F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G E O F F R E Y M O Y L E , an individual, on behalf of themselves; P A U L I N E A R W O O D , an individual, on behalf of themselves; T H O M A S R O L L A S O N , an individual, on behalf of themselves; J E A N N I E S A N D E R S , an individual, on behalf of themselves,

Plaintiffs-Appellants/ Cross-Appellees

,

v.

L I B E R T Y M U T U

A L R E T I R

E M E N T B E N E F I T P L

A N ; L I B E R

T Y M U T U

A L R E T I R E M E N T P L A N R E T I R E M E N T B O A R D ; L I B E R

T Y M U T U

A L I N S U R A N C E C O M P A

N Y , a Massachusetts company ; L I B E R T Y M U T U A L I N S U R A N C E G R O U P I N C

. , a Massachusetts company

,

Defendants-Appellees/ Cross-Appellants. Nos. 13-56330 13-56412

D.C. No. 3:10-cv-02179- GPC-MDD

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Gonz alo P. Curiel, District J udg e, PresidingM O Y L E V

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Arg ued and Submitted October 19, 2015

Pasadena, California

F iled May

20, 2016

B efore: Harry

Preg erson and Consuelo M. Callahan, Circuit J udg es and Stanley Allen B astian, * District J udg e.

Opinion by

J udg e Preg erson

SUMMARY * *

Em ployee Retirem ent Incom e Security Act

The panel affirmed in part and reversed in part the district

c ourt’s summary judg ment in favor of the defendants i n a class action under the Employ ee Retirement I ncome Security Act.

Plaintiffs alleg ed th a t their new employ e r, which purchased their former employ er, told them that th ey would receive p ast service credit, under the new employ er’s

re t i r ement plan, for the time they w orked with the f ormer employ e r.

* T h e Ho n o rab le Stan l ey A llen B astian

, Distr ict J u d g e f o r th e U .S. District Co u rt fo r th e Eastern District o f Wash in g to n , sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M O Y L E V

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The panel affirmed the district court’s summary judg ment

on a c laim for benefits under 29 U.S.C. § 1132(a)(1)(B ). The panel held that the district court applied the correct a buse o f d iscretion standard of review, and the plaintiffs were n o t

e n t itled to past service credit under the plain terms of t h e retirement plan.

The panel reversed the district court’s summary judg ment

on plaintiffs’ claim for e quitable relief under § 1132(a)(3). Ag reeing with the Eig hth Circ u it, the panel held that the plaintiffs were not barred from bring ing simultaneous c laims under § 1132(a)(1)(B ) and § 1132(a)(3)

. Courts have interpreted Varity Corp. v

. Howe
, 5 1 6 U.S. 489 (1996), to

mean that equitable relief u nder § 1 132(a)(3) is not available if § 1132(a)(1)(B ) provides a n adequate rem e d y

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

a uthoriz es equitable relief in the f orm of plan reformati o n , even if plaintiffs also claim relief under § 1132(a)(1)(B ). The panel concluded that in lig ht of Amara
, pr i o r Ninth Circuit

case law to the contrary was no long er b i n ding

. The panel remanded for determinations of fact and e quitable relief in the form of reformation and surcharg e

.

The panel affirmed the d istrict court’s summary judg ment

on a claim that the n ew employ er breached its fiduciary duty
to disclose information about past service retirement credit in its Summary Plan Description. T he panel held tha t the plaintiffs did not prove harm or detrimental reliance.

On defendants’ c r o s s -appeal, the panel held that class certification was proper.M O Y L E V

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COUNSEL

Matthew B utler (arg

ued) and Michael Olinik, The B utler F irm, San D ieg o , California; J ack W inters J r., W in t e r s & Associates, San Dieg o, California; Craig Nicholas and A lex Tomasevic, Nicho l as & Tomasevic, L L P, San Dieg o, California, for Plaintiffs-Appellants/Cross-Appellees.

Ashley Abel (arg

ued), J ackson L ewis P.C., Greenville, South Carolina, for Defendants-Appellees/Cross-Appellants.

OP INION

PREGERSON, Circuit J udg e :

Appe l l ants are former employ ees of Old Golden Eag le I nsurance Company (“Golden E ag le”). Golden E ag le did not

o f fer a retirement p lan to its e mploy ees. W hen L i b e r t y Mutual I nsurance C o m pany ( “L iberty Mutual”) purchased Gold e n E ag le throug h a conservatorship sale, Appellants became employ ees of L iberty Mutual. A ppell a n t s state that while the sale was underway

, L iberty Mutual told Appellants that they would r eceive pa s t s er v i ce credit for the time they worked with Golden E ag le under L iberty Mutual’s retirement plan. B ut, af

t er L iberty Mutual purchased Golden Eag le, L iberty Mutual denied Appellants’ claims for past ser v i c e credit. L iberty Mutual arg ues that i t n e ver made any

r e p r esentation to Appellants that they would receive pa s t

s e r v i ce credit for their time with G olden Eag le. L ibert y M u t u al also arg ues that under the terms of the r etirement plan, Appellants are entitled o n l y to past service credit for
purposes of elig ibility

, vesting

, early retirement, and spousal benefits, and not for retirement benefits accrual.M O Y L E V

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Appellants filed thi s class a c tion ag ainst L iberty Mutual for violating the Emp loy ee Retirement I ncome Security A ct (“ERI SA”). At the d istrict cou r t , Appellants asserted four claims for re l i e f

: (1) A ppellants 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) L iberty Mutual violated its duty to provide Appellants with documents relevant to their claim; and (4 ) L i berty Mutual violated its duty to d isclose i n formation about past service retirement credit in i t s Summary Plan Descriptions. Ap p e l l ants seek the equitable remedies o f reformation and sur c h a r g e for both claims (2) and (4).

The district court g ranted summary judg ment in favor of L iberty Mutual o n all four claims. Appell a n t s appealed on claims (1), (2), and (4). L iberty M utual cross-appealed, alleg ing that Appellants’ suit is time-barred and th a t class certification was improper.

W e r everse the d istrict court’s ruling as to claim (2 ). Appellants can seek e quitable relief under 2 9 U .S.C. § 1132(a)(3). W e affirm the d istri c t c ourt’s ruling as to claims (1) and (4): A ppellants are n ot entitled to past service

c r e d i t under the p lain terms of the retirement plan, a nd Appellants did not rely to their detriment on L iberty Mutual’s failure to disclose information about past service credit in its Summary Plan Descriptions. W e also find that the suit is not time-barred and that class certification was proper.M O Y L E V

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F ACTUAL BACK G ROUND

I. Liberty Mutual’s Bid f o r G olden Eagle

On J a nuary 3 1
, 1997, the California Department o f I nsurance placed Golden Eag le into c onservatorship with the San Dieg o Superior Court. Seeing an opportunity to ex pand its insurance business, L iberty Mutual took a n immediate interest in acquiring G olden Eag le, who had a larg e worker’s compensation business.

However, many Golden Eag le emplo y ees—worried that their jobs w er e in jeopardy —beg an to look for different employ men t o p p ortunities. F rom J a nuary 1 997 to the

summer of that y ear, n early fifty p e rc e n t of G olden Eag le employ e es left the company , and their departure had already cost Golden Eag le about a half million dollars.

I n April 1997, L iberty

Mutual was in a bidding war with Am e r i can I nternational Group, I n c

. (“AI G”) for the acquisition of Golden Eag le. To win the bidding war, L iberty Mutual needed to not only match AI G ’s bid, it also needed to add enhancements to secu r e the Conservation Court’s approval. On April 6, 1997, L iberty Mutual submitted its enhanced bid, whi ch included improved employ ee benefits such as a retirement plan, a ben e f i t n ot offered by G olden Eag le. I ncluding improved e mploy ee benefits for G olden Eag le’s former employ ees served to benefit L ibe r t y Mutual in two way s: by retaining Golden Eag le’s employ ees, and b y increasing the likelihood that the court would approve L iberty Mutual’s bid.M O Y L E V

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W h ile the bid was go i n g on, several Golden Eag le employ e es a

pproached Georg e Kaerth, Senior Vice President of Underwriting at Golden Eag le, and asked him if they would g et past service credit for their time with Golden Eag le under L iberty Mutual’s retirement benefits prog ram. Kaerth, in turn, had about twenty conver s ations with David L ong from L iberty Mutual, and about ten to twelve conver s a t i o ns with Tim S weeney , also from L iberty Mutual, about the L iberty Mutual benefits packag e for Appellants. K aerth repeatedly told L o ng and Sweeney that t h e Golden Eag le employ e es were confused about p a st service cred i t

. K aerth asked L o n g and Sweeney pointedly w hether or n ot service with Go l d en Eag le would count under the L iberty Mutual benefits p r og ram, and, every time, L ong and Sweeney separately responde d that this issue was still under
neg otiation.

On May 2 9, 1997, the Co nservation Court h eld an evidentiary hearing to evaluate L iberty Mutual’s a nd A I G ’s competing bids. Among the ex hibits that L iberty Mutual submitted to the court, one e x hibit e x pr e ssly stated that the value that L iberty Mutual added was to “i n c r e a se employ ee benefits (credit for prior y e ar’s of service and participation in the benefits p l a n ) .” L iberty Mutual also told the Conservation Court that Golden Eag le employ ees would have the rig hts that L iberty Mutual e m ploy ees had w ith “X y ears of service.” This representation was later repeatedly made to Golden Eag le employ ees. 1

1 B rian Ch am

bers, Vice P resid en t o f P rem i u m A u d itin g at Go ld en Eag le, testif ied at h is d ep o sitio n : “ [W ]e u n d ersto o d th at prio r y ears serv ice w ou ld b e co v ered

, th at if y o u w ere ten y ears w ith G o ld en Eag le, th en y o u w ou ld still reg i ster lik e ten y ears w ith th e n ew co m p an y .”M O Y L E V

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L iberty Mutual’s representations at the May 29 h earing

were shared with Golden Eag le employ ees. At the time o f the hearing

, Golden Eag le employ ees p referred L iberty Mutual’s proposal because it was perceived that L iberty Mutual would
treat its e mploy ees better than AI G. On May 30, 1997
, the Conservation Court approved L iberty Mutual’s bid.

II. G olden Eagle Transitions to Liberty Mutual

Fo llowing the approval o f L iberty Mutual’s bid, L ibe r t y Mutual d rafted a Rehabilitation Ag reement, which was meant to settle any outstanding claims with policy holders, creditors, and shareholders of Golden Eag le. Notably

, Article 5 of the Rehabilitation Agr e e ment states that Golden Eag le employ e es’ past service c redit would count for the purposes of elig ibility

, v esting

, and early retirement subsidies under L iberty Mutual’s r etirement benefit plan, but past service credit would not be credited for the p u rpose of benefits accrual. The Rehabilitation Ag reement is the only document that e x plicitly states that past service credit with G olden Eag le would n ot count for b enefits accrual, and this lang uag e does not appear any

where else during the time of transition o r in any of the communications with Golden Eag le employ ees.

Helen Say

les, L iberty

Mutual’s Senior Vice President of Hum a n Resources and Administration, oversaw the development of Article 5 as w ell as all Summary P l an Descriptions (“SPD”) 2

. Say les testified that it was “important

2 Su m m ary P lan Descrip tio n s are su m

m aries o f th e m aterial pro v isio n s

o f a retirem en t b en ef

its p lan

, o u t lin in g th e rig h ts an d o b lig atio n s o f p lan
p articip an ts an d b en ef

iciaries. Un der ERISA
, p lan ad m in istrat o r s are req u ired to p ro v i d e r e g u lar S u m m ary Plan Descrip tio n s to p articip an ts. S ee 2 9 U.S.C. § 1 0 22

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t o b e ex plicit at each ag reement, including this one, w ha t people g ot and what people didn’t g et.”

The Conservator in charg e of the transition of G olden Eag le to L iberty Mutual was not required to send notification of the Rehabilitation Ag reement to Golden Eag le employ ees. L iberty Mutual never provided a copy of the Rehabil i t a t i o n Ag reement to Golden Eag le employ ees.

During Aug ust 1997, L ibert y M u t ual hosted a series o f benefits enrollment meeting s so that Golden Eag le employ ees could discuss and obta i n i n f ormation about the transition to L iberty Mutual. L iberty Mutual d eveloped a uni form “F acilitator Guide” that pre s e n t e r s used as a script at these meeting s to convey informat i o n about the terms a nd conditions of employ ee bene f its, including retirement benefits. There was no mention in the F acilitator Guide that past service c redit with G olden Eag le would n o t b e credited for benefit accrual, or that benefit accrual would beg in on the plan entry date of October 1, 1997.

During the enrollment meeting s, L iberty Mutual failed to indicate that there were an y l i m itations to the treatment o f past service credit. Paula Tonsky

, w h o org aniz ed new hire orientations, testified that her understanding from attending

some of these meeting s was that “previous y e ars with G olden Eag le would c ount towards

. . . service with L iberty Mutual.”

Golden E ag le employ ee s G eoffrey Moy le, Pauline Arwood, T h o mas Rollason, and J eannie Sanders also testified that this was their understanding after attending the meeting s,

as well a s the understanding of o t h e r Golden Eag le

em ploy e es. W hen asked if his understanding was that he would g et past service credit for his time with Golden Eag leM O Y L E V

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f o r a l l purposes under the L iberty Mutual r etirement plan

, Moy le stated, “I know that was my understand i n g , because
every body was quite happy a fter the meeting

, that [sic] what they were g oing to r eceive.” Similarly

, Sanders testified, “[ B ] ecause of the meeting

. . . we a ll were told that our y ears of service with Golden Eag le would be counted towards our retirement benefit, meaning that our c h eck we would r eceive, the money , the y ears we worked for Golden Eag le, would be calculated for that.”

Arwood testified that the ques t i o n of past service credit was asked at least three times during one meeting . She then stated, “[ W ] e specifically a sked an d were told that our prior
y ears with Golden Eag le would a p p ly to our retirement plan, which we were a ll very ex ci t ed a b o u t, because some of us

were g etting ready to retire in a fe w y ears

. . . I mean, every body was there. B a sically , . . . that was the impression

w e were g iven. That is why e v ery b ody stay ed w i t h t h e company .”

Rollason testified that Mike Plavnicky from L iber ty Mutual told Golden Eag le employ e es during an enrollment meeting that “ [ y ] ou accrue, t h i s , that.” Rollason went on to state, “ Plavnicky came o ut and said, y es, y ou will g et pension, pension for y our Golden Eag le time throug h L iberty Mutual. He said it point blank r ang e.” Rollason testified that he was looking for another job at that time: “[ T] hen they said that we w ould ge t the benefit—the pension and I said, well, at my ag e . . . I

will just stay

here then.”

Also d uring th e enrollment period, Golden Eag le employ e es had two information documents available to them: the operative 1 987 Plan ( “ 8 7 P lan”) and the Summary Plan Descriptions. The 87 Plan, however, did not address p a s tM O Y L E V

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service credit or an y c r edit for v e sting

, elig ibility

, o r participation. Similarly

, the Summary Plan De s c ription, which was dated 1996, did not address past service credit.

III. G olden Eagle Form ally Becom es P art of Liberty Mutual

On October 1, 1997, L ibe r t y M utual officially acquired Golden Eag le a

nd formed G olden Eag le I nsurance Company
, a s ubsidiary of L iberty Mutual. Golden Eag le employ e e s who stay ed on were n ow L iberty Mutual employ ees. F or the

nex t four y ears, L iberty Mutual d id not amend the 87 Plan to address p ast service credit. L iberty Mutual’s S ummary Plan Descriptions from 1997 t o 2 001 also did not address past service credit.

I n 2001, L iberty Mutual finally amended the L ibe rty Mutual Retirement B enefit Plan (“the R e tirement Plan”) to include provisions that specifically addre ssed Golden Eag le employ e es. The Summary Plan Description dated 2002 also address e d G olden Eag le employ e es. B oth the Retirement Plan and the 2002 Summary Plan Description stated that past service c redit for Golden Eag le employ ees would be “credited for elig ibility

, v esting

, e arly retirement, and spouse’s benefits . . . ;” in 2009, the word “solely ” was added to this clause.

B e tween 2002 and 2006, the L iberty Mutual Retirement B enefit Plan Retirement B oard (“L iberty Mutual B oard”), the Retirement Plan’s administrator, d e n ied the claims of almost

a doz en former Golden Eag le employ e es who soug h t p a s t service credit, includi n g the claims of Moy le, Arwood,M O Y L E V

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Rollason, and Sanders. L iberty Mutual’s justification for the denials w as that it had informed f o r m e r Golden Eag le employ e es about when past service credit ap p l ied a nd th e r e fore, former Golden Eag le e mploy ees should have known when past service credit did not apply

.

P ROCEDURAL BACK G R OUND

On March 14, 2005, Moy le filed an action ag ainst G olden Eag le I nsurance Company and L iberty Mu t u a l in district court, s eeking benefits pay ment for his past service credit with Golden Eag le. Moy le a mended the complaint on Aug ust 2 3
, 2 0 0 5 to include the Retirement Plan as a defendant. On November 14, 2005, the district c ourt g ranted the defendants’ motion to d ismiss for f a i l u r e to e x haust administrative remedies. Moy le appealed and this court affirmed the district court’s dismissal on Aug ust 23, 2007.

O n J a n u ary 2 6, 2 008, Moy le filed a claim with L iberty Mutual. On J uly 18, 2 008, Rollason filed a claim; on Aug ust 21, 2 008, Arwood filed a claim; and o n Decemb e r 4, 2008, Sanders filed a claim. J ohn R. S t. Martin, L iberty Mutual’s Manag er o f Pension, Saving s, and B enefits, denied Moy le’s claim on A pril 23, 2008, and subsequently denied the c laims of Rollason, Arwood, and Sanders.

Moy le, Rollason, Arwood, an d S a nders consolidated their claims and soug ht administrative review with L iberty Mutual. On O ctober 23, 2009, Helen Say les, Senior Vice President o f Human Resources a n d Administration, denied Appellants’ appeal on behalf of the L iberty Mutual B oard.M O Y L E V

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On October 19, 2010, Moy le, Rollason, Arw o o d

, a nd Sanders file d t h e instant class action complaint ag ainst the Retirement Plan, the L i b e rty Mutual B oard, L iberty Mutual Group, I nc., and L iberty Mutual ( collectively

, “L iberty Mutual”) for violations of E RI SA. The d istrict court g ranted Appellants’ motion for class certification on April 10, 2012. On April 24, 2012, L iberty Mutual filed a petit i o n with this
court for permission to app e a l t h e district court’s order
g ranting c l ass certification. This court denied L iberty Mutual’s petition for permission to appeal on J uly 11, 2012.

On October 12, 2012, Appellants filed a third amended complaint which alleg ed the following four causes of action: (1) pay ment of benefits under the Retirement P l a n pursuant to 29 U.S.C. § 1132(a)(1)(B ); (2) equitable r e m e d ies under 29 U.S.C. §1132(a)(3); (3) civil p e n a l t i e s for failure to provide d ocuments under § 29 C.F .R. § 2560.503-1(h)(2)(ii i );

a n d ( 4 ) failure to meet the requirements for Summary R e t i r ement Plan Descriptions as required by 2 9 C.F .R. § 2520.102-3(l) and 29 C.F .R. § 2520

. 1 0 2-2(a). The equitable remedies that Appellants seek under claims two a nd four are reformation and surcharge

.

On J uly 1, 2013, the district court gr a n t e d L iberty M u t u al’s motions for summary judg ment on a ll four c laims and denied all of Appellants’ motions for summary judg ment. On J u ly 3 0, 2013, Appellants timely f iled a notice o f appeal in this court. L iberty Mutual filed their notice of cross-appeal

on Aug ust 13, 2 013, arg uing 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.M O Y L E V

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D ISCUSSION

I. Appellants Cannot Receive Benef its f o r P ast Service Credit with G olden E a g l e u nder the Term s of the Retirem ent P lan.

A. The Dis t r i ct Court Applied the Correct Standard of Review.

Under 29 U .S.C. § 1132(a)(1)(B ), a civ i l ac t i o n may be broug ht “by a participant, beneficiary

, or fidu ci ar y [] to

reco v er b e n ef

its due to him under the terms o f his plan, to enforce his rig hts under the terms of the plan, or to clarify his rig hts to f uture benefits under the terms o f the plan.” Denials of bene f i t s u n der this provision are “ to be reviewed u nder a de novo standard unless the benefit plan gi v es the administrator or fiduciary discretio n a ry authority to determine e l i gibility for b enefits o r to construe the terms o f the plan.” Firestone v. Bruch

, 489 U.S. 101, 115 (1989).

I f the a dministrator o r fiduciary who is g iven discretionary authority operates und e r a conflict of interest, “that conflict must b e weig h ed as a facto[ r] in d etermining

w h ether there is an abuse of discretion.” Id. 3 (citi n g Restatement (Seco n d ) of Trusts § 187, Comment d (1959)) (internal quotations omitted). De novo revie w applies in instances where the administrator has a serious conflict o f interest that the beneficiary c an demonstrate with “material, probative evidence, bey ond the mere f a c t of a n apparent

3 T h e S u p rem e Co u rt ex plicitly state d

, “W e e x p r ess n o v iew as to th e ap p ro p riate stan d ard o f rev i ew f o r actio n s u

n d er o th er rem ed ial pro v isio n s

o f ERISA .” Firesto n e , 4 89 U.S. at 1 08

. W e t h u s ap p ly th is s tan dard o n ly
to § 1 1 3 2 (a)(1 )(B ).M O Y L E V

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conflict, tending to show that the fiduciary ’s self-interest caused a b re a c h o f the administrator’s fiduciary o blig ations
to the b eneficiary .” Gatti v

. R eliance Standard Life I ns. Co.
, 415 F .3d 978, 985 (9th Cir. 2005) (quotation marks omitted). The administrator must have e ng a g e d i n “wholesale a nd flag r ant violation[ ] of the procedural requirements of ERI SA and thus act[ ] in utter disreg a rd of the underly

ing purpose o f the plan a s well.” Abatie v. Alta Health & Life I ns. Co.
, 458 F .3d 955, 971 (9th Cir. 2006).

B o th parties ag ree that the Retirem e n t P lan g ives the L iberty Mutual B oard, as a d ministrator, discretion to interpret the Retirement Plan. However, Appellants arg ue that there is

a structural c o nflict of interest because of the close connection b etween L iberty Mutual, who fund s the Retirement Plan, and the L iberty Mutual B oard, who acts a s administrator of the Retirement Plan. Say les, who approved St. Martin’s denial of Appellants’ initial claims for benefits,

was both D irector o f Human Resources for L i b e r t y Mutual

a nd a member of the L iberty Mutual B oard of D irectors. Appellants arg ue that St. Martin and Say l e s w e re involved with the 1997 B enefit Enrollment meeting s and drafted p lan documents, including t he Summary Plan Descriptions a nd F acilitator G uide. A ppellants con tend that St. Martin a nd Say les were e ssentially rely ing on their own communications when deciding to d eny Appellants’ claims, and this conflict of inte r e s t served as a bias a g ainst Appellants. Appellants
arg ue that for these reasons, d e novo review applies.

The district cou r t found that Appellants did not provide specific evidence to show that a sufficiently serious structural conflict o f interest ex isted as to warrant d e novo review. The district court, h o w e v e r , did find that a conflict of interest

ex isted based on the s ig nificant overlap between theM O Y L E V

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employ e es who worked f o r b o th L iberty Mutual and the L iberty Mutual B oard, a n d thus reviewed the record for an abuse of discretion, weig hing t he conflict of interest as a factor.

The district court’s abuse of discretion standard of r eview is correct. Appellants failed to provide “material, probative evidence” that the L ib e r t y Mutual B oard eng a g ed in “whol es a le and flag r ant violations of the procedural requirements of ERI SA.” Gatti
, 415 F .3d at 985; Abatie

, 458 F .3d at 971. Additionally

, Say les testified t h a t s h e h ad

never obtained a report that analy z ed the actuarial soundness of the Retirement Plan if Golden Eag le employ ees were g iven
p ast service credit f

or the purpose of benefits accrual. 4 Absent this informati o n, it is difficult to prove that Say les

wa s motivated by the self-interest of the fiduciary when she denied Appellants’ initial claims.

B. Libe rty M

utual’s I nterpretation of the Retirement Plan W as Reasonable.

Under the abuse of discretion standard, an administrator’s denial of benefits must be upheld “if it is based u p on a reasonable interpretation o f t h e plan’s terms and if it was made in g o od faith.” McDaniel v. Chevron Corp.
, 203 F .3d 1099, 1113 (9th Cir. 2000). The analy sis is not based on “whose interpretation of the plan documents is most persuasive, but whether the [ a dminstrator’s] interpretation is unreasonable. ” Canseco v

. Constr. Laborers Pension Tr.
, 93 F .3d 600, 6 06 (9th Cir. 1996) (internal quotation marks

4 S e e a l so Hu g h es Aircra

ft Co

. v. Ja co b so n , 5 2 5 U.S. 4 3 2
, 4 4 3

– 4 6 (1 9 9 9) (h o ld in g th at certain am en dm en ts to p en sio n p lan s d o n ot trig g er f id u ciary d u ties, as lo n g as th e p lan is actu arily

so u n d ).M O Y L E V

. L I B E R T Y M U T

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omitted). The co u r t m u s t “look to the p lain lang u ag e of the [ Retirement Plan] to d etermine whether the [ administrator’s] interpretation of that plan is ‘arbitra ry a nd capricious.’” Id. I n the instant case, the abuse of discretion standard will be applied with the conflict o f interest b eing weig hed as a factor in determining whether the L iberty Mutual B oard abused its discretion. Abatie , 458 F .3d at 965.

Article 3 o f the R e t i r e ment Plan lay s out the v arious formulas for calculating accrued benefits under t h e normal retirement benefit. The formulas a r e based on a p lan participant’s “y ears o f credited service.” According to the relevant parts of Article 1.69(c) o f the Retirement Plan, “y e ar of credited servi c e” for full-time employ ees means “the period of the Participant’s service with the Employ er following h is Entry Date

. . . . [ T] he following periods of time shall not be included in determin i ng Years of Credited Service and f

ractional Years of Credited Serv i c e:

. . . any period of time during w hich an E mploy e e i s n o t an Elig ible Employ ee.” “Entry date” is defined as “the first day of each calenda r month.” A rticle 1.25 of the Retirement Plan. “Elig ible Employ ee” includes “ any E mploy ee who

. . . is employ e d by a Participating Em p l o y er .” Article 1.19 of the Retirement Plan. “Participating E mploy e r” means “ any other Affiliated Employ er which adopts the Plan with the approval of [ L iberty

Mutual] .” Article 1.50 of the Retirement Plan.

Under Article 1.4 of the Retirement Plan, “Affiliated Employ er” means “any corporation, tru s t , association o r enterprise ( other than [ L iberty Mutual] ) which is (a) r equired
to be c onsidered, t og ether w ith [ L iberty Mutual]

, as o ne employ e r pursuant to the provisions of Sections 414( b ), 414(c), 414(m), or 414(o) of the Code ; or (b) which is desig na ted an Affiliated E mploy er by [ L iberty Mutual]

. ”M O Y L E V

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W i t h reg a

rd to an affiliated employ e r, Article 2.16 of th e Retirement Plan also states:

(a ) General

. An individual’s employ ment

ser v i c e with an e mploy er prior to the date

s u c h employ e r becomes an Af f i l i a t e d Employ er shall n o t b e considered employ ment service with the Employ er under this Plan, unless otherwise p r o v ided b y the B oard o f Directors, or unless otherwise r e q u ired b y Department of L abor or T reasury reg ulations. Similarly

, an individual’s employ ment s e r v i ce with an employ er who is not a n Affiliated Em p l o y er, o r w ho ceases to be an Affiliated E m p l o y e r , s h a l l n o t b e c o n s i d e r e d employ ment service with the Employ er under this Plan, u nless otherwise provided by the Bo ard of Directors, or unless otherwise required by Department of L abor or Treasury
reg ulations. Notwithstanding the following :

. . . . (d) Golden Eagle

. The following special rule applies to former emp l o y ees of [ Golden Eag le] who became e mploy ed by th e Golden Eag le I nsurance Corporation, a w holly owned subsidiary of the Comp a n y , on October 1, 1997, as a r esult of the acquisition by the Company of the assets of [ Golden Eag le]

. F o r purpose s o f apply ing the elig ibility a nd
p articipation provisions of Article 2 and t h e

v esting provisions of Article 6, and f o r determining elig ibility for e a rl y retirementM O Y L E V

. L I B E R T Y M U T

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benefits u nder Section 4.1 and Spouse’s death benefit under Section 7.3, such empl o y ees’ prior em ploy

ment service with [ Golden Eag le] shall be considered employ ment service with the Employ e r under this Plan.

The L iberty Mutua l B o ard, as administrator, found that under t h e s e provisions, G olden Eag le was never a Participating Employ er prior to October 1, 1997. Therefore, Appellants were not Elig ible Employ ees prior to O c t o ber 1, 1997 and the time that they w ere employ ed by Golden Eag le did not count as Years of Credited Service for the p u rposes o f calculating accrued benefits under Article 1.69(c). F or these
reasons, the L iberty Mutual B oard denied Appellants’ c laims for benefits. L iberty Mutu a l a l so contends that Article 2.16(d), which addresses G o l d e n Eag le employ ees’ prior employ ment service, specifically e numerates e lig ibility

, vesting

, early retirement, and spousal benefits; it d o e s not mention benefits accrual or Article 3 of the Retirement Plan.

Apply ing the abuse of discretion standard while w e ig hing the conflict of interest as a factor, the district court correctly f o und that the L iberty Mutual B o ard did not constru e t h e terms of the Retirement Pla n i n an arbitrary and capricious

manner. U nder the plain lang uag e of the Retirement Plan, it is not unreasonable to r ead the relevant p r o v i s i ons a s

ex c luding service time with Golden Eag le from ben e fits accrual. I n particular, Article 2.16(d) pointedly contemplates what past s e r v ice credit with Golden Eag le would count toward a nd sug g ests that it w ould be considered employ ment service with L iberty Mutual only for th e purposes o f elig ibility

, vesting

, early retirement and spousal benefits. Our

an al y s i s is based on whether the L iberty Mutual B oard’s reading of the Retirement Plan w as reasonable, and n ot onM O Y L E V

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which p a rty ’s interpretation is more persuasive, and we find such an interpretation to b e reasonable. 5 Canseco
, 93 F .3d at 606.

II. A p p ellants Are Not Barred f rom Bringing Sim ultaneous Claim s U n d e r 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. § 113 2 ( a )(3), a c ivil a ction may be brou gh t “ b y a participant, b eneficiary

, or fiduciary (A) to enjoin any act o r practice which violates any p rovision o f this

s u b chapter or the terms of the p lan, or (B ) to obtain oth e r appropriate equitable r e lief (i) to r e d r e s s such violations o r (ii) to e nforce any provisions of this subchapter or the terms of the plan.”

I n Varity C o rp. v. Howe
, the Supreme Court described § 1132(a)(3) as a “‘catchall’ provision[ ] [ t hat] act[ s] as a safety net, o ffering appropriate equitable relief for injuries caused by v iolations that [ § 1 1 32] does n ot elsewhere adequately remedy .” 516 U.S. 489, 512 (1996). Courts have subsequently interpreted Varity to mean that equitable relief under § 1 132(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. 2 0 1 5 ) ;

5 B ecau se w e af

f irm su m m ary j u d g m en t in f

av o r o f Li b e rty Mu tu al’ s § 1 1 3 2 (a)(1 ) ( B ) arg u m en t o n th e m erits, t h e s tatu te o f lim itatio n s an d lach es claim s are m o o t. W e d eclin e to ad d ress L i b erty Mu t u al’ s arg u m en t th at th e statu te o f rep o se in 2 9 U.S.C. § 1 1 1 3 acts t o b ar so m e of A p pellan t s’ claim s u n der 2 9 U.S.C. § 1 1 3 2 (a)(3 ). T h e d istrict co u rt m ay

co n sid er su ch arg u m en ts o n rem an d

.M O Y L E V

. L I B E R T Y M U T

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N E F I T P L

A N 21

K o r o tynska v. Metro. Life Ins. Co.
, 474 F .3d 101, 106 ( 4t h Cir. 2006); Hall v. Lhaco

, I nc. , 140 F .3d 1190, 1197 (8th Cir. 1998).

B. Equitable Relief After Amara

I n CIGNA Corp. v. A m ara , 131 S. Ct. 1866, 187 9

– 8 0 (2011), the Supreme Court held that § 1132(a)(3) authoriz ed equitable relief in the form of plan reformation, even thoug h plaintiffs also claimed relie f under § 1132(a)(1)(B ). I n Amara
, employ ee s f

iled a class action suit ag ainst their employ e r after the employ er sig n ificantly chang ed the terms of their pension plan

. The e mploy ees alleg ed that their employ e r did n ot provide a dequate notice of the new plan a s required by ERI SA. The Supreme Court found that althoug h the employ er did violate its d isclosure oblig ations, § 1132(a)(1)(B ) could not authoriz e relief for the employ ees in the form of plan reformation. Id. at 1876–78. The Amara
court h eld that § 1132(a)(1)(B ) c o uld o n l y a u thoriz e the enforcement o f the terms of the plan, it could not chang e the terms of the plan. Id. a t 1876–77.

The Court, nonetheless, held that plan reformation was available under § 1 1 32(a)(3) as an equitable remedy

, stating that the power to reform contracts is a traditional power of an equity court

. I

d

. at 1879–80. Therefore, once the plan was reformed under § 1 1 3 2(a)(3) to reflect the terms o f the old plan, it could b e e n f

o r ced under § 1132(a)(1)(B ). The fact that this relief takes a monetary form does not remove it from the categ ory

of equitable relief. Id. a t 1880.

Appellants arg u e that Amara authoriz es them to seek relief under § 1132(a)(3) despite their alternative claim under § 1132(a)(1)(B ). The district court g ranted summaryM O Y L E V

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judg ment a g ainst Appellants, stating t h a t the p laintiffs in Amara did not have a remedy under § 1132(a)(1)(B ) and that Amara d id not address whether equitable relief was available under § 1132(a)(3) if § 1132(a)(1)(B ) p r ovided an adeq uate remedy

. The district court concluded that Appellants’ claim for surcharg e, estoppel, and restitution were, in es s en ce, monetary relief “couched in terms of equitable of r elief” a nd therefore could not be claimed as an equitable remedy

.

B o th the district court a nd L iberty Mu t u al insisted on apply ing Varity and g ave Amara short shrift, even thoug h the latter is controlling authority

. While Amara did not ex plicitly
state t h a t litig ants may seek equitable remedies under § 1132(a)(3) if § 1132(a)(1)(B ) provides adequate relief, Amara ’s holding in effect does pre ci s ely that. After the Amara court h eld that p laintiffs di d n o t have reformation available to them under § 1132(a)(1)(B ), the Supreme Court then went on to authoriz e reformation as a form of equitable relief under § 1132(a)(3).

I f Appellants’ factual alleg a tions are true, then the instant

case is hig hly analog ous to Amara : in both cases, there was

a material lack of disclosure about the terms of a pension plan; in both cases, plaintiffs soug h t relief under § 1 1 32(a)(1)(B ); and in both case s , p laintiffs also soug ht equitable remedies under § 1 132(a)(3). Th u s , a pply ing Amara to this case, if Appe l lants are unable to r ecover benefits based on an interpret a t i o n and enforcement of the Retirement Plan under § 1132(a)(1)(B ), they can, however, receive reformation o f the Retirement Plan as a n equitable remedy under § 1132 (a)(3). Additionally

, Amara makes it
very clear that remedies such as reformation, surcharg e , estoppel, and restitution are traditionally equitable remedies,M O Y L E V

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and the fact that they take a monetary f orm does not alter this classification. 131 S. Ct. at 1879–80.

C. Applying Amara in Light of Varity

Apply ing A mara ’s conclusion that a plaintif f m a y seek relief under both § 1 1 32(a)(1)(B ) and § 1132(a)(3) does not contravene the ruling in Varity

. I n V a r i t y , plaintiffs soug ht relief under ERI SA § 409(a), 29 U.S.C. § 1109(a), which authoriz es recovery to benefit plans for breaches of fiduciary duty

. V arity
, 516 U .S. at 508–09. The Varity c o u r t f ound that § 1109(a) provided relief only for be n e f it plans and not individuals, but h eld that § 1132(a)(3) could provide individualiz ed relief. Id. at 509–12, 515. Thus, a key holding in Vari t y w a s that § 1132(a)(3) e x tends to other sections o f the statute, even when § 1132 does not ex p r essly provide a remedy for those sections. Varity did not ex plicitly prohibit

a plaintif

f from pursuing simultaneous claims under § 1132(a)(1)(B ) and § 1132(a)(3).

W e ag ree with the Eig hth Circuit’s application of Amara in Silva v. M

etro. Life I

n s. Co.
, 7 6 2 F .3d 711 (8th Cir. 2014). There, the Eig h th 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 p laintiffs w ould be barred from initially bring ing a claim under the § 11 3 2 ( a)(3) catchall provision simply because they had already broug ht a claim u n d er the

more specific portion of the statute, § 1132(a)(1)(B ).” 762 F .3d at 727. The Eig hth C i r c u it addressed prior cases that prohibited plaintiffs from seeking relief und er both provisions and ex plained, “ W e do not r ead Varity

. . . to stand for the proposition that [ a plaintiff] may only plead one cause of action to seek recovery [ for an ERI SA violation]

. Rather,M O Y L E V

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we conclude those cases prohibit duplicate recoveries when

a more specific section o f the statute, such as § 1 132(a)(1)(B ), provides a remedy similar to what the plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” S ilva

, 762 F .3d at 726 (emphasis in orig inal). The Eig hth Circuit’s reading permits plaintiff s to present § 1132(a)(1)(B ) a nd § 1 1 3 2 ( a )(3) as alternative—rather than duplica t i v e

— t h e o r i e s of liability

. This approach is an accurate applic a t i o n o f Amara in lig ht of Varity because it allows plaintiffs to plead alternate theories of reli ef without obtaining double recoveries.

This reading of V

arit y i s c o n sistent with o ther pre- a nd post- Amar a cases that have held § 1132(a)(1)(B ) a nd § 1132(a)(3) claims may proceed si m u ltaneously so long a s there is no double recover y

. F o rsyth v. Humana, Inc.
, 114 F .3d 1467, 1475 (9th Cir. 1997) ( holding plaintiffs could
not recover under § 1132(a)(3) because t hey “[ had] already

won a judg ment for damag es under section 1132(a)(1) f or the injuries they suffered as a result of the defendant' s actions”),

o verruled o n other grounds

, Lacey v. Maricopa Cty

. , 693 F .3d 896 (9th Cir. 2012). Oth e r c i r cuits have similarly
recog niz ed that § 1132(a)(1)(B ) and § 1132(a)(3) claims can proceed simultaneously

if they plead distinct remedies.

I n Rochow v. Life Ins. Co. Of N. Am.
, a post- Amara c ase, the Six th Circuit p r ohibited 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 ERI SA c o n tinues
to b e remedial, and [the plaintiff’s] injury was remedied when he was awarded the wrong f ully denied benefits and attorney ’s fees.” Id. at 375. The p l a i n t i f f in Rochow had already received his remedy under § 1132(a)(1)(B ) a nd the courtM O Y L E V

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essentially enjoined his § 1132(a)(3) cla i m , b e cause, if successful, it would result in a d o uble recovery for the same injury

.

I n Devlin v. E m

p i r e Blue Cross & Blue Shield

, a preAmara c ase, the Second Circuit held that “should p la i n tiffs’ claim under

. . . § 1132(a)(1)(B )

. . . fail, plaintiffs’ b reach o f fiduciary duty c l a i m is their only r emaining remedy

. Varity Corp. clearly p rovides that, where a p lan participant has no

r e m e dy u nder another section of ERI SA, she can asser t a claim f o r breach of fiduciary d u t y under § [ 1132] ( a)(3).” 274 F .3d 76, 89 (2nd Cir. 2001).

B o th Roch o w and Devlin support Appellants’ ability to seek re l i e f u n der § 1132(a)(3) despite also pursuing a claim under § 1132(a)(1)(B ). Here, Appellants seek the pay ment o f benefit s u n d e r § 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 u nder pre- a nd post- Amara cases across different circuits.

Some of our pre-

Amara cases held that litig a nts may not seek equitable remedies under § 1 132(a)(3) if § 1132(a)(1)(B ) provides a dequate relief. See, e. g

. , Ford v. MCI Commc’ns Corp. H ealth & W

elfare Plan

, 399 F .3d 1076, 1083–84 (9th Cir. 2 0 0 5) (“B ecause F ord asserted specific claims under 29 U.S.C. §§ 1132(a)(1)(B ) and 1 132(a)(2), she c annot obtain relief under 29 U.S.C. § 1132( a) (3).”), overruled on other grounds

, Cyr v. Reliance Standard Life Ins. Co.
, 6 4 2 F .3d 1202 ( 9th Cir. 2011). However, those cases are now “ clearly irreconcilable” with Amara a n d are no long er binding

. See Miller v. Gammie
, 335 F .3d 889, 899–900 (9th Cir. 2003) (en banc) ( holding that “a three-judg e panel is free to reex amine the holding of a prior panel ” w h e n the Supreme Court hasM O Y L E V

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“undercut the theory or reasoning underly ing the prior circuit precedent in such a way that the c a s e s are clearly irreconcilable”).

This approach n ot only comports with Amara and Varity
, it also adheres to the F ederal Rules of Civil Procedure, which requires that “[ a ] p leading that states a c laim for relief must contain

. . . a demand for the relief soug ht, which may include relief in the a lternative or different ty p es of relief.” Fe d

. R

. Civ. P. 8 (a)(3) (emphasis added). F inally

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

c o nsistent w ith ERI SA’s intended purpose of protecti n g participants’ and beneficiaries’ interests. See, e.g. , 29 U .S.C. § 1001; see also Varity
, 516 U .S. at 513 (“ERI SA’s basic
purposes f

avor a reading

. . . that provides the plaintiffs with a remedy .”).

Thus, the instant case turns on a factual determination o f whether L iberty Mutual b reached its fiduciary duty by failing
to inform Golden Eag le employ ees that past service credit for the purpose o f benefit accrual did not include the period prior
to October 1, 1997, when they were first employ ed by G olden Eag le. B ecause there are t r i a b l e issues of fact, the district court erred in g

ranting summary

judg ment on this claim.

III. Liberty Mutual F a iled t o N o t i f y Appellants in Its Sum m ary P lan Descriptions that P ast S e rvice Cr e d i t w ith G olden Eagle Would Not Count f or B e n ef its Accrual, But Appellants Did Not P rov e Harm or Reliance o n the Sum ma r y P lan Descriptions.

Under 29 C.F .R. § 2 520.102-3(l), Summ a r y Plan Descriptions must contai n a statement “clearly identify ingM O Y L E V

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circumstances which may result in disqualification, inelig ibi l i ty , or denial, loss, forfeiture, suspension, offset, reduction, or recovery

. . . of any benefits that a participant o r beneficiary mig ht other w i s e reasonably ex pect the plan to provide.” Additionally

, 2 9 C

. F .R. § 2 520.102-2(a) requires the Summary Plan Description to b e “written in a manner calculated to be un d er s t o od by the averag e plan participant and shall b e sufficiently c o mprehensive to apprise the plan’s participants and beneficiarie s o f their rig hts and o blig ations under the plan.”

The law is divided as to whether A p p e l l a nts need to demonstrate detrimental reliance on the Summary P l an Descriptions. 6 The Amara court h eld that in cases that soug ht reformation and surcharg e as remedies, detrimental rel i a n c e

was not alway s necessary

. 131 S

. C t

. at 1881. I n these instances, the plaintiffs need only show harm and causation. Id. at 1881–82.

6 Sev eral co u rts h av e h eld th at relian ce is n ecessary

. S ee, e.g

. , Greeley

v. Fa irview Hea lth S

ervs. , 4 7 9 F.3 d 6 1 2
, 61 4 (8 th Cir. 2 0 0 7 ) (“ In o rd er f or

an em p lo y ee to reco v er f

ro m h is em

p lo y er f o r a f au l t y [Su m

m ary Plan Descrip tio n ], th i s co u rt req u i res t h e em p lo y ee to sh o w h e r e l i e d o n its
t e rm s to h is d etrim en t.”); Bra n ch v. G

. Bern d Co

. , 9 5 5 F.2 d 1 5 7 4
, 1 5 7 9 (1 1 th Cir. 1 9 9 2 ) (“ W e reiterate o u r h o ld in g th at a b en ef iciary m u st sh o w relian ce o n th e terms o

f th e s umma ry .”) (em

p h asis in o rig in al); G o vo n i v. Brickla yers, Ma so n s & Pla s terers In t’l Un io n , 7 3 2 F.2 d 2 5 0
, 2 5 2 (1 st Cir. 1 9 8 4 ) ( “ [T ]o secu re reli e f, [ a p lain tif f ] m u st sh o w so m e sig n if

ican t relian ce u

p o n , o r p o ssib le p rej u d ice f lo w i n g f ro m , t h e f

au lty p lan d escrip tio n

. ” ) ; b u t s ee Bu rke v. Ko d ak Ret. In co me Pla n , 3 3 6 F.3 d 1 0 3
, 1 0 6 ( 2 d C i r. 2 0 0 3 ) (“ Mo reo v er, req u irin g p lan p articip an t s o r ben ef icia r i e s to sh o w d etrim en tal relian ce to reco v er f or a d ef icien t SP D co n t r a v en es ERISA ’ s o b

j ectiv e to p ro m o te distrib u tio n o f a c c u rate SP Ds to

em p l o y ees.”).M O Y L E V

. L I B E R T Y M U T

. R E T

. B E

N E F I T P L

A N 28

After Amara
, we held in Skinner v

. Northrop Grumman Retirement Pl a n B that reformation under a fraud theory requires a showing tha t “(1) one party seeks r eformation, (2) that party ’s assent was induced by the other p a r t y ’s misrepresentations as to the t e r m s o r effect of the c ontract, and (3) the p arty seeking reformation was justified in rely ing

on the other party ’s misre p r e s e ntations.” 673 F .3d 1162, 1166 (9th Cir. 2012).

L iberty Mutual h ad a duty to identify in its Summary Plan Descriptions circumstances whi c h may have resulted in the denial 7 o f any benefits that Appellants mig ht otherwise have reasonably ex pect e d the Retirement Plan to provide. I n this
case, Appellants had the reasonable ex pectation, based on the alleg ed oral representations made b y L iberty Mutual about past service credit, that they would receive credit fo r the
purpose of b enefits accrual. F rom 1997 t o 2001, the Summary Plan Descriptions d id n ot contain this information. E v en when the Summary Plan Description was amended in 2002, it stated that past service cred i t w i t h Golden Eag le would count toward e lig ibility

, vesting

, early retirement, a nd spousal b enefits. I n lig ht of the alleg ed representations made
at t h e enrollment meeting s, these terms—particularly “elig ibility ” and “vesting ”—lack clarity in c o mmunicating how past service credit would be used and are not “written in

a ma n n e r calculated to b e u nderstood b y the averag e p lan participant,” as required by § 2520.102-2(a). Given that past

7 T h e d istrict co u

rt af f irm ed L i b erty Mu tu al’ s po sitio n th a t Li b e r t y Mu tu al w as n o t req u ired to s t ate in its S u m m ary P lan Descrip tio n s w h ich b en ef its A p p ellan ts w ere d isq u alif

ie d o r i n elig i b le f

o r b ecau se Go ld en E ag le d id n o t p ro v id e retirem en t b en ef its. Ho w ev er, th e reg u latio n a l s o req u ires L ib erty Mu tu al to s t a t e w h ich b en ef

its A p p ellan ts w o u ld b e d en ied b ased o n th eir reaso n ab le ex p ectatio n s. 2 9 C.F.R. § 2 5 2 0 .1 0 2

- 3 (l).M O Y L E V

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service credit for the purpose of benefits accrual w as at t he fore o f Golden Eag le employ ees’ concerns during the benefits enrollment meeting s and other informal encou n ters, it w as not sufficient for L iberty Mutual to s i m ply a ssume that Appellants would understand that they would not g et c r edit for benefits accrual when they saw the words “elig ibility ” a nd “vesting

, ” assuming that plan participants understo o d what “accrual” meant at all. Ex cluding ex plici t s tatements about benefits a ccrual was a material omission that L iberty Mutual should have clearly disclosed, especially since i t h ad the opportunity

to do so in its Summary Plan Descriptions.

W ith reg ard t o r eliance, Appellants are unable to prove even the lower standard o f harm and causation. The district
court found that Appellants were not harmed b ecause they did
not rely to their detriment on the alleg edly faulty S u m m ary Plan D escriptions. B ased on the record, it is e vident that
many Golden E ag le employ ees, including some of the named Appellants, made the decision to stay w i t h L iberty Mutual during the bidding period because they were under the impression that their past service cr edit would count toward accrual under the Retirement Plan. I n fact, Kae r t h l ef t L iberty Mutual for another job in 1 998 a fter discovering that he would not g et c r edit for b e nefits accrual. However, the record shows that any opportunity costs that Appellants may have incurred w ere based o n the oral representations made b y L iberty Mutual and not on the Summary Plan Descriptions. Thus, A ppe l l ants are u nable to prove harm or detrimental reliance on the Summary

Plan Descriptions.

IV. Class Certif

ication Was Appropriate.

The standard of review for class c ertification on appeal is abuse of discretion. Y

okoyama v. Midland Nat. Life Ins. Co.
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594 F .3d 1087, 1090 (9th Cir. 2010). W hile review of class certification decisions is deferential, the decisions of district
courts are not afforded deference upon revi e w o f their determinations of questions of law. Id. a t 1091.

A. Commonality and Typicality

Rule 23 of the F ederal Rules of Civil Procedure contains
two sets of class certificati o n r equirements set forth in Rule 23(a) and (b). United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & S er v

. W orkers Int’l Union v

. C o n o c oPhillips Co.
, 5 93 F .3d 802, 806 (9th Cir. 2010 ). Under Rule 2 3(a), a litig ant may sue on behalf of other members of a class if: ( 1 ) t h e class is so numerous that joinder of a ll memb e r s i s impracticable; (2) there a re qu es t i o ns of law or fact common to the class; (3) the c laims

o r d efenses of the representative parties are ty pical of t h e claims or d e fenses of the class; and (4) the r e p resentative parties wil l fairly and a dequately p rotect the interests o f the class. “Rule 23(a) ensures that the na m e d plaintiffs a re appropriate representatives o f the cl a s s whose claims they wish to litig ate.” W

al-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2550 (2011).

L iberty Mutual arg u es that the district cour t erroneously certified Ap p e l l a nts as a class because the second and third requirements of Rule 23(a)—commonality and ty pica lity

—
are not met in t h is case. L iberty Mutual contends that the alleg ed misrepresentations are not the same for all Appellants because they each received information about past service credit from different sources. Additionally

, L i b erty Mutual

a r gu e s t h a t A p p e l l a n t s ’ u n d e r l y i n g c l a i m s r e q u i r e individualiz ed proof of detrimental reliance, and the district
court e rred by concluding that t h i s reliance could beM O Y L E V

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presumed. Thus, commonality and ty picali t y requirements are not satisfied.

L iberty Mutual’s contention that A ppellants d id not receive the same alleg ed misrepresentations is a question o f fact, and, g iven the standard o f r eview, we defer to the district court’s finding that L iberty Mutual’s c laim “is not supported by the evidence.” W e need not decide whether the d istrict
court erred in presuming A ppellants’ r el i a nce to certify the class. I nstead, we affirm the district court on the g round that where the defendant’s represen t a tions were alleg edly made

on a uniform a

nd classwide b asis, individual issues o f

r eliance do not preclude class certification. See Hanon v

. Dataproducts Corp.
, 976 F .2d 497, 509 (9th Cir. 1992) (“W e emphasiz e that the de f

en s e of non-reliance is not a basis for denial of class certification.”). Therefore, the district court correctly h eld that Appellants me t the commonality a nd ty picality requirements.

B. Rules 23(

b) ( 1) ( A) and ( B)

Under Rule 23(b)(1)(A), a class a c tion can b e maintained if “prosecuting separate actions by or ag a inst individual class members would create a risk of inconsistent or vary ing adjudications w ith respe c t to individual class members that would establish incompatible standards of con d u c t for the party o p p o sing the class[ .] ” Rule 23(b)(1)(B ) states that a class action can be maintained i f “p rosecuting separate actions by

or ag ainst individual class members would create

a risk of adjudi c a t ions with respect to individual class members that, as a practical matter, would b e d i s p o sitive o f the interests o f the o ther members n ot p arties to the individual adjudications o r would substantially impair or impede their ability to protect their interests[ .] ”M O Y L E V

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L iberty Mutual arg ues that class certification under Rule 23(b)(1)(A) w as improper because Appellants seek monetary damag es a

nd because some o f the Appellants may be able to make the necessary show i n g t o be entitled to relief while others may not. L iberty M utual g oes on to arg ue that class certificat i on was also improper u nder Rule 23(b)(1)(B ) because it would “ b e inconsistent w it h t he terms of the [ Retirem ent Plan] and ERI SA to award benefits to some Plaintiffs and deny benefits to other s d e p e nding on the oral representations made to that particular Plaintiff.”

L iberty Mutual’s arg uments are unp e r suasive. W hile Appellants seek monet a r y d a mag es in this case, they also seek relief in th e form of equitable remedies. L iberty Mutual’s remaining two arg uments are essentially the same,

as they address the concern that some Appellants would receive relief while others would n ot. However, t his seems to be a n a rg ument in favor of class c e r t i f ication. Rule 23(b)(1)(A) prevents the prosecution o f separate actions that would create the risk o f “inconsistent or v ary ing a djudications

. . . that w ould establish incompatib l e s t a ndards of conduct for the party opposing the class.” Prosecuting s e p arate

a c tions in this case would have the result of subje c t i n g L iberty Mutual to incompatib l e s t andards of conduct, a consequence that L iberty Mutual has previously conceded would likely happen. F o r the above reasons, t h e district court’s class certification was proper.

CONCLUSION

F or the foreg oing reasons, we find the following :

1. Appellants are n ot entitled to past service credit under
t h e t e rms of the Retirement Plan. W e thereforeM O Y L E V

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AF F IRM the district c o u r t’s g rant of summary judg ment as to claim (1) under 2 9 U.S.C. § 1132(a)(1)(B ).

2. Appellants may pursue simultaneous c laims un der 29 U .S.C. § 1132(a)(1)(B) and § 1132(a)(3). W e t h erefore REVERSE the district court’s g rant o f
summary judg ment a s to claim (2) under 29 U .S.C. § 1132(a)(3), and REMAND for determinations o f fact a nd equitable relief in the form of reformation and surcharg e.

3. Appellants are unable to prove h arm or detrime ntal reliance on L iberty Mutual’s failure t o d isclose information about past service credit in the Summary Plan Descriptions

. W e therefore AF F IRM the district court’s g rant of summary judg ment as to claim (4) under 29 C.F. R

. §§ 2520.102-3(l) a nd 2520.102-2(a).

4. W e AF F IRM the district court’s g rant of class certification.

AF F IRMED in part, REV E RSED in part; REMANDED. Each side to bear its own costs.