FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEOFFREY MOYLE, an individual,

on behalf of themselves; PAULINE

ARWOOD, an individual, on behalf

of themselves; THOMAS

ROLLASON, an individual, on

behalf of themselves; JEANNIE

SANDERS, an individual, on behalf

of themselves,

Plaintiffs-Appellants/

Cross-Appellees,

v.

LIBERTY MUTUAL RETIREMENT

BENEFIT PLAN; LIBERTY MUTUAL

RETIREMENT PLAN RETIREMENT

BOARD; LIBERTY MUTUAL

INSURANCE COMPANY, a

Massachusetts company; LIBERTY

MUTUAL INSURANCE GROUP INC.,

a Massachusetts company,

Defendants-Appellees/

Cross-Appellants.

Nos. 13-56330

13-56412

D.C. No. 

3:10-cv-02179-

GPC-MDD

OPINION

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding
2 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Argued and Submitted October 19, 2015

Pasadena, California

Filed May 20, 2016

Before: Harry Pregerson and Consuelo M. Callahan,

Circuit Judges and Stanley Allen Bastian,* District Judge.

Opinion by Judge Pregerson

SUMMARY**

Employee Retirement Income Security Act

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of the defendants in a

class action under the Employee Retirement Income Security

Act.

Plaintiffs alleged that their new employer, which

purchased their former employer, told them that they would

receive past service credit, under the new employer’s

retirement plan, for the time they worked with the former

employer.

* The Honorable Stanley Allen Bastian, District Judge for the U.S.

District Court for the Eastern District of Washington, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 3

The panel affirmed the district court’s summary judgment

on a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). The

panel held that the district court applied the correct abuse of

discretion standard of review, and the plaintiffs were not

entitled to past service credit under the plain terms of the

retirement plan.

The panel reversed the district court’s summary judgment

on plaintiffs’ claim for equitable relief under § 1132(a)(3). 

Agreeing with the Eighth Circuit, the panel held that the

plaintiffs were not barred from bringing simultaneous claims

under § 1132(a)(1)(B) and § 1132(a)(3). Courts have

interpreted Varity Corp. v. Howe, 516 U.S. 489 (1996), to

mean that equitable relief under § 1132(a)(3) is not available

if § 1132(a)(1)(B) provides an adequate remedy. But under

CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), § 1132(a)(3)

authorizes equitable relief in the form of plan reformation,

even if plaintiffs also claim relief under § 1132(a)(1)(B). The

panel concluded that in light of Amara, prior Ninth Circuit

case law to the contrary was no longer binding. The panel

remanded for determinations of fact and equitable relief in the

form of reformation and surcharge.

The panel affirmed the district court’s summary judgment

on a claim that the new employer breached its fiduciary duty

to disclose information about past service retirement credit in

its Summary Plan Description. The panel held that the

plaintiffs did not prove harm or detrimental reliance. 

On defendants’ cross-appeal, the panel held that class

certification was proper.
4 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

COUNSEL

Matthew Butler (argued) and Michael Olinik, The Butler

Firm, San Diego, California; Jack Winters Jr., Winters &

Associates, San Diego, California; Craig Nicholas and Alex

Tomasevic, Nicholas & Tomasevic, LLP, San Diego,

California, for Plaintiffs-Appellants/Cross-Appellees.

Ashley Abel (argued), Jackson Lewis P.C., Greenville, South

Carolina, for Defendants-Appellees/Cross-Appellants.

OPINION

PREGERSON, Circuit Judge:

Appellants are former employees of Old Golden Eagle

Insurance Company (“Golden Eagle”). Golden Eagle did not

offer a retirement plan to its employees. When Liberty

Mutual Insurance Company (“Liberty Mutual”) purchased

Golden Eagle through a conservatorship sale, Appellants

became employees of Liberty Mutual. Appellants state that

while the sale was underway, Liberty Mutual told Appellants

that they would receive past service credit for the time they

worked with Golden Eagle under LibertyMutual’s retirement

plan. But, after Liberty Mutual purchased Golden Eagle,

Liberty Mutual denied Appellants’ claims for past service

credit. Liberty Mutual argues that it never made any

representation to Appellants that they would receive past

service credit for their time with Golden Eagle. Liberty

Mutual also argues that under the terms of the retirement

plan, Appellants are entitled only to past service credit for

purposes of eligibility, vesting, early retirement, and spousal

benefits, and not for retirement benefits accrual.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 5

Appellants filed this class action against Liberty Mutual

for violating the Employee Retirement Income Security Act

(“ERISA”). At the district court, Appellants asserted four

claims for relief: (1) Appellants are entitled to past service

credit under the terms of the retirement plan, under 29 U.S.C.

§ 1132(a)(1)(B); (2) Appellants are entitled to equitable relief

under 29 U.S.C. § 1132(a)(3); (3) Liberty Mutual violated its

duty to provide Appellants with documents relevant to their

claim; and (4) Liberty Mutual violated its duty to disclose

information about past service retirement credit in its

Summary Plan Descriptions. Appellants seek the equitable

remedies of reformation and surcharge for both claims (2)

and (4).

The district court granted summary judgment in favor of

Liberty Mutual on all four claims. Appellants appealed on

claims (1), (2), and (4). Liberty Mutual cross-appealed,

alleging that Appellants’ suit is time-barred and that class

certification was improper.

We reverse the district court’s ruling as to claim (2). 

Appellants can seek equitable relief under 29 U.S.C.

§ 1132(a)(3). We affirm the district court’s ruling as to

claims (1) and (4): Appellants are not entitled to past service

credit under the plain terms of the retirement plan, and

Appellants did not rely to their detriment on LibertyMutual’s

failure to disclose information about past service credit in its

Summary Plan Descriptions. We also find that the suit is not

time-barred and that class certification was proper.
6 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

FACTUAL BACKGROUND

I. Liberty Mutual’s Bid for Golden Eagle

On January 31, 1997, the California Department of

Insurance placed Golden Eagle into conservatorship with the

San Diego Superior Court. Seeing an opportunity to expand

its insurance business, Liberty Mutual took an immediate

interest in acquiring Golden Eagle, who had a large worker’s

compensation business.

However, many Golden Eagle employees—worried that

their jobs were in jeopardy—began to look for different

employment opportunities. From January 1997 to the

summer of that year, nearly fifty percent of Golden Eagle

employees left the company, and their departure had already

cost Golden Eagle about a half million dollars.

In April 1997, Liberty Mutual was in a bidding war with

American International Group, Inc. (“AIG”) for the

acquisition of Golden Eagle. To win the bidding war, Liberty

Mutual needed to not only match AIG’s bid, it also needed to

add enhancements to secure the Conservation Court’s

approval. On April 6, 1997, Liberty Mutual submitted its

enhanced bid, which included improved employee benefits

such as a retirement plan, a benefit not offered by Golden

Eagle. Including improved employee benefits for Golden

Eagle’s former employees served to benefit Liberty Mutual

in two ways: by retaining Golden Eagle’s employees, and by

increasing the likelihood that the court would approve Liberty

Mutual’s bid.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 7

While the bid was going on, several Golden Eagle

employees approached George Kaerth, Senior Vice President

of Underwriting at Golden Eagle, and asked him if they

would get past service credit for their time with Golden Eagle

under Liberty Mutual’s retirement benefits program. Kaerth,

in turn, had about twenty conversations with David Long

from Liberty Mutual, and about ten to twelve conversations

with Tim Sweeney, also from Liberty Mutual, about the

Liberty Mutual benefits package for Appellants. Kaerth

repeatedly told Long and Sweeney that the Golden Eagle

employees were confused about past service credit. Kaerth

asked Long and Sweeney pointedly whether or not service

with Golden Eagle would count under the Liberty Mutual

benefits program, and, every time, Long and Sweeney

separately responded that this issue was still under

negotiation.

On May 29, 1997, the Conservation Court held an

evidentiary hearing to evaluate Liberty Mutual’s and AIG’s

competing bids. Among the exhibits that Liberty Mutual

submitted to the court, one exhibit expressly stated that the

value that Liberty Mutual added was to “increase employee

benefits (credit for prior year’s of service and participation in

the benefits plan).” Liberty Mutual also told the

Conservation Court that Golden Eagle employees would have

the rights that Liberty Mutual employees had with “X years

of service.” This representation was later repeatedly made to

Golden Eagle employees.1

1 Brian Chambers, Vice President of Premium Auditing at Golden Eagle,

testified at his deposition: “[W]e understood that prior years service would

be covered, that if you were ten years with Golden Eagle, then you would

still register like ten years with the new company.”
8 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Liberty Mutual’s representations at the May 29 hearing

were shared with Golden Eagle employees. At the time of the

hearing, Golden Eagle employees preferred Liberty Mutual’s

proposal because it was perceived that Liberty Mutual would

treat its employees better than AIG. On May 30, 1997, the

Conservation Court approved Liberty Mutual’s bid.

II. Golden Eagle Transitions to Liberty Mutual

Following the approval of Liberty Mutual’s bid, Liberty

Mutual drafted a Rehabilitation Agreement, which was meant

to settle any outstanding claims with policyholders, creditors,

and shareholders of Golden Eagle. Notably, Article 5 of the

Rehabilitation Agreement states that Golden Eagle

employees’ past service credit would count for the purposes

of eligibility, vesting, and early retirement subsidies under

Liberty Mutual’s retirement benefit plan, but past service

credit would not be credited for the purpose of benefits

accrual. The Rehabilitation Agreement is the only document

that explicitly states that past service credit with Golden

Eagle would not count for benefits accrual, and this language

does not appear anywhere else during the time of transition or

in any of the communications with Golden Eagle employees.

Helen Sayles, Liberty Mutual’s Senior Vice President of

Human Resources and Administration, oversaw the

development of Article 5 as well as all Summary Plan

Descriptions (“SPD”)2. Sayles testified that it was “important

2 Summary Plan Descriptions are summaries of the material provisions

of a retirement benefits plan, outlining the rights and obligations of plan

participants and beneficiaries. Under ERISA, plan administrators are

required to provide regular Summary Plan Descriptions to participants. 

See 29 U.S.C. § 1022.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 9

to be explicit at each agreement, including this one, what

people got and what people didn’t get.”

The Conservator in charge of the transition of Golden

Eagle to Liberty Mutual was not required to send notification

of the Rehabilitation Agreement to Golden Eagle employees. 

Liberty Mutual never provided a copy of the Rehabilitation

Agreement to Golden Eagle employees.

During August 1997, Liberty Mutual hosted a series of

benefits enrollment meetings so that Golden Eagle employees

could discuss and obtain information about the transition to

Liberty Mutual. Liberty Mutual developed a uniform

“Facilitator Guide” that presenters used as a script at these

meetings to convey information about the terms and

conditions of employee benefits, including retirement

benefits. There was no mention in the Facilitator Guide that

past service credit with Golden Eagle would not be credited

for benefit accrual, or that benefit accrual would begin on the

plan entry date of October 1, 1997.

During the enrollment meetings, Liberty Mutual failed to

indicate that there were any limitations to the treatment of

past service credit. Paula Tonsky, who organized new hire

orientations, testified that her understanding from attending

some of these meetings was that “previous years with Golden

Eagle would count towards . . . service with Liberty Mutual.”

Golden Eagle employees Geoffrey Moyle, Pauline

Arwood, Thomas Rollason, and Jeannie Sanders also testified

that this was their understanding after attending the meetings,

as well as the understanding of other Golden Eagle

employees. When asked if his understanding was that he

would get past service credit for his time with Golden Eagle
10 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

for all purposes under the Liberty Mutual retirement plan,

Moyle stated, “I know that was my understanding, because

everybody was quite happy after the meeting, that [sic] what

they were going to receive.” Similarly, Sanders testified,

“[B]ecause of the meeting . . . we all were told that our years

of service with Golden Eagle would be counted towards our

retirement benefit, meaning that our check we would receive,

the money, the years we worked for Golden Eagle, would be

calculated for that.”

Arwood testified that the question of past service credit

was asked at least three times during one meeting. She then

stated, “[W]e specifically asked and were told that our prior

years with Golden Eagle would apply to our retirement plan,

which we were all very excited about, because some of us

were getting ready to retire in a few years . . . I mean,

everybody was there. Basically, . . . that was the impression

we were given. That is why everybody stayed with the

company.”

Rollason testified that Mike Plavnicky from Liberty

Mutual told Golden Eagle employees during an enrollment

meeting that “[y]ou accrue, this, that.” Rollason went on to

state, “Plavnicky came out and said, yes, you will get

pension, pension for your Golden Eagle time through Liberty

Mutual. He said it point blank range.” Rollason testified that

he was looking for another job at that time: “[T]hen they said

that we would get the benefit—the pension and I said, well,

at my age . . . I will just stay here then.”

Also during the enrollment period, Golden Eagle

employees had two information documents available to them:

the operative 1987 Plan (“87 Plan”) and the Summary Plan

Descriptions. The 87 Plan, however, did not address past
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 11

service credit or any credit for vesting, eligibility, or

participation. Similarly, the Summary Plan Description,

which was dated 1996, did not address past service credit.

III. Golden Eagle Formally Becomes Part of Liberty

Mutual

On October 1, 1997, Liberty Mutual officially acquired

Golden Eagle and formed Golden Eagle Insurance Company,

a subsidiary of Liberty Mutual. Golden Eagle employees

who stayed on were now Liberty Mutual employees. For the

next four years, Liberty Mutual did not amend the 87 Plan to

address past service credit. Liberty Mutual’s Summary Plan

Descriptions from 1997 to 2001 also did not address past

service credit.

In 2001, Liberty Mutual finally amended the Liberty

Mutual Retirement Benefit Plan (“the Retirement Plan”) to

include provisions that specifically addressed Golden Eagle

employees. The Summary Plan Description dated 2002 also

addressed Golden Eagle employees. Both the Retirement

Plan and the 2002 Summary Plan Description stated that past

service credit for Golden Eagle employees would be “credited

for eligibility, vesting, early retirement, and spouse’s benefits

. . . ;” in 2009, the word “solely” was added to this clause.

Between 2002 and 2006, the Liberty Mutual Retirement

Benefit Plan Retirement Board (“LibertyMutual Board”), the

Retirement Plan’s administrator, denied the claims of almost

a dozen former Golden Eagle employees who sought past

service credit, including the claims of Moyle, Arwood,
12 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Rollason, and Sanders. Liberty Mutual’s justification for the

denials was that it had informed former Golden Eagle

employees about when past service credit applied and

therefore, former Golden Eagle employees should have

known when past service credit did not apply.

PROCEDURAL BACKGROUND

On March 14, 2005, Moyle filed an action against Golden

Eagle Insurance Company and Liberty Mutual in district

court, seeking benefits payment for his past service credit

with Golden Eagle. Moyle amended the complaint on August

23, 2005 to include the Retirement Plan as a defendant. On

November 14, 2005, the district court granted the defendants’

motion to dismiss for failure to exhaust administrative

remedies. Moyle appealed and this court affirmed the district

court’s dismissal on August 23, 2007.

On January 26, 2008, Moyle filed a claim with Liberty

Mutual. On July 18, 2008, Rollason filed a claim; on August

21, 2008, Arwood filed a claim; and on December 4, 2008,

Sanders filed a claim. John R. St. Martin, Liberty Mutual’s

Manager of Pension, Savings, and Benefits, denied Moyle’s

claim on April 23, 2008, and subsequently denied the claims

of Rollason, Arwood, and Sanders.

Moyle, Rollason, Arwood, andSanders consolidated their

claims and sought administrative review with LibertyMutual. 

On October 23, 2009, Helen Sayles, Senior Vice President of

Human Resources and Administration, denied Appellants’

appeal on behalf of the Liberty Mutual Board.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 13

On October 19, 2010, Moyle, Rollason, Arwood, and

Sanders filed the instant class action complaint against the

Retirement Plan, the Liberty Mutual Board, Liberty Mutual

Group, Inc., and Liberty Mutual (collectively, “Liberty

Mutual”) for violations of ERISA. The district court granted

Appellants’ motion for class certification on April 10, 2012. 

On April 24, 2012, Liberty Mutual filed a petition with this

court for permission to appeal the district court’s order

granting class certification. This court denied Liberty

Mutual’s petition for permission to appeal on July 11, 2012.

On October 12, 2012, Appellants filed a third amended

complaint which alleged the following four causes of action:

(1) payment of benefits under the Retirement Plan pursuant

to 29 U.S.C. § 1132(a)(1)(B); (2) equitable remedies under

29 U.S.C. §1132(a)(3); (3) civil penalties for failure to

provide documents under § 29 C.F.R. § 2560.503-1(h)(2)(iii);

and (4) failure to meet the requirements for Summary

Retirement Plan Descriptions as required by 29 C.F.R.

§ 2520.102-3(l) and 29 C.F.R. § 2520.102-2(a). The

equitable remedies that Appellants seek under claims two and

four are reformation and surcharge.

On July 1, 2013, the district court granted Liberty

Mutual’s motions for summary judgment on all four claims

and denied all of Appellants’ motions for summary judgment. 

On July 30, 2013, Appellants timely filed a notice of appeal

in this court. LibertyMutual filed their notice of cross-appeal

on August 13, 2013, arguing that Appellants’ § 1132(a)(1)(B)

claims are barred by the statute of limitations and the doctrine

of laches, and that class certification was not proper.
14 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

DISCUSSION

I. Appellants Cannot Receive Benefits for Past Service

Credit with Golden Eagle under the Terms of the

Retirement Plan.

A. The District Court Applied the Correct Standard of

Review.

Under 29 U.S.C. § 1132(a)(1)(B), a civil action may be

brought “by a participant, beneficiary, or fiduciary [] to

recover benefits due to him under the terms of his plan, to

enforce his rights under the terms of the plan, or to clarify his

rights to future benefits under the terms of the plan.” Denials

of benefits under this provision are “to be reviewed under a

de novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of

the plan.” Firestone v. Bruch, 489 U.S. 101, 115 (1989).

If the administrator or fiduciary who is given

discretionary authority operates under a conflict of interest,

“that conflict must be weighed as a facto[r] in determining

whether there is an abuse of discretion.” Id.3(citing

Restatement (Second) of Trusts § 187, Comment d (1959))

(internal quotations omitted). De novo review applies in

instances where the administrator has a serious conflict of

interest that the beneficiary can demonstrate with “material,

probative evidence, beyond the mere fact of an apparent

3 The Supreme Court explicitly stated, “We express no view as to the

appropriate standard ofreviewfor actions under other remedial provisions

of ERISA.” Firestone, 489 U.S. at 108. We thus apply this standard only

to § 1132(a)(1)(B).
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 15

conflict, tending to show that the fiduciary’s self-interest

caused a breach of the administrator’s fiduciary obligations

to the beneficiary.” Gatti v. Reliance Standard Life Ins. Co.,

415 F.3d 978, 985 (9th Cir. 2005) (quotation marks omitted). 

The administrator must have engaged in “wholesale and

flagrant violation[] of the procedural requirements of ERISA

and thus act[] in utter disregard of the underlying purpose of

the plan as well.” Abatie v. Alta Health & Life Ins. Co.,

458 F.3d 955, 971 (9th Cir. 2006).

Both parties agree that the Retirement Plan gives the

LibertyMutual Board, as administrator, discretion to interpret

the Retirement Plan. However, Appellants argue that there is

a structural conflict of interest because of the close

connection between Liberty Mutual, who funds the

Retirement Plan, and the Liberty Mutual Board, who acts as

administrator of the Retirement Plan. Sayles, who approved

St. Martin’s denial of Appellants’ initial claims for benefits,

was both Director of Human Resources for Liberty Mutual

and a member of the Liberty Mutual Board of Directors.

Appellants argue that St. Martin and Sayles were involved

with the 1997 Benefit Enrollment meetings and drafted plan

documents, including the Summary Plan Descriptions and

Facilitator Guide. Appellants contend that St. Martin and

Sayles were essentially relying on their own communications

when deciding to deny Appellants’ claims, and this conflict

of interest served as a bias against Appellants. Appellants

argue that for these reasons, de novo review applies.

The district court found that Appellants did not provide

specific evidence to show that a sufficiently serious structural

conflict of interest existed as to warrant de novo review. The

district court, however, did find that a conflict of interest

existed based on the significant overlap between the
16 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

employees who worked for both Liberty Mutual and the

Liberty Mutual Board, and thus reviewed the record for an

abuse of discretion, weighing the conflict of interest as a

factor.

The district court’s abuse of discretion standard of review

is correct. Appellants failed to provide “material, probative

evidence” that the Liberty Mutual Board engaged in

“wholesale and flagrant violations of the procedural

requirements of ERISA.” Gatti, 415 F.3d at 985; Abatie,

458 F.3d at 971. Additionally, Sayles testified that she had

never obtained a report that analyzed the actuarial soundness

of the Retirement Plan if Golden Eagle employees were given

past service credit for the purpose of benefits accrual.4

Absent this information, it is difficult to prove that Sayles

was motivated by the self-interest of the fiduciary when she

denied Appellants’ initial claims.

B. Liberty Mutual’s Interpretation of the Retirement

Plan Was Reasonable.

Under the abuse of discretion standard, an administrator’s

denial of benefits must be upheld “if it is based upon a

reasonable interpretation of the plan’s terms and if it was

made in good faith.” McDaniel v. Chevron Corp., 203 F.3d

1099, 1113 (9th Cir. 2000). The analysis is not based on

“whose interpretation of the plan documents is most

persuasive, but whether the [adminstrator’s] interpretation is

unreasonable.” Canseco v. Constr. Laborers Pension Tr.,

93 F.3d 600, 606 (9th Cir. 1996) (internal quotation marks

4

See also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443–46

(1999) (holding that certain amendments to pension plans do not trigger

fiduciary duties, as long as the plan is actuarily sound).
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 17

omitted). The court must “look to the plain language of the

[Retirement Plan] to determine whether the [administrator’s]

interpretation of that plan is ‘arbitrary and capricious.’” Id.

In the instant case, the abuse of discretion standard will be

applied with the conflict of interest being weighed as a factor

in determining whether the Liberty Mutual Board abused its

discretion. Abatie, 458 F.3d at 965.

Article 3 of the Retirement Plan lays out the various

formulas for calculating accrued benefits under the normal

retirement benefit. The formulas are based on a plan

participant’s “years of credited service.” According to the

relevant parts of Article 1.69(c) of the Retirement Plan, “year

of credited service” for full-time employees means “the

period of the Participant’s service with the Employer

following his Entry Date . . . . [T]he following periods of time

shall not be included in determining Years of Credited

Service and fractional Years of Credited Service: . . . any

period of time during which an Employee is not an Eligible

Employee.” “Entry date” is defined as “the first day of each

calendar month.” Article 1.25 of the Retirement Plan. 

“Eligible Employee” includes “any Employee who . . . is

employed by a Participating Employer.” Article 1.19 of the

Retirement Plan. “ParticipatingEmployer” means “any other

Affiliated Employer which adopts the Plan with the approval

of [Liberty Mutual].” Article 1.50 of the Retirement Plan.

Under Article 1.4 of the Retirement Plan, “Affiliated

Employer” means “any corporation, trust, association or

enterprise (other than [Liberty Mutual]) which is (a) required

to be considered, together with [Liberty Mutual], as one

employer pursuant to the provisions of Sections 414(b),

414(c), 414(m), or 414(o) of the Code; or (b) which is

designated an Affiliated Employer by [Liberty Mutual].” 
18 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

With regard to an affiliated employer, Article 2.16 of the

Retirement Plan also states:

(a) General. An individual’s employment

service with an employer prior to the date

such employer becomes an Affiliated

Employer shall not be considered employment

service with the Employer under this Plan,

unless otherwise provided by the Board of

Directors, or unless otherwise required by

Department of Labor or Treasury regulations. 

Similarly, an individual’s employmentservice

with an employer who is not an Affiliated

Employer, or who ceases to be an Affiliated

Employer, shall not be considered

employment service with the Employer under

this Plan, unless otherwise provided by the

Board of Directors, or unless otherwise

required by Department of Labor or Treasury

regulations. Notwithstanding the following:

. . . .

(d) Golden Eagle. The following special rule

applies to former employees of [Golden

Eagle] who became employed by the Golden

Eagle Insurance Corporation, a wholly owned

subsidiary of the Company, on October 1,

1997, as a result of the acquisition by the

Company of the assets of [Golden Eagle]. For

purposes of applying the eligibility and

participation provisions of Article 2 and the

vesting provisions of Article 6, and for

determining eligibility for early retirement
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 19

benefits under Section 4.1 and Spouse’s death

benefit under Section 7.3, such employees’

prior employment service with [Golden

Eagle] shall be considered employment

service with the Employer under this Plan.

The Liberty Mutual Board, as administrator, found that

under these provisions, Golden Eagle was never a

Participating Employer prior to October 1, 1997. Therefore,

Appellants were not Eligible Employees prior to October 1,

1997 and the time that they were employed by Golden Eagle

did not count as Years of Credited Service for the purposes of

calculating accrued benefits under Article 1.69(c). For these

reasons, the Liberty Mutual Board denied Appellants’ claims

for benefits. Liberty Mutual also contends that Article

2.16(d), which addresses Golden Eagle employees’ prior

employment service, specifically enumerates eligibility,

vesting, early retirement, and spousal benefits; it does not

mention benefits accrual or Article 3 of the Retirement Plan.

Applying the abuse of discretion standard while weighing

the conflict of interest as a factor, the district court correctly

found that the Liberty Mutual Board did not construe the

terms of the Retirement Plan in an arbitrary and capricious

manner. Under the plain language of the Retirement Plan, it

is not unreasonable to read the relevant provisions as

excluding service time with Golden Eagle from benefits

accrual. In particular, Article 2.16(d) pointedly contemplates

what past service credit with Golden Eagle would count

toward and suggests that it would be considered employment

service with Liberty Mutual only for the purposes of

eligibility, vesting, earlyretirement and spousal benefits. Our

analysis is based on whether the Liberty Mutual Board’s

reading of the Retirement Plan was reasonable, and not on
20 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

which party’s interpretation is more persuasive, and we find

such an interpretation to be reasonable.5 Canseco, 93 F.3d at

606.

II. Appellants Are Not Barred from Bringing

Simultaneous Claims Under 29 U.S.C. § 1132(a)(3)

and 29 U.S.C. § 1132(a)(1)(B).

A. The Varity Rule

Under 29 U.S.C. § 1132(a)(3), a civil action may be

brought “by a participant, beneficiary, or fiduciary (A) to

enjoin any act or practice which violates any provision of this

subchapter or the terms of the plan, or (B) to obtain other

appropriate equitable relief (i) to redress such violations or

(ii) to enforce any provisions of this subchapter or the terms

of the plan.”

In Varity Corp. v. Howe, the Supreme Court described

§ 1132(a)(3) as a “‘catchall’ provision[] [that] act[s] as a

safety net, offering appropriate equitable relief for injuries

caused by violations that [§ 1132] does not elsewhere

adequately remedy.” 516 U.S. 489, 512 (1996). Courts have

subsequently interpreted Varity to mean that equitable relief

under § 1132(a)(3) is not available if § 1132(a)(1)(B)

provides an adequate remedy. See, e.g., Rochow v. Life Ins.

Co. of N. Am., 780 F.3d 364, 371–72 (6th Cir. 2015);

5 Because we affirm summary judgment in favor of Liberty Mutual’s

§ 1132(a)(1)(B) argument on the merits, the statute of limitations and

laches claims are moot. We decline to address Liberty Mutual’s argument

that the statute of repose in 29 U.S.C. § 1113 acts to bar some of

Appellants’ claims under 29 U.S.C. § 1132(a)(3). The district court may

consider such arguments on remand.
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 21

Korotynska v. Metro. Life Ins. Co., 474 F.3d 101, 106 (4th

Cir. 2006); Hall v. Lhaco, Inc., 140 F.3d 1190, 1197 (8th Cir.

1998).

B. Equitable Relief After Amara

In CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1879–80

(2011), the Supreme Court held that § 1132(a)(3) authorized

equitable relief in the form of plan reformation, even though

plaintiffs also claimed relief under § 1132(a)(1)(B). In

Amara, employees filed a class action suit against their

employer after the employer significantly changed the terms

of their pension plan. The employees alleged that their

employer did not provide adequate notice of the new plan as

required by ERISA. The Supreme Court found that although

the employer did violate its disclosure obligations,

§ 1132(a)(1)(B) could not authorize relief for the employees

in the form of plan reformation. Id. at 1876–78. The Amara

court held that § 1132(a)(1)(B) could only authorize the

enforcement of the terms of the plan, it could not change the

terms of the plan. Id. at 1876–77.

The Court, nonetheless, held that plan reformation was

available under § 1132(a)(3) as an equitable remedy, stating

that the power to reform contracts is a traditional power of an

equity court. Id. at 1879–80. Therefore, once the plan was

reformed under § 1132(a)(3) to reflect the terms of the old

plan, it could be enforced under § 1132(a)(1)(B). The fact

that this relief takes a monetary form does not remove it from

the category of equitable relief. Id. at 1880.

Appellants argue that Amara authorizes them to seek

relief under § 1132(a)(3) despite their alternative claim under

§ 1132(a)(1)(B). The district court granted summary
22 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

judgment against Appellants, stating that the plaintiffs in

Amara did not have a remedy under § 1132(a)(1)(B) and that

Amara did not address whether equitable relief was available

under § 1132(a)(3) if § 1132(a)(1)(B) provided an adequate

remedy. The district court concluded that Appellants’ claim

for surcharge, estoppel, and restitution were, in essence,

monetary relief “couched in terms of equitable of relief” and

therefore could not be claimed as an equitable remedy.

Both the district court and Liberty Mutual insisted on

applying Varity and gave Amara short shrift, even though the

latter is controlling authority. While Amara did not explicitly

state that litigants may seek equitable remedies under

§ 1132(a)(3) if § 1132(a)(1)(B) provides adequate relief,

Amara’s holding in effect does precisely that. After the

Amara court held that plaintiffs did not have reformation

available to them under § 1132(a)(1)(B), the Supreme Court

then went on to authorize reformation as a form of equitable

relief under § 1132(a)(3).

If Appellants’ factual allegations are true, then the instant

case is highly analogous to Amara: in both cases, there was

a material lack of disclosure about the terms of a pension

plan; in both cases, plaintiffs sought relief under

§ 1132(a)(1)(B); and in both cases, plaintiffs also sought

equitable remedies under § 1132(a)(3). Thus, applying

Amara to this case, if Appellants are unable to recover

benefits based on an interpretation and enforcement of the

Retirement Plan under § 1132(a)(1)(B), they can, however,

receive reformation of the Retirement Plan as an equitable

remedy under § 1132(a)(3). Additionally, Amara makes it

very clear that remedies such as reformation, surcharge,

estoppel, and restitution are traditionally equitable remedies,
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 23

and the fact that they take a monetary form does not alter this

classification. 131 S. Ct. at 1879–80.

C. Applying Amara in Light of Varity

Applying Amara’s conclusion that a plaintiff may seek

relief under both § 1132(a)(1)(B) and § 1132(a)(3) does not

contravene the ruling in Varity. In Varity, plaintiffs sought

relief under ERISA § 409(a), 29 U.S.C. § 1109(a), which

authorizes recovery to benefit plans for breaches of fiduciary

duty. Varity, 516 U.S. at 508–09. The Varity court found

that § 1109(a) provided relief only for benefit plans and not

individuals, but held that § 1132(a)(3) could provide

individualized relief. Id. at 509–12, 515. Thus, a key holding

in Varity was that § 1132(a)(3) extends to other sections of

the statute, even when § 1132 does not expressly provide a

remedy for those sections. Varity did not explicitly prohibit

a plaintiff from pursuing simultaneous claims under

§ 1132(a)(1)(B) and § 1132(a)(3).

We agree with the Eighth Circuit’s application of Amara

in Silva v. Metro. Life Ins. Co., 762 F.3d 711 (8th Cir. 2014). 

There, the Eighth Circuit held that a plaintiff may seek relief

under § 1132(a)(1)(B) and § 1132(a)(3), stating that “[the

Amara court] addressed the issue in terms of available relief

and did not say that plaintiffs would be barred from initially

bringing a claim under the § 1132(a)(3) catchall provision

simply because they had already brought a claim under the

more specific portion of the statute, § 1132(a)(1)(B).” 

762 F.3d at 727. The Eighth Circuit addressed prior cases

that prohibited plaintiffs from seeking relief under both

provisions and explained, “We do not read Varity . . . to stand

for the proposition that [a plaintiff] may only plead one cause

of action to seek recovery [for an ERISA violation]. Rather,
24 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

we conclude those cases prohibit duplicate recoveries when

a more specific section of the statute, such as § 1132(a)(1)(B),

provides a remedy similar to what the plaintiff seeks under

the equitable catchall provision, § 1132(a)(3).” Silva,

762 F.3d at 726 (emphasis in original). The Eighth Circuit’s

reading permits plaintiffs to present § 1132(a)(1)(B) and

§ 1132(a)(3) as alternative—rather than duplicative—theories

of liability. This approach is an accurate application of

Amara in light of Varity because it allows plaintiffs to plead

alternate theories of relief without obtaining double

recoveries.

This reading of Varity is consistent with other pre- and

post-Amara cases that have held § 1132(a)(1)(B) and

§ 1132(a)(3) claims may proceed simultaneously so long as

there is no double recovery. Forsyth v. Humana, Inc.,

114 F.3d 1467, 1475 (9th Cir. 1997) (holding plaintiffs could

not recover under § 1132(a)(3) because they “[had] already

won a judgment for damages under section 1132(a)(1) for the

injuries they suffered as a result of the defendant's actions”),

overruled on other grounds, Lacey v. Maricopa Cty.,

693 F.3d 896 (9th Cir. 2012). Other circuits have similarly

recognized that § 1132(a)(1)(B) and § 1132(a)(3) claims can

proceed simultaneously if they plead distinct remedies.

In Rochow v. Life Ins. Co. Of N. Am., a post-Amara case,

the Sixth Circuit prohibited the plaintiff from pursuing his

§ 1132(a)(3) claim because he had a remedy available under

§ 1132(a)(1)(B). 780 F.3d 364 (6th Cir. 2015). However, the

court reasoned that “[t]he purpose behind ERISA continues

to be remedial, and [the plaintiff’s]injurywas remedied when

he was awarded the wrongfully denied benefits and attorney’s

fees.” Id. at 375. The plaintiff in Rochow had already

received his remedy under § 1132(a)(1)(B) and the court
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 25

essentially enjoined his § 1132(a)(3) claim, because, if

successful, it would result in a double recovery for the same

injury.

In Devlin v. Empire Blue Cross & Blue Shield, a preAmara case, the Second Circuit held that “should plaintiffs’

claim under . . . § 1132(a)(1)(B) . . . fail, plaintiffs’ breach of

fiduciary duty claim is their only remaining remedy. Varity

Corp. clearly provides that, where a plan participant has no

remedy under another section of ERISA, she can assert a

claim for breach of fiduciary duty under § [1132](a)(3).” 

274 F.3d 76, 89 (2nd Cir. 2001).

Both Rochow and Devlin support Appellants’ ability to

seek relief under § 1132(a)(3) despite also pursuing a claim

under § 1132(a)(1)(B). Here, Appellants seek the payment of

benefits under § 1132(a)(1)(B), but if that fails, Appellants

seek an equitable remedy for the breach of fiduciary duty to

disclose under § 1132(a)(3). This is permitted under pre- and

post-Amara cases across different circuits.

Some of our pre-Amara cases held that litigants may not

seek equitable remedies under § 1132(a)(3) if § 1132(a)(1)(B)

provides adequate relief. See, e.g., Ford v. MCI Commc’ns

Corp. Health & Welfare Plan, 399 F.3d 1076, 1083–84 (9th

Cir. 2005) (“Because Ford asserted specific claims under

29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(2), she cannot obtain

relief under 29 U.S.C. § 1132(a)(3).”), overruled on other

grounds, Cyr v. Reliance Standard Life Ins. Co., 642 F.3d

1202 (9th Cir. 2011). However, those cases are now “clearly

irreconcilable” with Amara and are no longer binding. See

Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en

banc) (holding that “a three-judge panel is free to reexamine

the holding of a prior panel” when the Supreme Court has
26 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

“undercut the theory or reasoning underlying the prior circuit

precedent in such a way that the cases are clearly

irreconcilable”).

This approach not only comports with Amara and Varity,

it also adheres to the Federal Rules of Civil Procedure, which

requires that “[a] pleading that states a claim for relief must

contain . . . a demand for the relief sought, which may include

relief in the alternative or different types of relief.” Fed. R.

Civ. P. 8(a)(3) (emphasis added). Finally, allowing plaintiffs

to seek relief under both § 1132(a)(1)(B) and § 1132(a)(3) is

consistent with ERISA’s intended purpose of protecting

participants’ and beneficiaries’ interests. See, e.g., 29 U.S.C.

§ 1001; see also Varity, 516 U.S. at 513 (“ERISA’s basic

purposes favor a reading . . . that provides the plaintiffs with

a remedy.”).

Thus, the instant case turns on a factual determination of

whether Liberty Mutual breached its fiduciary duty by failing

to inform Golden Eagle employees that past service credit for

the purpose of benefit accrual did not include the period prior

to October 1, 1997, when they were first employed by Golden

Eagle. Because there are triable issues of fact, the district

court erred in granting summary judgment on this claim.

III. Liberty Mutual Failed to Notify Appellants in Its

Summary Plan Descriptions that Past Service

Credit with Golden Eagle Would Not Count for

Benefits Accrual, But Appellants Did Not Prove

Harm or Reliance on the Summary Plan

Descriptions.

Under 29 C.F.R. § 2520.102-3(l), Summary Plan

Descriptions must contain a statement “clearly identifying
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 27

circumstances which may result in disqualification,

ineligibility, or denial, loss, forfeiture, suspension, offset,

reduction, or recovery . . . of any benefits that a participant or

beneficiary might otherwise reasonably expect the plan to

provide.” Additionally, 29 C.F.R. § 2520.102-2(a) requires

the Summary Plan Description to be “written in a manner

calculated to be understood by the average plan participant

and shall be sufficiently comprehensive to apprise the plan’s

participants and beneficiaries of their rights and obligations

under the plan.”

The law is divided as to whether Appellants need to

demonstrate detrimental reliance on the Summary Plan

Descriptions.6 The Amara court held that in cases that sought

reformation and surcharge as remedies, detrimental reliance

was not always necessary. 131 S. Ct. at 1881. In these

instances, the plaintiffs need only show harm and causation. 

Id. at 1881–82.

6 Several courts have held that reliance is necessary. See, e.g., Greeley

v. Fairview Health Servs., 479 F.3d 612, 614 (8thCir. 2007) (“In order for

an employee to recover from his employer for a faulty [Summary Plan

Description], this court requires the employee to show he relied on its

terms to his detriment.”); Branch v. G. Bernd Co., 955 F.2d 1574, 1579

(11th Cir. 1992) (“We reiterate our holding that a beneficiary must show

reliance on the terms of the summary.”) (emphasis in original); Govoni v.

Bricklayers, Masons &Plasterers Int’l Union, 732 F.2d 250, 252 (1st Cir.

1984) ( “[T]o secure relief, [a plaintiff] must show some significant

reliance upon, or possible prejudice flowing from, the faulty plan

description.”); but see Burke v. Kodak Ret. Income Plan, 336 F.3d 103,

106 (2dCir. 2003) (“Moreover, requiring plan participants or beneficiaries

to show detrimental reliance to recover for a deficient SPD contravenes

ERISA’s objective to promote distribution of accurate SPDs to

employees.”).
28 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

After Amara, we held in Skinner v. Northrop Grumman

Retirement Plan B that reformation under a fraud theory

requires a showing that “(1) one party seeks reformation,

(2) that party’s assent was induced by the other party’s

misrepresentations as to the terms or effect of the contract,

and (3) the party seeking reformation was justified in relying

on the other party’s misrepresentations.” 673 F.3d 1162,

1166 (9th Cir. 2012).

Liberty Mutual had a duty to identify in its Summary Plan

Descriptions circumstances which may have resulted in the

denial7of any benefits that Appellants might otherwise have

reasonably expected the Retirement Plan to provide. In this

case, Appellants had the reasonable expectation, based on the

alleged oral representations made by Liberty Mutual about

past service credit, that they would receive credit for the

purpose of benefits accrual. From 1997 to 2001, the

Summary Plan Descriptions did not contain this information. 

Even when the Summary Plan Description was amended in

2002, it stated that past service credit with Golden Eagle

would count toward eligibility, vesting, early retirement, and

spousal benefits. In light of the alleged representations made

at the enrollment meetings, these terms—particularly

“eligibility” and “vesting”—lack clarity in communicating

how past service credit would be used and are not “written in

a manner calculated to be understood by the average plan

participant,” as required by § 2520.102-2(a). Given that past

7 The district court affirmed Liberty Mutual’s position that Liberty

Mutual was not required to state in its Summary Plan Descriptions which

benefits Appellants were disqualified or ineligible for because Golden

Eagle did not provide retirement benefits. However, the regulation also

requires Liberty Mutual to state which benefits Appellants would be

denied based on their reasonable expectations. 29C.F.R. § 2520.102-3(l).
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 29

service credit for the purpose of benefits accrual was at the

fore of Golden Eagle employees’ concerns during the benefits

enrollment meetings and other informal encounters, it was not

sufficient for Liberty Mutual to simply assume that

Appellants would understand that they would not get credit

for benefits accrual when they saw the words “eligibility” and

“vesting,” assuming that plan participants understood what

“accrual” meant at all. Excluding explicit statements about

benefits accrual was a material omission that Liberty Mutual

should have clearly disclosed, especially since it had the

opportunity to do so in its Summary Plan Descriptions.

With regard to reliance, Appellants are unable to prove

even the lower standard of harm and causation. The district

court found that Appellants were not harmed because they did

not rely to their detriment on the allegedly faulty Summary

Plan Descriptions. Based on the record, it is evident that

many Golden Eagle employees, including some of the named

Appellants, made the decision to stay with Liberty Mutual

during the bidding period because they were under the

impression that their past service credit would count toward

accrual under the Retirement Plan. In fact, Kaerth left

Liberty Mutual for another job in 1998 after discovering that

he would not get credit for benefits accrual. However, the

record shows that any opportunity costs that Appellants may

have incurred were based on the oral representations made by

Liberty Mutual and not on the Summary Plan Descriptions. 

Thus, Appellants are unable to prove harm or detrimental

reliance on the Summary Plan Descriptions.

IV. Class Certification Was Appropriate.

The standard of review for class certification on appeal is

abuse of discretion. Yokoyama v. Midland Nat. Life Ins. Co.,
30 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

594 F.3d 1087, 1090 (9th Cir. 2010). While review of class

certification decisions is deferential, the decisions of district

courts are not afforded deference upon review of their

determinations of questions of law. Id. at 1091.

A. Commonality and Typicality

Rule 23 of the Federal Rules of Civil Procedure contains

two sets of class certification requirements set forth in Rule

23(a) and (b). United Steel, Paper & Forestry, Rubber, Mfg.

Energy, Allied Indus. & Serv. Workers Int’l Union v.

ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). 

Under Rule 23(a), a litigant may sue on behalf of other

members of a class if: (1) the class is so numerous that

joinder of all members is impracticable; (2) there are

questions of law or fact common to the class; (3) the claims

or defenses of the representative parties are typical of the

claims or defenses of the class; and (4) the representative

parties will fairly and adequately protect the interests of the

class. “Rule 23(a) ensures that the named plaintiffs are

appropriate representatives of the class whose claims they

wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541, 2550 (2011).

Liberty Mutual argues that the district court erroneously

certified Appellants as a class because the second and third

requirements of Rule 23(a)—commonality and typicality—

are not met in this case. Liberty Mutual contends that the

alleged misrepresentations are not the same for all Appellants

because they each received information about past service

credit from different sources. Additionally, Liberty Mutual

argues that Appellants’ underlying claims require

individualized proof of detrimental reliance, and the district

court erred by concluding that this reliance could be
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 31

presumed. Thus, commonality and typicality requirements

are not satisfied.

Liberty Mutual’s contention that Appellants did not

receive the same alleged misrepresentations is a question of

fact, and, given the standard of review, we defer to the district

court’s finding that Liberty Mutual’s claim “is not supported

by the evidence.” We need not decide whether the district

court erred in presuming Appellants’ reliance to certify the

class. Instead, we affirm the district court on the ground that

where the defendant’s representations were allegedly made

on a uniform and classwide basis, individual issues of

reliance do not preclude class certification. See Hanon v.

Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (“We

emphasize that the defense of non-reliance is not a basis for

denial of class certification.”). Therefore, the district court

correctly held that Appellants met the commonality and

typicality requirements.

B. Rules 23(b)(1)(A) and (B)

Under Rule 23(b)(1)(A), a class action can be maintained

if “prosecuting separate actions by or against individual class

members would create a risk of inconsistent or varying

adjudications with respect to individual class members that

would establish incompatible standards of conduct for the

party opposing the class[.]” Rule 23(b)(1)(B) states that a

class action can be maintained if “prosecuting separate

actions by or against individual class members would create

a risk of adjudications with respect to individual class

members that, as a practical matter, would be dispositive of

the interests of the other members not parties to the individual

adjudications or would substantially impair or impede their

ability to protect their interests[.]”
32 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Liberty Mutual argues that class certification under Rule

23(b)(1)(A) was improper because Appellants seek monetary

damages and because some of the Appellants may be able to

make the necessary showing to be entitled to relief while

others may not. Liberty Mutual goes on to argue that class

certification was also improper under Rule 23(b)(1)(B)

because it would “be inconsistent with the terms of the

[Retirement Plan] and ERISA to award benefits to some

Plaintiffs and deny benefits to others depending on the oral

representations made to that particular Plaintiff.”

Liberty Mutual’s arguments are unpersuasive. While

Appellants seek monetary damages in this case, they also

seek relief in the form of equitable remedies. Liberty

Mutual’s remaining two arguments are essentially the same,

as they address the concern that some Appellants would

receive relief while others would not. However, this seems

to be an argument in favor of class certification. Rule

23(b)(1)(A) prevents the prosecution of separate actions that

would create the risk of “inconsistent or varying adjudications

. . . that would establish incompatible standards of conduct

for the party opposing the class.” Prosecuting separate

actions in this case would have the result of subjecting

Liberty Mutual to incompatible standards of conduct, a

consequence that Liberty Mutual has previously conceded

would likely happen. For the above reasons, the district

court’s class certification was proper.

CONCLUSION

For the foregoing reasons, we find the following:

1. Appellants are not entitled to past service credit under

the terms of the Retirement Plan. We therefore
MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 33

AFFIRM the district court’s grant of summary

judgment as to claim (1) under 29 U.S.C.

§ 1132(a)(1)(B).

2. Appellants may pursue simultaneous claims under

29 U.S.C. § 1132(a)(1)(B) and § 1132(a)(3). We

therefore REVERSE the district court’s grant of

summary judgment as to claim (2) under 29 U.S.C.

§ 1132(a)(3), and REMAND for determinations of

fact and equitable relief in the form of reformation

and surcharge.

3. Appellants are unable to prove harm or detrimental

reliance on Liberty Mutual’s failure to disclose

information about past service credit in the Summary

Plan Descriptions. We therefore AFFIRM the

district court’s grant of summary judgment as to

claim (4) under 29 C.F.R. §§ 2520.102-3(l) and

2520.102-2(a).

4. We AFFIRM the district court’s grant of class

certification.

AFFIRMED in part, REVERSED in part;

REMANDED. Each side to bear its own costs.