. necessary to make out the claims at issue is detrimental Opinion reliance. See The majority argues that actual harm is (referring 505-06 misrepresen material necessary not a element of a claim for tation and detrimental reliance as ele breach of fiduciary duty. While that may ments) (quoting Adams v. Freedom Forge be correct general as a proposition, it Cir.2000)). F.3d incorrect applied as to the subset of fidu- (defin See also 57 F.3d at 1265 ciary predicated claims on detrimental reli- ing elements of claim for ance. “Actual harm” and ap- “detriment” (1) (2) status, proof misrep pear to synonymous. To the extent (3) resentations, company knowledge of may there be a difference between (4) confusion, harm).2 resulting legal harm, detriment and actual only the reasons, The majority essentially, that latter .should start the clock running for the breach of duty by Unisys was its mis- the statute of significance limitations. The representation of the plan’s provisions, and of harm in the limitations context is that it the detriment or “resulting harm” to the brings the existence of the claim home to participants was their retirement without the claimant so may reasonably that he be protection guarantee. the of a Opinion See expected to act. purpose This is not well at 505-06. This effectively reads the ele- served by a technical notion of “detriment” ment of harm or detriment out of the actually does not impact the claimant.3 Although claim. the retirement decisions majority illustrates its view of reliance, detri- were made in such reliance did by ment hypothesizing that an employee not become detrimental until an- who “sought counsel” early nounced termination and took re- promised of the post- retirement tirement based on the company’s medical benefits. If assur- the bene- continued, fits had ance of lifetime health there would care could “surely” have been injury. States, no bring Texas v. United suit immediately and secure rescis- Cf. 296, 300, U.S. 118 S.Ct. 140 L.Ed.2d sion of her retirement appropriate or other (1998) (“A claim ripe adjudi- is not for equitable Opinion relief.4 at 505-506. saving provisions (3d Cir.2000). in the of Part II.A or Part Fiduciary conduct is mea- III. light sured in of all the attendant circum- qualitative stances. There is a difference be- recently 2. We observed that construction of by fiduciary tween an act which falls short six-year ERISA’s “implicates sophisti- statute imposed by of the standard law and an act questions cated about whether the statute be- injures que that also cestui trust. Conse- gins to run at the misrepresenta- date of the quently, "non-fiduciary” by even a act tions, amendment, plan the date of the or company imposes injury on a benefi- Adams, some other date”. 204 F.3d at 494 n. ciary by prior left fiduciary vulnerable appear, 19. As will I believe it runs from the breach,” "part breach becomes amendment, date of the detrimental while the Thus, worsens character. the "last action” majority believes it runs from "some other imposition could consist in the of harm where viz., the date of the last act undertak- date" — en in reliance on the breach, part fiduciary it is even if it misrepresentations. required were not a element. Moreover, holding cases that it not is neces- sary 4.Although question remedy demonstrate harm to establish a is not now us, majority’s do not stand for the before reference to rescis- harm, proposition present, where remedy significant. is not sion as an illustrative Adams, III, of the breach. See majority recognizes partici- As the in Part II. However, actual or question what sufficient to allow suit harm is prospective if analy- Even our statute limitations her is not before apprized of by one fiduciary by conduct sis were limited to view, hypothetical a more my apt To us.5 should Unisys, retirees’ claims still not a partici- the estate of concerns whether record, as present barred on the old who died before pant Unisys continued to is evidence that terminated, promised so received its correct failing breach life, neverthe- would its prior medical benefits mistaken beliefs misstate- fiduciary continuing Because this for breach of ments created. be able to sue less than rather breach involved an omission benefits, promised duty because act, six-year period limitations sufficiently not been as- though paid, until date not commence “the latest plan? Surely not. written sured cured which the could have fail due the absence The claim would violation”. 29 U.S.C. Thus, pre- while I am injury. actual 1113(1)(B). a retiree never say pared observes, of a threat- prior previ- to enactment bring majority suit As the we that a has a change, ously recognized I do not believe detrimental ened “duty fairly beneficiary deal requires her of limitations statute and, more ‘to specifically, communicate to action to ward off bring preemptive affecting material beneficiary facts might never occur. harm potential beneficiary interest of which he knows I would hold that the “last Accordingly, beneficiary does not know and which a of the which constituted action pro- needs to for his beneficiary the know ” purposes of limitation for breach” statute 509, Supra at Bixler quoting tection.’ v. the termination of medical benefits was the Pa. & Central Teamsters Health Welfare they Unisys assured the retirees (3d that Fund, 1292, Cir.1993).7 12 1300 F.3d life, any for rather than Here, receive the that suggests Unisys evidence the made on duty continuously from particular decisions breached this the misrepresented time it first the terms of strength that assurance.6 the equitable remedy may rely misapprehension made” is an available under pants on their 1132(a)(3)). many § ways beyond decid- 29 U.S.C. plan the benefits these ing to Some of acts of reliance— retire. question requirement involving expenditures 5. That concerns the those or commitments stronger expectation may only of a we that sies, decide cases and controver- made —financial rescind, policies and re- position-would be difficult to turns on so different from participant make the underlying scission would not those the statute of limitations. general remedy the So in rescission whole. unwieldy inadequate. This fol- may be disagree majority's I with the statement that assump- majority’s unrealistic lows from the merely it is "fortuitous” that the that themselves constitute tion that the decisions misrepresented permanency the the bene- redressed; whereas, to be actu- the detriment entity ultimately the cut fits is same that off unexpect- ally the to be remedied is harm contrary, was those To the benefits. promised ed withdrawal of benefits. ability promises Unisys to honor its that helped to reliance induce retirees' assuming object of that the a If instead of prospect they would not created real that be decisions, we is to the retiree's life suit undo injured. paradigmatic remedy may recognize that the promise be enforcement Indeed, relied, duty to disclose material in participants “[t]he then it becomes clear that responsi fiduciaiy’s the core of a injury triggers the suit results from formation is bility.” comply to with the Harte v. Bethlehem Steel 214 fiduciary's failure (3d Cir.2000) (quoting employee's F.3d promise, than from the de- 452 Glaziers rather Annuity at & Union Local No. 252 57 F.3d Glassworkers cision retire. Cf. Sec., Inc., ordering spe- Newbridge v. 93 F.3d (indicating injunction Fund that "an 1996)). performance Cir. cific assurances plan permitted prove they until the time the beneficiaries should be Unisys’s by receiving no- relied their detriment on con- learned the material facts non-disclosure, tinuing by refraining from plan tice of the termination. Under bringing the suit present until after the holding, the inter- majority’s beneficiaries’ omitted information was supplied. fiduciary’s ests protected by were not word, if protected but Recognition duty an ongoing to cor- brought years. They suit within six there- prior rect misstatements entails protection” fore to know for their “needed statute limitations does not run while a repre- as it had been misstatement remains uncorrected.9 Con- sented; the majority acknowledges and as versely, majority’s holding opinion, in Part III of its evidence statute runs from the date of retirement knew absolving amounts to from unaware of the material facts. ongoing duty correct the misstate- ment. Today’s holding is therefore con- had an ongoing therefore trary to our decisions Bixler and Harte. inform the of the true state of participants long Unisys affairs. As had reason to

believe that the retirees remained unaware III. company of the material fact that the re- troubling aspect majori- tained a to cut most right off their “lifetime” benefits, opinion ty is its treatment of the self- medical it was a violation of trust (i.e., concealing wrong majority issue. As the fiduciary duty) every day observes, in v. Kurz Elec. Philadelphia Unisys not inform them.8 See Co., (3d Cir.1996) (“[Bjecause F.3d we Adams, 493-94 issue, “expressly reserved the elsewhere that it the right was aware retained debated, year six ‘whether [1113]’s to modify, knowing clarify failure to both period “self-concealing” extends to material information about the retention of wrongs as well as “active concealment” power fiduciary duty.”). was breach separate wrongdo- from the underlying ” truth, plaintiffs Had told the ing.’ Although Supra at 502-503. the protect could have acted to themselves.majority expressly whether does not state Cf Harte v. Bethlehem Steel issue, opinion . its is meant address (3d Cir.2000) 446, Corp., 214 F.3d 448 of requirement steps its “affirmative (holding might that where beneficiaries the beyond misrepresentations conceal predictably on a reasonably rely mis statute, themselves” in order to toll the a “a interpretation plan provision, of fidu 5, supra at outright 503 n. amounts to an ciary may held liable failing be for to rejection wrong of the doc- self-concealing beneficiary” rights inform a of “in his a A requirement trine. of additional con- (so ... timely might manner at he beyond duct itself the breach is fundamen- himself).”). tempt protect Consequent tally at the concept wrong odds with ly, participants seif-concealing. the and beneficiaries be 8. majority recognizes, duty might recognition As the to ad- objected "a It be of an affirmatively vise reservation ongoing open-ended result would in an might the clause of have arisen even in absence However, statute of limitations. I believe that beneficiary-specific of confu- information entirely public policy it is consistent fiduciary sion or quired knowledge where the has “ac- mistake” the federal law in the common embodied pervasive of confusion so exception” “fraud or to hold concealment fiduciary that a reasonable done fiduciary that a has beneficia- who misled his simply rely Supra more than on its SPD.” at ry may refuge statute of never seek behind the 1266). (citing 509 duty 57 F.3d at This deception long as he limitations as allows the of, independent of the reasonableness to continue unabated. for, misapprehension. or even the the reasons

514 fraud”) Unisys Corp., Gluck v. majority (quoting errs in inter-

I believe Cir.1992)) requirement (empha- an additional posing added). act of concealment self-con- sis affirmative holding, In so wrongs. permits cealing majority misinterprets our decision The be- statute of limitations to ERISA holding in that even where con- Kurz as immunize an instrument come cealing acts occur in the course of the wrongdoing. breach, underlying “there must conduct provision or concealment” The “fraud beyond that has the the breach itself effect long-established principle incorporates concealing the breach from victims.” law that a statute of common of federal Kurz, Supra contrary, at 503. On we discovery until is tolled limitations distinguished expressly “self-concealing underlying is either wrong where “ wrongs” sepa- from ‘active concealment’ to conceal wrongdo- acts separate fraud or underlying wrong”. rate Id. at from Circuit has ex- the Seventh ing.10 As n. 5.11 plained, ... reading adopt interprets the There we This case is not like Kurz. was no way in a “fraud or concealment” of a phrase occasion to address the effect self- An meaning. there, terms gives wrong both concealing because there was delay wronged Indeed, can ERISA no we concealment. observed his beneficiary’s discovery of claim ei- employer’s Kurz that the announcement of significance misrepresenting ther just days amendment issue after beneficiary is aware of facts misrepresentation alleged “exempli- (fraud) by hiding facts so that or type timely notification that fie[d] beneficiary never becomes aware give employees”, should their companies (concealment). them any suggestion and “foreclosed that [the interpretation of “fraud or attempted [T]his to conceal its employer] the phrase’s harmonizes concealment” in a engaged campaign fraud widely known meaning with the doctrine prevent from plaintiff suing class concealment, which tolls of fraudulent 96 F.3d at alleged breach”. running of a of limitations statute case, contrast, present compa- prevented has when the defendant far ny’s exemplary, conduct was from as it timely discovery wrong “systematic campaign engaged con- she has suffered. re Corp. fusion.” In Retiree Medi- Ctr., Litigation, cal ERISA Stifel, 1994 WL Radiology S.C. v. Nicolaus & Benefits (7th Cir.1990). (E.D.Pa. 1994); Co., F.2d 284079 at 33 June see Co., Philadelphia Corp. Kurz v. Elec. 96 also In re: Retiree Medical See also Cir.1996) 1544, (observing 1552 1996 Litigation, F.3d ERISA WL Benefits protect (discussing at *4-6 sufficiency 1113 “does not defendants 455968 systematic involving misrepresentation concealment or evidence of in instances context, requirement self-concealing majority’s effect the tion: "In this 'a act is 10. The during acts of concealment even in cases the course additional act committed of the self-concealing tolling only is to allow original concealing fraud fraud that has the effect of concealment, victims, ajctive and in cases of so to write the from its con [while fraud excep- statutory fraud alternative out cealment refers acts intended conceal tion. original fraud that are distinct from Inc., Barney, original fraud.' Wolin v. Smith 847, (7th Cir.1996).” Glover, Wall.) Supra 852 (21 F.3d Bailey See also v. U.S. 11. Nevertheless, 342, proceeds 349-50, (1874) to conflate the (distinguish- 22 L.Ed. 636 concepts by requiring acts distinct two from ing between a which "has been con- fraud original breach where even concealment "is of cealed” and one which such character Indeed, itself”). underlying occurs in the course breach. majority as to conceal acknowledges opinion expressly supra at 502-503. this distinc- See in reinstating and confusion claims of Bur- impose intended to upon the defrauded roughs Unisys plaintiffs). party and As the burden of discovering dis- a fraud above, perpetrated by one standing position cussed one effect of the in a resultant trust.”).13 confusion was to mislead beneficiaries into

believing they had no need or cause to If ever a application case calls for here, Kurz, Consequently sue.12 unlike self-concealing doctrine, wrong this is such necessary it is to consider the effect of a case. Considering the facts in light most self-concealing participants, such favorable to the misconduct as the party opposing summary judgment: statute ERISA’s of limitations. Uni- sys purposely systematically misled its underlying rationale the self-con- workers into believing had a cealing wrong long doctrine has been rec- legally protected right to medical benefits ognized in our law: life;14 it perpetuated the misinforma- To by hold that ... committing a fraud by tion repeating its misstatements in a manner that it concealed itself until many employees period year^;15 over a such time party as the committing the and it avoided any action that would have fraud plead statute limita- brought the misrepresentation to par- it, tions to protect is to make the law attention, ticipants’ by paying the benefits designed was to prevent fraud the until statutory after the period passed. had by means which it is made successful Thus, Unisys’s conduct be distin- and secure. guished from a garden-variety fiduciary Glover, (21 Wall.) Bailey v. 342, 88 U.S. by important first, two factors: (1874). 22 L.Ed. 636 This principle deceived, beneficiaries were and remained the law should not reward conceal- so, Unisys’s knowledge, for several ment is particularly applicable in the con- years, filed; until shortly before suit was text of a fiduciary relationship. See Amen second, deception procured Black, (10th Cir.1956) v. 234 F.2d systematic repeated course of misrepre- (“The law not require does one to suspect sentations prevent calculated to the entire fiduciary. Surely his no one would con- of aggrieved class learning from tend that the ... statute of limitations was the truth. I believe this amounts to a self- 12. See Barker v. American by lapse Mobil Power prin- tions of time would violate this (9th Cir.1995) (fraudulent ciple. concealment involves "affirmative conduct would, of the defendant which II, (noting 14. See 57 F.3d at 1266 case, under the circumstances of the lead a company, District Court "found that the person reasonable to believe that he did not actively affirmatively, systematically both relief”). have a claim for Lettrich v. J.C. Cf. misinformed its about the duration Co., Inc., Penney (3d Cir.2000) 213 F.3d 765 benefits”). of their (holding placement of amendment notice within technical document and failure to use ("Here 15. See 57 F.3d at 1265 more support effective channels would infer- virtually district court found that the entire employer ence that intended to conceal company management consistently mis- employees). amendment from affected represented plan, just on one occasion employee, period many to one but over a Congress “protect enacted ERISA to ... (in years orally group meetings) and both participants employee interests of bene (in newsletters) well.”). writing I dis- establishing fit standards of con duct, agree majority's with the offhand responsibility remark that obligation and for fiducia 1001(b). repetition misrepresentation mere of a ries.” 29 U.S.C. cannot ERISA should applied especially constitute therefore be to avoid in the results that concealment — context, present protection misrepresentation "would employees afford less where the to repeated sundry, creating per- and their to they enjoyed beneficiaries than all and be Heasley misunderstanding. fore ERISA was enacted.” vasive v. Belden It seems clear that 1249, repetition & Blake consistent of a Cir. falsehood to all em- 1993). Enabling ployees prevent fiduciaries to secure immu would well serve to the truth nity self-concealing misrepresenta- for their becoming from known. into the concealing toll the stat- acts were woven fabric wrong, sufficient to

concealing Unisys’s wrongdoing con- initial should be of regard to “additional” without ute the res- I concur with telling Accordingly, retirees that no moment. as duct—such apply rights majority’s holding in the SPD did that ervation majority properly finds a triable issue have established at least to them-which of con- create a triable issue to case of “fraud or sufficient to whether is a concealment”, cealment.16 so the statute of limita- that run begin to discov- tions majority gives weight to Uni- great ery of the breach. Summary Plan De- distribution of sys’s a rights scription with reservation implication that there can be Any

clause. concealment an accurate SPD is

no where with our cases is inconsistent

provided be misled holding participants can America, UNITED STATES SPD, that a fidu- despite an accurate and v. ciary prey upon not be permitted should confusion.17 participants’ foreseeable KADONSKY, Appellant. Steven J. Moreover, it is with the ma- inconsistent No. 00-5120. that, recognition own of evidence jority’s SPD”, Appeals, em- “despite existence United States Court had “the belief that then- ployees mistaken Third Circuit. for life.” guaranteed health benefits were Argued 2000. Oct.

Supra at 509.18 Filed March sum, systematic In this case involves by Unisys foreseeably conduct led and beneficiaries to believe

participants they did not a claim.19 That the [through agree majority’s an not foreclose the SPD] 16. I with the conclusion that ... does possibility plan administrator company's advice that the reservation of “pertained employees nonetheless rights to active clause candidly, quoting communicate if the administra- supra retirees” at and not to *34, simultaneously subsequently makes tor ma- Unisys Corp., at re 1994 WL 284079 misrepresentations to those [to] terial whom step to conceal the amounts to affirmative issue, prudence loyalty dut[ies] the owed.”). are clause thus to effect of the at con- Adams, potential injury. ceal the retirees' Cf. (finding likely participants F.3d at 492 notwithstanding explicit on merits succeed majority 18. The that the SPD is but holds participants reservation of where con- that must be "one of the circumstances con- that, employer’s based commu- tended on the question on the breach. sidered” nications, they "reasonably believed Supra hold true at 509. The same must apply employees' did not active booklets question the role SPD on the con- them”). cealment. See, Adams, ("[A] e.g., 204 F.3d at 492-93 majority 19. As the in Part III of its concludes company liability cannot from insulate itself opinion, "there from was evidence including unequivocal statements'retaining trier of fact should conclude right to terminate the time in have foreseen that its conduct ... would SPDs.[Cjonflicting assertions cannot rely employees reasonable to their cause detriment, ignored in the despite because are not formal of the SPD.” the existence document.”); Harte, token, ERISA 214 F.3d at 451 Supra By at 508. the same factfinder ("[T]he fiduciary duty disclose Unisys's n. could conclude that conduct would explain solely [they] is not technical achieved those "to believe that cause compliance require- statutory with the notice have a did not claim for relief”—which (“[Sjatis- ments.”); Unisys 57 F.3d at 1264 essential characteristic concealment. Barker, obligations faction ... disclosure

Case Details

Case Name: In Re Unisys Corp. Retiree Medical Benefit "Erisa" Litigation

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 9, 2001

Citation: 242 F.3d 497

Docket Number: 99-1929

Court Abbreviation: 3rd Cir.