23-25 

Pessin v. JPMorgan Chase 

 

In the

United States Court of Appeals

For the Second Circuit

August Term, 2023 

No. 23-25

JOSEPH PESSIN, on behalf of himself and all others similarly situated,

Plaintiff-Appellant,

v.

JPMORGAN CHASE U.S. BENEFITS EXECUTIVE, as Plan Administrator of 

the JPMorgan Chase Retirement Plan, BOARD OF DIRECTORS OF 

JPMORGAN CHASE BANK AND J.P. MORGAN CHASE & COMPANY,

JPMORGAN CHASE RETIREMENT PLAN,

Defendants-Appellees.

On Appeal from a Judgment of the United States District Court for 

the Southern District of New York. 

ARGUED: SEPTEMBER 28, 2023 

DECIDED: AUGUST 13, 2024

Before: PARKER, NARDINI, Circuit Judges, and RAKOFF, District Judge.

∗

∗ Judge Jed S. Rakoff, United States District Judge for the Southern District 

of New York, sitting by designation.
2

Plaintiff-Appellant Joseph Pessin brought suit on behalf of 

himself and all others similarly situated against JPMorgan Chase & 

Company (“JPMC”), the JPMorgan Chase Retirement Plan and its 

appointed fiduciaries, asserting various claims under the Employee 

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et 

seq. Pessin contends that the Defendants made insufficient 

disclosures to pension plan participants following the retirement 

plan’s conversion from a traditional defined benefit plan to a cash 

balance plan. The United States District Court for the Southern 

District of New York (Denise L. Cote, District Judge) granted the

Defendants’ motion to dismiss Pessin’s amended complaint in its 

entirety for failure to state a claim, concluding that the Defendants 

provided adequate disclosures that explained how the retirement

plan worked and did not mislead plan participants about the 

potential effect of the conversion on a plan participant’s accrued 

benefits. We agree that the Defendants sufficiently disclosed an 

aspect of the cash balance plan known as “wear-away,” and that the 

summary plan descriptions clearly and accurately explained how a 

plan participant’s benefits would be calculated. But we disagree with 

the district court’s determination that the Defendants complied with 

ERISA § 105(a) by providing annual pension benefit statements that 

properly indicated a plan participant’s total benefits accrued. We 

therefore also conclude that Pessin adequately alleged that the Board 

of Directors of JPMC breached its fiduciary duty through its failure to 

monitor the performance of the JPMC Benefits Executive with respect 

to the benefit statements, and that the district court therefore erred in 

dismissing Pessin’s ERISA § 404(a) claim against the Board to that 

extent. Accordingly, we AFFIRM IN PART, REVERSE IN PART, and 

REMAND for further proceedings consistent with this opinion. 
3

TERESA S. RENAKER (David S. Preminger, 

Jeffrey G. Lewis, and Chris N. Ryder, Keller 

Rohrback LLP, New York, NY, Oakland, 

CA, and Seattle, WA, on the brief), Renaker 

Scott LLP, San Francisco, CA, for PlaintiffAppellant. 

JEREMY P. BLUMENFELD (Sari M. Alamuddin, 

Eric L. Mackie, Stephanie R. Reiss, and 

Michael E. Kenneally, on the brief), Morgan, 

Lewis & Bockius LLP, Philadelphia, PA, 

Chicago, IL, Pittsburgh, PA, and 

Washington, DC, for Defendants-Appellees. 

WILLIAM J. NARDINI, Circuit Judge: 

Plaintiff-Appellant Joseph Pessin, on behalf of himself and all 

others similarly situated, appeals from a judgment of the United 

States District Court for the Southern District of New York (Denise L. 

Cote, District Judge), entered in favor of the Defendants-Appellees 

JPMorgan Chase & Company (“JPMC”), JPMorgan Chase U.S. 

Benefits Executive (“JPMC Benefits Executive”), the Board of 

Directors of JPMC (“JPMC Board”), and the JPMorgan Chase 

Retirement Plan (“JPMC Plan”) (together, “Defendants”). In his 
4

amended complaint (“Amended Complaint”), Pessin asserted claims 

under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001 et seq., arising out of the Defendants’ 

allegedly inadequate disclosures following JPMC’s decision to 

convert its employee retirement plan from a traditional defined 

benefit plan into a cash balance plan. The district court dismissed the 

suit under Federal Rule of Civil Procedure 12(b)(6), concluding that 

the Amended Complaint failed to allege facts supporting a plausible 

inference that the JPMC Benefits Executive and JPMC Board violated 

their fiduciary duties under ERISA. See generally Pessin v. JPMorgan 

Chase U.S. Benefits Exec., No. 22-cv-2436 (DLC), 2022 WL 17551993 

(S.D.N.Y. Dec. 9, 2022). 

As explained below, we conclude that the Defendants complied 

with ERISA § 404(a) by sufficiently disclosing an aspect of the plans 

known as “wear-away,” and that they complied with ERISA § 102 

because the relevant summary plan descriptions (“SPDs”) clearly and 
5

accurately explained how a plan participant’s benefits would be 

calculated. We disagree, however, with the district court’s 

determination that the Defendants complied with ERISA § 105(a), 

which requires much more specifically that a plan provide annual 

pension benefit statements (“Benefit Statements”) that 

unambiguously indicate a plan participant’s “total benefits accrued.” 

The Defendants here sent statements to Pessin and the putative class 

members that included only one of two alternative calculations of 

their benefits, and the calculation they provided to Pessin did not 

reflect the amount he was actually entitled to receive. We also 

conclude that Pessin adequately alleged that the JPMC Board

breached its fiduciary duty through its failure to monitor the 

performance of the JPMC Benefits Executive with respect to the 

Benefit Statements. The district court therefore erred in dismissing 

Pessin’s ERISA § 404(a) claim against the JPMC Board in that narrow 

regard. Accordingly, we AFFIRM IN PART, REVERSE IN PART, and 
6

REMAND for further proceedings consistent with this opinion. 

I. Background

The following facts are drawn from the well-pleaded 

allegations in Pessin’s Amended Complaint, which we must accept as 

true for purposes of evaluating the Defendants’ motion to dismiss. 

Harvey v. Permanent Mission of the Republic of Sierra Leone to the United 

Nations, 97 F.4th 70, 74 (2d Cir. 2024). 

A. The Pension Plans and Related Disclosures

1. The Pension Plans

Pessin began working for J.P. Morgan & Co. (“Morgan”) in 1987 

and participated in the Retirement Plan for Employees of Morgan 

Guaranty Trust Company of New York and Affiliated Companies for 

United States Employees (“Morgan Plan”). The Morgan Plan was a 

traditional defined benefit pension plan that provided a benefit, 

beginning at retirement, in the form of a lifetime annuity or lump sum

payment. The benefit was calculated using a final average pay benefit 
7

formula and based on certain factors, including a participant’s 

retirement age, compensation, and years of service. 1 The Morgan 

Plan also provided an early retirement benefit for certain participants 

who elected to commence benefits between the ages of fifty-five and

sixty.

On December 31, 1998, the Morgan Plan transitioned to using a 

cash balance formula and was renamed the Cash Balance Plan of 

Morgan Guaranty Trust Company of New York and Affiliated 

Companies for United States Employees (“Cash Balance Plan”). The 

Cash Balance Plan remained a defined benefit plan but began 

displaying participants’ benefits as hypothetical “account balance[s].” 

J. App’x at 14, ¶ 18. These account balances periodically earned “pay 

1 The Morgan Plan utilized a normal retirement age of 65 and provided “a

retirement benefit for the life of the member alone in an annual amount equal to 

the product of (x) and (y), plus, if applicable, (z) where (x) is the sum of (i) 1.6% of 

the computed average salary of the member not in excess of his covered 

compensation plus (ii) 1.9% of such salary in excess of his covered compensation, 

and (y) is his years of credited service up to 30 years and (z) is, for a member in 

service on December 31, 1986, .5% of his computed average salary for each year of 

credited service in excess of 30 but not more than 40.” J. App’x at 13, ¶ 14. 
8

credit[s],” based on a participant’s compensation, along with “interest 

credits,” derived from annual interest rates. Id. As part of the 

transition to the Cash Balance Plan, participants who had accrued 

benefits under the old Morgan Plan were assigned a hypothetical 

opening account balance as of December 31, 1998.2 Further, under the 

Cash Balance Plan, former Morgan Plan participants’ benefits would 

continue to accrue under both the final average pay formula and the 

cash balance formula until December 30, 2003. Thereafter, pension

plan participants accrued benefits only under the cash balance 

formula. 

ERISA’s “anti-cutback” rule provides, in relevant part, that 

“[t]he accrued benefit of a participant under a plan may not be 

decreased by an amendment of the plan . . . .” 29 U.S.C. § 1054(g)(1). 

To ensure compliance with this rule, the Cash Balance Plan provided 

2 Former Morgan Plan participants’ accrued benefits were converted into 

account balances using certain actuarial assumptions, including a six percent 

interest rate and a mortality assumption.
9

that “a participant’s accrued benefit shall not be less than the 

participant’s accrued benefit as of December 30, 2003.” J. App’x at 15, 

¶ 24. In other words, at retirement, former Morgan Plan participants

would be entitled to the greater of either (1) their accrued benefits 

under the original traditional defined benefit plan, which was 

calculated using the final average pay formula, or (2) their accrued 

benefits under the Cash Balance Plan’s recently adopted cash balance 

formula. Under this “greater of” comparison, the final average pay 

benefit as of December 30, 2003, became the minimum benefit former 

Morgan Plan participants would receive regardless of when they left

employment and began receiving benefits. 

Due to this benefit comparison, under the Cash Balance Plan, 

former Morgan Plan participants accrued no new benefits until their 

cash balance caught up to and surpassed their December 31, 2003, 

accrued benefit under the final average pay formula. This concept is 
10

known as “wear-away.” 3 During the wear-away period, former 

Morgan Plan participants’ actual benefits were effectively frozen, 

despite their continued employment, until they accrued enough pay 

and interest credits to exceed their previously accrued benefits under 

the traditional defined benefit plan.

On December 31, 2000, Morgan merged into Chase Manhattan 

Bank, creating JPMC. The Cash Balance Plan also merged into the 

Retirement Plan of The Chase Manhattan Bank and Certain Affiliated 

Companies, creating the JPMC Plan. The JPMC Plan continued the 

wear-away effect of the Cash Balance Plan, because former Morgan 

Plan participants still accrued no additional benefits until their cash 

balance benefits exceeded, if ever, their accrued benefits under the 

final average pay formula. 

3 This Court has previously explained that within the benefits industry, 

“wear-away” describes the period when “any pay and interest credits earned by a 

participant would not increase his or her actual benefits, but merely reduce the 

gap between the value of the participant’s cash balance account and the 

participant’s old benefits.” Osberg v. Foot Locker, Inc., 862 F.3d 198, 203 (2d Cir. 

2017). 
11

2. The Summary Plan Descriptions 

After the conversion to a cash balance formula, Morgan and 

then JPMC (following the merger) issued several summary plan 

descriptions to plan participants. The Amended Complaint focuses 

on three of those SPDs. 

First, in January 1999, Morgan issued an SPD (“1999 SPD”) that

described how a plan participant’s benefit is determined and 

received. The 1999 SPD also explained Morgan’s transition to the 

Cash Balance Plan and how benefits would be calculated during the 

transition: 

[B]enefits will be calculated using two formulas – the 

prior formula and the Cash Balance Formula – during the 

five-year period from January 1, 1999 through December 

31, 2003. If you leave Morgan during this period and are 

vested, you will receive the larger of the two benefits. 

After December 31, 2003, your accrued benefit under the 

prior formula will be frozen and will continue to act as a 

minimum benefit. When you leave Morgan, you will 

receive the larger of the minimum benefit or your 

balance under the Cash Balance Plan. 

If you leave Morgan after December 31, 2003, your 
12

additional years of age and service will count toward 

your eligibility for early retirement benefits under the 

prior formula. However, the amount of your benefit will 

be calculated using your service and final average 

earnings through December 31, 2003.

J. App’x at 51. 

Second, the following year, Morgan issued an SPD, effective 

September 18, 2000 (“2000 SPD”), that made substantially similar 

disclosures as the 1999 SPD regarding the operation of the Cash 

Balance Plan and the minimum benefit former Morgan Plan 

participants might receive.

Third, in 2005, after the Cash Balance Plan became the JPMC 

Plan, JPMC issued an SPD (“2005 SPD”). In a section titled 

“Important Terms,” the 2005 SPD defined “minimum benefit”:

In general, when a pension plan changes as a result of a 

plan merger or modification, participants cannot receive 

less than any amounts they had accrued or earned under 

that plan prior to the date of the merger or modification. 

This amount is referred to as the “minimum benefit.” 

When you request a distribution, that minimum benefit 

will be compared to your accrued benefit under the 

Retirement Plan and you will receive the greater of the 
13

two amounts. If you participated in the retirement plan 

of a heritage organization, please see the appropriate 

Appendix in this summary plan description for more 

information on minimum benefits.

Id. at 119. For plan participants who participated in the Cash Balance 

Plan as of December 31, 2001, the 2005 SPD directed them to review 

“Appendix C.” 

Appendix C confirmed that former Morgan Plan participants

would have “a minimum benefit which is determined under a prior 

plan benefit formula.” Id. at 156. It specified that the “minimum 

benefit [is] equal to your accrued benefit under the final average pay 

formula as of the earlier of your termination of employment or 

December 31, 2003.” Id. at 158. Appendix C further explained to 

JMPC Plan participants that “[e]ach of these minimum benefits will 

be compared to your cash balance benefit under the [JPMC Plan] at 

the time you elect to receive payment. If one of the minimum benefits 

exceeds your cash balance benefit, you will receive that minimum 

benefit.” Id. at 159. It cautioned that “the amount shown on your 
14

account statement . . . reflects only the benefit earned under the cash 

balance formula and does not take into account this minimum 

benefit.” Id. Thus, Appendix C advised plan participants who 

wanted to compare their benefits to contact Human Resources 

because “[benefit] projections prepared through accessHR will reflect 

the greater of your cash balance formula or your benefit provided 

under the final average pay formula.” Id. 

3. The Benefit Statements 

Beginning in 2002, the JPMC Benefits Executive—the JPMC 

Plan administrator—provided Benefit Statements to all participants 

in the JPMC Plan. As noted in the SPDs, the Benefit Statements

displayed only a plan participant’s benefit earned under the cash 

balance formula. For example, using the cash balance formula,

Pessin’s 2019 Benefit Statement showed his opening account balance 

as of January 1, 2019, and his closing account balance as of December 

31, 2019. According to the 2019 Benefit Statement, Pessin’s cash 
15

account balance purportedly increased that year from pay credits and 

interest credits. However, directly below the cash balance amounts, 

the statement notes: “This statement does not reflect any minimum 

benefit that you might have accrued under a prior plan formula. If 

you would like more information about minimum benefits, you can 

call HR Answers.” Id. at 173. The Benefit Statement provided the

contact information for HR Answers on the following page.

B. Pessin’s Investigation Into His Accrued Benefits 

In 2019, Pessin left his employment with JPMC. Not long after, 

on March 27, 2019, Pessin received a pension benefit election packet. 

In April 2021, Pessin requested a new pension election packet, as well 

as additional information about how his pension benefit was 

calculated. JPMC provided Pessin with the requested calculation

worksheets, which showed that Pessin was entitled to receive the 

“minimum benefit” because his accrued benefits under the final 

average pay formula as of December 31, 2003, were still higher than 
16

the current amount in his cash balance account.

C. Procedural History

On March 25, 2022, after receiving his benefit calculations, 

Pessin brought suit against the Defendants on behalf of himself and a 

proposed class of similarly situated plan participants and 

beneficiaries, claiming that the Defendants violated their fiduciary 

duties and statutory obligations under ERISA, 29 U.S.C. § 1001 et seq. 

Pessin amended his complaint on July 27, 2022. Specifically, Pessin 

claimed that (1) the JPMC Benefits Executive breached its fiduciary 

duties under ERISA § 404(a), 29 U.S.C. § 1104(a), by “failing to 

disclose that the[ class’s] pension benefits were frozen and 

intentionally concealing the fact that they were not accruing 

additional pension benefits through their continued employment,” J. 

App’x at 27, ¶ 81; (2) the JPMC Board breached its fiduciary duties 

under § 404(a) by failing to monitor the performance of the JPMC 

Benefits Executive; (3) the JPMC Benefits Executive violated ERISA 
17

§ 105(a), 29 U.S.C. § 1025(a), by failing to provide pension benefit 

statements that meet the standards of that section; and (4) the JPMC 

Benefits Executive violated ERISA § 102, 29 U.S.C. § 1022, by failing 

to provide SPDs that meet the standards of that section and the 

regulations promulgated under that section. The Defendants moved 

to dismiss the Amended Complaint pursuant to Federal Rule of Civil 

Procedure 12(b)(6), arguing, among other things, that they made 

proper disclosures in the SPDs and Benefit Statements following the

JPMC Plan’s conversion from a final average pay formula to a cash 

balance formula. 

On December 9, 2022, the district court granted the Defendants’ 

motion to dismiss as to all claims, reasoning that the Defendants had, 

in fact, provided sufficient disclosures that explained both the 

transition to the cash balance formula and how plan participants 

could compare their benefits under the cash balance formula and final 

average pay formula during the wear-away period. Pessin, 2022 WL 
18

17551993, at *7–8. The district court also concluded that the JPMC 

Benefits Executive and JPMC Board did not breach the Defendants’

fiduciary duties under ERISA. Id. at *5–7. Pessin appealed. 

II. Discussion

On appeal, Pessin principally argues that the district court 

erred in concluding that the Defendants made adequate disclosures 

about the JPMC Plan’s conversion from a traditional defined benefit 

plan to a cash balance benefit plan and its impact on his accrued 

benefits. 

“We review de novo the district court’s dismissal of the 

Amended Complaint for failure to state a claim under Rule 12(b)(6).” 

City of Pontiac Police & Fire Ret. Sys. v. BNP Paribas Sec. Corp., 92 F.4th 

381, 390 (2d Cir. 2024). In reviewing a motion to dismiss, “[w]e accept 

the Amended Complaint’s well-pleaded factual allegations as true 

and construe them in the Plaintiff[‘s] favor.” Id. We may also 

consider “documents attached to the complaint as exhibits, and 
19

documents incorporated by reference in the complaint.” Revitalizing 

Auto Communities Env’t Response Tr. v. Nat’l Grid USA, 92 F.4th 415, 

436 (2d Cir. 2024) (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 

104, 111 (2d Cir. 2010)).

A. Section 404(a) Claim Against the JPMC Benefits Executive

Pessin challenges the district court’s dismissal of his claim that

the JPMC Benefits Executive breached its fiduciary duties under 

ERISA § 404(a). He argues that the SPDs and Benefit Statements did 

not sufficiently disclose the consequences of wear-away and misled 

plan participants into “believing that they were earning additional 

benefits when they were not.” Appellant’s Br. at 18.

ERISA § 404(a) provides that “a fiduciary shall discharge his 

duties with respect to a plan solely in the interest of the participants 

and beneficiaries and . . . with the care, skill, prudence, and diligence 

under the circumstances then prevailing that a prudent man acting in 

a like capacity and familiar with such matters would use in the 
20

conduct of an enterprise of a like character and with like aims.” 29 

U.S.C. § 1104(a)(1). ERISA’s fiduciary duties of loyalty and prudence 

are “the highest duties known to law.” Rothstein v. Am. Int’l Grp., Inc., 

837 F.3d 195, 208 (2d Cir. 2016) (citation, emphasis, and quotation 

marks omitted). “When a plan administrator affirmatively 

misrepresents the terms of a plan or fails to provide information when 

it knows that its failure to do so might cause harm, the plan 

administrator has breached its fiduciary duty to individual plan 

participants and beneficiaries.” Devlin v. Empire Blue Cross & Blue 

Shield, 274 F.3d 76, 88 (2d Cir. 2001) (citation and quotation marks 

omitted). Thus, a plan administrator’s failure to sufficiently explain 

the consequences of wear-away can qualify as a breach of fiduciary 

duty. See, e.g., Osberg v. Foot Locker, Inc., 138 F. Supp. 3d 517, 555 

(S.D.N.Y. 2015), aff’d, 862 F.3d 198 (2d Cir. 2017).

We agree with the district court that here, the JPMC Benefits 

Executive provided disclosures sufficient to comply with its fiduciary 
21

duties. While the term “wear-away” was not explicitly used in the 

relevant disclosures, the 1999 and 2000 SPDs explained the plan’s

transition to a cash balance formula and its potential consequences on 

plan participants. They disclosed that plan participants as of 

December 31, 1998, would continue to accrue benefits under the final 

average pay formula through December 31, 2003. The disclosures

also noted that, “[a]fter December 31, 2003, [their] accrued benefit 

under the prior formula [would] be frozen and [would] continue to 

act as a minimum benefit.” J. App’x at 51. 

The Amended Complaint defines wear-away as the possibility 

that “the [frozen] benefit [the participant] had accrued through 

December 30, 2003, [would] exceed[] the benefit that he accrued over 

the subsequent years . . . .” Id. at 10. The 1999 and 2000 SPDs

disclosed this possibility, stating that when plan participants 

terminated their employment with Morgan, their frozen benefit 

would continue to act as a minimum benefit that they would receive 
22

if it exceeded the cash balance benefit. Thus, Pessin fails to show how

these class-wide communications do not adequately describe the 

potential implications of wear-away.

In addition, the 1999 and 2000 SPDs underscored that the final 

average pay benefit would “includ[e] any early retirement subsidies.” 

Id. at 51, 88. Due to his age and substantial years of service, Pessin 

learned that he was eligible for early retirement subsidies, and he 

therefore received certain additional benefits because of his continued 

employment with JPMC. As a result, following the 1999 and 2000 

SPDs, Pessin should have been aware that his final average pay 

benefit might exceed his cash balance benefit. Accordingly, we agree 

with the district court that both the 1999 and 2000 SPDs sufficiently 

disclosed to plan participants the consequences of wear-away on 

Pessin’s accrued benefits. 

The 2005 SPD provides further information on the effect of 

wear-away and its impact on a plan participant’s benefits. Published 
23

after the merger that formed JPMC, the 2005 SPD advised those who 

had “participated in the retirement plan of a heritage organization” 

to consult the appropriate appendix. Id. at 119. For Pessin, this was 

Appendix C. Similar to the 1999 and 2000 SPDs, Appendix C 

explained that Pessin would have a minimum benefit determined 

under the final average pay formula. Appendix C then clarified that 

“[i]f . . . the minimum benefit[] exceeds your cash balance benefit, you 

will receive that minimum benefit.” Id. at 159. As the district court

correctly acknowledged, this is exactly what happened here. See 

Pessin, 2022 WL 17551993, at *6 (“[Pessin’s] cash balance benefit was 

lower than his minimum benefit under the prior formula, so, as 

previously explained to plaintiff in the SPDs, he was entitled to the 

minimum benefit when he requested benefits election packets in 2019 

and 2021.”).4

4 There are a couple of reasons why Pessin’s minimum benefit would be 

greater than his cash balance benefit. As previously explained, Pessin’s age and 

service qualified him for early retirement benefits, and, as a result, it was possible 
24

Pessin argues that the appendices in the 2005 SPD are confusing

for several reasons, none of which are persuasive. First, he argues 

that it is not clear that Appendix C applied to him because the 

“appendices did not apply after December 31, 2004.” Appellant’s Br. 

at 29. However, the 2005 SPD was issued in Fall 2005 and the 

“Important Terms” section at the beginning of the document clearly

directs all plan participants to review the relevant appendices. 

Second, Pessin contends that both Appendix A and Appendix C 

applied to him. The 2005 SPD explained that Appendix A is for plan 

participants who were part of the JPMC Plan between 2002 and 2004. 

While this period might capture certain plan participants (including 

Pessin) who were hired by Morgan and Chase, Appendix A directs 

plan participants to consult different appendices depending on their 

that his final average pay benefit (which included the early retirement benefits)

would exceed his cash balance benefit at distribution. Additionally, the 2005 SPD 

describes how interest rates could also affect the value of a plan participant’s cash 

balance benefit at the time it is calculated. If interest rates were low at the time 

Pessin received his election packet, his cash benefit could have been significantly 

lower than his final average pay benefit.
25

individual circumstances. In that regard, the 2005 SPD noted that

Appendix C is applicable to those plan participants, like Pessin, who 

became part of the Cash Balance Plan as of the end of 2001. Third,

Pessin argues that Appendix C does not illustrate how his cash 

balance benefit is calculated. But these details are explained in the 

main body of the 2005 SPD, just as they were also described in the 

1999 and 2000 SPDs.

Lastly, Pessin argues that the 2005 SPD does not properly 

address two potential reasons for why his final average pay benefit 

might have exceeded the cash balance benefit: (1) that his cash balance 

plan had an inappropriately low opening balance at the start of 1999,

or (2) that there were comparatively high additional accruals in the 

final average pay formula during the five-year period between 1999 

and 2003. Pessin, however, does not allege in the Amended 

Complaint that either of these possibilities actually occurred. The 

2005 SPD explained that interest rates and early retirement benefits 
26

are two potential explanations for why a plan participant’s final 

average pay benefit might be greater than their cash balance benefit. 

This was sufficient to put someone in Pessin’s position on notice that 

they might receive the minimum benefit rather than the cash balance 

benefit. 

Furthermore, all three SPDs gave plan participants specific 

instructions, if needed, to learn more about their benefits. The 1999 

and 2000 SPDs, for instance, state on the first page, “[f]or questions 

about your cash balance plan benefits, call Morgan Direct” at the 

phone number provided. J. App’x at 38, 74. The 2005 SPD advised 

plan participants to direct questions to “accessHR” at the phone 

number provided. Id. at 114. The 2005 SPD also explained that 

“projections prepared through accessHR” were available and would 

“reflect the greater of your cash balance formula or your benefit 

provided under the final average pay formula.” Id. at 159. Similarly, 

while the 2019 and 2020 Benefit Statements included only each plan 
27

participant’s cash balance amounts, the Benefit Statements expressly 

stated that they did not “reflect any minimum benefit that you might 

have accrued under a prior plan formula” and that plan participants 

who wanted “more information about minimum benefits . . . can call 

HR Answers.” Id. at 173, 178. The Benefit Statements included the 

same toll-free number that the 2005 SPD had given. Thus, Pessin had 

several opportunities to learn more about his specific benefit package

and receive additional information. The JPMC Benefits Executive 

therefore met its fiduciary duties by providing accurate disclosures

about Pessin’s pension benefits. The Benefit Statements and SPDs 

told plan participants how to access more information about their 

minimum benefits and to what extent wear-away might impact their 

pension benefits at disbursement. 

Pessin draws our attention to two recent decisions of district 

courts in this Circuit to support his contention that Defendants’ 

disclosures are insufficient, but neither case is apposite. First, he relies 
28

on Osberg v. Foot Locker, Inc., 138 F. Supp. 3d 517, 523 (S.D.N.Y. 2015), 

aff'd, 862 F.3d 198 (2d Cir. 2017). In that case, following the conversion 

from a defined benefit plan to a cash balance plan, pension plan

participants brought suit against the plan’s fiduciaries under ERISA. 

138 F. Supp. 3d at 523. The Plaintiffs argued, among other things, that 

the defendants failed to articulate changes to the retirement plan in 

the SPDs and that the plan participants were led to believe that they 

would receive their frozen traditional benefit plus their cash balance 

accounts. Id. The district court determined that the plan participants’ 

understanding was reasonable because inaccurate information was 

provided in the SPDs including, specifically, that the disclosure

conflated the plan participants’ cash balance accounts with their final 

accrued benefits. See id. at 532. Here, however, the SPDs and Benefit 

Statements accurately outlined the difference between a plan 

participant’s cash balance account and their final accrued benefit 

upon termination of employment, and advised plan participants on 
29

how to access more information about their minimum benefits and 

obtain a benefit comparison. Plan participants in Osberg, in contrast,

were not told how to obtain the necessary information to compare 

their accrued benefits under their prior plan to their cash balance 

accounts. See id. at 532-33. 

Likewise, in Amara v. CIGNA Corp., the plan participants 

alleged that their employer prevented them from learning the amount 

of their traditional defined benefits. 534 F. Supp. 2d 288, 346-48 (D. 

Conn. 2008), aff’d, 348 F. App’x 627 (2d Cir. 2009), vacated and remanded 

on other grounds, 563 U.S. 421 (2011), on remand, 925 F. Supp. 2d 242 

(D. Conn. 2012), aff’d, 775 F.3d 510 (2d Cir. 2014). The district court 

found that the defendants directed their benefits department “not to 

provide benefits comparisons under the old and new plans . . . even 

though employees explicitly requested such a comparison.” Amara,

775 F.3d at 530–31 (cleaned up); see Amara, 534 F. Supp. 2d at 343. 

Pessin does not make similar allegations here. The SPDs and Benefit 
30

Statements, in this case, explained in detail how plan participants 

could learn more information about their frozen final average pay 

benefit and advised that plan participants should call certain direct 

access “help lines” for more information about their benefit 

comparisons. Additionally, Pessin does not dispute that when he 

requested additional information regarding his benefit calculations, 

he received calculation worksheets that accurately displayed his 

minimum benefits along with the cash account balance. There is no 

evidence that the Defendants withheld any information about his 

benefits. 

B. Section 102 Claim 

Next, Pessin argues that the JPMC Benefits Executive violated 

ERISA § 102, 29 U.S.C. § 1022, by failing to provide SPDs that 

sufficiently disclosed wear-away to plan participants and by 

allegedly misleading participants into believing that their accrued 

benefits were growing instead of frozen during the wear-away 
31

period. Section 102 “requires covered employee benefit plans to 

furnish summary plan descriptions . . . of a plan’s terms to 

participants.” Cooper v. Ruane Cunniff & Goldfarb Inc., 990 F.3d 173, 

177 (2d Cir. 2021). The SPDs need to be “sufficiently accurate and 

comprehensive to reasonably apprise such participants and 

beneficiaries of their rights and obligations under the plan.” Id. 

(quoting 29 U.S.C. § 1022(a)). For example, the disclosures must 

describe circumstances that might result in the loss of benefits, and 

“[t]he advantages and disadvantages of the plan[,] . . . without either 

exaggerating the benefits or minimizing the limitations.” 29 C.F.R. 

§ 2520.102-2(b). SPDs must be “written in a manner calculated to be 

understood by the average plan participant.” 29 U.S.C. § 1022(a). 

As explained when addressing Pessin’s § 404(a) claim, see supra

Section II.A, the SPDs in this case adequately disclosed wear-away to 

plan participants and did not contain misleading information about 

the effect of wear-away on Pessin’s benefits. The 1999 and 2000 SPDs 
32

explained that (i) the JPMC Plan transitioned from using a final 

average pay formula to a cash balance formula; (ii) plan participants’ 

benefits would continue to accrue using both formulas through 

December 31, 2003; (iii) after December 31, 2003, a plan participant’s 

accrued benefit under the final average pay formula would be frozen 

and act as a minimum benefit; and (iv) following termination of 

employment, plan participants would receive the larger of the 

minimum benefit or the balance under the Cash Balance Plan, but not 

both. The 2005 SPD reiterated these points and for further 

clarification directed plan participants to appendices that detailed the 

minimum benefit calculation and its comparison to the cash balance 

calculation. Accordingly, we conclude that the relevant SPDs did 

more than just describe the “greater of” formula but, in fact, described 

wear-away and its consequences on plan participants’ accrued 

benefits. Therefore, the district court properly dismissed Pessin’s 

§ 102 claim because the JPMC Benefits Executive complied with its 
33

requirements. 

C. Section 105 Claim

Pessin also challenges the district court’s dismissal of his 

distinct claim alleging that the JPMC Benefits Executive violated 

ERISA § 105(a), 29 U.S.C. § 1025(a), by providing plan participants 

subject to wear-away with Benefit Statements that showed their cash 

balance benefits but not their accrued benefits under the final average 

pay formula. Section 105(a) requires a pension benefit administrator 

to provide periodic pension benefit statements that are individualized 

for each plan participant. Among other information, the “pension 

benefit statement . . . shall indicate, on the basis of the latest available 

information . . . the total benefits accrued.” 29 U.S.C. 

§ 1025(a)(2)(A)(i)(I). ERISA does not define the phrase “total benefits 

accrued.” However, the statute does define the distinct phrase 

“accrued benefit” to mean (as relevant here) “the individual’s accrued 

benefit determined under the plan and . . . expressed in the form of 
34

an annual benefit commencing at normal retirement age.” Id.

§ 1002(23)(A).

The Defendants contended at oral argument that the term 

“accrued benefit” has a technical meaning in the context of ERISA, 

citing Hirt v. Equitable Retirement Plan for Employees, Managers, & 

Agents, 533 F.3d 102 (2d Cir. 2008). In Hirt, this Court was called on 

to interpret the phrase “rate of benefit accrual,” as used in ERISA’s 

prohibition on age-based reductions in benefit awards. Id. at 104; see

29 U.S.C. § 1054(b)(1)(H)(i). The plaintiffs in that case cited the 

definition of “accrued benefits” as offering partial support for their 

reading of the phrase “rate of benefit accrual,” but the Hirt Court 

rejected the comparison, invoking the rule that “[w]hen Congress 

uses particular language in one section of a statute and different 

language in another, we presume its word choice was intentional.” 

Hirt, 533 F.3d at 108 (citation and quotation marks omitted). Thus, as 

relevant here, Hirt stands for the narrow proposition that the 
35

definition of “accrued benefit” should not be imported wholesale in 

construing the distinct phrase “total benefits accrued.” The absence 

of a definition for “total benefits accrued” does not help the 

Defendants, however, as we find no case that offers a definitive or 

contextual interpretation of “total benefits accrued” for purposes of

ERISA. We therefore interpret “total benefits accrued” consistent 

with its ordinary meaning. See BP P.L.C. v. Mayor & City Council of 

Balt., 593 U.S. 230, 237 (2021) (“When called on to interpret a statute, 

this Court generally seeks to discern and apply the ordinary meaning 

of its terms at the time of their adoption.”).

Under a plain reading of “total benefits accrued,” Pessin has 

stated a claim. Pessin alleges that the account statements he received 

contained only the benefit he had accrued under the cash balance 

formula and that this violated § 105(a) because the amount accrued 

under the cash balance formula was not the benefit he was entitled to 

receive. Rather, according to the Amended Complaint, from 2003 to 
36

2019 his “total benefit[] accrued” was the amount he was entitled to 

under the frozen final average pay formula. And yet that amount 

never appeared on his account statements. The Defendants suggest 

that the exact amount of a plan participant’s final average pay benefit 

fluctuated even after it was frozen in 2003 due to changes in interest 

rates, but this is not relevant at this stage of the litigation because 

Pessin alleges that “his cash balance benefit never exceeded his final 

average pay benefit,” an allegation that must be taken as true. J. 

App’x at 20, ¶ 47. Thus, the account statements consistently failed to 

provide Pessin with his “total benefits accrued,” in violation of 

§ 105(a).

This reading is not only consistent with the text of ERISA, but 

also makes sense in practice. “Congress’ purpose in enacting the 

ERISA disclosure provisions [was to] ensur[e] that the individual 

participant knows exactly where he stands.” Firestone Tire & Rubber 

Co. v. Bruch, 489 U.S. 101, 103 (1989). ERISA was meant “to provide 
37

specific data to participants and beneficiaries concerning the rights 

and benefits they are entitled to under the plans and the 

circumstances which may result in their not being entitled to 

benefits.” S. Rep. No. 93-127, at 27 (1974). Pessin’s disclosure claim 

does not raise some complex or technical argument about the esoteric 

mechanisms behind his pension plan. He simply claims that the 

Defendants had to tell him the amount of pension benefits he had 

earned to date, information that lies at the very core of what a plan 

participant would want to know.

The Defendants offer three counterarguments in contending

that the pension benefit administrator provided Benefit Statements 

that properly indicated Pessin’s total benefits accrued under § 105(a). 

First, the Defendants point to the following disclaimer on the pension 

benefit statements that Pessin received: “This statement does not 

reflect any minimum benefit that you might have accrued under a 

prior plan formula. If you would like more information about 
38

minimum benefits, you can call HR Answers.” J. App’x at 173. The 

Defendants argue “[t]his was enough to ‘indicate’ Pessin’s total 

benefits because it provided the amount in the participant’s cash 

balance account while also pointing to a possibly higher minimum 

benefit and the opportunity to obtain more information about that 

minimum benefit.” Appellees’ Br. at 36. But the Defendants’ reading 

of “indicate” stretches that verb well past its breaking point. Even 

accepting the Defendants’ preferred definition of “indicate” as 

meaning “to point out or to,” id. (quoting Webster’s New 

International Dictionary of the English Language 1265 (2d ed. 1953)), 

the Defendants did not “point out” the “total benefits accrued” by 

Pessin, but rather indicated where that information might be obtained. 

Section 105(a) plainly requires a statement of the amount of benefits 

an individual has accrued to date. This is confirmed by the 

requirement that the statement be based “on the basis of the latest 

available information.” 29 U.S.C. § 1025(a)(2)(A)(i). This phrase, and 
39

the requirement to provide benefit statements, would be rendered 

meaningless if it could be satisfied by the mere suggestion that an 

unspecified higher minimum benefit “might” apply.

Second, the Defendants observe that “ERISA allows the 

administrator of a defined benefit plan to satisfy its obligations under 

29 U.S.C. § 1025 without providing any pension benefit statement at 

all.” Appellees’ Br. at 37. It is true that, as an alternative to providing 

periodic pension benefit statements, a defined benefit plan 

administrator may provide the participant with a “notice of the 

availability of the pension benefit statement and the ways in which 

the participant may obtain such statement.” 29 U.S.C. § 1025(a)(3)(A). 

This provision does not help the Defendants here, however, because 

the documents that the Defendants periodically provided to Pessin 

were plainly intended to be Pessin’s Benefit Statements. Pessin 

alleges these were, in fact, Benefit Statements and, more importantly, 

that he understood them to be his Benefit Statements. By electing to 
40

provide these statements, the Defendants plainly triggered the 

disclosure requirements of § 105(a). While penalizing the Defendants 

for providing more information than is strictly required may seem 

counterintuitive at first glance, upon reflection this rule makes perfect 

sense. If Pessin had simply received a piece of paper in the mail every 

year stating, “your pension benefit statement is available, call this tollfree number to get it,” there is a good chance that he (and any other 

reasonably prudent pensioner) would have been curious about what 

his benefits were and would have called to get a copy of the statement. 

At this point, he would have learned that his benefits were effectively 

frozen and had been since 2003. Instead, Pessin received documents 

titled “Account Statement[]” that, by including a steadily growing 

cash account balance, led him to incorrectly believe his pension 

benefits were growing when they were not. Pessin thus had no reason 

to inquire further about what his benefits were beyond a suggestion 

that some alternative minimum “might” apply. In short, the JPMC 
41

Benefits Executive may not have been under a duty to provide Pessin 

with a Benefit Statement, but once it did so, it was obligated to 

provide a Benefit Statement that accurately reflected his total benefits 

accrued. See Est. of Becker v. Eastman Kodak Co., 120 F.3d 5, 8 (2d Cir. 

1997) (explaining that an ERISA fiduciary has “not only a duty not to 

misinform, but also ‘a duty upon inquiry to convey to a lay 

beneficiary . . . correct and complete material information about his 

status and options’”).

Third, the Defendants argue that calculating the alternative 

minimum benefit for every plan participant would be unduly 

burdensome, and that listing two figures on account statements 

would have risked confusing participants. As a threshold matter, 

given the clarity of Congress’s direction that benefit statements 

include the “total benefits accrued,” it is not at all clear that this Court 

should look past ERISA’s plain text to consider these policy 

arguments. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109, 131 
42

(2018) (concluding that policy arguments did not “obscure what the 

statutory language makes clear”). 

As to the burden of calculating both figures, the Benefit 

Statements were individualized statements, and the Defendants do 

not dispute that they could have calculated the final average pay 

benefit any time an individual requested it. Thus, it is not clear why 

providing that alternative minimum as of some fixed date would 

have imposed a materially greater expense. Ultimately, the risk of 

confusion that might result from including two numbers on the 

Benefit Statements does not outweigh the risk of confusion from what 

the Defendants did, which was to include only one number, which 

did not reflect how much Pessin would receive if he left the company. 

At bottom, the language of § 105(a) is clear. The Benefit Statements 

provided to Pessin were required to contain Pessin’s “total benefits 

accrued” and yet they did not. Accordingly, we conclude that the 

district court erred in dismissing Pessin’s § 105(a) claim. 
43

D. Section 404(a) Claim Against the JPMC Board

Turning to Pessin’s § 404(a) claim, he argues that the JPMC 

Board breached its fiduciary duties through its failure to monitor the 

performance of the JPMC Benefits Executive. ERISA allows for plan 

fiduciaries to allocate their fiduciary responsibilities. 29 U.S.C. 

§ 1105(c). The appointing fiduciary, however, continues to have a 

fiduciary duty to monitor the activities of its appointees. See id.

§§ 1104(a)(1), 1105(a), (c). 

The parties do not dispute that Pessin’s failure to monitor claim 

is a derivative claim and therefore requires an underlying breach. See 

Coulter v. Morgan Stanley & Co., 753 F.3d 361, 368 (2d Cir. 2014). The 

district court determined that Pessin could not maintain a claim for 

breach of the duty to monitor, because he did not allege any 

underlying breach of the JPMC Benefits Executive’s duties under 

ERISA. Because, as explained above, Pessin plausibly alleges that the 

JPMC Benefits Executive breached its duties under ERISA § 105(a), 
44

the district court erred in dismissing Pessin’s failure to monitor claim.

E. Defendants’ Alternative Arguments 

The Defendants reiterate that, in their motion to dismiss, they

argued in the alternative that Pessin’s claims are barred because 

(i) they are untimely and (ii) he released them in exchange for 

severance payments. The district court did not rule on either issue. 

Because “[w]e are ‘a court of review, not of first view,’” Havens v. 

James, 76 F.4th 103, 123 (2d Cir. 2023) (quoting Decker v. Nw. Env't Def. 

Ctr., 568 U.S. 597, 610 (2013)), we leave these issues for the district 

court to consider in the first instance. 

III. Conclusion

In sum, we hold as follows: 

(1) The district court did not err in granting the Defendants’ 

motion to dismiss Pessin’s ERISA § 404(a) claim against the 

JPMC Benefits Executive. The Defendants’ written 

disclosures sufficiently disclosed to plan participants how

the pension plan works and the effect of wear-away on a 
45

participant’s accrued benefits after a traditional defined 

benefit plan is converted to a cash balance plan. 

(2) The district court did not err in granting the Defendants’ 

motion to dismiss Pessin’s ERISA § 102(a) claim against the 

JPMC Benefits Executive. The JPMC Benefits Executive

issued SPDs that adequately apprised plan participants of 

their rights under the pension plan and did not mislead 

participants into thinking that their frozen benefits were 

increasing during the wear-away period. 

(3) The district court erred in granting the Defendants’ motion 

to dismiss Pessin’s ERISA § 105(a) claim against the JPMC 

Benefits Executive, because pension plan administrators are 

required to provide plan participants with annual benefit 

statements that inform them of their total accrued benefits, 

and Pessin’s Benefit Statements showed only the cash 

balance benefit even though that was less than the benefit to 
46

which Pessin would actually be entitled. 

(4) The district court erred in dismissing Pessin’s ERISA 

§ 404(a) claim against the JPMC Board. Pessin adequately 

alleged an underlying breach by the JPMC Benefits 

Executive pursuant to § 105(a) with respect to the Benefit 

Statements, and accordingly, Pessin adequately alleges a 

failure to monitor claim against the JPMC Board in that 

respect. 

Accordingly, we AFFIRM IN PART and REVERSE IN PART 

the judgment of the district court, and REMAND the case for further 

proceedings consistent with this opinion.