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Harris v. Finch

May 13, 2008

CHARLES C. HARRIS; THOMAS CLIFFORD; DAVID R. DESROSIERS; RICHARD M. EVENS; WILLIAM S. MCLAUGHLIN, JR.; THOMAS M. MURPHY; JAMES POWERS; GARY PREVOST; ROBERT ROZELL; TERRY L. VANARNUM, JR.; KEVIN WHIBLE; PAUL J. WOLFE; DAVID J. COWLES; AND JOHN W. WEAVER, PLAINTIFFS,
v.
FINCH, PRUYN & COMPANY, INC.; THE RETIREMENT BOARD OF FINCH, PRUYN & COMPANY, INC.; RICHARD J. CAROTA; DAVID P. MANNY; LAURIER J. LAVIGNE; JEFFREY W. BENWAY; AND JOHN E. LEVANDOSKY, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs are fourteen former employees of Defendant Finch, Pruyn & Company, Inc. ("Finch Pruyn") who participated in the company's Hourly 401K Plan ("Plan"). They filed this complaint on July 28, 2005,*fn1 asserting a panoply of breach-of-fiduciary-duty claims against Defendants pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). Specifically, Plaintiffs state claims against Defendant Retirement Board and its members for fraudulent misrepresentation, negligent misrepresentation, failure to provide accurate information in response to Plaintiffs' requests, failure to monitor fiduciaries in the performance of their duties, and enabling fiduciaries to distribute false information to Plaintiffs.

Plaintiffs state claims against Defendant Finch Pruyn for fraudulent misrepresentation, negligent misrepresentation, failure to provide accurate information in response to Plaintiffs' requests, failure to monitor fiduciaries in the performance of their duties, enabling fiduciaries to distribute false information to Plaintiffs, failure to exercise care in appointing fiduciaries, failure to prevent the distribution of false information to Plaintiffs, and non-fiduciary liability due to knowledge of the breach. See Complaint at ¶¶ 114-94. Plaintiffs also claim that all Defendants violated ERISA § 510 by discriminating against them for the purpose of interfering with their attainment of rights under the Plan. See id. at ¶¶ 196-97. They seek equitable relief in the form of rescission of their resignations and retirements and reinstatement with full back pay and restored benefits. They additionally seek reasonable attorney's fees and costs.

Currently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn2 Although both parties' submissions in this matter suffer from a lack of clarity and organization, the Court construes Defendants' Memorandum of Law as asserting the following grounds for summary judgment: (1) Plaintiffs' claims are time-barred; (2) Plaintiffs are not "participants" and, therefore, are not entitled to relief under 29 U.S.C. § 1132(a)(3); (3) Defendants Carota, Manny, Lavigne, Retirement Board, and Finch Pruyn are not fiduciaries and, therefore, did not owe a duty to Plaintiffs; (4) Plaintiffs do not allege sufficient facts against Defendant Carota to state a claim against him pursuant to Rules 8(a)(2) and 12(b)(6); (5) Plaintiffs do not allege sufficient facts to state a claim against Defendants Retirement Board, Finch Pruyn, Manny, and Lavigne for material misrepresentations or omissions pursuant to Rules 8(a)(2) and 12(b)(6); (6) Plaintiffs do not allege sufficient facts to state a claim against Defendants Retirement Board, Finch Pruyn, Manny, and Lavigne based on their knowledge of a co-fiduciary's breach; and (7) Plaintiffs fail to state a claim against Defendants for non-fiduciary liability.

II. BACKGROUND

Each Plaintiff participated in the Plan, which Defendant Finch Pruyn created to allow its hourly-paid employees to make regular contributions to a retirement benefits account in amounts as high as fifteen percent of their annual earnings. See Complaint at ¶ 36; Affidavit of John E. Levandosky, sworn to November 3, 2005 ("Levandosky Aff."), at ¶ 9. Under the Plan, participants were entitled to a distribution of their account balance upon retirement or resignation. See Defendants' Memorandum of Law, dated November 4, 2005, at 1-2. Alternatively, participants could obtain money from their accounts without terminating their employment with Defendant Finch Pruyn by two methods. First, they could borrow up to fifty percent of their account balance for any reason. See Defendants' Statement of Material Facts at ¶ 78. Second, they could make "hardship withdrawals," which were available for certain financial needs such as medical care, post-secondary-education tuition, and housing payments. See id. at ¶¶ 80-81. Defendants claim that they informed Plaintiffs about the various features of the Plan, including the withdrawal options, at a number of informal meetings held before the Plan became effective on October 1, 1997. See id. at ¶¶ 73-74. On January 28, 1998, Defendants issued each Plaintiff a summary plan description ("SPD"), which contained information about Plan provisions in question-and-answer format. See Levandosky Aff. at Exhibit "D."

In June 2001, Plaintiffs participated in a strike against Defendant Finch Pruyn. See Plaintiffs' Memorandum of Law, dated January 31, 2006, at 1. Defendant Finch Pruyn hired replacement workers during the strike; and, as a result, when the strike ended in November 2001, there were not enough vacancies to reinstate all of the strikers. See id. at 1-2. Plaintiffs were among those who were not reinstated. See id. at 2. Beginning in November 2001*fn3 and throughout 2002,*fn4 Plaintiffs contacted Defendant John Levandosky, Defendant Finch Pruyn's benefits manager, requesting information about their Plan accounts. See Complaint at ¶¶ 43-113. According to Plaintiffs, Defendant Levandosky told some of them that they would have to resign or retire in order to access money from their Plan accounts. See id. at ¶¶ 49, 54, 59, 73, 78, 83, 88, 93, 103, 110. Plaintiffs assert that, in conversations with others, Defendant Levandosky failed to inform them about the possibility of accessing money through loans and hardship withdrawals. See id. at ¶¶ 44, 64, 69, 98. Plaintiff Desrosiers also contacted personnel director Jeffrey Benway about his Plan account. See id. at ¶ 53. He claims that Defendant Benway told him he must submit a letter of resignation in order to access the funds in his Plan account. See id. at ¶¶ 54-55. Plaintiffs state that they did not learn that Defendants' statements about the Plan were false until they attended a union meeting on April 6, 2005. See Plaintiffs' Memorandum of Law, dated January 31, 2006, at 13.

III. DISCUSSION

A. Timeliness of Plaintiffs' Claims

1. Breach-of-Fiduciary-Duty Claims

The statute of limitations for bringing fiduciary claims is statutorily prescribed:

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 actions which constituted a part of the breach or violations, 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.

29 U.S.C. § 1113.

Defendants contend that Plaintiffs' claims are time-barred because they acquired actual knowledge of the "breach or violation"*fn5 on the date that they retired or resigned, which was more than three years before they commenced this action on July 28, 2005.*fn6 Specifically, Defendants assert that, assuming Defendant Levandosky's and Defendant Benway's statements about the Plan were false or misleading, Plaintiffs were aware of these inaccuracies for two reasons. First, they had access to the Plan's terms in various forms, including the SPD, which Defendant Finch Pruyn had issued to them on January 28, 1998. Second, five Plaintiffs had previously borrowed money from their Plan accounts*fn7 and one Plaintiff had taken a hardship withdrawal.*fn8

To have "actual knowledge" within the meaning of subsection two, a plaintiff does not have to know the relevant law; however, he must have "knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty or otherwise violated the Act." Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001) (citations omitted). Constructive knowledge is not enough. See id. at 194. Therefore, possession of an SPD, alone, is insufficient to trigger the three-year limitations period. See Harley v. Unisys Corp. (In re Unisys Corp. Retiree Medical Benefits ERISA Litigation), No. 03-3924, 2006 WL 2822261, *60 (E.D. Pa. Sept. 29, 2006), adopted in part and modified in part, 2007 WL 2071876 (E.D. Pa. July 17, 2007) (holding that the plaintiffs' receipt of an SPD, which contained a provision explaining the company's right to modify or discontinue medical benefits for retired employees, did not, by itself, constitute actual knowledge). "Actual knowledge" requires that the plaintiff read and understand the terms listed in the plan or SPD. Cf. McConnell v. Costigan, No. 00 CIV. 4598, 2002 WL 313528, *9 (S.D.N.Y. Feb. 28, 2002) (finding that the plaintiffs did not have actual notice because, although they received regular reports of remittances to their 401(k) accounts, they would not have detected the late remittances without carefully studying those reports). This requires a level of comprehension necessary to understand the full meaning of the available information and recognize that it could translate into an ERISA action. See Meyer v. Berkshire Life Ins. Co.,250 F. Supp. 2d 544, 568-69 (D. Md. 2003) (holding that financial reports did not give the plaintiffs actual knowledge because they "were not financially astute," the financial documents were objectively confusing, and information presented to the plaintiffs at infrequent meetings was brief and lacked detail).

Although Defendants present evidence of Plaintiffs' constructive knowledge, they do not present any evidence of actual knowledge. There is no indication that Plaintiffs actually read the Plan terms or the SPD. Even though they had previously taken loans and hardship withdrawals from their Plan accounts, it is not obvious that Plaintiffs understood that they were entitled to do the same in their status as "unreinstated strikers." Furthermore, if Defendants Benway and Levandosky actually misled Plaintiffs, they would have been ignorant of any breach or violation. Accordingly, the Court denies Defendants' motion for summary judgment on this ground.

Even if Plaintiffs' claims were time-barred under the three-year period of limitations, the Court finds that Plaintiffs' fraudulent-misrepresentation claims against Defendants are timely under the six-year period for "fraud or concealment." "[T]he six-year statute of limitations should be applied to cases in which a fiduciary: (1) breached its duty by making a knowing misrepresentation or omission of a material fact to induce an employee/beneficiary to act to his detriment; or (2) engaged in acts to hinder the discovery of a breach of fiduciary duty." Caputo, 267 F.3d at 190 (citation omitted). Additionally, plaintiffs must plead fraud with particularity pursuant to Rule 9(b) of the Federal Rules of Civil Procedure. Under Rule 9(b), in addition to specifying the time, place, speaker, and content of the alleged misrepresentations, a plaintiff asserting a fraud claim must "explain how the misrepresentations were fraudulent and 'plead those events which give rise to a strong inference that the defendant[ ] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.'" Id. at191 (quotation omitted).

In their complaint, Plaintiffs identify the speaker, place, and basic content of each alleged misrepresentation. However, Defendants challenge the adequacy of Plaintiffs' pleadings with regard to the relevant dates and mental state of the speaker. Where a speaker made the same statement several times over an extended period, the requirement that a plaintiff identify the exact time and date of those statements is relaxed. See Pollack v. Laidlaw Holdings, Inc., No. 90 Civ. 5788, 1995 WL 261518, *9 (S.D.N.Y. May 3, 1995). Since Defendant Levandosky allegedly made similar statements ...


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