311 F.3d 581 | 3rd Cir. | 2002
Before: BARRY, AMBRO and GARTH, Circuit Judges (cid:13) (Opinion Filed: November 27, 2002)(cid:13) E. Parry Warner (argued)(cid:13) William J. Leonard(cid:13) Obermayer Rebmann Maxwell &(cid:13) Hippell LLP(cid:13) One Pennsylvania Center, 19th Floor(cid:13) Philadelphia, PA 19103-1895(cid:13) Attorneys for Appellants(cid:13) E. Thomas Henefer (argued)(cid:13) Stevens & Lee(cid:13) 111 North Sixth Street(cid:13) P.O. Box 679(cid:13) Reading, Pennsylvania 19603(cid:13) Attorney for Appellees(cid:13) OPINION OF THE COURT(cid:13) Garth, Circuit Judge:(cid:13) This appeal brings before us a claim by the plaintiff,(cid:13) Roush,1 that the fiduciary of his funds, the defendant, New(cid:13) England,2 failed to deposit and invest the funds as(cid:13) instructed and by that failure, among others, breached his(cid:13) trust under the Employee Retirement Income Security Act(cid:13) of 1974 ("ERISA"), 29 U.S.C. S 1001-1461.(cid:13) The District Court barred Roush’s action pursuant to the(cid:13) three year statute of limitations period provided in 29(cid:13) U.S.C. S 1113(2)3 and by so doing ruled against Roush in(cid:13) each of the breach of fiduciary duty claims alleged in Count(cid:13) I. The District Court ruled against Roush as well with(cid:13) respect to Count II (prohibited transactions). The District(cid:13) Court held that Roush had been obliged to file his action(cid:13) against New England by December of 1998,4 holding that(cid:13) Roush’s cause of action commenced in December 1995.(cid:13) _________________________________________________________________(cid:13) 1. The plaintiffs are Richard B. Roush Profit Sharing Plan, an ERISA-(cid:13) regulated profit sharing plan, currently having participants that were(cid:13) employed by Roush Insurance Group, Inc., and the two plan trustees,(cid:13) Richard B. and Richard K. Roush (collectively "Roush").(cid:13) 2. The defendants are The New England Mutual Life Insurance Company(cid:13) and its successor, New England Financial (collectively "New England").(cid:13) 3. In relevant part, 29 U.S.C. S 1113(2) provides:(cid:13) No action may be commenced under this subchapter with respect(cid:13) to a fiduciary’s breach of any responsibility, duty, or obligation(cid:13) under this part, or with respect to a violation of this part, after the(cid:13) earlier of--(cid:13) . . . . three years after the earliest date on which the plaintiff had(cid:13) actual knowledge of the breach or violation . . . .(cid:13) 4. The District Court never explicitly stated the exact date on which(cid:13) Roush’s cause of action accrued; instead, it adverted to the fact that(cid:13) 2(cid:13) Although our decisions in Kurz v. Philadelphia Elec. Co.,(cid:13) 96 F.3d 1544 (3d Cir. 1996), and its predecessors Gluck v.(cid:13) Unisys Corp., 960 F.2d 1168 (3d Cir. 1992), and Int’l Union(cid:13) of Elect., Elect., Salaried, Mach. and Furniture Workers, AFL-(cid:13) CIO v. Murata Erie N. Am., Inc., 980 F.2d 889 (3d Cir.(cid:13) 1992), were addressed by the District Court, the two-prong(cid:13) standard prescribed for the analysis of the ERISA statute of(cid:13) limitations bar was not employed in accordance with these(cid:13) precedents. Subsequent to the District Court’s summary(cid:13) judgment ruling in favor of New England, Montrose Med.(cid:13) Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773 (3d Cir.(cid:13) 2001), was filed, clarifying the two-prong standard we(cid:13) discuss infra.(cid:13) We hold that the District Court erred in barring Roush’s(cid:13) claim against New England for breach of fiduciary duties(cid:13) (the delay in investment of his funds and the delay in(cid:13) accurate accountings) and we will remand to the District(cid:13) Court for further proceedings now that we have held that(cid:13) the statute of limitations is no bar to Roush’s action.(cid:13) I(cid:13) The District Court had jurisdiction pursuant to 28 U.S.C.(cid:13) S 1331 and 29 U.S.C. S 1132(e)(1). We have jurisdiction(cid:13) under 28 U.S.C. S 1291. Our review of a district court’s(cid:13) decision on summary judgment is plenary. Fogleman v.(cid:13) Mercy Hosp., Inc., 283 F.3d 561, 566 n.3 (3d Cir. 2002). On(cid:13) review, we are required to apply the same test the District(cid:13) Court should have utilized initially. J.F. Feeser, Inc. v. Serv-(cid:13) A-Portion, Inc., 909 F.2d 1542, 1530-31 (3d Cir. 1990).(cid:13) II(cid:13) For our purposes here, we have detailed only those facts(cid:13) that bear on our current disposition.(cid:13) _________________________________________________________________(cid:13) Roush received notice of the investment delay in the"fall of 1995" and(cid:13) then referred to the New England December 1995 letter, which confirmed(cid:13) that a delay in investments had occurred, as providing the(cid:13) commencement date of Roush’s cause of action. Richard B. Roush, Inc.(cid:13) v. The New England Mut. Life Ins. Co., 166 F. Supp. 2d 187, 200 (M.D.(cid:13) Pa. 2001).(cid:13) 3(cid:13) A. The Plan(cid:13) On December 6, 1994, Roush executed the New England(cid:13) Age Based Contribution Plus Profit Sharing Plan Adoption(cid:13) Agreement, which was designed by New England and(cid:13) constituted an amendment and restatement of Roush’s(cid:13) existing Profit Sharing Plan. Roush then adopted The New(cid:13) England Age Based Contribution Plus Profit Sharing Plan(cid:13) (the "Plan"). New England issued a Group Annuity Policy(cid:13) ("Policy") on March 29, 1995, which it designed to pay the(cid:13) benefits under the Plan. The Policy provided that New(cid:13) England would maintain a General Account and various(cid:13) Separate Accounts in which it would invest funds received(cid:13) from Roush, according to Roush’s employees’ designations.(cid:13) Funds in the General Account earned a fixed rate of(cid:13) interest determined by New England. The General Account(cid:13) funds were unaffected by market movements, whereas(cid:13) funds deposited in the Separate Accounts received earnings(cid:13) based on market movements and thus had the potential for(cid:13) much higher returns to Plan participants. On May 24,(cid:13) 1995, Roush transferred Plan assets in the amount of(cid:13) $961,394.89 to New England for allocation into these(cid:13) Separate Accounts.(cid:13) B. The Investment Delay(cid:13) During the period of May 24 to September 30, 1995,(cid:13) Roush made numerous requests to New England for a(cid:13) complete accounting of the funds transferred to New(cid:13) England and the return on those funds. In September 1995(cid:13) and later in November 1995, New England provided(cid:13) accountings to Roush but did not furnish information as to(cid:13) the specific principal amounts transferred into each fund,(cid:13) nor the return on such funds for each participant. Roush(cid:13) informed New England, several times, that the account(cid:13) allocation and balances were incorrect and demanded that(cid:13) adjustments be made, and that correct accountings be(cid:13) provided.(cid:13) C. New England’s December 12, 1995 letter(cid:13) On December 12, 1995, Stephen Chiumenti, an attorney(cid:13) employed by New England, wrote a letter to Roush(cid:13) 4(cid:13) admitting New England’s failure to invest properly Roush’s(cid:13) funds. Among other matters, Chiumenti represented that:(cid:13) . . . we want to confirm that the instructions that we(cid:13) received dated May 22, 1995 continue to be valid(cid:13) directions. If so, we will implement them immediately(cid:13) without prejudice to your rights regarding the(cid:13) intervening delay.(cid:13) Subsequently, most of the Plan funds in the General(cid:13) Account were transferred to the Separate Accounts on(cid:13) December 14, 1995, except for approximately $25,000(cid:13) which, contrary to Roush’s instructions, apparently(cid:13) remained in New England’s General Account. In a July 17,(cid:13) 1996 letter to Roush, Chiumenti wrote that New England(cid:13) wished to put Roush in the "same place" he would have(cid:13) been put, as "[i]t is our intention, as expressed in my prior(cid:13) letter and every communication we have had, to adjust(cid:13) your plan accounts to reflect the instructions as you believe(cid:13) they should have been implemented."(cid:13) D. Settlement Discussions(cid:13) On July 13, 1996, Roush demanded by letter to(cid:13) Chiumenti that funds be increased to account for the loss(cid:13) of interest from the investment delay, that an accurate and(cid:13) complete accounting be provided, and that all funds be(cid:13) transferred out of New England without a surrender charge.5(cid:13) In an August 2, 1996 letter, however, Chiumenti stated that(cid:13) New England would not waive the surrender charge nor(cid:13) make any adjustment for the lost interest should Roush(cid:13) decide to transfer the funds. He also wrote that New(cid:13) England would adjust the balance to reflect dividends from(cid:13) the investment delay, in the amount of $101,727.87, only(cid:13) if Roush executed a settlement agreement and release or(cid:13) rolled over the funds into a new policy. Based on an(cid:13) independent audit, Roush claimed that New England owed(cid:13) Roush at least $313,000.(cid:13) _________________________________________________________________(cid:13) 5. New England required a 5% surrender charge on withdrawal of funds(cid:13) during the first five years. A-126.(cid:13) 5(cid:13) III(cid:13) Roush filed a complaint against New England in the(cid:13) United States District Court for the Middle District of(cid:13) Pennsylvania on March 26, 1999. Roush alleged ERISA and(cid:13) state law claims regarding mismanagement of assets under(cid:13) an employee pension benefit plan. After New England filed(cid:13) a motion to dismiss Roush’s state law claims based on(cid:13) ERISA preemption, Roush filed an amended complaint on(cid:13) June 14, 1999. Roush asserted, in Count I, breaches of(cid:13) fiduciary duty under ERISA from the investment delay;(cid:13) failing to provide a complete accounting; failing to credit(cid:13) accounts according to Roush’s instructions; failing to(cid:13) provide administrative services and failing to return the(cid:13) Plan funds with the returns generated by the funds. The(cid:13) amended complaint also asserted, in an alternative Count(cid:13) II, various prohibited transactions under ERISA. Complaint(cid:13) PP 76-82.(cid:13) Roush moved for partial summary judgment on liability(cid:13) on June 19, 2000. New England moved for summary(cid:13) judgment on July 13, 2000. On October 16, 2001, the(cid:13) District Court denied Roush’s motion and granted New(cid:13) England’s motion. Roush filed a timely notice of appeal on(cid:13) November 14, 2001, seeking reversal of the District Court’s(cid:13) judgment.(cid:13) IV(cid:13) As we have earlier noted, this case presents the issue of(cid:13) when the three year limitations period in ERISA, 29 U.S.C.(cid:13) S 1113(2), which is triggered by the plaintiff having "actual(cid:13) knowledge" of a breach or violation under ERISA, begins.(cid:13) The applicable statute of limitations for breach of(cid:13) fiduciary duty under ERISA is found in 29 U.S.C.S 1113. It(cid:13) provides:(cid:13) No action may be commenced under this subchapter(cid:13) with respect to a fiduciary’s breach of any(cid:13) responsibility, duty, or obligation under this part, or(cid:13) with respect to a violation of this part, after the earlier(cid:13) of--(cid:13) 6(cid:13) (1) six years after (A) the date of the last action which(cid:13) constituted a part of the breach or violation, or (B) in(cid:13) the case of an omission, the latest date on which the(cid:13) fiduciary could have cured the breach or violation, or(cid:13) (2) three years after the earliest date on which the(cid:13) plaintiff had actual knowledge of the breach or(cid:13) violation; (cid:13) except that in the case of fraud or concealment, such(cid:13) action may be commenced not later than six years after(cid:13) the date of discovery of such breach or violation.(cid:13) (Emphasis supplied).(cid:13) Because the statute of limitations is an affirmative(cid:13) defense and because New England is the movant for(cid:13) summary judgment, the burden of proof that the statute of(cid:13) limitations bars Roush’s action rests on New England.(cid:13) Thus, to prevail in its summary judgment motion, New(cid:13) England had to prove that Roush had "actual knowledge of(cid:13) the breach" more than three years before his action was(cid:13) filed on March 26, 1999, which would be before March 26,(cid:13) 1996. We have interpreted "actual knowledge" in the(cid:13) context of 29 U.S.C. S 1113 as requiring not only actual(cid:13) knowledge of the facts giving rise to the fiduciary violation(cid:13) but also as requiring actual knowledge that those facts(cid:13) support a cause of action under ERISA. Montrose , 243 F.3d(cid:13) at 787.(cid:13) Gluck v. Unisys Corp., 960 F.2d 1168 (3d Cir. 1992), is(cid:13) the seminal case in the Circuit on the issue of"actual(cid:13) knowledge" under 29 U.S.C. S 1113. In Gluck, we held that(cid:13) " ‘[a]ctual knowledge of a breach or violation’ requires(cid:13) knowledge of all relevant facts at least sufficient to give the(cid:13) plaintiff knowledge that a fiduciary duty has been breached(cid:13) or ERISA provision violated." Id. at 1178. This knowledge(cid:13) could come from "necessary opinions of experts . . . [,](cid:13) knowledge of a transaction’s harmful consequences . . . [,](cid:13) or even actual harm." Id. at 1177 (internal citations(cid:13) omitted). We also emphasized that "[s]ection 1113 sets a(cid:13) high standard for barring claims against fiduciaries prior to(cid:13) the expiration of the sections’s six-year limitations period."(cid:13) Id. at 1176. (Emphasis supplied).(cid:13) 7(cid:13) In Gluck, the underlying violation concerned an(cid:13) amendment to a pension plan. This amendment(cid:13) impermissibly changed and partially terminated the plan,(cid:13) resulting in a failure of the participants’ benefits to vest(cid:13) fully. The District Court barred the participants’ claims as(cid:13) untimely as they were filed more than three years after the(cid:13) company’s alleged breach. We held that a participant’s(cid:13) knowledge of the amendment and its effect failed to provide(cid:13) "actual knowledge" of "each of the elements of a violation of(cid:13) a technical provision of ERISA," as we could not discern(cid:13) from the record what the "employees knew and when." Id.(cid:13) at 1171. We reasoned that a participant could not have(cid:13) knowledge of an ERISA violation where the amendment did(cid:13) not disclose its harmful consequences. We further reasoned(cid:13) that because the company literature distributed to(cid:13) employees described the amendment as improving benefits,(cid:13) such literature served to mask the amendment’s harmful(cid:13) consequences. Id. at 1178-9. Accordingly, we concluded(cid:13) that under the circumstances of the case, for a participant(cid:13) to realize that he had a cause of action he had to review the(cid:13) plan document and balance sheet and that this "level of(cid:13) research and scrutiny [was] inconsistent with section(cid:13) 1113’s actual knowledge standard." Id. at 1179.(cid:13) Since Gluck, there have been other cases that have(cid:13) refined the ERISA "actual knowledge" standard. In Int’l(cid:13) Union of Elect., Elect., Salaried, Mach. and Furniture(cid:13) Workers, AFL-CIO v. Murata Erie N. Am., Inc., we interpreted(cid:13) Gluck as a two-prong test requiring "a showing that(cid:13) plaintiffs actually knew not only of the events that occurred(cid:13) which constituted the breach or violation but also that(cid:13) those events supported a claim of breach of fiduciary duty(cid:13) or violation under ERISA." 980 F.2d 889, 900 (3d Cir.(cid:13) 1992).(cid:13) In Kurz v. Philadelphia Elect. Co., we employed the same(cid:13) two-prong standard where the underlying violation(cid:13) concerned a change to an employee pension plan and the(cid:13) statute of limitations barred the employees’ claims. The(cid:13) employer had made efforts to change its pension plan in(cid:13) order to provide more lucrative benefits to its employees.(cid:13) The employer announced the favorable change on July 2,(cid:13) 1987 and implemented it on August 1, 1987. Kurz , 96 F.3d(cid:13) 8(cid:13) at 1547. The employer, however, had given "serious(cid:13) consideration"6 to the beneficial change beginning on May(cid:13) 28, 1987. The plaintiffs were employees who had inquired(cid:13) as to their benefits after May 28, 1987 but retired before(cid:13) the July 2, 1987 announcement. We reasoned there that(cid:13) employees had "actual knowledge" of their breach of(cid:13) fiduciary duty claim the day the employer announced the(cid:13) pension increase because on that date all the material(cid:13) elements of a breach of fiduciary duty were "patently(cid:13) obvious." Kurz, 96 F.3d at 1551. Specifically, on the day of(cid:13) the announcement, those who had inquired about their(cid:13) benefits and had retired prior to reaping the rewards of that(cid:13) amendment knew that: (1) benefits had been increased; (2)(cid:13) they were not eligible for the new benefits package; and (3)(cid:13) their employer had failed to inform them about the change,(cid:13) even though they had asked. Thus, the employees had(cid:13) "actual knowledge" of the event (the modification of(cid:13) benefits) and the consequences that ensued.(cid:13) Of greater significance to us is our holding in the recent(cid:13) case of Montrose Med. Grp. Participating Sav. Plan v. Bulger,(cid:13) 243 F.3d 773 (3d Cir. 2001). In Montrose we stated that(cid:13) "Gluck . . . requires a showing that plaintiffs actually knew(cid:13) not only of the events that occurred which constitute the(cid:13) breach or violation but also that those events supported a(cid:13) claim of breach of fiduciary duty or violation under ERISA."(cid:13) 243 F.3d at 787. (Emphasis in original).(cid:13) In Montrose, a hospital and its retirement plan had(cid:13) brought an action against an insurance company for(cid:13) breach of fiduciary duty. The insurance company’s policies(cid:13) funded the hospital’s retirement plan. At issue was whether(cid:13) the hospital could be charged with having "actual(cid:13) knowledge" of its claim for breach of fiduciary duty under(cid:13) ERISA by November 1991. If the hospital possessed the(cid:13) "actual knowledge" required by our two-prong standard its(cid:13) claim would be barred by the three year statute of(cid:13) limitations. The insurance company charged that Montrose(cid:13) had knowledge of a number of relevant facts, all of which(cid:13) were based on the claimed fiduciary violations.(cid:13) _________________________________________________________________(cid:13) 6. See Fisher v. Philadelphia Elec. Co., 96 F.3d 1533 (3d Cir. 1996)(cid:13) ("Fisher II") (cited in Kurz, 96 F.3d at 1550).(cid:13) 9(cid:13) We concluded that the hospital could not have had(cid:13) "actual knowledge" that an ERISA claim existed since it did(cid:13) not possess "actual knowledge" that the plan in question(cid:13) was covered by ERISA. 243 F.3d at 788. Thus, with the(cid:13) two-prong standard of Montrose squarely established, we(cid:13) turn to New England’s defense that Roush’s claims are(cid:13) barred by the three year statute of limitations, 29 U.S.C.(cid:13) S 1113(2).(cid:13) V(cid:13) As we have discussed, the significant feature of the two-(cid:13) prong standard discussed in Montrose is that in order to be(cid:13) barred by the three year statute of limitations the claimant(cid:13) knows the facts on which he relies to establish a breach of(cid:13) fiduciary duty. It must also be established that the(cid:13) claimant knows that he has a cause of action under ERISA,(cid:13) which includes "actual knowledge" of harm inflicted or(cid:13) harmful consequences.(cid:13) Here, Roush knew in December 1995 that New England(cid:13) had not followed his instructions, had not furnished him(cid:13) with the necessary and complete accountings and had not(cid:13) allocated the funds to the Separate Accounts for each of the(cid:13) participants. What Roush did not know was that those(cid:13) actions by New England had harmed him or would have(cid:13) harmful consequences--an ingredient of the second prong(cid:13) of "actual knowledge." Int’l Union, 980 F.2d at 900.(cid:13) As earlier related, when Roush received Chiumenti’s(cid:13) December 12, 1995 letter, which informed him that the(cid:13) allocation to the Separate Accounts had not been made as(cid:13) his instructions required but that action would be taken to(cid:13) implement Roush’s instructions without prejudice to(cid:13) Roush’s rights regarding the intervening delay (i.e., the(cid:13) delay from May 24, 1995 to December 12, 1995), Roush(cid:13) could not have known that he and the participants had an(cid:13) ERISA cause of action at that point in time because he had(cid:13) not yet been harmed nor did he have knowledge that he(cid:13) would be harmed.(cid:13) It should be remembered that in December 1995, the(cid:13) date to which the District Court looked for the running of(cid:13) the statute of limitations, Roush had yet to receive a(cid:13) 10(cid:13) completed, accurate accounting for the funds he had(cid:13) transferred to New England. Without knowledge of how New(cid:13) England had handled, invested or allocated the(cid:13) $961,394.89 transferred to it and with assurances that all(cid:13) would be corrected and without prejudice to Roush’s rights,(cid:13) it cannot be said, let alone inferred, that Roush had "actual(cid:13) knowledge" of the harm he ultimately was to suffer. Indeed,(cid:13) as we noted earlier, an independent audit disclosed that(cid:13) Roush’s claim against New England was calculated as (cid:13) $313,000.7(cid:13) As we have stated previously, S 1113 sets a"high(cid:13) standard" for barring claims against fiduciaries prior to the(cid:13) expiration of the six year limitations period and thus we(cid:13) have interpreted the actual knowledge requirement(cid:13) "stringent[ly]". See Montrose, 243 F.3d at 787 (quoting(cid:13) Gluck, 960 F.2d at 1176). The undisputed facts establish(cid:13) that under the second prong for "actual knowledge" of an(cid:13) ERISA cause of action, which includes actual knowledge of(cid:13) harm or harmful consequences required by Montrose,(cid:13) Roush did not have the required "actual knowledge." See(cid:13) Montrose, 243 F.3d at 787-88. As we review the record it is(cid:13) clear that Roush did not have "actual knowledge" of harm(cid:13) and thus an ERISA cause of action until March 26, 1996 at(cid:13) the earliest, if then.8 If Roush could not have had "actual(cid:13) _________________________________________________________________(cid:13) 7. We are also aware of the $25,000 which still remained in New(cid:13) England’s General Account and apparently was not distributed to the(cid:13) Separate Accounts until well into 1996. It is obvious, however, in terms(cid:13) of Roush’s actual knowledge that this $25,000 retained in the General(cid:13) Account at a lower interest rate was not known to Roush by December(cid:13) 1995. Indeed, the internal memoranda of New England reveal New(cid:13) England’s very evident reluctance to inform Roush of its failure to invest(cid:13) all of the monies transferred. Specifically, in a March 5, 1996 e-mail(cid:13) from Dawn Loase to Larry Hoisington, two employees of New England,(cid:13) Loase wrote that she "would rather [Roush] wasn’t aware that these [the(cid:13) $25,000] didn’t get transferred as [Roush] wished."(cid:13) 8. In his brief, Roush maintains that he did not possess "actual(cid:13) knowledge" of his cause of action until August 5, 1996, when he received(cid:13) a letter from Chiumenti outlining settlement options. A-259-60. Under(cid:13) these options, if Roush wished to receive the interest he lost due to the(cid:13) investment delay, he would only be entitled to $101,727.87, and(cid:13) moreover, he would either be forced to maintain his accounts at New(cid:13) 11(cid:13) knowledge" until March 26, 1996, then 29 U.S.C.S 1113(2),(cid:13) the three year statute of limitations, cannot be a bar to his(cid:13) action against New England, inasmuch as Roush’s(cid:13) complaint was filed on March 26, 1999.(cid:13) Moreover, buttressing this conclusion is the promise(cid:13) made by Chiumenti in his December 12, 1995 letter that(cid:13) New England would cure the violations and deficiencies for(cid:13) which it was responsible to that point. It would be(cid:13) ludicrous to require a claimant who had been informed that(cid:13) his claims would be favorably resolved or that "the check is(cid:13) in the mail" to institute immediately a legal action seeking(cid:13) to rectify the violations of which he complained and which(cid:13) were now to be cured. Nor should he be required to start an(cid:13) action for money due when told that payment had been(cid:13) posted to him. Were we to hold that a "curing" letter should(cid:13) be disregarded and that actions must be filed regardless of(cid:13) the assurances given by the putative defendant or debtor,(cid:13) we would be encouraging needless litigation that would(cid:13) result in unwarranted penalties being visited upon those(cid:13) who voluntarily and willingly sought to resolve their(cid:13) differences with claimants.(cid:13) In this case, even if Roush could be deemed to have had(cid:13) the actual knowledge of harm (which we have held he did(cid:13) not), Chiumenti’s letter at the very least acted to lull Roush(cid:13) into inaction until such time as New England’s violations(cid:13) were cured, proper accountings were received and(cid:13) adjustments to accounts were made. See, e.g., Bechtel v.(cid:13) Robinson, 886 F.2d 644, 650 (3d Cir. 1989) (under(cid:13) _________________________________________________________________(cid:13) England or incur a 5% surrender charge, and in both cases execute a(cid:13) release. The only other option involved New England treating the(cid:13) contract as void, which would deprive Roush of the benefits of the(cid:13) investment returns. By this time, however, Roush had hired an outside(cid:13) firm to calculate his losses from the investment delay, which were(cid:13) calculated in excess of $313,000 as of June 1998.(cid:13) At oral argument, counsel for New England argued that although New(cid:13) England had always intended to resolve the investment delay by(cid:13) providing the missing interest, it was clear by the summer of 1996 that(cid:13) there would be no amicable resolution. Again, this only underscores our(cid:13) conclusion that Roush could not have known, until that time, of the(cid:13) harm that he would suffer.(cid:13) 12(cid:13) Delaware law, a plaintiff ’s reliance on a defendant’s(cid:13) conduct or statements, whether intentionally or(cid:13) unintentionally misleading, to his detriment will equitably(cid:13) estop a defendant from asserting a statute of limitations(cid:13) defense); McConnell v. Gen. Tel. Co. of Cal., 814 F.2d 1311,(cid:13) 1317 (9th Cir. 1987) (representations of possible alternative(cid:13) employment within the company may toll the limitations(cid:13) period for the filing of an Age Discrimination in(cid:13) Employment Act ("ADEA") claim when the representations(cid:13) lull employees into untimely filings); Meyer v. Riegel Prods.(cid:13) Corp., 720 F.2d 303, 307 (3d Cir. 1983) (despite the statute(cid:13) of limitations provided by Congress in ADEA, where(cid:13) employer’s own acts have "lulled" plaintiff into foregoing(cid:13) prompt attempts to vindicate his rights, equitable tolling(cid:13) may be proper). The record fairly read leads to no other(cid:13) conclusion than that New England had not rectified its(cid:13) violations respecting Roush until well after the bar date of(cid:13) March 26, 1996.(cid:13) VI(cid:13) The record clearly reveals to us that in December 1995(cid:13) Roush did not have "actual knowledge" that he had an(cid:13) ERISA cause of action. Hence, by calculating the accrual(cid:13) date of the statute of limitations from December 1995, the(cid:13) District Court erred in holding that Roush’s claim for(cid:13) breach of fiduciary duty was time-barred by the three year(cid:13) statute of limitations.(cid:13) Accordingly, we will reverse the District Court’s order of(cid:13) October 16, 2001 which granted summary judgment to New(cid:13) England on Count I and remand to the District Court for(cid:13) further proceedings as to all issues of the parties,(cid:13) including, but not limited to, the remedies if any to which(cid:13) Roush may be entitled.9(cid:13) _________________________________________________________________(cid:13) 9. At oral argument, Roush’s counsel stated that our ruling on the three(cid:13) year limitations period would make it unnecessary to address the(cid:13) applicability of the six year limitations period under the fraud or(cid:13) concealment exception that he urged in his brief. We agree.(cid:13) 13(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) _________________________________________________________________(cid:13) Both parties agreed at oral argument that a decision by this Court(cid:13) reversing on the basis of the statute of limitations would render it(cid:13) unnecessary for us to consider the remedies Roush seeks, i.e., damages(cid:13) for the interest lost in the investment delay, relief from the surrender(cid:13) charges, etc.(cid:13) In addition, we need not address the second issue presented in(cid:13) Roush’s appeal, i.e., did the District Court err in concluding, as a matter(cid:13) of law, that New England had not engaged in transactions prohibited by(cid:13) ERISA under 29 U.S.C. S 1106 (prohibited transactions). Both parties(cid:13) agreed that our reversal of the District Court’s judgment respecting(cid:13) Count I renders discussion of Count II, an alternative claim based on the(cid:13) same matrix of facts, unnecessary.(cid:13) 14
