* Judge Ellsworth A. Van Graa feiland , originally

a member

of the pa nel, rec used himse lf just prior to oral argument, and the appea l is being disposed of by the remaining members of the panel, who are in agree ment. See Local Rule § 0.14(b). UNIT ED S TAT ES COU RT OF A PP EALS 1 FOR THE SE CON D CIR CUIT 2

- - - - - - 3 August Term, 2002 4 (Argued: January 15, 2003 Decided: February 28, 2003) 5 Docket Nos. 02-7408, -7496. 6

_________________________________________________________ 7 MAUREEN E. LEYDA, individu ally and as E xecutrix of the Estate of CHARLES 8 L. LEYDA, 9 Plaint iff-Ap pellant- Cross
10 Appellee , 11
- v. - 12 ALLIEDSI GNAL, I NC., 13 Defendant-A ppellee -Cr oss 14 Appellant
. 15

_________________________________________________________ 16 Before: KEARSE and B.D. PARKER, JR., Circuit Judges
. * 17 Cross-appeal and appeal from a judgment of the United States District Court for the 18 District

of Connecticut, Janet C. Hall, Judge , ordering defendant to pay plaintiff $62,250 in

damage s, 19 plus interest , for violation of ERISA disclosure provision, see 29 U.S.C. §§ 1024(b)(1), 1132(a), and 20 denying

attorney' s fees under id . § 1132(g)(1) to prevailing plaintiff. 21 Affirmed. 22- NEXTRECORD - THOMAS G. MOUKA WSHE R, Moukawsher & Walsh, 1 Groton, Connecticut, for Plaintiff-Appellant-Cross-Appellee
. 2 LI SSA J. PARIS, Hartford, Conn ectic ut (Everett E. Newton, 3 MatthewJ. Budzik, Murtha Cullina, Hartford, Connecticut, on 4 the brief), for Defendant-Appellee-Cross-Appe llant
. 5
KEARSE, Circu it J udge : 6 Plaintiff Maureen E. Ley

da ("Mrs. Ley

da"), suing individually

and as executrix of the 7 estate

of her late husband Charles L . Ley da ("Ley da"), appeals from so much of a judg ment of the 8 United

States District Court for the District of Connecticut, Janet C. Hall, Judge , as denied her 9 attor ney's fees as the prevailing party in this action against defendan t Allie dSignal, Inc. 10 ("AlliedSignal"), for viola tion of its d

uty under the Employee

Retirement Income Security Act 11 ("ERI SA "), 29 U.S.C. §§ 1001-1 461 (1994 ), to disc lose to L eyda the te rms of an employ ee bene fit 12 plan. AlliedSignal cross-appeals from so much of the judgment as (a) ruled that AlliedSignal failed 13 to comply

with ERI SA's disc losure pr ovisions, a

nd (b) awarded Mrs. Le

yda $62,250 in

damages under 14 29 U.S.C. § 1132(a)(1)(B). AlliedSignal contends principally that § 1132(a)(1)(B) doesnot a uthor ize 15
anaward

of damages in exce ss of the a mount of be

nefits to which a plan participant is entitled under 16 the benefit plan ("extracontractual damag es"), and that, inany eve nt, the district court erred in finding 17 that

AlliedSig

nal faile d to comply

with ERI SA. On her

appeal, Mrs. Ley

da contends that the denial 18 of

attorney' s fees was an abuse of discretion. For the reasons that follow, we affirm the judgment of 19 the distri ct court
. 20

I. BACKGROUND 21- NEXTRECORD - To the extent pertinent to these appeals, the events, as found by the district court, a re 1 largel y undisp uted a nd in clude d the f ollo wing. 2

A. The Even

ts 3 From 198 9 through September 1994, Le yda was e

mployed by

Textron, Inc. 4 ("Textron"), in its Stratford, Connecticut facility . Ley da was eligible to participate in Textron's life 5 insurance benefit plan, and he chose a l evel o f benefits that would provide coverage at a rate three 6 times his appro ximately $40,000 a

nnual sal ary . His cove

rage t hus amount

ed to about $120,000. He 7 de si gn at ed Mr s. Leyd a a s t he po li cy' s b en ef ic ia ry. 8 In September 1994, Textron's assets were purchase d by AlliedSignal. The asse t 9 purchas e agreement stated that AlliedSignal would offe r most Textron e mployees employ ment "on 10 substantia

lly the same terms and conditions" under which they were employ

ed by Textron on thedate 11 of

the purchase. Ley

da was one of roughly

1,500 Textron employees reta ined by AlliedSignal

to work 12 at

the Stratford facility. A

lliedSignal continued

Textron's employee

benefits through the end

of 1994 13 but replaced the Textron benefit plan with AlliedSignal's own benefit plan in January 1995. 14 AlliedSig

nal' s plan p rovid ed no- cost l ife in suran ce cove rage equ al to o nly 11⁄2 ti mes an emplo yee's 15
sa la ry. Employ ees had t he optio n to en roll in, and pay the pre mium for, an AlliedSignal group 16 universal life ("GUL" ) insurance program that provided a dditional coverage of

one-to-five times the 17
em pl oye e' s b as e s al ar y. 18 Inanticipation of the shift to the AlliedSignal benefit plan, AlliedSignalheld m eetin gs 19
onNovember 7, 8, and 9, 1994, for its employ ees who had bee

n Textron e

mploy ees. Those meeti ngs 20 focused on specific benefits available at AlliedSig nal, including basic life insurance. 21- NEXTRECORD - AlliedSignal mailed notice of the meetings to each employ ee using addresses 1 frompay roll record s and poste d notices on bulletin

boards a nd video monitors. 2 At these me etings, AlliedSig nal distri buted summary

plan desc

riptions, 3 enrollment form s, a nd beneficiary designation forms. Several hundred 4 employees attended each

meeti ng, and there were four meeting s per day ove r 5 the course of thr ee day s. No one t

ook atten dance a t these me etings. 6 Additional copies of all materials distributed at the meetings were le ft 7 a tthe facility. Supervisors tra cked employe es on sick leave, traveling, or o n 8 extended leave f or the day assign ed to t hat de partm ent's m eetin g. A packa ge 9 of materia ls was sent first class to those employee s' home or work area. 10 Packages were also mailed to employ ees that notified the human resources 11 department that they had a sc

hedule conflict. At the reque st of spec ific 12 employ ees, AlliedSignal would hold make-up meeting s to discus s the bene fits. 13 Trial Decision dated November 9, 2001 ("Tria l Decision"), at 3-4. 14 Ley da, however, never received a summary plan de scription for the AlliedSignal plan, 15 whichwould hav e informe d him that hi s Textron life insurance had been replaced by Allied Signa l's 16
covera ge with far lower be nefits. H e did not r

eceive a packa ge of b enefit

materials at an y of the 17 meeti ngs or in the mail; he did not request or receive a mak e-up session. He enrolled in the GUL 18 program

in November 1994 and opted for coverag e equal to his app roximate ly $ 40 ,0 00 sa la ry, 19 believingthat thisprovided coverage in addition to the $120,000 covera ge for which he had opted at 20 Textron. 21 Between 1994 and 1997, Ley

da had opportunities to obtain additional life insurance 22
covera ge by increa sing his GUL covera ge or by purcha sing a policy of fered in connection with a new 23 mortgage. He declined these opportunities because he believe d that the employment-re lated life 24 insurance coverage he had al re ady obtained totaled $160,000. L eyda died in 1997. Mrs. L eyda 25 received

approxima

tely $40,000 in

benefit s from hi s GUL pol icy plus $ 60,00 0 from Alli edSi gnal's 26 basic life insurance coverage , for a total of $100,000, instead of the $160,000 that Ley da had believed 27- NEXTRECORD -

the AlliedSignal benefits provided. 1 Mrs. Leyd a commenced the present action in 1999 alleging, inter ali a , that 2 AlliedSig

nal, as administrator of its employee benefit plan, violated 29 U.S.C. § 1024 by f ailin g to 3 provide Ley

da with a summary plan de scription that would have disclosed the lower benefits provided 4 by the AlliedSignal plan, and that Ley da, in not purchasing additional insurance, had re lied o n 5 AlliedSignal to his detr iment. The

complain

t asse rte d that Mrs. Ley

da was entitled to "injunctive 6 relief

under 29 U.S.C. [§] 1132(a)(3), and/or the plaintiff has no adequate remedy at law" (Complaint 7 ¶ 21); and it requested, inter ali a , "[r]estitution," attorney' s fees, and "such other and further relief as 8 the court may deem ju st" ( id . WHEREFORE ¶¶ 1, 3, 5). 9

B. The Di stri ct Cou rt's R ulin gs 10 Followinga bench trial, the distri ct court found the facts set forth above. The c ourt 11 noted

that federal law requires p lan admin istrators to distrib

ute summar

y pl an descr

iptions to 12 particip ants, Trial Decision at 10 (citing 29 U.S.C. § 1024(b)(1)), and that this means that the material 13 "'must

be sent by

a me th od or methods of delivery likely to result in full distribution'" and that the 14 "'ad

minis trator shall usemeasures reasonably calculated to ensure actual rece ipt of the material by plan 15 parti cipan ts,'" Trial Decision at 11 (quoting 29 C.F.R. § 2520.104b-1(b)(1) (2001)) . The court stated 16 that these regulations 17 focus on actual receipt of the pla n documen

ts, not notic e of an op

portunity to 18 obtain the documents or notice of t he documen ts['] general availability . [29 19 C.F.R. § 2520.104b-1(b)(1)] ("[I]n no case is it acc eptable merely to place 20 copies of the material in a location frequented by participants."). 21 Trial Decision at 11. The court concluded that the administrator's "process for disclosing the plan 22- NEXTRECORD -

document s should be c alculate d to reac h every individua

l without gaps wher

e employ ees coul d 1 potential ly miss the dist ributed mat erial." Id . at 12. 2 The court found that AlliedSignal's method of distributing the " notice " of its scheduled 3 meetings--mailing the notices to the addresses in the emp loyees' payroll rec ords--made it likely that 4 there would be f

ull distrib ution of the meeting

notices, id
. (emphasis in original), and that it was thus 5 likely

that Ley da received notice of the meeting s. But it stated that "the court cannot infer that he 6 actually

received the [ required pla n] documen

ts becau se notice

of avail ability

does not e quate to 7 receipt." Id . After describing the methods used by AlliedSignal--including mailing the meeting 8 notices, following up with re spect toemployees who ha d been on trips, sick leave, or extended leave 9
onthe me eting d ates, provi ding a n oppo rtunity to approach the human resources department about 10 make-up meetings, and making plan documents generally available in the human resources 11 department--the court found that these metho ds were not reasonably calculated to result in actual 12 distribution of the materials to all employe es , becau se it w as not reasonable to assume that, out of 13 1,500 employees, the only persons not attending the meetings would be those ontrips, sick leave, or 14 extended leave. The court found that "L eyda wa s not on sick leave, traveling, or on extended leave 15
onth e d ays of the meeti ngs," id . at 13 n.1, but that he did not attend any of the meetings, see id . at 4; 16
see also Ruling on Plaintiff 's Reque st for Attorney' s Fees, dated March 14, 2002 ("F ee Decision"), at 17 5 ("the court

reasonably

inferred that Mr. Le

yda rec eived notice of

the meetings, but did not attend"). 18 The court found that Ley da did not receive a copy

of the summary

plandescription. See , e.g. , Trial 19 Decision at 4, 11-12, 16. It stated that 20 [f]orany number of reasons , includin

g a busy schedule or lack of awarene ss as 21 to the import ance of the meeti

ng, emp loyees that

were no t on sick le a ve, 22 travel ing, or on extended leave may not have a ttended the benefit s meeting s. 23- NEXTRECORD - Therefore, the method

used by AlliedSignal was not calc ulated to result in f ull 1 distribution because it did not ta

ke into ac count re asonable factors that woul d 2 lead em ployees t o mis s the m eetin gs . 3 Id
. at 13-14 (footnote omitted) (emphasis added). A nd beca use "[n]o one took at

tendanc e at thes e 4 meetings," id . at

3, AlliedSignal had no way of knowing how many

employees, other

than those who 5 were on sick leave, on extended leave, or tra veling, had failed to attend. 6 The court noted that AlliedSignal's "witnesses differ ed a s to the reasonableness of 7 taking attendance," but it found that "the administrative burden impo sed by requirin g atten dance sheets 8 does not outweigh the reasonableness of such shee ts for ensuringfull distribution of the summary plan 9 description." Id . at 14. The court also noted that AlliedSignal could, alternatively, have ensured full 10 distribution simply by requiring participants to aff irmatively enroll in its progr ams rather than 11 providing automatic enrollme nt, and requiring

them, on the enrollment form, to acknowledge rec eipt 12 of

the plan documents. The court

found tha t it was " unlikely

that Allie dSignal' s methods would resu lt 13 infull distribution" and that "[i]ts methods were not reasonably calculated to result in actual receipt 14

. . . ." Id . As L eyda had no t received a summary plan descr iption, the court concluded that 15 AlliedSignal had violated its duty of disclosure to Ley da. See id . at 14, 16-17. 16 The court also found that "[b]ecause AlliedSignal failed to disclose the summary plan 17 description, Mr. L eyda did not r ealiz e that hi s benefits changed after the ta keover of Textron"; that 18 that

lack of d isclosure le d himto believe that he still had "the $120,000 coverage he had under the 19 Textron policy and what he thought was the additional $40,000 GUL policy"; and that Ley da declined 20 offers of additional coverage beca use he believed he already had a tota

l of $160,0 00 in

employment21 related

coverage. Id . at 16. The court f ound that A

lliedSig nal's f ailu re, in vio lati on of ERI SA, to 22 provide Ley

da with a summary plan descr

iption thus caused harm, and that Mrs. Ley da was entitled 23- NEXTRECORD -

to damages under 29 U.S.C. § 1132(a)(1)(B ). 1 The court ca lculated that, inlight of Ley

da's final salary

at AlliedSignal, the damages 2 totaled

$62,250, see id . at 20-21, a nd ju dgment was enter

ed in favor of Mrs . Ley

da in that amount, 3 plus interest . Howeve r, as disc ussed in Pa

rt II .C. below, the cour

t decline d to awar

d Mrs. Le yda 4 attorne

y' s fees. 5

II . DISCUSSION 6

Mrs. Ley da has appealed, challenging the district court's refu sal to award her, as the 7 prevailingparty, attorne y's f ees under 29 U.S.C. § 1132(g)(1). AlliedSignal has cross-appealed, 8 cont ending(1) that as a matter of law a p lan bene ficiary cannot r ecover extracon tractua l dama ge s 9 under

29 U.S.C. § 1132(a)(1)(B), and (2) that the district court

erred in concluding that AlliedSignal 10 violated

ERISA's disclosure provisions. For the r easons that follow, we de cline to en tertain 11 Alli edSi gnal's first contention beca use it wa s not raised in the district court; we reject its second 12 contentionbecaus e the d istr ict co urt's findings are not clearly erroneous; and

we reje ct Mrs . Leyda's 13 contentions in supportof her appeal because we a re unpersua

ded that t he denia l of attor ney's fee s in 14 t his case wa s an ab use of discr etion . Becaus e Mrs. Leyda's appeal would be moo t if Al liedS ignal's 15 challenges to the district court's decision on the merits we re susta inable, we addre ss the cross-appeal 16 first. 17

A. The Availabi lity of Damages Under § 1 132(a)(1)(B) 18 The district court ruled that Mrs. Ley da was entitled to $62,250 as damages under 29 19- NEXTRECORD -

U.S.C. § 1132(a)(1)(B), repre senting the difference betwe en the insurance coverag e Ley da believed 1 he had and the insurance coverag e he actually acquired under the AlliedSignal plan. T o the extent 2 pertinent

here, § 1132(a)(1)(B) pr ovides that a civil action may be brought by a

participant or 3 beneficiary

"to rec over benefits due to him under the terms of his plan, [or] to enforce his rights under 4 the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). AlliedSignal contends that this section does not 5 auth orize

an award of extracontractual damag es, i.e. , damag es above the leve l of pla

n benefi ts to 6 whichthe participant actually subscribed. For

the reasons that follow, we decline to resolve this legal 7 issue bec ause Alli edSigna l did not mak

e this arg ument in the

district c ourt. 8 AlliedSignal correctly notes that the complaint itself did not cite § 1132(a)(1)(B) but 9 rather

asked for, inter ali a , "injunct ive relief under 29 U.S.C. [§] 1132(a)(3)" and "[r]estitution" 10 (Complaint¶ 21 and WHEREFORE ¶ 1). However, Mrs. L eyda plainly sought damages bey

ond the 11 insurance that Ley da acquired under theAlliedSignal plan, and her reliance on § 1132(a)(1)(B) was 12 made cle ar and explicit well in advanc e of tria

l. 13 Some 10 months prior to trial, the parties submitted their Joint T

rial Memorandum, i

n 14 whichMrs. Ley da cited both § 1132(a)(3) and § 1132(a)(1)(B ). She stated that she sought relief based 15
onthe level of

benefit s that Ley

da believed he had secured. Her proposed conclusions of law included 16 the fo llow ing: 17 5. Failure to meet the disclo sure require

ments of 2 9 U.S.C. 18 §1024(b)(1) constitutes a breach of fiduciary du ty actiona

ble under 29 U.S.C. 19 §§1132(a)(1 )(B) and (a )(3) wh en the failure to disclose prejudices the 20 participant or beneficiary
. . . . 21

. . . . 22 8. Ac co rd in gl y, the plaintiffs are enti tled to equitable relief 23 pursuant to 29 U.S. C. §§1132 (a)(1)(B) and (a)(3). Consequently , the plaintiffs 24- NEXTRECORD - are entitled to restitution inthe form of benefits due under the former Textron 1 plan
. . . . 2 (Joint Trial Me

morandum dated November 15, 2000, at 33-34, ¶¶ 5, 8 (emphases adde d).) In the 3 sectionof the Join t Trial M emorandum setting forth AlliedSignal's proposed c onclusions of law, 4 AlliedSignal did not take the position that§ 1132(a )(1)(B ) as a

matter of law afforded no basis for the 5 request

ed relie f; AlliedS ignal di d not mention § 1132(a )(1)(B ) at all. 6 Approximat ely one month b efore t

rial, Mrs . Ley

da submitte d a state

me nt en titled 7 Plaintiff

's Claim f or Damages, statin

g in par t as follow s: 8 Inaccordance with the order of the Court onJuly 24, 2001, the plaintiff 9 hereby submits the

following

summary of her c laim for d

amage s. 10 1. The plaintiff claims the sum of $63,20 9.54 in re stitution a nd/or lost 11 benefit s. 12 (Plai ntiff

's Claim for Damages da

ted Aug ust23, 2001, a

t 1.) Allie dSignal t

hereaf ter submit

ted its 13 "[r]eply

to plaintiff Maureen E. Ley da's damage claim against AlliedSignal," and took the position that 14 Mrs. Le yda was no t entitled to damag es beca

use Allie dSignal had in fact perfor med its duti es. 15 (Alli edSi gnal's Reply to Plai ntiff 's Damage Claim, dated September 12, 2001, at 1 (" AlliedSignal met 16 its obligations to the plaintiff and therefore AlliedSignal does not owe the plaintiff any damages." 17 (emphas is added)).) There was no suggestion that Mrs. Ley da's claim for damages was beyond the 18 scope of § 1132( a)(1)( B) bec auseshe sought a sum based on more coverag e than Ley da had acquired 19 under

the AlliedSignal plan. Instead, AlliedSig nal argued t

hat, if it were found to have violated 20 ER ISA, the allowable amount of damages would be a lowe r extracontractual sum than Mrs. Ley da 21 requested

because Ley

da's no-cost coverag e under the Textron policy was rea lly two, not three, times 22 his salary. The reply state d that Mrs. Ley da's "maximum potential damages" wer e $20,000, i.e. , "the 23- NEXTRECORD -

differencebetwe en Tex tron's basic, no cost insurance of two times salary ($80,000) and

Alli edSi gnal's 1 basic, no cost ins urance of 1.5 t imes salary ($60,00 0)." ( Id . at 3.) As that $20,000 was above the 2
covera ge that Ley da had actually

acquire d und er AlliedSignal's plan, this proposed measure of 3 damages could not have alerted the cour t to AlliedS ignal' s presen

t argument that § 1132(a)(1)(B) does 4 notauthorize any award of damages above

the level to which the plan participant subscribed. To the 5
co nt ra ry, in that reply, AlliedSignal state d, "AlliedSignal does not object to measuring damages (if a ny 6
are due) by compa ring either the 'no cost' insura nce levels (2 times [at Textron] vs. 1.5 times [at 7 AlliedSignal]), or the total insurance levels (2.5 times [at AlliedSi gnal] vs. 3 t imes [at T extron] )." ( Id
. 8 n.1.) 9 After trial, A lliedSig

nal submitt

ed additi onal prop osed find ings and conclusi ons, 10 inclu ding t he fol lowi ng: 11 A procedural violation of ERISA' s reporting and disclosure requirements does 12 notgive rise to a d amage claim absent some showing of prejudice or harm by 13 the plaintiff
. 14 (Alli edSi gnal's Supplemental Findings of Fact and Conclusions of L aw dated S eptember 26 , 2001, 15 at

10-11, ¶ 7(emphas is added) .) This All iedSigna l submission , lik e its prede cessors, contained no 16 mentionof 29 U.S.C. § 1132 (a)(1) (B), nor any sugge stion that t

hat sect ion did not a

uthorize Mr

s. 17 Leyda's claim for damages. Indeed, the implication of the " absent some showing" clause was that 18 damages of the ty pe she re quested a

re in fa ct availa ble to one who shows that a violation of the 19 disclosur

e stateme nts cause d harm. 20 OnNovember 9, 2001, the district court ruled in favor of Mrs. L eyda on the me rits of 21 her cla

im and awa

rded her damage s, stating

in pertine

nt part a s follows: 22 E. Damages 23- NEXTRECORD - Since the court

has conc luded tha

t AlliedSig

nal is liab le to the Ley

da 1 estate for its failure to disclose the summary plan description . . . , the court 2 now tu rns to the issue of damages. The L eyda e state seeks damages for 3 Alli edSi gnal's failure to disclose

the summary plan desc

ription, prejudgment 4 interest , and attorney 's fee s. 5 "If an emplo yer does no t provide a summary plan de scription . . ., 6 ERISA empowers plan participants and beneficiar ies to b ring civil actions 7 againstplan fiduciaries for any damages that result from the fail ure to 8 disclose." Howa rd v. Gleason Corp. , 901 F.2d 1154, 1159 (2d Cir. 1990) 9 (citing 29 U.S.C. §§ 1001(b), 1132(a) (1)(B) (1982)) . The L eyda estat e claims 10 to have suf fered r oughly $60,000 in

damage s as a

result of defendant's failure 11 to provide the summary plan de scription. . . . 12

. . . . [T]he Ley da estate was damaged to the extent that AlliedSignal 13 did not disburse three times Mr. Ley da's salary

under his company lif

e 14 insurance policy. I n exact figures based on Mr. L eyda' s salary, the da mag e s 15 equal $62,250.00. 16 Trial Decision at 20-21. In the wake of this decision, AlliedSignal made no motion for reconsideration 17
on the bas is of its present position that § 1132(a)(1)(B) did not provide a cause of action for suc h 18 damage s. 19 AlliedSignal did move in January 2002 fo r leave to file an untimely motion for 20 reconsideration of the dist rict c ourt's Trial Decision, based on the Supreme Court's January 8, 2002 21 decisionin Great-West Life & Annuity I

nsurance Co. v. Knudson , 534 U. S. 204 (2002) (" Great22 West "); but its motion argued that damages ar e not available in the guise of "restitution" " under .
. . 23 (a)(3)" (Motionfor Leave to File Untimely Motion for Reconsider ation dated January 11, 2002, at 1). 24 AlliedSignal's motion did not mention § 1132(a)(1)(B). 25 The district court denied the motion, noting that Great- West was inap posite be cause 26 it

dealt onl y with suits under subsection (a)(3), wherea s the district court had based its damage awar d 27 to Mrs. Ley

da on subsection (a)(1)(B), without AlliedSignal' s ever having raised any legal issue as to 28- NEXTRECORD -

the availability of the damages sought by Mrs. Ley da under the latter subsection. The court stated, to 1 the extent pertinent to this appeal, that 2 inthe joint pre-trial memorandum, the plaintiff claimed a general entitlement 3 to relief under § 1132 and specifically referenced § 1132(a)( 1)(B) in her 4 proposed conclusions of law . Joint Trial Memo[randu m ] . . . at 3, 34. 5 AlliedSignal was on notice and did not object to Ley da seeking money 6 damages under subsec tion (a)(1)(B) . Therefore, this court explicitly r elied on 7 subsection(a)(1)(B) as the basis for its dec ision. Trial Decision, at 20 (quoting 8 Howard v. Gleason Corp. , 901 F.2d 1154, 1159 (2d Cir. 1990), and noting the 9 ci tation to section 1132(a)(1)(B) as the basis for r ecovery ). If AlliedSignal 10 believed the court erred by

relying on and applying

subsec t ion (a)( 1)(B), it 11 could have filed a timely motion for reconsideration
. 12 (Ruling on AlliedSi gnal' s Motion for Leave to File a n Untimely Motion for Reconsidera tion, dated 13 January

17, 2002 ("Reconsideration Ruling"), at 2-3 (footnote omitted) (emphases added).) The court 14 added: 15 Th e court also notes that it would construe Ley da's demand for 16 restitution in her complaint as notice that she sou ght mone y da mages, even if 17 there had been no reference to subsec tion (a )( 1)(B) in the joint pre-trial 18 memorandum. . . . Given the nature of the claim in this case, the demand for 19 restitution would be c onsidere d a lega l remedy because there is no c laim to 20 specific funds held by AlliedSigna l. Therefore, the com

plaint itself sta

tes a 21 demand for money da

mages and places the defenda nt on notice that subsection 22 (a)(3) is not the only gr

ounds for relief under § 1132 that the plaintiff sought 23 to pursue. 24 (Reconsideration Ruling at 2 n.1.) 25 We normally will not re

verse a judgment on the basis of an argument that was not made 26 to the distri c t court. See , e.g. , Gilbert v. Frank , 949 F.2d 637, 640 (2d Cir. 199 1); Wilkerson v. 27 Meskill , 501 F.2d 2 97, 298 (2 d Cir. 1974 ) (per c uriam). " While this barto raising new issues on 28 appeal is not absolute, . . . it may be ov ercome onl y when nec essary to avoid manif est injustice." 29 Thomas E. Hoar, Inc . v. Sara Lee Co rp. , 900 F.2d 522, 527 (2d Cir.) (internal quotation marks 30- NEXTRECORD -

omitted), cert. denied , 498 U.S. 8 46 (1990) ; see a lso Masella v. Blue Cross & Blue Shield of 1 Connectic

ut, Inc. , 936 F.2 d 98 , 107-08 (2d Cir. 1991) (refusing to address an a rgument on appeal 2 where t he p arty fa iled to raise it until posttrial submissions to the district court and that court 3 permissibly determined that the a rgument had been waived). 4 The record here shows plainly that AlliedSignal never

argued to the district court that 5 § 1132(a)(1)(B) did not provide a ca use of action for the extracontractual dam a ges sou ght by Mrs. 6 Ley

da, and we conclude that that argume nthas not been preserved for appellate review. Given that 7 the validity of AlliedSignal' s pre sen t argument is not c lear, a nd that the

district c ourt per

missibly 8 found

that Allie dSignal failed to perform its duties under ERI SA, see Part II .B. below, we cannot 9 conclude that the interests of justice warrant relieving AlliedSig nal of its waiver. We thus lea

ve this 10 issue for

another day and for a case in w hich the i ssue has b een litig ated in the district court. 11

B. AlliedSignal's Failure To Provide Adequate Notice 12 AlliedSignal challenges thedistrict court's ruling on the merit s of Mrs. Leyda's c laim, 13 arguing

that the c ou rt erred in finding (a) that AlliedSignal fa iled to satisfy ERI SA's disclosure 14 provision s, and (b) that Ley da relied on AlliedSig

nal to his d

etriment . We see no

basis for revers al. 15 To the extent p ertinen t here, ERISA' s provisions gove rning the furnish ing of 16 informationto plan participants provides that " [t]he administrator shall furnish to each participant
. . . 17
a

copy of summary

plan description

. . . within 9 0 days after he become s a partic ipant . . . ." 29 U.S.C. 18 § 1024(b)(1)(A) (e mphasis a dded); see also id . § 1022(a)(1) ("A summary plan description of any 19 employee

benefit plan shal l b e furnished to participants and beneficiaries as provide d in section 20 1024(b) of this title" and "shall be suffi ciently . . . comprehensive to reasonably apprise such 21- NEXTRECORD -

par ticipants

and bene ficiari es of the ir righ ts and obli gations

under the

plan.") . ERIS A's disc losu r e 1 provisions were enacted to "ensur[e] that the individual participant knows exactly whe re he stan ds 2 with

respect to t he plan," Firestone Tire &Rubber Co. v. Bruch , 489 U.S. 101, 118 (1989) (internal 3 quotationmarks omitted), and the r egulat ions promu

lgated under ERI SA are designed to achieve that 4 goal. As discussed by the district court in its Trial De cision, see Part I.B. above, the pe rtinent 5 regu lation pr ovides that the summary plan desc ription "must be sent by a method or methods of 6 delivery likely to result in full distribution ," that the "administrator shall usemeasure s reasona bly 7 calculated

to ensure

actual r eceip t of the m aterial

by p lan part

icipants, " and tha

t "in no c ase is it 8 accept

able merely to place

copies of the materialina location freque nted by particip ants," 2 9 C.F.R. 9 § 2520.104b -1(b)( 1) (emphases add ed). The district court prope rly concluded tha t this regulation 10
means that the plan administrator must make reasonable efforts to ensure ea ch plan participant's actual 11 receipt of the plan documents. We see no error of law in the district court's decision. 12 After hearing the evidence

at trial, the district c ourt foun d that Allie dSignal' s effor ts 13
were not reas onably calcula te d to ensur e actual receipt of the summary plan description by all plan 14 particip ants because its distribution procedures could easily have m is sed some participants. The 15 court 's finding s after a bench tr ial may not be ove

rturned unless the

y a re "cl early

errone ous," F ed. R. 16 Civ. P. 52(a), and "[w]here there are two per missible views of the evidence, the factfinder 's choice 17 between them cannot be clear ly erroneous," Anderson v. Bess emer City , 470 U.S. 564, 574 (1985); 18
see United

States v. Yellow Cab Co. , 338 U.S. 338, 342 (1949). Even w hen th e tria l cour t's fi ndin gs 19 of

fact are based

on infer ences f rom other facts, the appell ate cour

t must acc ept those

finding s unless 20 they are

clearly e rroneous and may

not conduct a de novo review. See , e.g. , Anderson v. Bessemer 21 City , 470 U.S. at 573-74. The fact that there may ha

ve been evidence to support an inferenc e contrary 22- NEXTRECORD -

to that drawn by the c ourt does not mean that the findings are clear ly errone ous. See , e.g. , Healey v. 1 Chelsea Resources, Ltd. , 947 F.2d 611, 618-19 (2d Cir. 1991). 2 Alth ough AlliedSignal argues that the district court erre d by "c oncluding that 3 AlliedSignal was required to actually place a copy

of the SPD [summary plan description] in Mr. 4 Leyda's hands" (AlliedSignal brief o n appeal at 8), and by "basing its ruling on speculation that 5 employees

may not have u

nderstoo d the impor

tance of the bene fits meeting s that AlliedSignal 6 conducted" ( id . at 9), there are no such findings in the Tria l Decision. R ather, the court found that 7
some of the 1,5 00 employ ees, thou gh not tr aveling or on lea ve, migh t have miss ed the me etings " [f]or 8 any

number of reasons , i ncluding a busy schedule or

lack of awareness as to the importance of the 9 meeting." Trial Decision at 13 (em phasis ad ded); see also

Fee Decision at 13-14 (referring to f inding 10 inTrial Decision "that it would not be reasonable to concludethat everyone would attend a meeting 11 if

they were phy sically present a t the facility" be cause " employees may be busy or

otherwise unaware 12 of

the meeting's importance" (emphasis ad ded)). T he findin g that bu syness could

have led some 13 employees

not to attend was hardly

speculation, as "[Mrs.] Ley da presented evidence at trial that Mr. 14 Ley

da did not attend the meetings because he wa s busy . . . ." F ee Decision at 5. 15 Alli edSi gnal's argument that the court ruled "that AlliedSig nal was r equired to actua lly 16 place a copy of the SPD in Mr. L e yda' s hands" is hyper bole. The court properly focused on the 17 regulat ion's requirement that the administrator's procedure s be reasonably calculated

to achieve actual 18 distribution, and it noted reasonable alternatives that would have made actual full distributionli ke ly, 19 including taking attendance at the meeting s in order to send copies of the summary plan description 20 to everyone

who failed to attend, or

requiring affirmative enrollment in the benef it plans, accompanied 21 by

particip ants' c ertific ation of their rec eipt of the plan docu

ments. The cour

t in fact found that 22- NEXTRECORD -

Alli edSi gnal's assumption that only those employ ees who were traveling or on l eave would fa il to 1 attend

the meetings was unreasonable, and it found that the distribution methods used wer e not 2
reasona

ble because AlliedSignal relied on employ ees' attendance

at the meeti ngs in order to achieve 3 full distribution but made no effort to record the names of those who attended. 4 We canno t conc lude t hat th ese fi ndin gs are clearly erroneous. Nor

is there clear error 5 inthe district court's finding that L eyda re lied to his detrimenton the belief, caused by Alli edSi gnal's 6 failure to provide him with the summary plan desc

ription, that he had the same level of life insurance 7
covera ge with AlliedSignal that he had enjoy ed with Textron. The re was evid ence at trial of that 8 belief

and of Leyda's ha

ving for gone op portunitie s to obtain ad

ditional c overag e in

light of that belief. 9 We accordingly

affirm the court' s ruling

that Allie dSignal breache d its ERI SA duty of disclo sure to 10 Ley

da and tha

t that bre ach cau sed harm
. 11

C. The Denial of Attorney 's Fees 12 ERISA provides , in

pertinent part, that in an action brought under the statute by a plan 13 participant

or beneficiary

the "court

in its discr

etion may allow a r easonab le attorney 's fee

. . . to either 14 party." 29 U.S.C. § 1132(g)(1). In the present action, the district cour t in its Trial Decision denied 15
anaward o f fees to Mrs. Ley da; and after granting he

r motion for reconsideration, the court adhered 16 to that deni al in its Fe e Decisi on. Mrs. Leyda conte nds t hat there is a presumption in favor of 17 awarding

fees toa prevailing plaintiff, that the court misapplied the pertinent test, and that the denial 18 of attorney' s fees was an abuse of dis creti on. Al thou gh our s tanda rd is d esigne d to fu rther ERISA's 19 essential remedial purpose of protecting the beneficiaries of employ ee bene fit plans, we see no abuse 20 of discretion in the district court's application of the standard her e. 21- NEXTRECORD - This Court's standard for

determ inin g wheth er att orney's fees should be awarded in an 1 ERISA

action is articulated in Chambless v. Masters, Mates &

Pilots Pension Plan , 815 F.2d 869 (2d 2 Cir. 1987) (" Chambless "). The district court must consider 3 (1) the degree of the offending party

's culpability or ba

d faith, (2) the ability of 4 the offending party to satisfy an award of attorney

's fees, (3) whether

an award 5 of fe es wo ul d d et er ot he r p er so ns fr om ac ti ng si mi la rl y u nder like 6 circumst ances, (4) the relative merits of the parties' positions, and (5) whether 7 the action c onferr ed a comm

on benef iton a group of pension

plan par ticipants
. 8 Id
. at 871. We review a district court's decision to award or deny attorney

's fees for abuse of 9 discretion. See , e.g. , Salovaara v. Eckert , 222 F.3d 19, 27, 32 (2d Cir. 2000). 10 The district court in the present case quoted the Chambless standar d and pro ceeded

to 11 address

each factor

in turn, finding that only the sec ond factor, AlliedSignal's ability to pa y an awa rd 12 of

attorney' s fees, significantly favored an award to Mrs. L eyda. As to the f irst and fourth factors, the 13
cour tfound that AlliedSignal's performance did " not reflect a high degre e of culpability" bec aus e 14 AlliedSignal had "made a good f aith albeit a failed attempt to abide by the ERISA disclosure 15 requirement," Trial Decision at 23, and that "[a]lthough the court deemed AlliedSignal' s method for 16
re leasingsummary plan docu ments insuf

ficient t o satisfy the statut ory requir ement, the court consider s 17 that

holding to have been a close one," F ee Decision at 4- 5. The court found that a ltho ugh 18 Alli edSi gnal's methods we re not re asonably

calcula ted to re ach all p lan partic ipants, they were 19 "reas onably

calculated to reach almost everyone," id . at 14 (e

mphasis in o

rigina l); see also id . at 5, and 20 thus "the merits of the parties' positions were not gr eatly disproportionate," Trial Decision at 23. 21 As to the thir d factor, th e distric t court found that "it is unlikely that such a n award 22 would

deter others from similar

condu ct sin ce the d efenda nt had a colo rable d efense to th e plai ntiff 's 23
caus e of

action," Trial Decision at 23, and since AlliedSignal ha d not acted in bad faith, see Fee 24- NEXTRECORD -

Decision at 11. The court rejected as a ba sis for a fee award Mrs. L eyda' s argument 1 that the cour t's comments [on the extent of the disclosure obligations under 2 ERISA] will deter other employe rs from using the same t ype of group meeti ngs 3 as AlliedSig nal. [Mrs.] L eyda's a

rgumen t misses the

third fac tor's f ocal poin t. 4 The factor emphasizes the deterrence gaine d from the fee award, not the trial 5 decision. Whil e the co urt's decision may add to the jurisprude nce in this fie ld 6 and further educate plan

administrators in how to satisfy their obliga tions, an 7 award o f fees provides n o additional benef

it. 8 Fee Decision at 11-12. 9 Fi na ll y, the district court found that the fifth factor, i.e. , whether the action conferred 10 a common b enefit ona larg er clas s of plan p articipa nts, "onl y min imally " favor

ed an award of f

ees. 11 Fee Decision at 14. As there was no ev idence a s to whether or not plan participants other than L eyda 12 had

failed to receive summary plan descriptions, the court "assume[d], given the record," that 13 nonreceipt

was "rare." Id . The court thu s conclud ed that a ny c ommon bene fit would be limited to "the 14
rare cases excluded under AlliedSignal's prior method" and would " affect[] so few plan par ticipants 15 that its b eneficial im pact is negli gible." Id
. 16 Weighing the totali ty o f the fa

ctors, the district court c oncluded as follow s: 17 No factor weighs heavily in favor of awarding attorney 's fees to the 18 plaintiff. The cour t must deci de whether abilit y to pay and a

minimal common 19 benefit justify awarding

attorney' s fees to a

prevailing plaintiff in a

case where 20 the defendant's actions were not unre asonable and where the resolution

of the 21 casew as close. The court notes that the close nature of the c ase, which 22 affected several factors, dominat es the analysis and justifies weig hing the 23 balance of fact ors to den y f ees. 24 Fee Decision at 14-15. 25 We see no abuse of discretion in the district

court's analysis of any of the Chambless 26 factors or in its weighing of the factors in totality. There is no inconsistency in the court's findings that 27 Alli edSignal's procedures, though they fell short of being reasonably calculated to achieve actual 28- NEXTRECORD -

distribution of the summary plan de scription to all participants, were not pursued in bad faith. N o r 1 do we see any

error in the district court's assessments that the relative mer its of the parties' positions 2 inthis action were close, that the common benefit conferred was minimal, and that the likely deterr

ent 3 effect of the merits decision itself would not be enhance d by a fee award. 4 Insum, we concl ude tha t where t he court has perm issibly found tha

t the def endant, 5 altho ugh failing

to make r easonab ly s

ufficie nt distribu

tion effo rts, did not act

in bad fa ith, that the case 6
was close on t

he merits , that the common benefit was minimal, and that there was no reason to infer 7 that

an award of fees would have any g reater deterrent effe ct than that resulting from the imposition 8 of

liability, the district court's dec ision not to award attorney' s fees to the prevailing plaintiff is not an 9 abuse of discretion. 10

CONCLUSIO N 11

We have considered all of theparties' contentions that are properly before us in support 12 of

their re spectiv e ap peals and have found them to be without merit. The judgment of the district 13 court is affirmed. 14 Costs to plaintiff. 15