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
Count Five Must Be Dismissed Because It Is Not A Recognized Cause Of Action.ERISA § 102 does not provide a cause of action for a party's failure to establish a Summary Plan Description. 29 U.S.C. § 1022; Engers v. AT&T, 428 F. Supp. 2d 213, 234 (D.N.J. 2006). Nevertheless, Plaintiff demands monetary relief for Defendant's alleged failure to establish a Summary Plan Description under ERISA § 102.
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)).
" Id. "Moreover, trustees of an ERISA plan are granted broad fiduciary rights and responsibilities under ERISA and implementation of the exhaustion requirement will enhance their ability to expertly and efficiently manage their funds by preventing premature judicial intervention in their decision-making process." Id.; see also,Engers v. AT T, 428 F. Supp.2d 213, 227 (D.N.J. 2006) ("when a plan participant claims that he or she has unjustly been denied benefits, it is appropriate to require participants to first address their complaints to the fiduciaries to whom Congress, in Section 305, assigned the primary responsibility for evaluating claims for benefits"). Further, "exhaustion of the administrative remedies creates a record of the plan's rationales for denial of the claim."
Ackerman, 55 F.3d at 125. The court inEngers v. AT T, 428 F. Supp. 2d 213, 239 (D.N.J. 2006) likened a showing of extraordinary circumstances to "an equitable estoppel claim under § 502(a)(3)(B) of ERISA, 29 U.S.C.S. § 1132(a)(3)(B)," which requires a showing of "(1) the existence of a material representation; (2) reasonable and detrimental reliance on the misrepresentation, and (3) extraordinary circumstances." Id. As a matter of law, Plaintiffs have not demonstrated extraordinary circumstances under Ackerman.