*1 the APA limits Rule. Because the EDS to the admin- rulemaking
judicial review permit and does not dis-
istrative record us, the circumstances before
covery under first, second, and fourth will answer the
we District Court in posed
questions negative respect and conclude with re- question the District Court’s
the third rec- is limited to the administrative
view addition, that the normal
ord. we hold judicial apply for deference NVE’s
rules Having the APA. reviewed
challenge us, we now remand
the orders certified District for further
the case to the Court
proceedings. RANKE, Diamantopoulos, Paul
Richard Miles, Roy Fantoli, Donald
Susan
Saunders, Kringle, Marie Robert San
toro, Lee, Judy Wright, Anita Janice Cozentino,
Valle, Philip Appel
lants
v. INC., Sanofi-
SANOFI-SYNTHELABO
Synthelabo Group Plan, Pension East Company, Re
man Kodak and Kodak
tirement Income Plan.
No. 04-4514. Appeals,
United States Court of
Third Circuit. 27, 2005.
Argued Sept.
Jan.
Jeffrey Hoyle, (Argued), P. Law Offices Media, PA, Stephen C. Jeffrey Hoyle, P. Sennett, Kunkle, (Argued), Kunkle & West Chester, PA, Appellants. *2 Khuong background factual of this case from the (Argued), G.
Karen M. Wahle LLP, accept allegations all con complaint and Phan, O’Melveny Myers Washing- & ALA, Inc. v. tained therein as true. DC, ton, Appellees for Eastman Kodak CCAIR, Inc., 855, Cir. Kodak Retirement Income Company and 1994). Plan. Appellants employees are all former of (Argued), Rosenblatt Sharri
Richard G. Division Kodak’s Eastman Pharmaceutical Horowitz, Morgan, Lewis & Bockius H. participants and were the Kodak Retire- PA, LLP, Appellees for Philadelphia, Sa- (“KRIP”). 1988, Plan In ment Income Sanofi-Synthela- nofi-Synthelabo Inc. and began process merging Kodak of its Group Pension Plan. bo Pharmaceutical Division with Eastman ALITO, AMBRO, Sterling Winthrop, (“Sterling”), Before Inc. LOURIE,* wholly-owned subsidiary Kodak. Ac- Judges. of Circuit cording complaint, human resources
AMBRO, Judge, Dissenting. Circuit Sterling at both Kodak and told personnel they pension would receive appellants THE OPINION OF COURT under both benefits the Kodak and Ster- ling pension plans accept decided to LOURIE, Judge. Circuit of employment Sterling. transfer Ko- similarly Ranke and other situ- Richard allegedly appellants dak also informed ated in this case are former individuals it final average would use their salaries employees Company of Eastman Kodak Sterling to calculate the ben- (“Kodak”), employ- or former and current addition, appellants alleged- efits. (“Sanofi”). Sanofi-Synthelabo of Inc. ees ly years total told that their of service with of They appeal from the decision the Unit- Sterling Kodak and with would be used to for the Eastern ed States District Court early eligibili- determine their retirement Pennsylvania dismissing District of ty. Relying representations, ap- on these fiduciary duty un- for breach pellants say they accepted employ- Employee der the Retirement Income Se- Sterling ment with instead of at remaining (“ERISA”). curity Act of 1974 Ranke v. Kodak. Inc., 04-1618, Sanofi-Synthelabo, No. acquired “por- certain 2004) (“Deci- (E.D.Pa. WL Nov. tions” Sterling through pur- an asset sion"). Because their breach agreement. Appellants chase were select- duty claim was time-barred under ERISA employees ed to become Sanofi. As 29 U.S.C. the District Court change hu- employment again, incentive dismissed the for failure to state man personnel alleged- resources at Sanofi a claim under Federal Rule of Civil Proce- ly advised that their retirement 12(b)(6) (“Rule 12(b)(6)”). dure affirm. We remain benefits would undiminished for a period years changing employ- two after I. BACKGROUND ment. Sanofi is also said to have informed granted Because the ap- during District Court period, pur- pellees benefits, Kodak’s and motions to poses calculating Sanofi’s 12(b)(6), dismiss under Rule we take the continue to accrue of service based * Lourie, designation. Honorable Alan D. United States Cir- Circuit, Judge sitting cuit for the Federal original Kodak start Re- only dates. culated based on their of ser- Sanofi, Sterling vice at lying representations, appellants on these but would not they accepted employment include their time at say According Kodak. appellants, calculations, under the current participants Sanofi and thus became *3 pension value of their Sanofi-Winthrop Retirement Income Plan benefits are (“SWRIP”). expected lower than will lose early certain opportunities. retirement
In complaint, appellants their identified Based on allegations, these appellants three communications from Kodak and Sa- filed their complaint April in 2004. In regarding pension plans nofi their 2004, July Kodak and Sanofi filed their after place change took their 1994 of em- respective motions to dismiss under Rule First, in- ployment. purportedly Sanofi 12(b)(6). 3, 2004, On November the Dis- in appellants formed 1996 that the SWRIP granted trict Court the motions to dismiss being merged pension plans with the entirety. their appeal This ensued. companies of other Sanofi to become the Plan, Group Sanofi Pension which ulti- granting dismiss, In the motions to mately Sanofi-Synthelabo became the initially District Court noted that appel- (“SSGP”), Plan Group Secondly, Pension lants failed to state a claim for breach of appellants allege sometime between fiduciary duty respect to the Sanofi 2000, 1995 and Kodak informed them that pension plans. and Kodak According to prohibited ap- the IRS “same desk rule” Court, a pension plan cannot be liable pellants combining their 409(a), Kodak § as a under ERISA pension plans. Lastly, Sanofi 1109(a), sometime U.S.C. since it not an individ- 2000, allegedly between 1998 and ual, Sanofi corporation, or other association. De- appellants told certain cision, 5, slip op. at discussions WL 2473282. ongoing, were but that could expect That issue has not appealed been here. KRIP pension to have their and SWRIP As for Kodak and corpo- plans single pension plan combined into a capacities, rate the District Court held that part of Sanofi. the latter of Until claims, appellants’ pled, were time- appellants received their retirement barred under ERISA 29 U.S.C. Kodak, election forms from there were no § Specifically, the Court relied on allegations other appel- of contact between 413(1)(A), required appellants to appellees regarding pension lants and years have commenced suit within six plans. “the date the last action which constitut- Lump Sum/Annuity part Kodak Election ed a of the breach or violation.” Ac- Court, form that was appellants cording complaint distributed to the appellants’ appellants’ allegations contained estimates of contained no breach fidu- pension calculating ciary duty benefits. the bene- or detrimental reliance on a fits, only Kodak appellants’ fiduciary duty occurring considered to- breach of after company! April years prior tal of service with that six to the com- Moreover, Id., Kodak’s in- plaint’s filing slip op. calculation did not date. at appellants’ pending average only clude or final WL 2473282. The acts relevant to Sanofi, fiduciary duty salaries at but instead was based the Court only on their final at Sterling identify salaries could from the thereafter, upon questioning 1994. Soon appellees’ purported misrepresentations Sanofi, appellants also discovered that regarding pension appel- benefits and jobs. changing their Sanofi benefits would be cal- lants’ act of reliance KRIP and however, combination of the SSGP events, no la- sible occurred All these however, actions, of these pensions. Id. None April 1998. ter than view, “fraud or constituted the Court’s complaint was not that the concluding concealment.” rejected filed, the District Court timely contention alternative, had appellants even In the “important made alleged that bring facts to their claim alleged sufficient life choices” detri- general financial limitations, statute within misrepresen- appellees’ mental reliance it would still ruled that the District Court tations, that that detrimental because dismiss com- six within occurred “appropriate equitable did not seek *4 Moreover, the Court filing date. plaint’s ERISA authorized relief’ allegation found the detrimental 1132(a)(3)(B).1 502(a)(3)(B), § § 29 U.S.C. insuffi- unspecified,” and “vague and be Id., 13, 2004 2473282. Cit- slip op. at WL motion to dismiss. a cient to withstand Annuity v. ing & Ins. Co. Great-West Life 9, Id., op. at 2004 2473282. slip WL Knudson, 204, 708, 122 151 534 U.S. S.Ct. assertion rejected appellants’ also Court (2002), the Court determined L.Ed.2d 635 continuing had a and Sanofi that Kodak legal, equitable, not appellants sought accurate information re- duty to furnish Id., 16, op. at 2004 WL slip relief. and that breached garding plans, according to the Specifically, 2473282. According to April 1998. duty after Court, request for reinstate- Court, [continuing] duty has nev- “this using formulas ment of benefits calculated the ERISA used ... to extend er been “prior employment,” to transfer alleging limitations in cases af- statute of equitable “make- while couched as Id., slip misrepresentations.” firmative remedy, closer in nature to a whole” was (citations 10, omit- WL 2473282 op. at 2004 legal remedy authorized ted). 502(a)(3)(B). Moreover, § Id. the Court Court further concluded The District in this remedy requested noted that exception concealment” that the “fraud or ultimately appellees to require case would 413, ap- §of would have extended money upon appellants’ out pay a sum of filing for be- pellants’ time retirement, confirming further that it was 1998, inapplicable. For yond April not an allowable form of relief as outlined exception to the “fraud or concealment” Id. Great-West. required allega- applied, have the Court and Sanofi each took tions that Kodak II. DISCUSSION steps beyond the breach itself “affirmative of a dismissal under Rule Our review Id., fiduciary duty.” to hide its breach 12(b)(6) plenary. Lapina, Leveto v. It slip op. at 2473282. noted WL Cir.2001) (citations omit- alleged misrepresenta- than the other ted). reviewing the of a claim dismissal 1994, appellants identi- tions in 1988 and 12(b)(6), “accept we must under Rule only fied other communications with three as true and allegations of appellees: change the name of Sanofi’s light inferences draw all reasonable representations re- plan, Kodak’s rule,” Id. Dis- plaintiffs.” most favorable to the desk garding the IRS “same proper “only it is clear that no regarding pos- missal is representations Sanofi’s legal relief under ERISA proceedings, claims the district court 1132(a)(1). withdrew, 502(a)(1), § § prejudice, 29 U.S.C. voluntarily with any granted could be under set of breach could have occurred that relief could proved complaint. consistent with serve as a basis for the facts that could be allegations.” 1. “Date Last Action” A. Statute Limitations appeal, appellants On contend that statute of limitations had not
ERISA
29 U.S.C.
sets
expired
they brought
suit because
provisions limiting
forth
the time when an
413(1)(A),
“the date of the last
beneficiary can commence a
action which
a part
constituted
fiduciary.
claim
a
against
breach of
or
violation” should have been the
provides
It
as follows:
last date that
acted in detrimental
action
commenced under this
No
be
alleged
reliance on Kodak’s and Sanofi’s
fiduciary’s
a
subchapter
respect
misrepresentations,
opposed
to the
any responsibility, duty,
breach of
or
dates when Kodak and Sanofi made their
obligation
part,
under this
or with re-
alleged misrepresentations.2 Citing our
spect
part,
to violation
after the
Unisys Corp.
decision
In re
Retiree
earlier of—
Medical
Litigation,
“ERISA”
Benefit
*5
(1)
(A)
years after
the date of the
six
(3d Cir.2001)
505-506
(“Unisys
part
last action
of
which constituted
III”), appellants argue that “the date of
(B)
violation,
the breach or
or
in the
the last action” can be the last date that a
of an
case
omission the latest date on
beneficiary makes “important financial and
fiduciary
which the
could have cured the
general
life choices in
violation,
breach or
or
representations”
fiduciary.
of
In doing
(2)
years
three
after the earliest
date
so, appellants assign error to the District
plaintiff
knowledge
had actual
Court’s determination that “the date of the
violation;
of the breach or
last action”
was
date
Kodak and
in
except that
the case of fraud or con-
fiduciary
Sanofi breached their
duties
cealment,
such action
be com- allegedly making misrepresentations
re
years
menced not later than six
after the
in
garding
benefits
1988 and
discovery
date of
or
such breach
viola- 1994, respectively. Appellants also assert
tion.
dismissal
under Rule
(2000).
12(b)(6)
§
premature
discovery
U.S.C.
“This section
was
since
general
year
necessary
thus creates a
six
in
to
statute
order
determine the
limitations,
years
shortened to
in particular
appel
three
circumstances of each
plaintiff
According
cases where the
has actual knowl-
lant’s
detrimental reliance.
breach,
edge
potentially
of the
actual
appellants,
extend-
did not have
ed to
from
of discovery knowledge
fiduciary’s misrepresen
six
the date
of the
tation,
involving
cases
fraud or concealment.”
reli
but
acted
detrimental
Co.,
v.
misrepresentation
Kurz
Phila. Elec.
ance on a
within six
(3d Cir.1996).
date,
complaint’s filing
Since the
of the
in April
this case was filed
under the
was not barred
the statute of
limitations,
view,
general
it
statute
limitations.
does
April
1998 is the last date on which a not matter when the
made the
413(1)(B)
413(1)(A).
party argues
2. Since neither
our discussion to
applicable
appeal,
to this
we have limited
unspecified”
and “insufficient
leading
“vague
to the breach of
misrepresentation
a motion to dismiss.”
to withstand
duty.
Unisys
III
guides
the outcome
disagree
appel-
with
Kodak and Sanofi
Unisys
were retir-
case.
date of detri-
that the last
lants’ assertion
employees
ees and disabled former
who
“the date of the last
reliance was
mental
complaints against
Corpora-
filed
Instead, they argue
in this case.
action”
fiduciary duty
tion for breach of
Kodak and Sanofi
the last date when
Unisys’s
dispute
ERISA. The
arose
misrepresentations
purported
made
preexisting
all of its
decision
terminate
duty was “the date
to the breach of
leading
plans
replace
them
medical benefit
to the com-
Pointing
action.”
of the last
a new one. Id. at 499. Under most
that all
Kodak and Sanofi contend
plaint,
plans, Unisys paid
old
the entire
of the
misrepresentations
appellants’ alleged
premium during
medical
the lifetimes of
1994, thereby making
occurred
1988 and
provided continuing
the retirees and
bene-
by the statute of limita-
the claims barred
Id. The new
plan,
spouses.
fits for their
Moreover,
that al-
appellees argue
tions.
however, required the retirees to contrib-
lowing the last date of detrimental reliance
increasing
ute
amounts to the cost
“the date of the last action” would
be
until,
premiums
eventually,
the retirees
statutory
§of
contravene the
scheme
responsible
premium.
for the entire
is a statute
According
appellees,
allowing the last date of
repose,
starting
reliance to be the
date
detrimental
According
to the retirees
running
for the
of the statute of limitations
“the date of the last action” occurred
allow a
potentially
November
announced
*6
indefinitely, as reliance
extend the statute
the termination of the “lifetime” medical
continuously
can be said to occur
into the
plans
plaintiff
benefit
and after the
retir-
Id. at 505.
future.
They argued
ees had retired.
that until the termination of the “lifetime”
dispute appel-
Kodak and Sanofi also
occurred,
harm,
plan
no actual
there was
III
Unisys
interpretation
per-
lants’
of
as
a claim
and thus
for breach of
mitting the last date of detrimental reli-
premature.
would have been
ance to be “the date of the last action.”
disagreed and
that
This Court
determined
III
They argue
supports
“any
may
breach that
have occurred was
they
position
alleg-
that the dates on which
completed, and a claim based thereon ac-
misrepresentations leading
edly made the
crued,
upon
no later than the date
of
“the
of
date[s]
to the breach
were
employee
the
relied to his detriment on
action,”
that,
the
those dates can-
last
Id. at 505-06.
misrepresentations.”
the
later than the dates that
logically be
rejected
Consequently,
Unisys’s
the Court
appellants
alleged misrepre-
relied on the
1992 announcement
“the date of
as
the
change employment in
sentation to
last action.” The Court refrained from
Appellees further submit that
and 1994.
choosing
misrep-
between the date of the
even the last date
detrimental
resentation and the date of the detrimen-
can
date
be considered to be “the
action,”
tal reliance as “the date of the last
action,”
last
properly
the District Court
agreed by
parties
both were
because
rejected
conclusory allegation
to be the same.
Id. at 505-06.
they
“made
financial and
important
case,
general
Similarly,
accepting
life choices in reliance
all of
true,
representations
complaint’s allegations
as
Kodak
[Kodak
Sanofi]”
2. “Fraud or
fiduciary-
Concealment”
initiated the breach of
Sanofi
duty by purportedly misrepresenting the
alternative,
assert
attempt
in an
pension plan benefits
that the “fraud or
exception
concealment”
change employment
persuade appellants
case,
applicable
ERISA 413 is
to this
1994, respectively,
appel-
in 1988 and
six-year
and that the
statute of limitations
lants relied on those activities at those
begin
did not
to run until
after
Therefore,
times.
“the date of the last
received a statement of their estimated
action”
for Kodak and in 1994
Appellants
retirement benefits
Appellants’
Sanofi.
contains
argue that
“discovery
the common law
allegation misrepresentations
no other
rule,”
implicit
the “fraud or conceal
occurring
April
after
1998 that are inde-
exception,
applicable
ment”
when an
pendent of and not mere continuations of
does not know that his
misrepresentations
the initial
led to or her retirement
misrepre
benefits were
changes
employment.
sented, but
does.
In such a
situation, according
appellants,
Appellants rely
exceptional
on an
cir-
exception
“fraud or concealment”
tolls the
III
argue
cumstance noted
general six-year statute of limitations until
last
date
detrimental reliance
the fiduciary
misrepresenta
corrects its
can be “the date of the last action.”
minimum, appellants
tions. At a
maintain
recognized
the Court
that their
should not have been
plaintiffs
more than
who retired
six
given
op
dismissed before
complaints
before their
were filed
still
portunity
investigate
“the conduct [of
if they
have viable claims
relied to their
fiduciary]
surrounding
both
the breach
making
detriment
non-retirement-relat-
Thus,
and its concealment.”
if appellants
ed decisions within the
statute of
can
discover acts of concealment
either
Id. at 506-07. The favorable
limitations.
Kodak or
within the
relevant time
presumption
for those
opposing
frame, ie.,
April
after
can in
summary judgment motion was
be-
exception
voke the “fraud or concealment”
running
fore the
of the statute of limita-
and defeat the statute of
de
limitations
tions, Unisys may
engaged
have
addi-
*7
fense.
separate
tional acts of breach that were
original
prompting
Appellees
from the
breaches
or
counter
the “fraud
plaintiffs.
plain-
exception
inapplicable
retirement of other
The
concealment”
presump-
tiffs who received this favorable
since the
not
allege
does
detrimentally
tion had
appellees
any
steps
not
relied when
took
affirmative
post-retirement
alleged misrepresentations.
retired. Their
reli-
conceal
Kurz,
reliances,
apparently
Citing
ances were
their first
our decisions in
96 F.3d at
(as
Unisys
parties stipulated)
the reli-
and
242 F.3d at
simultaneously
appellees
ances occurred
with the
assert that an ERISA beneficia-
However,
misrepresentations.
ry
plead
that “the
took
must
detrimentally
steps
fiduciary duty.”
this case
relied on the
to hide its breach of
Moreover,
alleged misrepresentations
they argue,
the fact
that a
self-concealing
readily ap-
at which time their claims accrued.
breach is
or not
III
plaintiffs may
not hold that
of limi-
parent
did
does not extend the statute
“reset the clock”
later detrimental reli-
tations under the “fraud or concealment”
exception. occurring
ances
after their claims first ac-
ry’s
knowledge
fiduciary’s
lack of
of a
Equitable
Relief
Starting
running
of the stat-
breach.
dismissing
As an additional basis for
discovery
ute of limitations on the date of
complaint,
ap-
the District Court held that
breach,
“fraud or conceal-
of the
absent
pellants
plead
falling
did not
relief
within
ment,”
prevent
scope
“appropriate equitable
relief’
being
recognize
a firm cutoff date
able
502(a)(3)(B),
authorized
claims,
for future breach of
which is
1132(a)(3)(B).
U.S.C.
As
must
repose.
inconsistent with a statute of
complaint, appellants
order to
sustain
Thus,
reject appellants’ argument.
we
challenge
holding.
no
There is
need
fiduciary’s
a
Since we do not consider
de-
for us to address the correctness of that
notify
cision not to
of a
however,
holding,
as we have affirmed the
prior misrepresentation
separate breach
decision
was barred
“fraud or con-
falling
within the
under the statute of limitations.
cannot in-
exception, appellants
cealment”
discovery provision
excep-
voke the
Complaint
B. Motion to Amend the
tion.
Appellants also contend that the District
Lastly,
respond
appellants’
we
granting
in not
Court abused its discretion
strained characterization of
deci-
several
complaint. According
amend the
leave to
Court, including Unisys
sions from this
appellants,
responses
Kodak’s
Corp.,
Harte v. Bethlehem Steel
dismiss, they
re-
(3d
and Sanofi’s motions
Cir.2000),
F.3d 446
and Bixler v. Cen-
quested
leave to file an amended
Pennsylvania
tral
Teamsters Health &
Cir.1993).
Fund,
original
the court determined
207 this, follows, tively. by reasoning, This six after the 2000 or 2002 dates on purportedly because Kodak and Sanofi which Kodak and finally disclosed misrepresentations made on those plaintiffs’ dates the details of retirement bene- plaintiffs misrepresen- relied on those fits. tations at those times. duty This to supported disclose is by
But we know that the
III,
did
several of our
In Unisys
cases.
we
find out the truth behind
purported
recognized
those
a “fiduciary’s duty to
fairly
deal
misrepresentations until
and,
sometime around with its beneficiary
specifically,
more
2000 or 2002.
holding
What our
‘to communicate to the beneficiary materi-
case therefore does is allow a “safe har-
affecting
al facts
the interest of the benefi-
fiduciary
bor” for breaches of
ciary
beneficiary
he knows the
does
III,
Unisys
duties. See
214 F.3d (discussing administrator ... provide fails to informa enacted). the reasons that ERISA was tion when it knows that its failure to do so Quite the opposite. harm, might cause has [it] breached its
Taking a Judge fiduciary cue from Mansmann’s duty plan partici individual in Unisys concurrence III and our deci- pants and beneficiaries.” In re Unisys II, Harte, sions in Corp. Retiree Med. “ERISA” Li Benefit Bixler, Glaziers, II), I believe that Kodak tig. (Unisys 57 F.3d Cir.1995). Likewise, duty by failing Sanofi breached their in Glaziers we held plaintiffs’ to disclose the fiduciary details retire- that “a a legal has to dis benefits, ment thereby leaving them un- beneficiary close to the ... those material facts, informed as to how Kodak and Sanofi in- known to the but unknown representations tended its pertaining beneficiary, to to the beneficiary which the those continuing benefits. “Because this protection.” must know for own Gla its involved omission rather than an ziers & Glassworkers Local No. 252 Union act, Sec., Inc., period Annuity limitations Newbridge would Fund v. (3d Cir.1996). not commence until ‘the latest date on F.3d further We which the could “scope have cured the held that the of that to dis ” breach or violation.’ governed close is ERISA’s Section (Mansmann, J, 404(a), at 512 concurring part, and is defined what a reasonable ‘care, concurring part) fiduciary, skill, the result (quoting exercising prudence 1113(1)(B)). Thus, 29 U.S.C. diligence,’ the statute to be in the believe of limitations would not expired have until best interest of dis-
208 Bixler, permitted the be we held “should Id.
close.” to their detriment prove a thread the relied is constant “duty to inform continuing and non beneficiary and trus- on [Kodak’s Sanofi’s] relationship between by ... from duty refraining bringing not only negative a disclosure tee; it entails suit the misinform, duty present until after omitted also an affirmative but supplied.” Judge was Id. knows that information trustee to inform Bixler, “[r]ecogni say 12 on to F.3d Mansmann went might be harmful.” silence duty prior to correct 1300; ongoing Assurance tion of Buccino v. Cont’l at cf. (S.D.N.Y.1983) the statute of Co., misstatements entails that F.Supp. (“[A]s a were limitations does not run while misstate Fund fiduciaries [defendants] remains uncorrected.” Id.4 There continuing to advise the ment obligation a fore, recognized, majority’s she impru- or as itself of unlawful Fund divest that the runs from the date holding failure to do so statute investments. Their dent misrepresentation to a new of action each gave rise cause fiduciary to absolving If “amounts from injured.... the Fund was defen- time failed, any ongoing inform to correct the misstate years, for ten dants ment[, contrary is to our plan which] that its insurance was unlawful therefore Fund ” in Bixler Id. they continuously decisions and Harte. improper, otherwise or repeatedly violated their than years precedent more ten With viola- Only under ERISA. those duties pointing independent to an our Circuit than six tions that occurred more pension inform duty to beneficiaries of action filed are time before this was rights, were Kodak and Sanofi barred.”). they played notice that Three-Card Monte case, As in the III Kodak and To peril plaintiffs. at their with reward failed to for several disclose make their nondisclosure is to re- plaintiffs’ state of for true affairs chimerical com- promises little more than context, Kodak tirement benefits. In this dutyA mitments. to inform further in- ongoing “had an and Sanofi goals protect ERISA benefi- ERISA’s participants form the of the true state out of being ciaries cheated at 513 affairs.” rightful fiduciary’s claims a (Mansmann, J, concurring in concur- part, I of silence. dissent. respectfully wall For as as ring part). long the result “had reason
Kodak and Sanofi could have the [plaintiffs]
to believe remained that [their
unaware of material fact benefits not in fact as
retirement told], it a
generous had been as (i.e.,
violation of trust a breach of fiducia-
ry every day duty) Sanofi] [Kodak (emphasis
not to inform them.”
original). agree deception Judge I also Mansmann that the to continue unabated.” allows objection repose (Mansmann, is statute of F.3d at 513 n. 9 met who has J, the notion that "a concurring part, concurring in the result refuge misled never seek his part). long behind statute of as he limitations