To remedy these alleged violations, Plaintiff seeks, via ERISA § 102 and 29 C.F.R § 2520.102-2, full reimbursement and equitable relief. Defendant cites to Engers v. AT&T, 428 F. Supp. 2d 213, 234 (D.N.J. 2006) as support for the proposition that ERISA § 102 does not provide a cause of action for its violation. Plaintiff argues that the court in Engers did not foreclose recovery for furnishing a misleading SPD, but rather addressed whether the proper avenue for such recovery was through ERISA § 102 or ERISA § 502, the general ERISA enforcement mechanism.
Similarly, the Third Circuit has noted that true breach of fiduciary duty claims may not be subject to the exhaustion requirement. See D'Amico, 297 F. 3d at 291 ("More recently, we have also recognized the possibility of waiving exhaustion in cases where statutory rights stem from the fiduciary duties set forth in section 404 of ERISA"); see also Engers v. AT&T, 428 F. Supp. 2d 213, 230 (D.N.J. 2006) ("The rationale behind this exception is that a claim involving a breach of fiduciary duty involves no administrative expertise and thus exhaustion serves no real purpose." (citation omitted)).
Likewise, "[t]rue fiduciary duty claims pursuant to 29 U.S.C. 1132(a)(2) do not require administrative exhaustion under ERISA." Shadow v. Cont'l Airlines, Inc., 2006 WL 3691037, at *7 (W.D. Tex. 2006) (citing Milofsky v. Am. Airlines, Inc., 442 F.3d 311, 313 (5th Cir. 2006) (en banc)); see also Engers v. AT T, 428 F. Supp. 2d 213, 230 (D.N.J. 2006) ("The rationale behind this exception is that a claim involving a breach of fiduciary duty involves no administrative expertise and thus exhaustion serves no real purpose." (citing Zipf, 799 F.2d at 892-93)).
” Engers v. AT&T, 428 F.Supp.2d 213, 235 (D.N.J. 2006) (citing Varity Corp., 516 U.S. at 515). A. 502(a)(1)(B) Claim
Menendez v. United Food CommercialWorkers Local 450T, AFL-CIO, 2005 WL 1925787, *1-2 (D.N.J. 2005)." Engers v. AT T, 428 F.Supp.2d 213, 229 (D.N.J. 2006). A court must weigh several factors when making its determination as to whether a plaintiff is entitled to the above "futility" exception, "including (1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate review under the circumstances; (3) existence of a fixed policy denying benefits; (4) failure of the . . . company to comply with its own internal administrative procedures; and (5) testimony of plan administrators that any administrative appeal was futile."
Id. at 468 (quoting Eddy v. V.I. Water Power Auth., 256 F.3d 204, 209-10 (3d Cir. 2001)). See also Engers v. AT T, 428 F.Supp.2d 213, 227 (D.N.J. 2006) (exhaustion defense not waived, though raised for the first time at summary judgment, where plaintiff suffered no prejudice and public policy was best served by applying the requirement). While it is true that the Plan failed to plead exhaustion as a defense, nothing in the record suggests that the delay in raising this issue until the summary judgment stage was for tactical or other improper reasons.
For example, in Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 583 (2d Cir. 2006), the Second Circuit held that the plaintiff's § 102 claim was akin to a claim for benefits, and was cognizable under § 502(a)(1)(B). See also, Rothwell v. ChenangoCounty N.Y.S.A.R.C. Pension Plan, 2005 WL 2276023, at *4-5 (N.D.N.Y. Sept. 19, 2005) (dismissing plaintiff's claims for equitable relief under § 502(a)(3) as duplicative of her § 502(a)(1)(B) claim where all claims were based on defendant's alleged violation of ERISA § 102); Engers v. AT T, 428 F.Supp.2d 213, 236 (D. N.J. 2006) (holding that plaintiffs could not "sustain a claim under § 502(a)(3) for an alleged breach of fiduciary duty based upon a violation of § 102 or other ERISA section relating to SPD's" because plaintiffs had "the ability to proceed under § 502(a)(1)(B) for Defendants' alleged violation of § 102"); In re Managed Care Litigation, 185 F.Supp.2d 1310, 1326, 1329-31 (S.D. Fla. 2002) (holding that plaintiffs could not assert claims under § 502(a)(3) based on alleged violation of § 102 because plaintiffs had an adequate remedy under either § 502(c) or § 502(a)(1)(B)).
Plaintiff alleges that Defendant breached its fiduciary duty by disseminating an allegedly misleading SPD. A successful claim of breach of fiduciary duty under ERISA for misrepresentation must demonstrate that: (1) the defendant company was acting as a fiduciary; (2) the defendant made affirmative misrepresentations or failed to adequately inform plan beneficiaries; (3) the information misrepresented or not disclosed was material; and (4) the plaintiff relied on the misrepresentation to its detriment. Engers v. Am. Tel. Tel. Co., 428 F.Supp. 2d 213, 239 (D.N.J. 2006). An affirmative misrepresentation is established if the SPD and the Plan conflict.
29 U.S.C. § 1054(b)(1)(H)(i) (emphasis added).See, e.g., Tootle v. ARINC, Inc., 222 F.R.D. 88, 92-93 (D. Md. 2004); Engers v. AT T Corp., 428 F. Supp. 2d 213, 221-22 (D. N.J. 2001); Eaton, 117 F. Supp. 2d at 825-29; see also Campbell v. BankBoston, N.A., 327 F.3d 1, 9 (1st Cir. 2003) (ruling in dicta that "the ERISA age discrimination provision may not even apply to workers younger than the age of normal retirement").See Richards, 427 F. Supp. 2d at 158-59 ("The inclusion of the word 'any,' when given its ordinary, common meaning . . . renders this language unambiguous with respect to the question of whether it protects only employees who have reached age 65.") (quotation marks and citation omitted); Register, 2005 WL 3120268, at *7 ("The [IRS 2002] proposed regulations emphatically reject the first holding in Eaton, that the age discrimination provisions only apply after normal retirement age.").