FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL WARMENHOVEN,

Plaintiff-Appellant,

v.

NETAPP, INC.; NETAPP EXECUTIVE 

MEDICAL RETIREMENT PLAN,

Defendants-Appellees.

No. 19-16960

D.C. No.

5:17-cv-02990-

BLF

OPINION

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted February 10, 2021

San Francisco, California

Filed September 13, 2021

Before: Morgan Christen and Bridget S. Bade, Circuit 

Judges, and Gary Feinerman,

* District Judge.

Opinion by Judge Feinerman

* The Honorable Gary Feinerman, United States District Judge for 

the Northern District of Illinois, sitting by designation.
2 WARMENHOVEN V. NETAPP

SUMMARY**

ERISA

The panel affirmed in part and vacated in part the district 

court’s summary judgment in favor of defendants on retired 

executives’ claims that termination of the NetApp Executive 

Medical Retirement Plan violated ERISA because they had 

been promised lifetime benefits.

Only one plaintiff appealed. The panel affirmed the 

district court’s judgment as to plaintiff’s direct claim for 

benefits under 29 U.S.C. § 1132(a)(1)(B). The panel held 

that the default rule under ERISA is that employers may 

freely terminate welfare benefit plans. The panel concluded 

that PowerPoint presentations summarizing the Plan for 

participating executives did not override the default rule, 

where certificates of insurance coverage included provisions 

granting NetApp the authority to terminate benefits under 

the Plan at any time. The panel held that the PowerPoint 

presentations were not Plan documents because they did not 

qualify as written instruments under 29 U.S.C. § 1102(b), 

and they therefore could not vest lifetime benefits.

The panel vacated the judgment as to plaintiff’s 

alternative claim for equitable relief under 29 U.S.C. 

§ 1132(a)(3) and remanded for further proceedings on that 

claim. Plaintiff alleged that, if the Plan did not grant him 

vested lifetime benefits, then NetApp misrepresented the 

nature of the Plan in the PowerPoints, in violation of the 

fiduciary duties it owed as a Plan administrator. The panel 

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

has been prepared by court staff for the convenience of the reader.
WARMENHOVEN V. NETAPP 3

held that the district court erred in in granting summary 

judgment on the ground that NetApp did not commit a 

remediable wrong under 29 U.S.C. § 1104(a)(1) by failing 

to discharge its duties with respect to the Plan solely in the 

interest of the participants and beneficiaries. Disagreeing 

with the Seventh Circuit, the panel held that there is no 

intentional deceit requirement under § 1104(a)(1). The 

panel further held that the district court erred in concluding 

that the fiduciary duty claim failed because plaintiff could 

have examined the certificates of insurance to dispel any 

misunderstanding arising from the PowerPoints. The panel 

concluded that plaintiff did not forfeit any argument on the 

remedy prong of his claim for equitable relief, an issue not 

reached by the district court.

COUNSEL

J. Phillip Martin (argued) and Eric C. Kastner, Kastner Kim 

LLP, Mountain View, California; Robert L. Rusky, San 

Francisco, California; for Plaintiff-Appellant.

Laurie J. Hepler (argued), Greines Martin Stein & Richland 

LLP, San Francisco, California; Clarissa A. Kang and Angel 

L. Garrett, Trucker Huss, San Francisco, California; for 

Defendants-Appellees.
4 WARMENHOVEN V. NETAPP

OPINION

FEINERMAN, District Judge:

In 2005, NetApp, Inc. created the NetApp Executive 

Medical Retirement Plan, an employee welfare benefit plan 

governed by the Employee Retirement Income Security Act 

of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461, to provide 

health insurance benefits to its retired senior executives. In 

2016, NetApp implemented a phased termination of the 

Plan. Daniel Warmenhoven and six other retired executives 

sued NetApp and the Plan (together, “NetApp”), alleging 

that terminating the Plan violated ERISA because they had 

been promised lifetime benefits. The suit asserted two 

distinct ERISA claims: (1) a direct claim for benefits under 

§ 1132(a)(1)(B); and (2) an alternate claim for equitable 

relief under § 1132(a)(3) to redress NetApp’s alleged 

misrepresentations that the Plan would provide lifetime 

benefits. The district court granted summary judgment to 

NetApp on both claims.

Only Warmenhoven appeals. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. We affirm the district court’s 

judgment as to Warmenhoven’s § 1132(a)(1)(B) claim, 

vacate the judgment as to his § 1132(a)(3) claim, and remand 

for further proceedings on the § 1132(a)(3) claim.

Background

I. The Plan’s Creation and Termination

Warmenhoven was NetApp’s Chief Executive Officer 

from 1994 to 2009 and, after stepping down as CEO, served 

as Executive Chairman of NetApp’s Board of Directors until 

2014, formally retiring in April 2015. In 2003, at the request 

of another senior NetApp executive, Warmenhoven asked 
WARMENHOVEN V. NETAPP 5

the company’s Human Resources department to explore the 

creation of an executive retiree health plan. After extensive 

consideration, the Board’s Compensation Committee 

adopted the Plan effective May 2005.

Some ten years later, in November 2015, the 

Compensation Committee decided to close the Plan to any 

new participants and to explore alternatives to the Plan for 

existing participants. At that time, nine executives and 

eighteen dependents were receiving health insurance 

benefits under the Plan. The parties’ dispute over what 

motivated the Compensation Committee’s decision—

NetApp asserts that the Plan’s increasing costs made the 

benefit unsustainable at a time when it was laying off 

thousands of employees, while Warmenhoven charges that 

NetApp’s rationale was pretextual—is immaterial to this 

appeal.

In April 2016, the Compensation Committee decided to 

terminate the Plan. Under a new “Amended and Restated 

Plan,” NetApp would reimburse participating retirees like 

Warmenhoven for the cost of purchasing health insurance 

themselves from 2017 through 2019, and then pay them a 

lump sum at the Plan’s termination on December 31, 2019. 

NetApp management met with the retirees to inform them of 

the Amended Plan, and the retirees expressed their

disapproval. Despite the opposition from retirees, NetApp 

went forward with the Amended Plan, giving formal notice 

to Warmenhoven by letter dated November 16, 2016. The 

Amended Plan took effect on January 1, 2017.

II. Documentation of the Plan’s Terms

As discussed below, the default rule under ERISA is that 

employers may freely terminate welfare benefit plans like 

the Plan. See 29 U.S.C. § 1051(1) (exempting welfare 
6 WARMENHOVEN V. NETAPP

benefit plans from ERISA’s vesting provisions). 

Warmenhoven filed this suit on the view that NetApp had 

promised him that the health insurance benefits offered 

under the Plan would last for his lifetime, overriding the 

default rule that welfare benefits do not vest.

To support his view, Warmenhoven relies primarily on a 

series of PowerPoint presentations that summarized the Plan 

for participating executives. Although at least seven 

versions of the PowerPoint were created over the years, 

Warmenhoven personally saw only two.

The first was an April 2005 PowerPoint created by 

NetApp Human Resources to describe the Plan to NetApp 

management, including Warmenhoven in his role as CEO. 

The PowerPoint stated that the Plan would provide medical 

coverage to “a defined group of retiring executives as a fullyinsured plan.” It also stated that any company acquiring 

NetApp would be required to provide an equivalent plan “for 

the lives of the eligible employees.” NetApp does not 

dispute that, as the PowerPoint suggested, it intended as of 

April 2005 to maintain the health insurance benefit for the 

participants’ lifetimes.

The second version of the PowerPoint that 

Warmenhoven saw was a March 2014 version prepared 

shortly before his retirement. That version stated that the 

“Executive Medical Retirement Plan [was] adopted by 

[NetApp] as a method to retain a defined group of senior 

executives.” In more explicit terms than the April 2005 

version, the March 2014 version promised that the “Plan 

provides medical benefits for the retiree’s lifetime” and that 

“[n]o retiree contributions [are] required.”

As further support for his view that he had been promised 

lifetime benefits, Warmenhoven points to NetApp’s public 
WARMENHOVEN V. NETAPP 7

disclosures in filings with the Securities and Exchange 

Commission (“SEC”). Like the PowerPoints, NetApp’s 

SEC disclosures stated that the Plan would provide lifetime 

healthcare benefits to participants. For instance, a 2016 

disclosure stated that “[c]overage continues through the 

duration of the lifetime of the retiree or the retiree’s spouse, 

whichever is longer.” The record does not contain evidence 

that Warmenhoven personally reviewed the SEC filings, but 

the filings do show that, as late as April 2016, NetApp was 

telling the public that it intended to cover its retired 

executives’ healthcare for their lifetimes.

NetApp focuses attention on a third category of 

documents: the certificates of coverage prepared by the 

health insurance companies with which NetApp contracted 

to administer the Plan. NetApp hired Cigna to administer 

the Plan at its inception in 2005. Cigna composed a separate 

certificate for each year it administered the Plan, from 2005 

to 2012. In 2013, NetApp replaced Cigna with 

UnitedHealthcare (“UHC”), and UHC composed certificates 

for the Plan from 2013 to 2016. As with the April 2005 and 

March 2014 PowerPoints, Warmenhoven personally 

received a copy of the 2015 UHC certificate.

The certificates of coverage primarily concerned the 

details, which are not pertinent here, of health coverage for 

the calendar year in question. The important provisions for 

present purposes addressed Plan administration: how 

coverage was paid for, who managed the Plan, and who had 

the authority to alter the Plan’s terms. See 29 U.S.C. 

§ 1102(b) (requiring that an ERISA plan’s written 

instrument disclose this information). For example, the 2005 

Cigna and 2015 UHC certificates each included a section 

devoted to those disclosures, titled “ERISA Required 
8 WARMENHOVEN V. NETAPP

Information” in the Cigna certificate and “ERISA 

Statement” in the UHC certificate.

Notably, each certificate of coverage included at least 

one provision granting NetApp the authority to terminate 

benefits under the Plan at any time—directly contradicting 

the PowerPoints’ promises of lifetime benefits. For 

example, the ERISA disclosure in the 2005 Cigna certificate 

stated:

The Employer as Plan Sponsor reserves the 

right to, at any time, change or terminate 

benefits under the Plan, to change or 

terminate the eligibility of classes of 

employees to be covered by the Plan, to 

amend or eliminate any other plan term or 

condition, and to terminate the whole plan or 

any part of it.

The 2015 UHC certificate likewise stated: “Your employer, 

as the Plan Sponsor, has the right to amend or terminate this 

Plan at any time.”

III. Procedural History

Warmenhoven and six other retired executives filed this 

lawsuit in May 2017, bringing two claims under ERISA. 

The first claim alleged that the PowerPoints operated to vest 

lifetime benefits and sought recovery of those benefits 

directly under § 1132(a)(1)(B). The second claim, brought 

in the alternative to the first, arose under § 1132(a)(3), which 

allows suits for equitable relief to redress ERISA violations. 

The plaintiffs alleged that, if the Plan did not grant them 

vested lifetime benefits, then NetApp had misrepresented the 

nature of the Plan, in violation of the fiduciary duties it owed 

them as a plan administrator under § 1104(a)(1). Under the 
WARMENHOVEN V. NETAPP 9

second claim, the plaintiffs sought several forms of equitable 

relief: an injunction ordering continued benefits, reformation 

of the plan documents, estoppel, and surcharge.

After conducting discovery, the parties cross-moved for 

summary judgment. The district court granted NetApp’s 

motion, denied the plaintiffs’ motion, and entered judgment 

for NetApp. Gomo v. NetApp, Inc., No. 17-cv-022990-BLF, 

2019 WL 4346581, at *13 (N.D. Cal. Sept. 12, 2019). As to 

the § 1132(a)(1)(B) claim, the district court held that the 

PowerPoints were not “plan documents,” and therefore that 

their language could not vest lifetime benefits. Id. at *5–6. 

Instead, the court held, the certificates of coverage were the 

controlling plan documents, and they allowed free 

amendment of the Plan. Id. at *7–9. As to the § 1132(a)(3) 

claim, the court held that NetApp had committed no breach 

of fiduciary duty because it had no intent to deceive and 

because the plaintiffs could have examined the certificates 

of coverage to dispel any misunderstanding arising from the 

PowerPoints. Id. at *11–13.

Six of the seven plaintiffs timely appealed. After a 

mediation conference, we granted the motions of five 

plaintiffs to dismiss their appeals. Warmenhoven, the sole 

remaining appellant, seeks reversal only of the grant of 

summary judgment to NetApp, not the denial of his 

summary judgment motion.

Discussion

I. Claim for Benefits Under § 1132(a)(1)(B)

Section 1132(a)(1)(B) “provides a right of action for plan 

participants or beneficiaries ‘to recover benefits due . . . 

under the terms of [a] plan, to enforce [ ] rights under the 

terms of the plan, or to clarify [ ] rights to future benefits 
10 WARMENHOVEN V. NETAPP

under the terms of the plan.’” Doe v. CVS Pharmacy, Inc., 

982 F.3d 1204, 1213 (9th Cir. 2020) (alterations in original) 

(quoting 29 U.S.C. § 1132(a)(1)(B)), cert. granted, — S. Ct. 

—, 2021 WL 2742790 (July 2, 2021). The plaintiff bears the 

burden of proof on a § 1132(a)(1)(B) claim. See Muniz v. 

Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 

2010).

To avoid summary judgment on his § 1132(a)(1)(B) 

claim, Warmenhoven had to present evidence of a specific 

plan document that vested lifetime benefits. The Plan was a 

“welfare plan,” which ERISA defines to include “any plan, 

fund, or program . . . maintained for the purpose of providing 

. . . medical, surgical, or hospital care or benefits.” 

29 U.S.C. § 1002(1). As noted, the default rule under 

ERISA provides that welfare plans do not vest and can be 

amended at any time: “Employers or other plan sponsors are 

generally free under ERISA, for any reason at any time, to 

adopt, modify, or terminate welfare plans.” Curtiss-Wright 

Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995); see

29 U.S.C. § 1051(1) (providing that ERISA’s vesting 

provisions “apply to any employee benefit plan . . . other 

than . . . an employee welfare benefit plan”). A plan may 

override this default rule, but only if it does so expressly in 

a plan document: “A contractual agreement for vesting of 

benefits must be found in the plan documents.” Cinelli v. 

Sec. Pac. Corp., 61 F.3d 1437, 1441 (9th Cir. 1995); accord,

e.g., Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th Cir. 

1994) (“[A]ny participant’s right to a fixed level of lifetime 

benefits must be ‘found in the plan documents and must be 

stated in clear and express language.’”) (quoting Wise v. El 

Paso Nat. Gas Co., 986 F.2d 929, 937 (5th Cir. 1993)).

“Plan document” is a term of art under ERISA. It does 

not mean any writing related to a plan; rather, it means the 
WARMENHOVEN V. NETAPP 11

formal “written instrument” that ERISA requires for each 

employee benefit plan. 29 U.S.C. § 1102(a)(1) (“Every 

employee benefit plan shall be established and maintained 

pursuant to a written instrument.”); see Rhea v. Alan Ritchey, 

Inc. Welfare Benefit Plan, 858 F.3d 340, 344 (5th Cir. 2017) 

(“Courts often refer to written instruments as ‘plan 

documents.’”). To qualify as a written instrument, a 

document must satisfy the four requirements of § 1102(b); 

specifically, the document must “(1) provide a policy and a 

method for funding the plan, (2) describe a procedure for 

plan operation and administration, (3) provide a procedure 

for amending the plan, and (4) specify a basis for payments 

to and from the plan.” Cinelli, 61 F.3d at 1441 (quoting 

Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1523 

n.1 (9th Cir. 1993)) (citing 29 U.S.C. § 1102(b)). In a more 

generic sense, the term “plan document” at times is used to 

refer to the summary plan description (“SPD”), a less formal 

document intended to give participants essential information 

about their plan. See 29 U.S.C. §§ 1022, 1024(b) (requiring 

the plan administrator to furnish plan participants and 

beneficiaries with an SPD containing certain categories of 

information); Prichard v. Metro. Life Ins. Co., 783 F.3d 

1166, 1169 (9th Cir. 2015) (“[P]articularly in the context of 

health plans, the SPD is sometimes argued to be the plan; 

that is, to serve simultaneously as the governing plan 

document.”). No party contends that any of the documents 

at issue here functioned as an SPD for the Plan, so there is 

no need to consider how the presence of an SPD among 

those documents would affect the outcome of this appeal. 

To avoid confusion, we will use the term “written 

instrument”—the term used in ERISA—to refer to the 

formal plan document required by § 1102(a)(1). See 

Prichard, 783 F.3d at 1169 (distinguishing the SPD from the 

“formal plan document” required under § 1102(a)(1)).
12 WARMENHOVEN V. NETAPP

Warmenhoven submits that the PowerPoint 

presentations were plan documents that could and did vest 

lifetime healthcare benefits. He does not argue, however, 

that the PowerPoints met the criteria for a written instrument 

under § 1102(b). Instead, he argues that NetApp’s promises 

in the PowerPoints created an ERISA plan with lifetime 

benefits. To support that proposition, Warmenhoven relies 

on decisions such as Donovan v. Dillingham, 688 F.2d 1367 

(11th Cir. 1982), Scott v. Gulf Oil Corp., 754 F.2d 1499 (9th 

Cir. 1985), and Golden Gate Restaurant Ass’n v. City and 

County of San Francisco, 546 F.3d 639 (9th Cir. 2008).

Warmenhoven’s argument is unpersuasive. As we 

explained in Cinelli, the line of cases he invokes governs 

“instances where a formal plan is absent and the question 

remains whether a de facto plan has been created.” 61 F.3d 

at 1443. In Scott, for instance, the plaintiffs alleged that their 

employer made oral and written promises of severance pay. 

754 F.2d at 1501. We concluded that such informal 

commitments to provide benefits could create an ERISAgoverned plan in circumstances where there is no written 

instrument, lest “employers . . . escape ERISA’s coverage 

merely by failing to comply with its requirements.” Id. at 

1503; see also Donovan, 688 F.2d at 1373 (holding that a 

plan exists, whether “pursuant to a writing or not,” where “a 

reasonable person could ascertain the intended benefits, 

beneficiaries, source of financing, and procedures for 

receiving benefits”). However, in situations where the plan 

sponsor has prepared a written instrument, that line of 

decisions has no application. See Golden Gate Rest. Ass’n, 

546 F.3d at 652 (“All of the cases applying the Donovan

criteria address the question whether an informal, or de 

facto, ERISA plan has been established, and all involve 

some type of unwritten or informal promise made by an 

employer to its employees.”).
WARMENHOVEN V. NETAPP 13

Given the limited reach of the decisions he invokes, 

Warmenhoven must be understood as arguing that there was 

no ERISA-compliant written instrument for the Plan, and 

therefore that NetApp should be held to the less formal 

promises it made in the PowerPoints to provide lifetime 

health insurance benefits. Cinelli forecloses that theory by 

holding that only a written instrument satisfying the 

requirements of § 1102(b)—and not some other document—

can vest lifetime benefits.

In Cinelli, an insurance policy certificate stated that the 

policy was terminable at any time, but a company board 

resolution stated that the benefit was fully vested. 61 F.3d 

at 1440–41. We noted that it was “clear that an insurance 

policy may constitute the ‘written instrument’ of an ERISA 

plan,” and asked whether the board resolution was “also a 

plan document.” Id. at 1441. We held that the board 

resolution was “not a plan document” because it did not meet 

the criteria for a written instrument set forth in § 1102(b). 

Id. at 1441–42, 1444. And because the resolution was not a 

written instrument, it was “extrinsic evidence” that could 

“not be used to alter the written terms of the plan,” which 

provided that the life insurance benefit was terminable at any 

time. Id. at 1444.

The upshot of Cinelli is that only a written instrument 

satisfying the § 1102(b) criteria can vest lifetime benefits. 

And we have since reaffirmed Cinelli’s teaching that the 

§ 1102(b) criteria, and only those criteria, govern which 

writings qualify as written instruments. See Mull ex rel. Mull 

v. Motion Picture Indus. Health Plan, 865 F.3d 1207, 1209 

(9th Cir. 2017) (examining the § 1102(b) criteria to 

determine which documents were the written instrument); 

accord, e.g., Rhea, 858 F.3d at 344 (holding that an SPD can 

qualify as a written instrument if it meets the § 1102(b) 
14 WARMENHOVEN V. NETAPP

criteria); Gable, 35 F.3d at 857 (applying § 1102(b) in 

holding that a schedule promising lifetime benefits was not 

a written instrument).

Ignoring these precedents, Warmenhoven does not argue 

that the PowerPoints met the four requirements for “plan 

documents” under § 1102(b). Indeed, he argues that the 

district court “fundamentally misconstrued ERISA’s 

governing principles” in “relying on . . . § 1102(b)” to 

determine whether the PowerPoints were plan documents. 

As we have explained, the district court correctly looked to 

§ 1102(b) to determine whether the PowerPoints were 

written instruments and thus whether they could vest lifetime 

benefits. By deliberately choosing to stand on his flawed 

argument that the PowerPoints created a vested ERISA plan 

without there being any written instrument, and by declining 

to argue in the alternative that he could prevail even if 

§ 1102(b) applied, Warmenhoven has affirmatively waived 

any argument under the proper legal standard that the 

PowerPoints were written instruments. See Freedom From 

Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. 

of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per curiam) 

(“It is well established that an appellant’s failure to argue an 

issue in the opening brief, much less on appeal more 

generally, waives that issue . . . .”); Alvarez v. Lopez, 

835 F.3d 1024, 1028 (9th Cir. 2016) (finding an “intentional 

waiver” where the appellant “deliberately steered” the court 

away from an issue, thereby “preclud[ing] us from raising 

[the issue] sua sponte”). That waiver conclusively defeats 

his § 1132(a)(1)(B) claim because, under Cinelli, he bears 
WARMENHOVEN V. NETAPP 15

the burden to prove that a specific written instrument vested 

lifetime benefits.1

II. Claim for Breach of Fiduciary Duty Under 

§ 1132(a)(3)

Warmenhoven’s second claim alleges in the alternative 

that, if the PowerPoint presentations did not vest lifetime 

benefits, he is entitled under § 1132(a)(3) to equitable relief 

to remedy NetApp’s misrepresentations that the Plan’s 

health benefits were permanent. Section 1132(a)(3) 

provides:

A civil action may be brought . . . (3) by a 

participant . . . (B) to obtain other appropriate 

1 Warmenhoven does not raise, and therefore has forfeited, any 

argument that the PowerPoint presentations and the certificates of 

coverage combined to form a written instrument under § 1102. See

Maloney v. T3Media, Inc., 853 F.3d 1004, 1019 (9th Cir. 2017) (holding 

that arguments that are not presented in appellate briefs are forfeited). 

We addressed a somewhat analogous argument in Mull. There, 

participants in a health care plan sought a declaration that the plan could 

not enforce against them recoupment provisions found only in the SPD 

but not in the plan’s trust agreement. 865 F.3d at 1209. We held that 

because the trust agreement met only three of the four § 1102(b) criteria, 

it could not qualify on its own as the plan’s written instrument. Id. But 

because the SPD met the remaining criterion, we held that “the two 

documents together constitute[d] a plan,” id. at 1209–10, and therefore 

that the SPD’s recoupment provisions were enforceable, id. at 1210–11.

Here, even if Warmenhoven had made an argument based on Mull, it 

would have failed on the merits because the district court correctly held 

that the certificates of coverage—which, as noted, expressly stated that 

the Plan could be terminated at any time—by themselves qualified as the 

Plan’s written instrument under § 1102. See Prichard, 783 F.3d at 1171 

(holding that an insurance certificate was a plan’s written instrument). 

Accordingly, there was no gap for the PowerPoint presentations to fill, 

meaning that the PowerPoints did not form part of a written instrument 

that could vest lifetime benefits.
16 WARMENHOVEN V. NETAPP

equitable relief (i) to redress [any act or 

practice which violates any provision of Title 

I of ERISA or the terms of the plan] or (ii) to 

enforce any provisions of [Title I] or the 

terms of the plan.

29 U.S.C. § 1132(a)(3). A § 1132(a)(3) claim has two 

elements: “(1) that there is a remediable wrong, i.e., that the 

plaintiff seeks relief to redress a violation of ERISA or the 

terms of a plan; and (2) that the relief sought is appropriate 

equitable relief.” Gabriel v. Alaska Elec. Pension Fund, 

773 F.3d 945, 954 (9th Cir. 2014) (internal quotation marks 

and citations omitted). The district court limited its analysis 

to the first prong, granting NetApp summary judgment on 

the ground that no reasonable factfinder could find that 

NetApp committed a remediable wrong. 2019 WL 4346581, 

at *11–13. We disagree with the district court’s conclusion 

on that issue and therefore vacate its grant of summary 

judgment to NetApp.

A. Remediable Wrong

Warmenhoven’s theory of remediable wrong is that 

NetApp, a plan fiduciary, misrepresented the Plan’s terms by 

promising in the PowerPoints that the Plan provided lifetime 

benefits even though the written instrument included no such 

guarantee. Warmenhoven argues that NetApp thus violated 

§ 1104(a)(1), which provides that “a fiduciary shall 

discharge his duties with respect to a plan solely in the 

interest of the participants and beneficiaries . . . .” 29 U.S.C. 

§ 1104(a)(1).

As we have held, “fiduciaries breach their duties if they 

mislead plan participants or misrepresent the terms or 

administration of a plan.” Barker v. Am. Mobil Power Corp., 

64 F.3d 1397, 1403 (9th Cir. 1995) (per curiam). For 
WARMENHOVEN V. NETAPP 17

example, in Varity Corp. v. Howe, 516 U.S. 489 (1996), a 

corporation spun off failing divisions into a new company 

and, despite knowing that the new company would likely 

fail, induced employees to transfer their benefits to the new 

company through false promises that the benefits would 

remain secure. Id. at 493–94. The Supreme Court held that 

the corporation’s conduct violated its fiduciary duties as a 

plan fiduciary, reasoning that “[t]o participate knowingly 

and significantly in deceiving a plan’s beneficiaries in order 

to save the employer money at the beneficiaries’ expense is 

not to act ‘solely in the interest of the participants and 

beneficiaries.’” Id. at 506 (quoting 29 U.S.C. § 1104(a)(1)).

In Varity, unlike here, the plan fiduciary intended to 

mislead plan participants to the fiduciary’s benefit and the 

participants’ detriment. That distinction grounded the 

district court’s holding here that NetApp had committed no 

remediable wrong: “An employer’s honest statements of 

present intention to provide benefits at a particular level do 

not give rise to liability for breach of fiduciary duties, simply 

because the employer later changes the benefits.” Gomo, 

2019 WL 4346581, at *12.

To support its holding, the district court relied heavily on 

Frahm v. Equitable Life Assurance Society of the United 

States, 137 F.3d 955, 960 (7th Cir. 1998), which held that 

Varity recognizes a § 1104(a)(1) fiduciary duty claim only 

in cases involving intentional deceit. The defendant in 

Frahm changed its retiree health plan to require retirees to 

bear more costs, and the retirees argued that the company 

had previously promised in oral statements and letters not to 

do so. Id. at 956–57. The Seventh Circuit held that such 

informal promises could not give rise to liability under 

§ 1104(a)(1) unless the fiduciary “set out to deceive or 

disadvantage plan participants.” Id. at 960. In so holding, 
18 WARMENHOVEN V. NETAPP

the Seventh Circuit relied on an analogy to tort law, noting 

that an estoppel defense or fraud claim requires “lies” where 

the speaker “actually had a different intention” than 

expressed. Id. at 961.

Our circuit’s law holds otherwise. As a general matter, 

we have rejected the use of tort law to ground the § 1104(a) 

fiduciary duty, reasoning that the duty finds its roots in trust 

law, not tort law. See King v. Blue Cross & Blue Shield of 

Ill., 871 F.3d 730, 744 (9th Cir. 2017) (“The duty of loyalty 

is one of the common law trust principles that apply to 

ERISA fiduciaries, and it encompasses a duty to disclose.” 

(quoting Washington v. Bert Bell/Pete Rozelle NFL Ret. 

Plan, 504 F.3d 818, 823 (9th Cir. 2007))); Mathews v. 

Chevron Corp., 362 F.3d 1172, 1183 (9th Cir. 2004) (“We 

fail to see the logic in transplanting the element of scienter 

from the tort of deceit into a statutory ERISA claim with 

roots in the law of fiduciaries and trusts.”). Our approach 

aligns with the Supreme Court’s understanding of ERISA 

fiduciary duties. See Varity, 516 U.S. at 496 (“[W]e 

recognize that [ERISA’s] fiduciary duties draw much of 

their content from the common law of trusts, the law that 

governed most benefit plans before ERISA’s enactment.”).

More to the point, we expressly rejected in Mathews the 

analogy to fraud that the Seventh Circuit found compelling 

in Frahm. The employer in Mathews argued that “the 

plaintiffs must show scienter as they would if they were 

suing under the common law cause of action for deceit,” that 

is, “knowledge or belief on the part of the defendant that the 

representation is false.” 362 F.3d at 1183 (alteration 

omitted). Such evidence of knowing deceit is what the 

district court demanded of Warmenhoven here: “Plaintiffs 

have not submitted any evidence, and none appears in the 

record, suggesting that NetApp did not intend to provide 
WARMENHOVEN V. NETAPP 19

lifetime medical benefits under the Plan when it was 

adopted.” Gomo, 2019 WL 4346581, at *12. Yet, as we 

explained in Mathews, “[i]n articulating Ninth Circuit law in 

this area, we have followed a line of cases from our sister 

circuits that does not require a showing of intent.” 362 F.3d 

at 1183.

In James v. Pirelli Armstrong Tire Corp., 305 F.3d 439 

(6th Cir. 2002), one of the out-of-circuit cases we approved 

in Mathews, company management made repeated oral 

promises that, if employees took early retirement, their 

health benefits would continue unchanged “during 

retirement” and “during their lifetimes.” Id. at 443–44. But 

in fact, the plan documents allowed amendments to the 

health benefit plan, and, after the plaintiff employees retired, 

the company raised the costs to them of securing health 

benefits. Id. at 442, 444–45. The Sixth Circuit held that the 

company thereby breached its fiduciary duty under 

§ 1104(a)(1). Id. at 448, 455. In so holding, the court 

rejected any scienter requirement: “A fiduciary breaches his 

duty by providing plan participants with materially 

misleading information, regardless of whether the 

fiduciary’s statements or omissions were made negligently 

or intentionally.” Id. at 449 (quotation marks omitted). And 

the court held that the company breached its fiduciary duty 

by “provid[ing], on its own initiative, materially misleading 

and inaccurate information about the plan benefits.” Id. 

at 455.

Returning to our precedents, the health care plan in King

denied coverage for a substantial medical bill on the ground 

that the participant had reached her lifetime cap on benefits. 

871 F.3d at 737–38. We held that the participant had a viable 

fiduciary duty claim, explaining that although the plan 

documents could be interpreted to impose a lifetime benefit 
20 WARMENHOVEN V. NETAPP

cap, id. at 734–36, the documents’ lack of clarity on that 

point violated the employer’s and the plan’s fiduciary duties 

of disclosure, id. at 745. In support, we observed that 

“[f]iduciaries breach their duties [under § 1104(a)] if they 

mislead plan participants or misrepresent the terms or 

administration of a plan,” id. at 744 (quoting Barker, 64 F.3d 

at 1403), and that the employer and the plan had failed “to 

‘provide sufficiently detailed information’ about whether the 

lifetime benefit maximum applied,” id. at 745 (quoting Farr 

v. U.S. W. Commc’ns, Inc., 151 F.3d 908, 915 (9th Cir. 

1998)). Nowhere did King suggest that the defendants 

harbored an intent to deceive plan participants or that such 

intent was required to find a breach of fiduciary duty.

Under our circuit’s precedents, then, Warmenhoven’s 

fiduciary duty claim survives summary judgment on the 

remediable wrong issue, as there is a genuine dispute of 

material fact as to whether NetApp incorrectly represented 

to Plan participants that the Plan provided lifetime health 

insurance benefits. A reasonable factfinder easily could read 

the PowerPoints to convey a promise of lifetime benefits. 

Yet NetApp had not memorialized that promise in any plan 

document, and in fact the certificates of coverage said the 

opposite. Our circuit law does not immunize NetApp from 

liability for its false promises simply because it harbored no 

ill will or intent to deceive. A reasonable factfinder could 

conclude that NetApp failed “to convey complete and 

accurate information material to [Warmenhoven’s] 

circumstance,” Barker, 64 F.3d at 1403, and thus find a 

violation of § 1104(a)(1) and a remediable wrong under 

§ 1132(a)(3).

The district court also held that Warmenhoven’s 

fiduciary duty claim failed because he could have examined 

the certificates of coverage—which provided that the Plan 
WARMENHOVEN V. NETAPP 21

could be terminated at any time—to dispel any 

misunderstanding arising from the PowerPoints. In Pirelli, 

the Sixth Circuit rejected the notion that “a reservation of 

rights provision in the plan” automatically insulates the 

employer from liability under § 1104(a)(1) if the employer 

provides “false or inaccurate information about the future 

benefits of a plan.” 305 F.3d at 455.

The district court read our decision in Pisciotta v. 

Teledyne Industries, Inc., 91 F.3d 1326 (9th Cir. 1996), to 

hold otherwise, citing it for the proposition that “a 

reservation of rights contained in the Plan document is 

effective if the document was available for review.” Gomo, 

2019 WL 4346581, at *12 (citing Pisciotta, 91 F.3d at 1331). 

But Pisciotta did not so hold as to a fiduciary duty claim 

under § 1132(a)(3), as we addressed in that case only a direct 

claim for benefits under § 1132(a)(1)(B). 91 F.3d at 1329–

31. In fact, when the plaintiffs in Pisciotta filed suit, our preVarity circuit precedent did not permit § 1132(a)(3) claims 

for individual relief by participants harmed by alleged 

breaches of fiduciary duty. See Williams v. Caterpillar, Inc., 

944 F.2d 658, 665 (9th Cir. 1991) (holding that “a 

fiduciary’s duty under ERISA runs to the plan as a whole 

and not to the individual beneficiary”), abrogated in part by

Varity, 516 U.S. 489.

In sum, that NetApp lacked an intent to deceive and that 

Warmenhoven could have reviewed the certificates of 

coverage do not necessarily defeat his § 1132(a)(3) claim 

based on NetApp’s misrepresentations in the PowerPoints. 

To be clear, we do not pronounce on the ultimate question of 

whether Warmenhoven will succeed, as certain aspects of 

that claim may remain unresolved. On remand, NetApp may 

press that issue or any other non-waived defenses it might 

have, and we do not prejudge the result.
22 WARMENHOVEN V. NETAPP

B. Appropriate Equitable Relief

After holding that no reasonable factfinder could 

conclude that Warmenhoven suffered a remediable wrong, 

the district court declined to address whether he would be 

entitled to appropriate equitable relief to redress any such 

wrong. 2019 WL 4346581, at *13. Warmenhoven’s initial 

brief does not address the remedy prong, either. NetApp 

argues that Warmenhoven thereby forfeited any argument 

that the district court’s treatment of the remediable wrong 

prong prejudiced him, requiring that summary judgment on 

the § 1132(a)(3) claim be affirmed.

We rejected a materially identical argument in Rodriguez 

v. Hayes, 591 F.3d 1105 (9th Cir. 2010), and do so again 

here. The appellees in Rodriguez argued for affirmance of 

the district court’s judgment on a ground not reached by the 

district court and contended that the appellant had waived 

any opposition to that argument by not anticipating it in his 

initial brief. Id. at 1118 & n.6. We disposed of the appellees’ 

“groundless” contention in a footnote:

We have previously held that the failure of a 

party in its opening brief to challenge an 

alternate ground for a district court’s ruling 

given by the district court waives that 

challenge. . . . Petitioner does not waive a 

challenge to any ground for [the district 

court’s ruling] in its opening brief on appeal 

that was not relied on in the district court’s 

order.

Id. at 1118 n.6. NetApp is thus wrong to suggest that an 

appellant must address all possible alternate grounds for 

affirmance—even those not ruled upon by the district 

court—in an opening brief.
WARMENHOVEN V. NETAPP 23

Beyond forfeiture, the parties do not discuss the merits 

of the remedy prong. In CIGNA Corp. v. Amara, 563 U.S. 

421 (2011), the Supreme Court identified three traditional 

equitable remedies available under § 1132(a)(3): 

reformation, equitable estoppel, and surcharge. Id. at 440–

42. Especially because the parties do not address the issue 

on appeal, the proper course is to allow the district court to 

consider in the first instance the merits of NetApp’s 

argument for summary judgment based on the remedy 

prong. See ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1079 

(9th Cir. 2015) (“[T]he issue . . . was not fully briefed, and 

as it also has not been passed upon in the first instance by 

the district court, we decline to reach the issue.”);

Reinkemeyer v. SAFECO Ins. Co. of Am., 166 F.3d 982, 985 

(9th Cir. 1999) (“We decline to address the issue because it 

was not reached by the district court and was not fully 

briefed by the parties.”).

Conclusion

The district court’s judgment is AFFIRMED IN PART

as to Warmenhoven’s § 1132(a)(1)(B) claim, and 

VACATED IN PART as to his § 1132(a)(3) claim. The 

case is REMANDED to the district court for further 

proceedings consistent with this opinion.