Opinion for the court filed by Senior Circuit Judge CAMPBELL.
Russell C. Larson, plaintiff-appellant, was continuously employed by George A. Fuller Company (the “Fuller Company”) from March 10, 1959, until he retired on May 1, 1985. From December 1971 until February 27, 1981, the Fuller Company was a subsidiary and/or division of Northrop Corporation, defendant-appellee. Upon acquiring the Fuller Company in 1971, Northrop terminated the existing employees’ retirement plan and replaced it with the Employees’ Retirement Plan of George A. Fuller Company. The latter was an “employee pension benefit plan” as defined under the Employment Retirement Income Security Act (ERISA) of 1974. See 29 U.S.C. § 1002(2) (1988). Effective January 1, 1972, Northrop purchased a group annuity contract from Prudential Insurance Company of America (“Prudential”) to pay the benefits due under the pension plan it had terminated in 1971.
*1166 The Employees’ Retirement Plan of George A. Fuller Company (hereinafter the “Plan”) was continuously in effect while the Fuller Company was affiliated with Northrop. From the relevant effective date of ERISA until March 31, 1981, when it terminated the Plan, Northrop was a “plan sponsor” and a “fiduciary” of the Plan as those terms are defined in 29 U.S.C. §§ 1002(16)(B), 1002(21) (1988). During the same period, Larson was a “participant” in the Plan within the meaning of 29 U.S.C. § 1002(7) (1988). After terminating the Plan, Northrop purchased a group annuity contract from what is now known as Principal Mutual Life Insurance Company (“Principal”) on December 21, 1981, to fund the Plan pension liabilities that were required by law to-be satisfied upon the Plan’s termination.
On April 1,1988, more than six years after Northrop had purchased the group, annuity contract from Principal, Larson brought this action in the United States District Court for-the District of Columbia, alleging,
inter alia,
that Northrop had violated its fiduciary duty to comply with the terms of the Plan under ERISA, § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D) (1988), by failing to ensure that the group annuity contracts that it had purchased from Prudential and Principal
1
would pay an early retirement subsidy that had existed under the Plan.
2
Following discovery, Larson filed a motion for summary judgment on November 30, 1988. Northrop responded by submitting a cross-motion for summary judgment on December 23, 1988. By order dated March 30, 1992, the district court denied Larson’s motion for summary judgment and granted Northrop’s cross-motion for summary judgment on the grounds that Larson’s claim was barred by the three-year statute of limitations contained in ERISA, § 413, 29 U.S.C. § 1113 (Supp. IV 1992), and, in the alternative, that Larson was not entitled to the early retirement subsidy under the Plan’s terms.
Larson v. Northrop Corp.,
No. 88-899, at 13,
I.
The Employees’ Retirement Plan of George A. Fuller Company provided that an employee who was at least 55 years old and who had accumulated ten or more years of vesting or credited service was eligible to receive pension benefits. Larson had, in fact, ten or more years of vesting or credited service, and was 55 years old, when he retired from the Fuller Company on May 1, 1985.
The “normal retirement date” under the Plan was the first day of the month after an employee’s 65th birthday. An employee who retired on the “normal retirement date” was eligible to receive a “normal retirement benefit.” The Plan, however, also allowed employees with ten or more years of vested or credited service to receive adjusted benefits as early as age 55. These early retirement benefits were reduced from the age 65 benefit. They were calculated in one of two ways, depending upon whether a Plan participant’s employment terminated before or after the age of 55. If a Plan participant’s employment terminated before the age of 55, he could, upon turning 55, receive adjusted pension benefits that were the actuarial equivalent of the age 65 pension benefits. If, on the other hand, a Plan participant’s employment terminated at or after age 55, he could obtain pension benefits that were reduced 5% per yéar for each year benefit payments were made prior to age 65. This 5% annual reduction provided an employee with pension benefits that exceeded those available to an employee who received pension benefits that were adjusted on an actuarial basis. The difference between the 5% annual reduction *1167 and the actuarial reduction is called the early retirement subsidy.
Larson was 50 years old when, on February 27, 1981, Northrop sold the Fuller Company. He continued to work for Fuller. Northrop terminated the Plan on March 81, 1981. 3 So as to fund the Plan’s pension liabilities, Northrop purchased a group annuity contract from Bankers Life, now Principal Mutual Life Insurance Co. Residual amounts held in trust to provide benefits under the Plan reverted to Northrop upon satisfaction of liabilities of the Plan required by law. 4
The group annuity contract acquired from Principal provided for an actuarial reduction for early pension benefits that commenced prior to a Plan participant’s turning age 65. The contract provided for the 5% annual reduction only for participants who were already receiving pension benefits when the Plan was terminated. 5 Moreover, there was no provision in the contract with Principal for the early retirement subsidy — the difference between the 5% annual reduction stated in the Plan and the actuarial reduction generally provided for under the contract — except with respect to employees who were already receiving pension benefits at the time of the Plan’s termination.
By letter dated February 24, 1982, Northrop informed Larson “that, as a result of the sale of the G.A. Fuller Company and Northrop’s termination of the Employees’ Retirement Plan of the G.A. Fuller Company, [he] had earned a vested benefit from that Plan.” The letter also notified Larson that “this particular Plan covered service from January 1, 1972[,] up to the sale date, of February 2[7], 1981,” and that the pension benefits under the Plan had been insured with Principal. It further informed Larson that he would “be eligible for an annuity at age 65 in the amount of $387.10 per month on a Straight Life basis [and that he could] elect to collect [his] benefit as early as age 55, but the above amount [would] be reduced for such early collection.” The letter did not inform Larson that the early retirement benefit would be based on the actuarial reduction, omitting the 5% annual reduction option.
Shortly before his 55th birthday, Larson requested Northrop to send him the information and forms necessary to commence his pension benefits on May 1, 1985, the date he planned to retire from the Fuller Company. Northrop provided Larson with this information in a letter dated March 26, 1985. The letter contained four attachments, two of which estimated the amount of Larson’s pension benefits if he waited until he turned 65 to receive them, and two of which estimated the amount of Larson’s pension benefits if he chose to begin them when he turned 55. Although Northrop’s letter did not expressly say so, the age 55 pension benefits estimated in the attachments were based on an actuarial reduction, not a 5% annual reduction, from the age 65 benefit, and, therefore, did not include the early retirement subsidy. Larson read the letter and reviewed its attachments. On April 1, 1985, he wrote Northrop asking for the calculations upon which his age 65 benefits had been determined.
By letter dated July 16, 1985, Northrop repeated to Larson the amount of his early retirement benefits. Larson maintains that it was this July 16, 1985, letter .that for the first time told him his early retirement benefits were being adjusted by the actuarial method rather than by the 5% annual reduction method. Larson waited until April 1, 1988, to bring this action against Northrop.
*1168 II.
We review de novo the district court’s granting of summary judgment for Northrop. “[W]e do not defer to the conclusions the [district [cjourt drew from the record,” but make our own determinations.
Elcon Enters., Inc., v. Washington Metr. Area Transit Auth.,
The relevant ERISA statute of limitations is codified at 29 U.S.C. § 1113 (Supp. IV 1992). It provides:
No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of—
(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation;
except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.
(emphasis added). 6 The district court held that Larson’s action against Northrop was time-barred by § 1113(2)’s three-year statute of limitations. The court found that Larson acquired actual knowledge of Northrop’s alleged breach of fiduciary duties when he received Northrop’s letter dated March 26, 1985, more than three years before he brought this action. Even if this were so, however, the six-year statute of limitations in § 1113(1)(A) would have run out by the time Larson sued and would be the earlier of the two limitations periods to expire. We hold, therefore, that Larson’s suit was barred under § 1113(1)(A). We do not, and need not, reach the question of whether the district court correctly found that the three-year limitation in § 1113(2) was triggered as early as March 26, 1985. 7
A. Application of the Six-Year Statute
Northrop argues on appeal that the six-year limitations period in § 1113(1)(A) bars Larson’s claim. It points out that Larson’s claim is that Northrop breached its fiduciary duties under ERISA when, having terminated the Fuller Plan, Northrop then failed to provide Larson with insured benefits that included the early retirement subsidy. The specific action challenged, Northrop notes, is Northrop’s purchase, on December 21,1981, of a group annuity contract for Plan liabilities that omitted the pension bonus provision. Considering this date, i.e., December 21,1981, as “the date of the last action which constituted a part of the breach or violation,” see § 1113(1)(A), Northrop insists that the six years began to run at that time, expiring by December 21, 1987. As suit was not brought until April 1988, and as December 21, 1987, was earlier than March 26, 1988 (the date when the district court—rightly or wrongly—believed that the three years un *1169 der § 1113(2) had expired), suit was barred by § 1113(1)(A).
Larson dealt initially with § 1113(1)(A) in a single sentence in a footnote to his main appellate brief. He stated:
It is undisputed that suit was filed within six years of the last action that constituted a part of the breach, which occurred in 1985 when the early retirement subsidy was refused.
(emphasis added). In his reply brief, Larson reiterated this argument, insisting that “[t]he last action was the 1985 denial of the early retirement benefits,” that “the breach obviously did not occur until 1985 when the subsidy was not paid,” and that “[t]he breach was not complete until Larson was denied his promised benefits.”
As Northrop observes, Larson was plainly incorrect that it is “undisputed” that suit was filed within six years of the last action that constituted a part of the breach. Northrop argued below, as well as in its present appeal, that the six-year limitations period under § 1113(1)(A) was a bar. While the district court did not address the question, finding the three-year statute of limitations to be dispositive, Northrop fully preserved the argument, which is now open for our consideration. We may, of course, affirm the district court’s judgment on the basis of a different legal theory than the one it adopted.
Helvering v. Gowran,
To the merits of Larson’s § 1113(1)(A) contention, Northrop responds that “[i]t is ridiculous to suggest that the operation of the statute of limitations must depend upon Plaintiffs age and when he feels like retiring. The ERISA statute of limitations^ § 1113,] begins to run when actions constituting the breach take place and not when actual harm is suffered by the plaintiffs.” In pressing this argument, Northrop emphasizes that the Plan was not ongoing, but was actually terminated in 1981. This, in Northrop’s view, underscores its contention that the alleged failure properly to satisfy the Plan’s liabilities by purchasing an adequate insurance annuity, as was authorized by the Plan and as is now required by ERISA, 8 § 4041(b)(3)(A), 29 U.S.C. § 1341(b)(3)(A) (1988), “was the violation.”
We agree with Northrop. “Although the decision to terminate [a pension plan] is generally not subject to the fiduciary responsibility provision of ERISA, the Department [of Labor] has emphasized that activities undertaken to implement the termination decision are generally fiduciary in nature.” Letter on Fiduciary Responsibility and Plan Terminations, 13 Pens. Rep. (BNA) 472 (Mar. 17, 1986); see 29 U.S.C. § 1002(21)(A) (1988) (“[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management or disposition of its assets.”). Such activities include the acquisition of guaranteed annuity contracts upon plan termination. See, e.g., Letter on Fiduciary Responsibility and Plan Terminations, 13 Pens. Rep. (BNA) 472 (Mar. 17, 1986). But once the sponsor of a terminated plan, as opposed to an ongoing plan, purchases an annuity to fund a plan’s pension liabilities, the sponsor “has no further financial responsibility to [plan] participants.” Gary M. Ford, Recent Controversies Involving the *1170 Purchase of Irrevocable Annuities and Insurance Company Insolvencies, C793 ALI-ABA 143, at 148 (1993). It follows, therefore, that any violation for breach of fiduciary duty was fully completed when Northrop acquired the allegedly insufficient annuity on December 21, 1981, more than six years before Larson brought this suit. Moreover, Northrop accurately cites to three cases by United States courts of appeals all of which support its contention that a plaintiff need not suffer actual harm before § 1113 begins to run. Larson has .pointed to no contrary authority, and our own research has yielded none.
In
Ziegler v. Connecticut General Life Insurance Co.,
Under the Ziegler analysis, it is immaterial that in the instant case Larson suffered no’ actual .harm until he reached 55, the earliest age his pension benefits could be due. The critical question is the date of the last action which constituted a part of the breach or violation. That date was December 21, 1981, when, having terminated the Plan, Northrop purchased and put in place an allegedly inadequate annuity to fund all the liabilities that were required by law to be satisfied upon the Plan’s termination.
The Third Circuit, in
Gluck v. Unisys Corp.,
The 1984 failure to vest fully the accrued benefits upon partial termination of a plan could constitute a violation of 26 U.S.C. § 411(d)(3), and fiduciaries responsible for that amendment might be responsible for the violation under a breach of fiduciary duty theory. Section 1113(1)’s six-year limitations period would run from the date of the amendment’s adoption.
# ‡ sff # ‡
If the 1984. transfer of assets to a new plan did impermissibly decrease benefits, and if the 1984 amendment did wrongfully channel funds from the plan to the compa *1171 ny, then, absent fraud or concealment, the six-year limitations period would have begun to run at the time the 198k amendment was adopted. 10
Id. at 1178-79 (one footnote deleted, one footnote and emphasis added).
In
International Union of Electronic, Electric, Salaried, Machine & Furniture Workers v. Murata Erie North America, Inc.,
In keeping with
Ziegler, Gluck,
and
Murata,
we find that the last action that constituted a part of Northrop’s purported breach of fiduciary duties under 29 U.S.C. § 1104(a) occurred on December 21, 1981, when Northrop purchased the allegedly deficient group annuity contract from Principal in substitution for the plan it had terminated. There was no further action left to be taken by way of completing the alleged breach.
See, e.g., Murata,
As we have said, Larson has offered no authorities running counter to the above. The parties have not cited and we have not found any relevant legislative history reflective of Congress’ intent with respect to § 1113. We recognize that isolated situations can be imagined where it could seem harsh to penalize a beneficiary for not suing within six years: for example, unlike the situation here, the beneficiary might not have
*1172
discovered the breach within the six years.
13
However, the special provision Congress made elsewhere in § 1113 for fraud or concealment, allowing, in such cases, commencement of an action not later than six years
after the date of discovery
of the breach or violation, provides amelioration in the worst cases while, at the same time, indicating that Congress meant to toll the statute only in instances of fraud or concealment. The express use of a discovery rule in this part of § 1113, without mentioning any such principle in § 1113(1)(A), indicates that Congress had the discovery rule fully in mind but was deliberately omitting it from § 1113(1)(A). That the limitations period in § 1113(1)(A) is six years—double that in § 1113(2) where the statute of limitations is triggered by actual knowledge of the breach or violation— suggests a judgment by Congress that when six years has passed after a breach or violation, and no fraud or concealment occurs, the value of repose will trump other interests, such as a plaintiffs right to seek a remedy.
14
See Johnson v. Railway Express Agency, Inc.,
B. Was Fraud or Concealment Involved?
The tolling provision in § 1113 provides “that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.” This is the only provision in § 1113 for delaying the running of the six-year limitations period until the date of discovery. Larson argues on appeal that the district court erred in not applying this provision. We disagree.
In
Foltz v. United States News & World Report, Inc.,
Another requirement is that allegations of fraudulent concealment, which toll the statute of limitations, must meet the requirements of Fed.R.Civ.P. 9(b).
16
See, e.g., Volk v. D.A. Davidson & Co.,
While Larson’s failure properly to plead fraudulent concealment—either in his first or in his amended complaint—did not form the basis for the district court’s rejection of Larson’s claim of fraudulent concealment, we agree with Northrop that Larson, himself, apparently did not see this as a “case of fraud or concealment” until he was faced with the very real possibility that his case might be barred by § 1113. The actual linchpin in the district court’s decision that this is not a “case of fraud or concealment” was that Larson had not “offered ... evidence [either] of any intent to deceive on the part of Northrop” or “of a false representation.” Larson says the decision was erroneous, arguing this is a case of fraud or concealment because Northrop, a fiduciary, failed expressly to disclose that it had not provided for the early retirement subsidy in the guaranteed annuity contract that it had purchased from Principal.
17
We do not find
*1174
Larson’s argument persuasive. While a fiduciary’s mere silence could, in some circumstances, amount to fraud, it would still fall short of the fraudulent concealment that courts have required for purposes of § 1113.
See Martin,
As we discussed,
supra,
the fraudulent concealment doctrine of § 1113 requires that the defendant engage in
active concealment
— it must undertake some “trick or contrivance” to “exclude suspicion and prevent inquiry.” Such concealment must rise to something “more than merely a failure to disclose.”
Schaefer,
III.
Implicit in our decision is that § 1113(1)(A) starts to run “when the plaintiffs right to resort to the courts is complete, whether or not she has discovered the injury,”
Connors v. Hallmark & Son Coal Co.,
In
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,
No action shall be maintained to enforce any liability under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation.
15 U.S.C. § 78i(e) (1988). Section 18(c) similarly provides:
No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the cause of action and within three years after such cause of action accrued.
15 U.S.C. § 78r(c) (1988).
In discussing the application of these statutes, the Court observed that “each of these
*1175
includes some variation of a 1-year period after discovery combined with a 3-year period of repose.”
Lampf,
501 U.S. at -,
ERISA, itself, contains statutes of limitations somewhat comparable to § 1113 that apply to claims different .from the one here. See, e.g., 29 U.S.C. § 1303(f)(5) (1988); 29 U.S.C. § 1370(f) (1988); 29 U.S.C. § 1451(f) (1988). Section 1451(f), for instance, states:
An action under this section may not be brought after the later of 19 —
(1) 6 years after the date on which the cause of action arose, or
(2) 3 years after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action; except that in the case of fraud or concealment, such action may be brought not later than 6 years after the date of discovery of the existence of such cause of action.
29 U.S.C. § 1451(f) (footnote added). In interpreting this statute, courts of appeals have acknowledged that § 1451(f)(2), but not § 1451(f)(1), incorporates a discovery rule.
See, e.g., Central States, S.E. &
S.W.
Areas Pension Fund v. Navco,
Finally, Maryland has a “special statute of repose” that applies in malpractice actions brought against health care providers. This statute states:
(a) Limitations. — An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:
(1) Five years of the time the injury was committed; or
(2) Three years of the date when the injury was discovered.
Md. Cts. & Jud. Proc. Code Ann. § 5-109(a) (1993). In interpreting this statute, the Court of Appeals of Maryland, the state’s highest court, held:
[Section 5-109(a)] expressly place[s] an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed [as opposed to discovered] ... and contains no room for any implied exceptions_ The three- and five-year periods of limitations must, therefore, be calculated in accordance with the literal language of § 5-109. Indeed, the five-year maximum period under the statute will run its full length only in those instances where the three-year discovery provision does not operate to bar an action at an earlier date. And this is so without regard to whether the injury was reasonably discoverable or not.
Hill v. Fitzgerald,
IV.
The district court found that Larson’s action was time-barred by § 1113(2)’s three-year statute of limitations. • We agree with the district court that Larson’s action is time-barred, but we reach this result based on § 1113(1)(A)’s six-year limitations period, which was the earlier of the two provisions to expire. Accordingly, the judgment entered in Northrop’s favor is affirmed.
So ordered.
Notes
. The Plan, Prudential, and Principal were also named as defendants in the original complaint. The claims against those three parties, however, were dismissed without prejudice on November 7, 1988.
. An early retirement subsidy "is the excess of the value of the early retirement benefit over the actuarial equivalent of the accrued benefit payable at the normal retirement age.” Vincent Amoroso & Nick J. Zieser, Allocating Surplus Assets in Plan Mergers or Spin-Offs, 74 J. Tax’n 90, 93 (1991).
. After Northrop terminated the Plan, the Fuller Company replaced it with a new employee retirement plan. Larson’s claims, however, pertain only to the pension benefits that he accrued under the Plan before Northrop terminated it on March 31, 1981.
. The parties disagree as to what pension liabilities had to be satisfied upon the Plan's termination and whether all such liabilities were satisfied.
.Similarly, Northrop's contract with Prudential provided for an actuarial reduction for pensions that commenced prior to age 65, and did not provide for the 5% annual reduction except for employees who were already receiving payments when the then-existent plan was terminated in 1971. Under the contract between Northrop and Prudential, the Plan remained responsible for the difference between the 5% annual reduction stated in the Plan and the actuarial reductions incorporated in the group annuity contract.
. Congress amended 29 U.S.C. § 1113 in 1987 and 1989. Those amendments have no bearing on the resolution of this case.
. Moreover, because the parties do not argue, indicate, or even suggest in their briefs that Northrop’s alleged breach of fiduciary duty was a "case of omission," in which event § 1113's six-year statute of limitations begins to run on "the latest date on which the fiduciary could have cured the breach or violation,” 29 U.S.C. § 1113(1)(B), we do not reach or decide that issue.
See
Fed.R.App.P. 28(a)(5) ("The argument must contain the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.”);
Corson & Gruman Co. v. NLRB,
. "As originally enacted, ERISA did not specify the means by which the administrator should distribute benefits to participants upon plan termination.” Gary M. Ford, Recent Controversies Involving the Purchase of Irrevocable Annuities and Insurance Company Insolvencies, C793 ALIABA 143, at 158 (1993). Nevertheless, Pension Benefit Guaranty Corporation regulations "generally required the plan administrator to satisfy benefit obligations through purchasing annuities from an insurance carrier.” Id. (citing 29 C.F.R. pt. 2615 (1981), recodified at 29 C.F.R. pt. 2617 (1981)). As the law now stands,
an employer may not terminate a defined benefit pension plan unless the plan has sufficient assets to pay all of the plan’s benefit liabilfi ties_ As'part of the termination process, the plan sponsor is required to purchase irrevocable annuity contracts from an insurance company that cover the pension benefits of all plan participants and beneficiaries (except for those who receive a lump sum distribution).
Id. at 150.
. The Ninth Circuit described plaintiffs as asserting: "[N]o breach could have occurred absent actual harm to [the corporate plaintiff]. Indeed, the harm to Westco from the ‘market value' option remained entirely theoretical until the March 1985 distribution.”
Ziegler,
.Although the Third Circuit concluded that the last action that constituted a part of the alleged breach occurred in 1984, and the plaintiffs filed their complaint on March 2, .1990, the Third Circuit did not find that the plaintiffs' claims were time-barred by § 1113(1)(A)'s six-year statute of limitations. Apparently, the Third Circuit found that the critical date in 1984 occurred on July 1, which represented the effective date of the amendment.
See Gluck,
. Larson's claim here was similarly brought under ERISA, § 404(a)(1)(D), 29' U.S.C. § 1104(a)(1)(D).
. Although the plaintiffs’ cause of action accrued and § 1113’s six-year statute of limitations began to run when the pension plans were amended on October 25, 1985, the plaintiffs’ claims were not time-barred by § 1113(1)(A) because the plaintiffs initiated their action in 1989 "less than six years after the alleged breach of fiduciary duty."
Murata,
. Here, even under Larson's version of the facts, he acquired actual knowledge well over two years before expiration of the six years, giving him ample time to have brought a timely action.
. Larson argues that there is no need to fear that an inordinate amount of time—such as fifty years, as Northrop suggests—will pass before suit is brought because a proper fiduciary, as a matter of course, can be expected to "inform the beneficiary in plain English that his pension was reduced,” thus triggering the three-year statute of limitations of § 1113(2). However, Congress may well have believed that, in most instances not involving fraud or concealment, the fiduciary itself might, in good faith, be unaware of the existence of a potential claim, and shotdd be protected from suits after six years.
. Where courts of appeals seem to differ is on the issue of “whether the term 'fraud or concealment' also refers to die nature of a plaintiff’s underlying claim." James F. Jordan, Waldemar J. Pflepsen, Jr. & Stephen H. Goldberg,
Handbook on ERISA Litigation
§ 3.06[F], 3-135 (1992). On one hand, "[t]he Second Circuit has adopted the position that such term, in fact, encompasses situations where a plaintiff's claim of fiduciary breach involves allegations of fraud even if défendant is not alleged to have taken any steps to hide the fact of such breach.”
Id.
(citing
*1173
Diduck v. Kaszycki & Sons Contractors, Inc.,
has noted that acts to conceal a breach of duty may occur in the course of the conduct that constitutes the underlying breach and has held that such acts are sufficient to trigger the special six-year limitations period in the case of fraud or concealment even if they are not independent of, and subsequent to, the underlying breach. The Seventh Circuit has also held that a plaintiff may not invoke the application of § [1113's] six-year limitations period for fraud or concealment if, through plaintiff's exercise of due diligence, plaintiff would have discovered a violation.
Id.
(citing
Martin v. Consultants & Administrators, Inc.,
. Fed.R.Civ.P. 9(b) states in relevant part:
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.
. Larson nowhere suggests that Northrop committed acts of concealment during the course of purchasing the contract from Principal. Therefore, we need not decide whether the fraudulent
*1174
concealment doctrine of § 1113 includes “genuine acts of concealment committed in the course of the underlying wrong.”
Martin,
. In
Connors,
the court had to borrow § 12-301(7) of the District of Columbia Code, which establishes a three-year limitations period for breach of contract actions, because there was no statute of limitations contained in the federal statutory provisions under which plaintiffs had brought their action. In determining whether the "discovery rule” rule was the general accrual rule in federal courts, we observed that the majority of federal courts of appeals have found that "the discovery rule is the general accrual rule in federal courts ... [that] is to be applied in all federal question cases
‘in the absence of a contrary directive from
Congress.’"
Connors,
. It is important to note that, where § 1451(f) states “after the later of,” § 1113 states "after the earlier of,” thereby making § 1113 a more stringent statute of limitations than § 1451(f).