TRUSTEES OF THE AFTRA HEALTH FUND, Plaintiff-Appellee,
v.
Richard BIONDI, Third-Party Plaintiff-Defendant-Appellant,
v.
Thomas C. O'Brien, Selma D'Souza, O'Brien & Bаrbahen, a partnership, et. al., Third-Party Defendants-Appellees.
No. 00-3598.
United States Court of Appeals, Seventh Circuit.
Argued January 18, 2002.
Decided September 6, 2002.
Rehearing and Rehearing En Banc Denied October 7, 2002.*
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Peter D. DeChiara (Argued), Cohen, Weiss & Simon, New York, NY, for Plaintiff-Appellee.
Robert J. Trizna (Argued), Schuyler, Roche & Zwirner, Chicago, IL, for Defendant-Appellant.
Michael P. Tone, Ross, Dixon & Bell, Chicago, IL, for Defendants-Appellees.
Before MANION, ROVNER, and EVANS, Circuit Judges.
MANION, Circuit Judge.
In 1993, Richard and Hazel Biondi decided to end their marriage of thirty years. In doing so, the Biondis entered into a divorce decree which required Richard to pay COBRA health insurance premiums on behalf of Hazel for two years. Instead, and without notifying his employer of the divorce, Richard allowed Hazel to remain listed under the existing medical plan as his spouse for a period of approximately five years. During that time, Hazel incurred substantial medical expenses. Upon learning of this ruse, the Trustees of the American Federation of Television and Radio Artists ("AFTRA") Health Fund filed suit against Richard Biondi, pursuant to Employee Retirement Income Security Act ("ERISA") and state common law fraud principles, seeking to recover monies paid to Hazel's medical providers after she became ineligible to receive dependent care health insurance benefits. Biondi, in turn, filed a third-party complaint against his former divorce attorneys and their law firms, alleging that their malpractice caused the damages sought in the Trustees' complaint, and contending that they were required to indemnify him for any judgment obtained against him and for the cost of defending the suit. The district court dismissed the Trustees' ERISA claim but entered judgment in their favor on the common law fraud claim. The district court also granted the third-party defendants summary judgment on Biondi's malpractice claim. Biondi filed a timely Rule 59(e) motion to alter or amend the district court's judgment, which the court denied. Biondi appeals the district court's entry of judgment against him on the Trustees' common law fraud claim, the court's decision to grant the third-party defendants' motion for summary judgment on his malpractice claim, and the denial of his Rule 59(e) motion. The Trustees do not appeal the district court's dismissal of their ERISA claim. We affirm.
I.
In 1992, Richard Biondi hired the law firm of O'Brien & Barbahen to represent him in divorce proceedings initiated by his wife, Hazel, in a New Mexico state court. On March 30, 1993, the state court rendered a judgment expressly incorporating a Marital Settlement Agreement ("Settlement Agreement") entered into by the parties. The Settlement Agreement provided that Hazel "would have continued medical insurance coverage through [Biondi's] medical insurance company pursuant to COBRA," and that "[Biondi] shall pay the medical insurance premiums for [Hazel] for a period of twenty-four (24) months after the filing of the Final Decree in this matter." At all times relevant to this lawsuit, Biondi was an AFTRA employee and thus a plan "participant," as defined by 29 U.S.C. § 1002(7), in the AFTRA Health Fund ("Fund"). The Fund is an "employee welfare benefit plan" ("Plan"), as defined in 29 U.S.C. § 1002(3), that provides medical, hospital, and other welfare benefits to employees covered by collective bargaining agreements between employers and AFTRA. The Plan is established and maintained according to the Agreement and Declaration of Trust of the AFTRA Health and Retirement Funds ("Trust Agreement"). Provisions of the Plan are published in the Fund's Summary Plan Description ("Summary Plan") in accordance with 29 U.S.C. § 1022.1
Before their divorce, Hazel was a covered "beneficiary," as defined by 29 U.S.C. § 1002(8), under the Plan. The insurance premiums for that coverage were paid directly by Biondi's employer. After the divorce, Hazel was no longer eligible for dependent care coverage under the terms of the Plan. The Trust Agreement, Plan, and Summary Plan all emphasize that a "lawful" or "legal" spouse is covered by the Plan. The Summary Plan provides that "[i]f you gain or lose a dependent by reason of marriage, divorce, birth, death or otherwise, you must so advise the nearest Fund office promptly. It is particularly important that you contact the Fund office as soon as possible if you marry or divorce." (Emphasis added.)2 Although no longer a dependent, Hazel was eligible for COBRA coverage, see 29 U.S.C. § 1161 et seq. Biondi did not, however, obtain this coverage for her as requirеd by the divorce decree. Biondi also did not advise the Fund of his divorce, as required, until December 1997, when one of his former attorneys, Thomas C. O'Brien, sent a letter to the Fund advising it of the divorce and conveying an offer by Biondi to retroactively pay COBRA conversion premiums for the five-year period that Hazel received dependent care coverage under the Plan. In the letter, O'Brien noted that "[since] the requirement that Mrs. Biondi's coverage after the divorce judgment be pursuant to a COBRA or conversion plan was not brought to Mr. Biondi's attention, he simply left his union benefits in place and treated her as a spouse, believing that this was the proper way to discharge his liabilities under the divorce judgment." (Emphasis added.) Shortly after receiving this correspondence, the Fund terminated Hazel's dependent care coverage under the Plan, fifty-seven months after her divorce from Biondi. During this time period, the Fund made medical payments on Hazel's bеhalf to the tune of $122,792.86.
On July 17, 1998, the Trustees of the Fund filed a complaint against Biondi and Hazel in the United States District Court for the Southern District of New York, seeking a declaratory judgment for equitable relief under the Employee Retirement Income Security Act ("ERISA"), i.e., 29 U.S.C. § 1132(a)(3)(B)(i), and damages for common law fraud. Specifically, the Trustees sought to recover $122,792.86 paid by the Fund on Hazel's post-divorce medical claims, as well as applicable interest, attorneys' fees, costs of litigation, and $50,000 in punitive damages. The Trustees' complaint alleged that Biondi intentionally failed to notify the Fund of his divorce, and misrepresented to the Fund that he was still married to his ex-wife, in order to cause the Fund to continue to provide Hazel with dependent care coverage and benefits. The Trustees subsequently amended their complaint to dismiss Hazel from the suit.
On February, 2, 1999, the Trustees filed a motion requesting the district court to transfer the action to the United States District Court for the Northern District of Illinois, which the court granted on February 17, 1999. On March 10, 1999, Richard Biondi filed a third-party complaint against Thomas C. O'Brien, Selma D'Souza, O'Brien & Barbahen ("third-party defendants"),3 alleging that they committed legal malpractice in their representation of him during his divorce proceedings. He also sought indemnification from them for any judgment the Trustees might obtain against him, as well as reimbursement of all expenses and attorneys' fees incurred in his defense of the Trustees' claim. Biondi's legal malpractice claim is premised on the attorneys' collective failure to advise him of the Plan's requirements to notify it of the change in his marital status and request COBRA coverage for his ex-wife.
On April 13, 2000, after conducting a bench trial, the district court, relying on Mertens v. Hewitt Assoc.,
In light of this ruling, on May 25, 2000, the third-party defendants filed a motion for summary judgment of Biondi's malpractice claim, which the district court granted on August 4, 2000, holding that "[e]ven if Biondi's lawyers were negligent and committed malpractice as he contends, Biondi cannot seek to hold them responsible for the damages he has to pay as a result of his fraud." On August 9, 2000, the district court entered judgment against Biondi and in favor of the Trustees on their common law fraud claim, awarding them $118,006.70, and in favor of the third-party defendants on Biondi's third-party complaint.5 Biondi filed a timely motion to alter or amend the judgment, pursuant to Fed.R.Civ.P. 59(e), which the district court denied. Biondi appeals the district court's judgment and its denial of his Rule 59(e) motion.
II.
On appeal, Biondi argues that the district court's judgment against him on the Trustees' common law fraud claim must be reversed because the claim is expressly preempted by ERISA. A district court's preemption ruling is a question of law that we review de novo. See, e.g., Moran v. Rush Prudential HMO, Inc.,
A. The Trustees' Common Law Fraud Claim and 29 U.S.C. § 1144(a)
Biondi argues that the district court erred in entering judgment against him on the Trustees' common law fraud claim because the claim is expressly preempted under ERISA's preemption clause, 29 U.S.C. § 1144(a), whiсh provides, with certain exceptions not relevant here, that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan."6 Id. (emphasis added). The critical statutory phrase — "relate to any employee benefit plan"—is not, however, self-defining, and the Supreme Court "[has] been at least mildly schizophrenic in mapping its contours." Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co.,
The Supreme Court's early ERISA preemption cases glossed over the "relate to" text of § 1144(a) by portraying the phrase as deliberately expansive. See, e.g., Pilot Life Ins. Co. v. Dedeaux,
Our past cases have recognized that the Supremacy Clause, U.S. Const., Art. VI, may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law. And yet, despite the variety of these opportunities for federal preemption, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation, we have worked on the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
Id. at 654-55,
Additionally, the Travelers Court noted that because preemption claims turn on congressional intent, it is necessary, as with any exercise of statutory construction, to begin "with the text of thе provision in question, and move on, as need be, to the structure and purpose of the Act...." Travelers,
Cataloging ERISA's statutory objectives is a fairly straight-forward exercise. ERISA's primary objectives are to "protect ... the interests of participants... and their beneficiaries, by requiring the disclosure and reporting ... of financial and other information ... by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts," 29 U.S.C. § 1001(b), and "by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance." 29 U.S.C. § 1001(c). Additionally, we know that when Congress enacted § 1144(a) it intended:
to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government ..., [and to prevent] the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.
Travelers,
Under this rubric, the Supreme Court has identified at least three instances where a state law can be said to have a "connection with" or "reference to" employee benefit plans, when it (1) "mandate[s] employee benefit structures or their administration," Travelers,
With the foregoing in mind, we now turn to Biondi's argument that the Trustees' state-law claim is expressly preempted by ERISA. As an initial matter, we note that because the Trustees' claim is for common law fraud, a traditional area of state regulation, Biondi bears "the considerable burden of overcoming `the starting presumption that Congrеss does not intend to supplant state law.'" De Buono,
In this case, the Trustees, as Plan fiduciaries, see 29 U.S.C. § 1102, are seeking to recoup monies that the Fund improperly expended as a result of a plan participant's fraudulent conduct. Thus, far from thwarting ERISA's stated statutory objectives, the Trustees' common law fraud claim is an attempt to protect the financial integrity of the Fund, which is certainly in the Plan participants' and beneficiaries' best interests, as well as being consistent with the Trustees' fiduciary obligations under ERISA. See generally 29 U.S.C. §§ 1101-1114 (ERISA's fiduciary responsibility provisions). Furthermore, the Trustees' state-law fraud claim clearly does not subject plan administrators and plan sponsors to conflicting directives among States or between States and the federal government, or create a potential conflict in substantive law requiring the tailoring of plan and employer conduct to the peculiarities of the law of each state. In sum, the Trustees' claim does not threaten in any way Congress's goal of national uniformity in the administration of ERISA plans. Finally, by no stretch of the imagination can the Trustees' claim be said to mandate employee benefit structures or their administration, or bind plan administrators to particular choices or preclude uniform administrative practices. As such, the Trustees' claim "is quite remote from the areas with which ERISA is expressly concerned — `reporting, disclosure, fiduciary responsibility, and the like.'" Dillingham,
This leaves only the question of whether the Trustees are using a common law fraud claim as an alternative enforcement mechanism to ERISA's civil enforcement provisions, which are delineated in 29 U.S.C. § 1132(a). The Supreme Court has identified two categories of state laws that act as alternative enforcement mechanisms to ERISA. One is where "the existence of a pension plan is a critical element of a state-law cause of action," De Buono,
At this point, it is important to emphasize that the Trustees' claim encompasses two separate and distinct forms of common law fraud, fraudulent misrepresentation and fraudulent concealment. The district court found that Biondi fraudulently misrepresented his marital status to the Fund when he signed a claims form indicating that he was still married to his ex-wife "in order to claim medical benefits on her behalf with knowledge that the Fund would rely on that statement."10 The district court also concluded that Biondi had a duty under Illinois tort law to disclose his divorce to the Fund and that his failure to do so constituted fraudulent concealment.
With respect to the Trustees' claim for fraudulent misrepresentation, Biondi's argument is a non-starter. Regardless of any contractual duties Biondi owed the Fund under the terms of the Plan, he had a separate and distinct duty under Illinois tort law not to misrepresent his marital status on the claims form he submitted to the Fund on February 21, 1997. See, e.g., Peter J. Hartmann Co. v. Capital Bank & Trust Co.,
Biondi maintains that the Trustees cannot prove that he fraudulently concealed his divorce from the Fund without referring to the Plan's provisions, and as such the claim is subject to preemption under § 1144(a). In order for a plaintiff to demonstrate fraudulent concealment under Illinois law, it must prove: (1) the concealment of a material fact; (2) that the concealment was intended to induce a false belief, under circumstances creating a duty to speak; (3) that the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist; (4) that the concealed information was such that the injured party would have acted differently had he been aware of it; and (5) that reliance by the person from whom the fact was concealed led to his injury. See, e.g., Schrager v. North Community Bank,
In support of his argument, Biondi relies heavily on the Supreme Court's decision in Ingersoll-Rand Co. v. McClendon,
Biondi glosses over the holding of Ingersoll-Rand, focusing instead on the Court's observation in that case that "[u]nder [the] `broad common sense meaning' [of Shaw's "connection with" or "reference to" definition] a state law may `relate to' a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect."
In Pilot Life, the Supreme Court held that a plan beneficiary's generally applicable state common law tort and contract actions were pre-empted under § 1144(a) because they were based on "alleged improper processing of a claim for benefits under an insured employee benefit plan...."
The Second Circuit came to this same conclusion in Geller v. County Line Auto Sales, Inc.,
On appeal, the Second Circuit agreed with the district court that the trustees were unable to recover damages against the defendants under §§ 1132(a)(2) or (a)(3), id. at 20-22, and with the court's dismissal of the trustees' common law restitution claim "because restitution is accounted for in ERISA." Id. at 21. The Second Circuit disagreed, however, with the district court's conclusion that the trustees' common law fraud claim was preempted under § 1144(a), noting:
We believe, however, that the plaintiffs' fraud claim may stand. ERISA is a remedial statute enacted to protect the interests of beneficiaries of private retirement plans by reducing the risk of loss of pension benefits. ERISA established a comprehensive federal statutory program intended to control abuses associated with pension benefit plans.... In this case, however, allowing the plaintiffs to pursue their common law fraud claim would in no way compromise the purpose of Congress and does not impede federal control over the regulation of employee benefit plans. To the contrary, "insuring the honest administration of financially sound plans" is critical to the accomplishment of ERISA's mission. ERISA is designed to protect the interests of participants and beneficiaries of employee benefit plans, and the preemption provision should not be read to contravene the statute's underlying design. The unauthorized diminution of pension benefits—in the present case, the outright squandering of funds—is squarely at odds with the congressional purpose of protecting pension benefits. The plaintiffs' common law fraud claim, which seeks to advance the rights and expectations created by ERISA, is not preempted simply because it may have a tangential impact on employee benеfit plans.... The plaintiffs' fraud claim does not rely on the pension plan's operation or management. The "bare bones" of the complaint are that 1) the defendants fraudulently misrepresented that [the officer's girlfriend] was a full-time employee and 2) in reliance on the defendants' representation, the plaintiffs paid out more than $104,000 on her behalf. The plan was only the context in which this garden variety fraud occurred.
Id. at 22-23 (internal citations omitted) (emphasis added).
Biondi attempts to distinguish Geller by arguing that "the essence of the fraudulent conduct complained of in Geller—an employer's misrepresentation to the plan's administrator that a person was an employee when, in fact, she never was—was a fraudulent act that did not rely on the plan's operation or management," whereas in this case "Biondi was a Plan participant within the meaning of ERISA, and the fraud that the Trustees complain of ... is totally dependent on the Plan's requirement that participants notify the Fund of any change in marital status...." This argument, hоwever, strikes us as "smack[ing] of the `uncritical literalism' the Supreme Court has admonished us to eschew." Dishman,
In this case, neither party disputes the meaning of the Plan provision requiring Biondi to keep the Fund apprised of his marital status. In fact, the district court concluded that Biondi had fraudulently concealed his divorce from the Fund even though he "probably did not realize that there was a specific provision [requiring him to disclose this fact to the Fund]." Furthermore, under Illinois law, a duty under a contract may also create a separate and distinct duty under tort law. See, e.g., Dial v. Mihalic,
[T]he simple fact that a defendant is an ERISA plan administrator does not automaticаlly insulate it from state law liability for alleged wrongdoing against a plan participant or beneficiary.... The facts alleged in this case prompt us ... to "doubt that Congress intended the category of fiduciary administrative functions to encompass" tortious conduct by a plan administrator that is completely unrelated to its duties under the plan [and this doubt] "hardens into conviction when we consider the consequences that would follow from [the defendants'] contrary view." Under the defendants' view, ERISA administrators would enjoy blanket immunity — at least from damages under state tort law — for any manner of wrongful conduct aimed at plan participants and beneficiaries, regardless of how unrelated that conduct is to the ERISA plan. We cannot imagine that Congress would have wanted such a result. As our court has explained, state common law torts such as invasion of privacy and negligence are traditional areas of state authority, and "[f]ederalism concerns strongly cоunsel against imputing to Congress an intent" to preempt large swaths of state law "absent some clearly expressed direction."
Id. at 192-94 (internal citations omitted) (emphasis added).
For these same reasons, we see no reason why a plan participant is entitled to "blanket immunity" from damages under state tort law simply because he chose to defraud an employee benefit trust fund. The Trustees were defrauded in the context of a contractual relationship, and as such they are entitled under Illinois law to sue in tort to recover damages for that fraud. See, e.g., In Re Chicago Flood Litigation,
We, therefore, find the Second Circuit's reasoning in Geller persuasive and consistent with the ERISA preemption principles articulated by the Supreme Court in Travelers and its progeny. Accordingly, like the Second Circuit, we conclude that it would be improper "to hold pre-empted a state law in an area of traditional state regulation based on so tenuous a relation without doing grave violence to our presumption that Congress intended nothing of the sort." Dillingham,
For all of the foregoing reasons, we conclude that the district court was not precluded from entering judgment in favor of the Trustees on their common law fraud claim, and that the court did not abuse its discretion in denying Biondi's Rule 59(e) motion regarding same.
B. Biondi's Malpractice Claim Against His Former Attorneys
Biondi also argues that the district court erred in granting the third-party defendants' motion for summary judgment of his malpractice claim. In a nutshell, Biondi contends that the third-party defendants should be required to indemnify him for any monies that he is required to pay the Trustees because but for their malpractiсe he would not have committed fraud. Specifically, Biondi claims that the third-party defendants were negligent in their representation of him during his divorce proceedings because: (1) they failed to advise the Plan directly of Biondi's divorce and his need to obtain COBRA benefits for his ex-wife; or (2) they did not advise Biondi of the need for him to give notice of his divorce to the Plan and request COBRA benefits for his ex-wife. Biondi maintains that had the third-party defendants taken either of these actions "any possibility of the kind of fraud that occurred would have been impossible."
In granting the third-party defendants' motion for summary judgment, the district court rejected this argument, holding that "[e]ven if Biondi's lawyers were negligent and committed malpractice as he contends, Biondi cannot seek to hold them responsible for the damages he has to pay as a result of his fraud." We agree. While neither party has cited authority directly on point, the general rule is that Illinois courts "will not aid a fraudfeasor who invokes the court's jurisdiction to relieve him of the consequences of his fraud." Goldstein v. Lustig,
III.
The Trustees' common law fraud claim is not preempted by § 1144(a). Accordingly, the district court did not cоmmit error by entering judgment against Biondi and in the Trustees' favor on the claim. Furthermore, the district court properly granted the third-party defendants summary judgment of Biondi's malpractice claim because under Illinois law a fraudfeasor may not hold others liable for damages he incurs as a result of his own fraudulent conduct. For these same reasons, we conclude that the district court did not abuse its discretion in denying Biondi's Rule 59(e) motion to alter or amend its judgment. The district court's judgment is AFFIRMED.
Notes:
Notes
Chief Judge Joel M. Flaum did not participate in the consideration of this petition
According to the Trustees, copies of the Summary Plan were distributed periodically to all Plan participants, including Biondi, during the time period at issue in this case
From this point forward, we will refer to the Trust Agreement, Plan, and Summary Plan collectively as the "Plan."
Biondi also named Thomas O'Brien's then-current law firm, Gagliardi, Nelson & O'Brien ("GN & B"), as a defendant in the third-party complaint. However, on March 27, 2000, Biondi and GN & B entered into a "Tolling Agreement," after which time Biondi took no further action to prosecute his third-party claim against GN & B
The district court held that from the time of the divorce through March 31, 1996, i.e., the COBRA coverage period, the Trustees' damages for Biondi's fraud were "the difference between the premium being paid by [his] employer and the premium that would have been owed for COBRA coverage, a total of $170 per month, for a grand total of $6,210." From April 1, 1996, until the time Hazel's dependent care coverage was terminated, the district court held that "the Fund's damages consist of the amounts that it paid out for her medical expenses for the services rendered...." In a letter to the court, the parties stipulated that "the amount payable by Mr. Biondi pursuant to the formula set out in Your Honor's ... Findings of Fact and Conclusions of Law is $118,006.70 [i.e., $111,796.70 for the post-COBRA coverage time period]."
The district court also mistakenly granted summary judgment on behalf of the law firm of Gagliardi, Nelson & O'Brien ("GN & B"), notwithstanding its tolling agreement with BiondiSee supra n. 3. The district court's inclusion of GN & B in its August 9, 2000 judgment appears to have been a clerical error. As such, Biondi had the right, under Fed.R.Civ.P 60(a), to request that the error be corrected during the pendency of this appeal. He failed to do so, however, and, by all accounts, appears to have abandoned his claim against GN & B. Biondi made no mention of the error in his Rule 59(e) motion, and, on appeal, he seems content to treat the district court's mistake as a de facto dismissal of GN & B from the lawsuit. In his initial appellate brief, Biondi emphasizes that he "took no further action to prosecute his third-party claim against [GN & B]," and that "no formal order of dismissal was entered in connection with [GN & B]." Given the foregoing, we decline to correct the error sua sponte.
Section 1144(a) is supplemented by two statutory definitions. The first broadly defines "State Law" as including "all laws, decisions, rules, regulations, or other State action having the effect of law," 29 U.S.C. § 1144(c)(1), and the second defines an "employee benefit plan" as "an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension plan." 29 U.S.C. § 1002(3)
Because, as discussedinfra, the Trustees' fraud claim is largely premised on Biondi's failure to disclose his divorce to the Fund, we pause to emphasize that ERISA's "disclosure" provisions only impose duties on plan administrators, employers, and fiduciaries, not plan participants. See generally 29 U.S.C. §§ 1021-1031.
Both of the alternative enforcement mechanisms identified by the Supreme Court inDe Buono also happen to be the two categories of state laws which the Court has found as making "reference to" ERISA plans. See Dillingham,
Biondi also argued in his initial appellate brief that the Trustees' claim was "completely" preempted under § 1132(a). Biondi, however, failed to make this argument before the district court, thereby waiving the right to argue the issue on appealSee, e.g., Moulton v. Vigo County,
To prevail in a cause of action for fraudulent misrepresentation under Illinois law, a plaintiff must prove that "(1) the defendant intentionally made a false statement of a material fact; (2) the plaintiff had a right to rely on that false statement; (3) the statement was made for the purpose of inducing reliance thereon; (4) the plaintiff in fact relied on the statement; and (5) the plaintiff suffered injury as a direct result."Rolando v. Pence, 331, Ill.App.3d 40,
Restatement (Second) of Torts § 551(1) provides that "[o]ne who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question."
See LeBlanc,