No. 17-1431 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

_______________ 

RANDY D. PEARCE, 

 Plaintiff-Appellant, 

v.

CHRYSLER GROUP LLC PENSION PLAN, 

 Defendant-Appellee. 

_______________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 

CASE NO. 10-14720 

_______________ 

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF THE PLAINTIFF-APPELLANT 

_______________ 

NICHOLAS C. GEALE

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor for Plan 

Benefits Security

THOMAS TSO

Counsel for Appellate &

Special Litigation

EIRIK CHEVERUD

Trial Attorney

U.S. Department of Labor

Office of the Solicitor

200 Constitution Ave. NW, N-4611

Washington, DC 20210

202.693.5516 (t) | 202.693.5610 (f)

cheverud.eirik.j@dol.gov
TABLE OF CONTENTS 

TABLE OF AUTHORITIES .................................................................................... ii

QUESTION PRESENTED ........................................................................................ 1 

STATEMENT OF INTEREST .................................................................................. 1 

STATEMENT OF THE CASE .................................................................................. 2 

A. Factual Background ............................................................................... 2 

B. Procedural Background ......................................................................... 5 

SUMMARY OF THE ARGUMENT ........................................................................ 7 

ARGUMENT ............................................................................................................. 8 

I. Failure to Disclose Material Plan Information Justifies Equitable 

Relief...................................................................................................... 8 

II. Equitable Reformation Is Available Without Establishing an Intent to 

Deceive ................................................................................................10

III. Equitable Reformation May Be Appropriate Here .............................19

CONCLUSION ....................................................................................................... 22 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE 
ii

TABLE OF AUTHORITIES

Federal Cases: 

A & B Food Servs. Corp. v. Judy’s Foods, Inc., 

798 F.2d 468 (6th Cir. 1986) (per curiam) ..........................................................13

Amara v. CIGNA Corp. (Amara IV), 

925 F. Supp. 2d 242 (D. Conn. 2012) ..................................................................10

Amara v. CIGNA Corp. (Amara V), 

775 F.3d 510 (2d Cir. 2014) .................................................................... 10, 11, 20 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) .............................................................................................20

Bradford v. Union Bank of Tenn., 

13 How. 57 (1852) ...............................................................................................18

CIGNA Corp. v. Amara (Amara III), 

563 U.S. 421 (2011) ..................................................................................... passim 

Conn. Fire Ins. Co. v. Oakley Improved Bldg. & Loan Co., 

80 F.2d 717 (6th Cir. 1936) .................................................................... 15, 18, 21 

Curtiss-Wright Corp. v. Schoonejongen, 

514 U.S. 73 (1995) ................................................................................................. 8 

Deschamps v. Bridgestone Ams., Inc. Salaried Emps. Ret. Plan, 

840 F.3d 267 (6th Cir. 2016) ...............................................................................13

DS Parent, Inc. v. Teich, No. 5:13-CV-1489 LEK/DEP, 

2014 WL 546358 (N.D.N.Y. Feb. 10, 2014) .......................................................12

Edwards v. State Farm Mutual Auto. Ins. Co., 

851 F.2d 134 (6th Cir. 1988), abrogated on other grounds by Amara III, 

563 U.S. 421 (2011) .............................................................................................19

Foster v. Sedgwick Claims Mgmt. Servs., Inc., 

842 F.3d 721 (D.C. Cir. 2016) ............................................................................... 9 
iii 

Federal Cases-(continued): 

Frommert v. Becker, 

153 F. Supp. 3d 599 (W.D.N.Y. 2016), appeals filed, Nos. 17-114 & 17-738 

(2d Cir. Jan. 11, 2017 & Mar. 13, 2017) ....................................................... 12, 13 

Great-West Life & Annuity Ins. Co. v. Knudson, 

534 U.S. 204 (2002) ............................................................................................... 9 

Guy v. Lexington-Fayette Urban Cnty. Gov’t, 

57 F. App’x 217 (6th Cir. 2003) ..........................................................................13

Haviland v. Metro. Life Ins. Co., 

730 F.3d 563 (6th Cir. 2013) ...............................................................................15

Joyce v. Morgan Stanley & Co., 

538 F.3d 797 (7th Cir. 2008) ...............................................................................14

Krohn v. Huron Mem’l Hosp., 

173 F.3d 542 (6th Cir. 1999) ........................................................................ 15, 20 

Langley v. Credit Suisse First Bos. Corp., 

89 F. App’x 938 (6th Cir. 2004) ..........................................................................15

Lemon v. Kurtzman, 

411 U.S. 192 (1973) .............................................................................................21 

Lightning Lube, Inc. v. Witco Corp., 

4 F.3d 1153 (3d Cir.1993) ....................................................................................14

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574 (1986) .............................................................................................20

Mertens v. Hewitt Assocs., 

508 U.S. 248 (1993) ............................................................................................... 9 

Morrison v. Back Yard Burgers, Inc., 

91 F.3d 1184 (8th Cir. 1996) ...............................................................................14
iv

Federal Cases-(continued): 

Osberg v. Foot Locker, Inc., 

138 F. Supp. 3d 517 (S.D.N.Y. 2015) aff’d, ___ F.3d____, No. 15-3602, 

2017 WL 287135 (2d Cir. July 6, 2017) ..................................... 12, 12 n.4, 20, 21 

Pearce v. Chrysler Group, L.L.C. Pension Plan (Pearce I), 

 615 F. App’x 342 (6th Cir. 2015) ............................................................... passim 

Pearce v. Chrysler LLC Pension Plan (Pearce III), No. 10-14720, 

2017 WL 1130087 (E.D. Mich. Mar. 27, 2017) ....................................... 7, 20, 21 

Pettaway v. Teachers Ins. & Annuity Assoc. of Am., 

644 F.3d 427 (D.C. Cir. 2016) ............................................................................... 9 

SEC v. Capital Gains Research Bureau, Inc., 

375 U.S. 180 (1963) .........................................................................................8, 13 

Sec’y of Labor v. Fitzsimmons, 

805 F.2d 682 (7th Cir. 1986) (en banc) ................................................................. 1 

Simmons Creek Coal Co. v. Doran, 

142 U.S. 417 (1892) ...................................................................................... 15, 20 

Young v. Verizon’s Bell Atl. Cash Balance Plan, 

615 F.3d 808 (7th Cir. 2010) ...............................................................................20 

State Cases: 

Blair v. Kingman Implement Co., 

117 N.W. 773 (Neb. 1908) ...................................................................................16

Bush v. Merriman, 

49 N.W. 567 (Mich. 1891) ...................................................................................18

Exch. Nat. Bank v. Barron, 

31 S.W.2d 420 (Ark. 1930) ..................................................................................16

Gross v. Stone, 

197 A. 137 (Md. 1938) ........................................................................................16
v 

State Cases-(continued): 

Maxwell v. Land Developers, Inc., 

485 S.W.2d 869 (Tenn. App. Ct. 1972) ...............................................................13

Federal Statutes: 

Employee Retirement Income Security Act of 1974 (Title I), 

 as amended, 29 U.S.C. § 1001 et seq. 

 Section 2, 29 U.S.C. § 1001(b) .............................................................................. 8 

 Section 102, 29 U.S.C. § 1022 ...........................................................................1, 5 

 Section 102, 29 U.S.C. § 1022(a) ............................................................. 1 n.1, 10 

 Section 102(b), 29 U.S.C. § 1022(b) .......................................................... 1 n.1, 8 

 Section 104, 29 U.S.C. § 1024 ............................................................................... 1 

 Section 104(b), 29 U.S.C. § 1024(b) .......................................................... 1 n.1, 8 

 Section 404(a), 29 U.S.C. § 1104(a) ....................................................................23

 Section 413, 29 U.S.C. § 1113 ...................................................................... 12 n.4 

 Section 502, 29 U.S.C. § 1132 ............................................................................... 1 

 Section 502(a)(3), 29 U.S.C. § 1132(a)(3) .................................................. passim 

 Section 505, 29 U.S.C. § 1135 ............................................................................... 1 

Miscellaneous: 

Fed. R. App. P. 29(a) ................................................................................................. 2 

29 C.F.R. 2520.102-2(b) ............................................................................................ 9 

29 C.F.R. § 2520.102-3 .............................................................................................. 1 
vi

Miscellaneous-(continued): 

76 C.J.S. Reformation of Instruments § 45 (2017) ..................................................16

H.R. Rep. No. 93-533 (1974), 

reprinted in 1974 U.S.C.C.A.N. 4639, 4646 ........................................................21

1 J. Story, Commentaries on Equity Jurisprudence 

(4th ed. 1846) .................................................................................... 16, 17, 17 n.5 

1 J. Story, Commentaries on Equity Jurisprudence 

(10th ed. 1870) .....................................................................................................14

1 J. Story, Commentaries on Equity Jurisprudence 

(13th ed. 1886) .....................................................................................................21 

3 John Norton Pomeroy, A Treatise on Equity Jurisprudence as Administered 

 in the United States of America (5th ed. 1941) ........................................... 15, 16 

J. Eaton, Handbook of Equity Jurisprudence (1901) ............................ 16, 17 n.5, 20 

De Funiak, Handbook of Modern Equity (2d ed. 1956) ..........................................13

E. Merwin, Principles of Equity & Equity Pleading (1895) ............................. 14, 20 

Christopher G. Tiedeman, A Treatise on Equity Jurisprudence (1893) ..................17

John Willard & Platt Potter, A Treatise on Equity Jurisprudence 

(2d ed. 1875) ........................................................................................................17
QUESTION PRESENTED 

 Whether a plaintiff must show “an intent to deceive” by the defendant to 

obtain the equitable remedy of reformation under section 502(a)(3) of the 

Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(3). 

STATEMENT OF INTEREST 

 The Secretary of Labor (Secretary) has primary regulatory and enforcement 

authority for Title I of ERISA. See Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 

692–93 (7th Cir. 1986) (en banc). The Secretary has a substantial interest in 

ensuring that ERISA plans provide their participants with accurate, comprehensive, 

and understandable information about the plan so participants can make informed 

decisions about their benefits. This is especially true for information conveyed to 

participants in summary plan descriptions (SPDs)—the SPD being the primary 

document a plan must furnish to its participants by law, without cost, to explain 

their rights and obligations under the plan. See 29 U.S.C. §§ 1022, 1024, 1132, 

1135; 29 CFR § 2520.102-3 (describing requirements for the contents of SPDs).1 

The Secretary likewise has a substantial interest, in both his own cases and private 

litigation, to ensure plan participants and beneficiaries have access to make-whole 

 

1

“ERISA §§ 102(a) and 104(b) [29 U.S.C. §§ 1022(a), 1024(b)] . . . require a plan 

administrator to provide beneficiaries with summary plan descriptions and with 

summaries of material modifications, ‘written in a manner calculated to be 

understood by the average plan participant,’ that are ‘sufficiently accurate and 

comprehensive to reasonably apprise such participants and beneficiaries of their 

rights and obligations under the plan’” CIGNA Corp. v. Amara, 563 U.S. 421, 432 

(2011). ERISA section 102(b) specifically requires the SPD to contain information 

as to “circumstances which may result in disqualification, ineligibility, or denial or 

loss of benefits.” 29 U.S.C. § 1022(b). 
2 

relief in the courts to adequately remedy ERISA violations, including 

misrepresentations to plan participants in SPDs. 

 The Secretary has authority to file this brief pursuant to Federal Rule of 

Appellate Procedure 29(a). 

STATEMENT OF THE CASE 

A. Factual Background2

 Chrysler Group LLC (Chrysler) employed Pearce from 1976 to 2008. (ECF 

No. 69 ¶ 2.) Chrysler sponsored the Chrysler Group LLC Pension Plan (Plan), and 

Pearce is a Plan participant. (Id. ¶ 5.) 

 The Plan offered early retirement for qualifying participants. (ECF No. 73-2 

at 2.) According to the SPD, a participant qualified for early retirement if he was 

between 55 and 62 years old, and either his age plus credited years of service 

totaled 85 points or more, or his credited service was more than ten years. (Id.) 

The Plan also offered an early retirement supplement, referred to as “30-and-out 

benefits.” (Id. at 3–4; ECF No. 73-6 at 5.) According to the SPD, a participant 

qualified for 30-and-out benefits if she was “eligible for Early Retirement . . . and 

ha[s] 30 or more years of credited service.” (ECF No. 73-2 at 4.) The SPD 

clarified, “You do not need to be actively employed at retirement to be eligible for 

a supplement. However, you must retire and begin receiving pension benefits 

within five years of your last day of work for the Company in order to receive any 

supplements for which you are eligible.” (Id. (emphases added).) 

 

2

 The relevant facts summarized in this section are largely undisputed and taken 

from the appellant’s district court filings. (ECF Nos. 73, 74, 79, 82.) 
3 

 The Plan Document set out the same requirements as the SPD for 30-and-out 

benefits, but with one material difference. The Plan Document stated that “a 

Vested Terminated Participant who met the eligibility requirements for early 

retirement at the date his employment terminated shall not be eligible to receive an 

Early Retirement Supplement.” (Id. at 7.) The Plan Document defined “Vested 

Terminated Participant” as “an individual whose employment with the Corporation 

ceased prior to the date he retired and who possessed a vested right to a Deferred 

Pension at the date of termination of his employment.” (Id. at 30.) In other words, 

although the SPD promised 30-and-out benefits to all former Chrysler employees 

who qualified and retired within five years of their last day of work with the 

company, the Plan Document prohibited former employees from receiving the 

supplement if they had “ceased” working for Chrysler or had their employment 

“terminated” before they retired. The Plan leaves these terms undefined. 

 In August 2008, Chrysler offered Pearce a retirement buyout package. (ECF 

No. 73-6 at 3.) At that time, Pearce qualified for early retirement and 30-and-out 

benefits, as he was 60 years old with over 30 years of credited service. (ECF Nos. 

68 ¶ 10, 69 ¶ 5.) Pearce reviewed his benefits statements, which referred him to 

the SPD “[f]or more detail on the benefit formula.” (ECF No. 73-5 at 2.) He then 

reviewed the SPD. (ECF No. 73-6 at 6.) With information from the SPD and his 

benefit statements, Pearce declined the buyout, because he thought he “always had 

30-and-out in my pocket” and wanted to “continue making money.” Id. 

 On November 5, 2008, Chrysler offered Pearce a new buyout package—a 

$50,000 lump-sum payment and a $25,000 car voucher, in addition to the benefits 
4 

he had already accrued under the Plan. (ECF No. 73-4.) Pearce reviewed updated 

benefits statements (ECF No. 73-6 at 4), which again referred him to the SPD for 

further details (ECF No. 73-2 at 10–20). On November 25, 2008, Pearce declined 

the buyout. (ECF 73-4 at 2.) Pearce testified that he did this in part “because I 

knew for a fact I had—based on the information on the plan that I had from 

Chrysler, that I had 30-and-out.” (ECF No. 73-6 at 5.) 

 Later that day, Chrysler terminated Pearce, allegedly for improper use of 

company cars.

3

 (ECF No. 73-2 at 29.) Pearce submitted his retirement papers the 

next day, but the Plan denied him 30-and-out benefits because his employment 

with Chrysler “ceased” prior to retirement, making him ineligible for the 

supplement under the Plan Document. (ECF Nos. 69 ¶ 13, 73-7 at 5.) 

The Plan provided its participating employees with access to the Plan’s SPD 

online, but it did not provide them online access to the Plan Document, as it “is a 

long and complex legal document that is not intended for normal human beings to 

read.” (ECF No. 73-7 at 3.) (deposition of Plan’s representative). The Plan did not 

otherwise provide Pearce with the Plan Document, except in the snippets cited in 

the benefits-denial letter the Plan sent him, and Pearce did not receive a copy of the 

entire Plan Document until after he filed suit in this case. (Id.; ECF No. 73-6 at 7.) 

 B. Procedural Background 

 In October 2010, Pearce filed a complaint in state court against the Plan, 

 

3

 As this Court noted, “Pearce denied any wrongdoing, filed an age-discrimination 

claim, and settled that claim in Chrysler’s bankruptcy proceeding.” Pearce v. 

Chrysler Group, L.L.C. Pension Plan (Pearce I), 615 F. App’x 342, 343 n.2 (6th 

Cir. 2015). 
5 

alleging it violated ERISA by improperly denying him 30-and-out benefits. (ECF 

No. 1 at 8–12.) In November 2010, the Plan removed the case to the U.S. District 

Court for the Eastern District of Michigan. (Id. at 1–4.) 

 The district court remanded the case for further administrative proceedings 

to develop the record. (ECF No. 87 at 1.) After administrative proceedings 

concluded, Pearce reopened the case and moved to amend his complaint. (ECF 

Nos. 38, 39, 50.) As relevant, Pearce’s amended allegations sought equitable relief 

under ERISA section 502(a)(3) in the form of a court order reforming the Plan to 

meet the SPD’s promise regarding eligibility for 30-and-out benefits, and an order 

enforcing the Plan as reformed. (ECF No. 50-4 at 6–7.) The district court denied 

Pearce’s motion on September 12, 2013, concluding the amendments were futile 

because they did not state a viable claim. (ECF Nos. 55, 60.) 

 Pearce appealed to this Court, which reversed and remanded in relevant part. 

This Court first noted that “a material conflict between the SPD and the Pension 

Plan can give rise to a claim for equitable relief” under ERISA section 502(a)(3). 

Pearce v. Chrysler Grp., L.L.C. Pension Plan (Pearce I), 615 F. App’x 342, 346 

(6th Cir. 2015). Next, this Court explained that ERISA section 102, 29 U.S.C. 

§ 1022, requires that SPDs be “written in a manner calculated to be understood by 

the average plan participant, and shall be sufficiently accurate and comprehensive 

to reasonably apprise such participants and beneficiaries of their rights and 

obligations under the plan”; and that SPDs must include “the plan’s requirements 

respecting eligibility for participation and benefits” and “circumstances which may 

result in disqualification, ineligibility, or denial or loss of benefits.” (Id. at 347 
6 

(emphasis in original).) This Court then determined the Plan Document’s limit on 

30-and-out eligibility to participants who retired before their employment with 

Chrysler “ceased” was a “material limitation,” which was “required” by ERISA to 

be included in the SPD. (Id. at 347, 349.) “[A] material conflict” therefore existed 

“between the SPD and the Pension Plan,” and as such, “the SPD affirmatively 

‘misle[d] or fail[ed] to state additional requirements’ for obtaining 30-and-Out 

benefits.” (Id. at 349.) Thus, this Court held that Pearce’s amended complaint 

stated a claim for equitable relief under ERISA section 502(a)(3), and that “the 

district court abused its discretion when it denied Pearce leave to amend his 

complaint on the basis of futility.” (Id.)

 Back in the district court, after conducting discovery on the claims in the 

amended complaint, both parties moved for summary judgment. (ECF Nos. 67, 

72, 73.) On February 14, 2017, the magistrate issued a report that recommended

denying Pearce’s motion and granting the Plan’s motion. (ECF No. 87 (Pearce 

II).) The magistrate determined Pearce failed to establish a reformation claim 

because he did not show he was mistaken as to the Plan Document’s terms as a 

result of fraud or inequitable conduct by the Plan. (Id. at 18–19.) “Even assuming 

that plaintiff is correct that his interpretation of the SPD can properly constitute a 

mistake for purposes of reformation,” the magistrate reasoned, Pearce had not 

shown inequitable conduct on the Plan’s part, as he “ha[d] not offered any 

evidence of an intent to deceive.” (Id. at 19.) On March 27, 2017, the district 

court adopted the magistrate’s recommendation over Pearce’s objection and 

granted summary judgment to the Plan. Pearce v. Chrysler LLC Pension Plan 
7 

(Pearce III), No. 10-14720, 2017 WL 1130087, at *1–2 (E.D. Mich. Mar. 27, 

2017). Pearce again appeals to this Court. 

SUMMARY OF THE ARGUMENT 

 The district court erroneously held that Pearce’s reformation claim failed 

because he did not show the SPD’s misrepresentations constituted intentional 

deception. The SPD is vital to achieving ERISA’s purposes, as it is often the only 

document a participant receives to explain her rights and responsibilities under her 

ERISA plan. Furthermore, SPDs must be written in a manner that ordinary 

participants can understand, as opposed to the more complicated and technical 

language often employed by underlying plan documents. Because of this, material 

misrepresentations and omissions in SPDs can cause serious harm to the 

participants who rely on them to explain their benefits. When this occurs, ERISA 

section 502(a)(3) provides a remedy in the form of “appropriate equitable relief.” 

29 U.S.C. § 1132(a)(3). One possible equitable remedy is reformation of the plan 

document to meet the SPD’s promises.

 To obtain reformation under ERISA section 502(a)(3), a plaintiff must show 

she was reasonably mistaken as to the plan document’s terms because of a 

defendant’s fraud or inequitable conduct. The concept of “inequitable conduct” in 

equity, based on case law and treatises, has no intent-to-deceive requirement. In 

equity, the concept of fraud is also broader than its counterpart at law. Based on 

case law and treatises on equity jurisdiction, fraud in equity also does not require a 

showing of an intent to deceive. See, e.g., SEC v. Capital Gains Research Bureau, 

Inc., 375 U.S. 180, 193 (1963); Deschamps v. Bridgestone Ams., Inc. Salaried 
8 

Emps. Ret. Plan, 840 F.3d 267, 274 (6th Cir. 2016). The district court therefore 

erred when it granted the Plan summary judgment on Pearce’s reformation claim

because he failed to establish the Plan had an intent to deceive. 

ARGUMENT 

I. Failure to Disclose Material Plan Information Justifies Equitable Relief 

One of ERISA’s primary objectives is to protect participants’ interests by 

requiring the disclosure of information about their plans. 29 U.S.C. § 1001(b). To 

achieve this purpose, ERISA requires that the plan administrator provide each 

participant a copy of the SPD, free of charge. 29 U.S.C. § 1024(b). The SPD’s 

purpose is to convey “the essential information about the plan,” Curtiss-Wright 

Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995), in a “clear, simple 

communication,” CIGNA Corp. v. Amara (Amara III), 563 U.S. 421, 437 (2011). 

By law, the SPD must contain “the plan’s requirements respecting eligibility for 

participation and benefits,” and “circumstances which may result in 

disqualification, ineligibility, or denial or loss of benefits.” 29 U.S.C. § 1022(b). 

 Significantly, 

[a]lthough the Summary is not itself legally binding, Amara III, 563 

U.S. 421, 437–38 (2011), it provides important information for 

beneficiaries about the plan. In Pettaway v. Teachers Ins. & Annuity 

Ass'n of Am., [the D.C. Circuit] noted that a Summary Plan 

Description is an “ERISA-mandated, plain-language document upon 

which plan participants may rely to understand their benefits.” 644 

F.3d 427, 433 (D.C. Cir. 2011). 

Foster v. Sedgwick Claims Mgmt. Servs., Inc., 842 F.3d 721, 731 (D.C. Cir. 2016). 

Furthermore, Department of Labor (DOL) regulations reinforce the SPD’s critical 
9 

role, mandating that it “must not have the effect [of] misleading, misinforming or 

failing to inform participants,” and that “[a]ny description of exceptions, 

limitations, reductions, and other restrictions of plan benefits shall not be 

minimized.” 29 C.F.R. § 2520.102-2(b). 

 This Court already concluded in Pearce I that the Plan’s SPD violated 

ERISA when it “omitted the material limitation [for 30-and-out benefits] that 

appears in the Pension Plan regarding ‘Vested Terminated Participants.’” Pearce I, 

615 F. App’x at 349. Thus, the remaining question is whether this ERISA 

violation gives rise to a remedy under ERISA section 502(a)(3). Under ERISA 

section 502(a)(3), a plan participant may bring a civil action “to obtain other 

appropriate equitable relief” to redress ERISA violations. 29 U.S.C. § 1132(a)(3). 

The U.S. Supreme Court has interpreted the phrase “equitable relief,” as used in 

ERISA section 502(a)(3), to refer only “to ‘those categories of relief that were 

typically available in equity.’” Great-West Life & Annuity Ins. Co. v. Knudson, 

534 U.S. 204, 210 (2002) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256 

(1993)). The Court thus instructed litigants and courts to construe section 

502(a)(3) as allowing only those forms of relief available in courts of equity, and 

not in the courts of law, during “the days of the divided bench.” Id. at 210–18. In 

determining the “contours” of equitable relief, the Court consults the standard 

treatises on equity. Id. at 217. 

II. Equitable Reformation Is Available Without Establishing an Intent to Deceive 

 In Amara III, the Supreme Court confronted a similar claim for equitable 

relief arising from an SPD’s misrepresentation of plan terms. 563 U.S. 421, 432 
10

(2011). In Amara, the district court below had found, “after a lengthy trial,” that 

those misrepresentations violated ERISA sections 102(a) and 104(b). Id. at 426, 

432. The Supreme Court recognized, “[t]he power to reform contracts (as 

contrasted with the power to enforce contracts as written) is a traditional power of 

an equity court, not a court of law, and was used to prevent fraud.” Id. at 440–41. 

Thus reformation was potentially an available equitable remedy under ERISA 

section 502(a)(3) for the misrepresentations, and the Supreme Court remanded the 

case so the district court could “revisit its determination of an appropriate remedy 

for the violations of ERISA it identified.” Id. at 445. 

 On remand, the district court determined that reformation was indeed an 

available and appropriate remedy for the ERISA violations it had found. Amara v. 

CIGNA Corp. (Amara IV), 925 F. Supp. 2d 242, 251–55 (D. Conn. 2012). The 

U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision. 

Amara v. CIGNA Corp. (Amara V), 775 F.3d 510 (2d Cir. 2014). Both courts 

agreed that, to obtain the equitable remedy of reformation, plaintiffs must show by 

clear and convincing evidence that a defendant “committed fraud or similar 

inequitable conduct and that such fraud reasonably caused plaintiffs to be mistaken 

about the terms of the pension plan.” Amara V, 775 F.3d at 526. In these Amara 

decisions, the courts found that the fiduciaries had committed intentional fraud, 

which was sufficient for the remedy of reformation in that case, but the courts did 

not generally hold that intentional fraud was a necessary element to obtain 

reformation. Neither court expounded on what a plaintiff must show to 

demonstrate the commission of “fraud or similar inequitable conduct.” 
11

 In this case, the court below granted the Plan’s summary judgment motion 

after concluding that no equitable remedy was available, because (as relevant here) 

Pearce had not demonstrated an “intent to deceive,” a showing the court held was 

required in order to obtain the equitable remedy of reformation. (ECF No. 87 at 

20.) Notably, the magistrate was “not convinced, as defendant advances, that 

plaintiff must prove fraud in the drafting of the Pension Plan document,” but then 

agreed with the defendants that Amara requires Pearce to offer “evidence of an 

intent to deceive.” Pearce II, ECF No. 87 at 20. Neither the magistrate nor the 

district court provided any authority for this requirement. 

The court’s ruling is contrary to recent, post-Amara district court decisions 

that directly address the question presented. The ruling also conflicts with 

longstanding, binding case law on the requirements for equitable reformation, as 

well as the leading treatises on equitable jurisdiction. Since Amara V, two other 

federal district courts have held no intent requirement exists in ERISA cases where 

plaintiffs seek reformation. In Osberg v. Foot Locker, Inc., a case involving 

ERISA violations related to misrepresentations in the SPD, the district court held 

that the “fraud” needed to obtain reformation was “equitable fraud,” which “does 

not require a showing of intent to deceive or defraud.” 138 F. Supp. 3d 517, 557–

58 (S.D.N.Y. 2015), aff’d, ___ F.3d ____, No. 15-3602, 2017 WL 2871358 (2d 

Cir. July 6, 2017). The Osberg court also defined “inequitable conduct” to 

“include[] deception or even mere awareness of the other party’s mistake 

combined with superior knowledge of the subject of that mistake.” Id. at 558–59 

(quoting DS Parent, Inc. v. Teich, No. 5:13-CV-1489 LEK/DEP, 2014 WL 
12

546358, at *4 (N.D.N.Y. Feb. 10, 2014)).4 And in Frommert v. Becker, another 

case involving similar ERISA violations, the district court followed Osberg as to 

the meaning of “fraud or inequitable conduct,” stating that “a finding of fraudulent 

intent is not required for the court to impose the remedy of reformation.” 153 F. 

Supp. 3d 599, 608 (W.D.N.Y. 2016), appeals filed, Nos. 17-114 & 17-738 (2d Cir. 

Jan. 11, 2017 & Mar. 13, 2017). No other district courts opined on this specific 

issue until the district court reached a contrary conclusion in this case. 

 Imposing a fraudulent-intent requirement is also inconsistent with relevant 

authorities from this Court, the Supreme Court, and the treatises on equitable 

jurisdiction. First, the lower court’s holding that one must demonstrate an “intent 

to deceive” to show “fraud” is inconsistent with the definition of “fraud” adopted 

by this Court in equity. For instance, this Court has held in the equitable estoppel 

context that the term “fraud” includes “either intended deception or such gross 

 

4

 On appeal, the appellants in Osberg did not challenge the district court’s holding 

that a plaintiff need not demonstrate intent to defraud to obtain reformation. 

Osberg v. Foot Locker, Inc., ___ F.3d ____, No. 15-3602, 2017 WL 2871358 (2d 

Cir. July 6, 2017). However, the U.S. Court of Appeals for the Second Circuit’s 

reasoning on a separate issue is informative. ERISA section 413 provides a sixyear limitations period from the date the plaintiff discovers a fiduciary breach in 

cases involving “fraud or concealment.” 29 U.S.C. § 1113. When interpreting 

“concealment,” the court construed the term based on doctrines developed in 

equity, Osberg, 2017 WL 2871358, at *7 (“grew from the soil of equitable 

estoppel”), in contrast to common-law doctrines, id. n.11. Based on its equitable 

foundation, the court read “concealment” to not require proof of the “elements of 

common law fraud,” id., including the element of “fraudulent intent,” id. 

Likewise, in interpreting the “fraud or inequitable conduct” element for equitable 

reformation under ERISA, this Court should look to reformation’s equitable 

foundations and reject any requirement to establish common-law fraud, including 

its element of fraudulent intent. 
13

negligence as to amount to constructive fraud.” Deschamps v. Bridgestone Ams., 

Inc. Salaried Emps. Ret. Plan, 840 F.3d 267, 274 (6th Cir. 2016) (emphasis added) 

(citation omitted). This accords with the U.S. Supreme Court’s view of fraud in

equity as well: “Fraud has a broader meaning in equity (than at law) and intention 

to defraud or to misrepresent is not a necessary element.” SEC v. Capital Gains 

Research Bureau, Inc., 375 U.S. 180, 193 (1963) (quoting De Funiak, Handbook of 

Modern Equity at 235 (2d ed. 1956)). 

This Court has stated, “Constructive fraud may be established where there is 

a breach of legal or equitable duty, whether or not fraudulent intent be present.” A 

& B Food Servs. Corp. v. Judy’s Foods, Inc., 798 F.2d 468, 468 (6th Cir. 1986) 

(per curiam) (quoting Maxwell v. Land Developers, Inc., 485 S.W.2d 869, 875 

(Tenn. App. Ct. 1972)); see also Guy v. Lexington-Fayette Urban Cnty. Gov’t, 57 

F. App’x 217, 224 (6th Cir. 2003). Other federal circuit courts agree. See, e.g., 

Joyce v. Morgan Stanley & Co., 538 F.3d 797, 800 (7th Cir. 2008) (“Unlike actual 

fraud, constructive fraud ‘requires neither actual dishonesty nor intent to deceive, 

being a breach of legal or equitable duty which, irrespective of the moral guilt of 

the wrongdoer, the law declares fraudulent because of its tendency to deceive 

others.’”); Morrison v. Back Yard Burgers, Inc., 91 F.3d 1184, 1187 (8th Cir. 

1996) (same); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1182–83 (3d Cir. 

1993) (same). 

 Thus, even where a plaintiff seeks reformation based on a defendant’s 

“fraud,” she need not show that a misrepresentation in an SPD was motivated or 

caused by an “intent to deceive” to obtain relief. The treatises on equitable 
14

jurisprudence agree with this position. 

Whether the party thus misrepresenting a material fact knew it to be 

false or not is wholly immaterial . . . . The whole doctrine turns upon 

this, that he who misleads the confidence of another by false 

statements as to the substance of a purchase, and not his victim, shall 

be the sufferer. And this is true whether the misrepresentation be 

willfully and designedly false, or ignorantly or negligently untrue. 

E. Merwin, Principles of Equity & Equity Pleading, § 502, at 270–71 (1895). “The 

motive of the person making the misrepresentation is immaterial.” Id. § 506, at 

273–74 (listing elements for when equity will relieve party who suffered 

misrepresentation); 1 J. Story, Commentaries on Equity Jurisprudence § 193, at 

195 (10th ed. 1870) (“And even if the party innocently misrepresents a material 

fact by mistake, it is equally conclusive, for it operates as a surprise imposition 

upon the other party.”). This approach also accords with this Court’s jurisprudence 

respecting fiduciary misrepresentations. “[A] fiduciary breaches its duties by 

materially misleading plan participants, regardless of whether the fiduciary’s 

statements or omissions were made negligently or intentionally.” Krohn v. Huron 

Mem’l Hosp., 173 F.3d 542, 547 (6th Cir. 1999); Haviland v. Metro. Life Ins. Co., 

730 F.3d 563, 573 (6th Cir. 2013) (applying the “principles” established in Krohn 

and other decisions). 

 Notwithstanding the meaning of fraud in equity, there exists a second 

category of conduct sufficient to justify equitable reformation: “inequitable 

conduct.” Under longstanding case law, reformation is permitted “where there is a 

mutual mistake, or mistake on one side and fraud or inequitable conduct on the 

other.” Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 435 (1892) (emphasis 
15

added). Courts have noted differences between the concepts of fraud and 

inequitable conduct. See, e.g., Langley v. Credit Suisse First Bos. Corp., 89 F. 

App’x 938, 947 (6th Cir. 2004) (reciting the same rule under Kentucky law and 

construing “fraud” and “inequitable conduct” as separate requirements); Conn. Fire 

Ins. Co. v. Oakley Improved Bldg. & Loan Co., 80 F.2d 717, 719 (6th Cir. 1936) 

(“[Equity’s] jurisdiction to reform written instruments where there is a mistake on 

one side and inequitable conduct on the other is undoubted.”). 

 Similarly, some of the treatises on equitable jurisdiction and related caselaw 

make a clear distinction between “fraud” and “inequitable conduct.” See 3 John 

Norton Pomeroy, A Treatise on Equity Jurisprudence as Administered in the 

United States of America § 1376 (5th ed. 1941) (“Equity has jurisdiction to reform 

written instruments . . . [w]here there has been a mistake of one party accompanied 

by fraud or other inequitable conduct of the remaining parties”). Under this 

framework, inequitable conduct does not require any intent to deceive. Pomeroy, 

for example, states that “[i]t is not necessary that such inequitable conduct should 

be intentionally misleading, much less that it should be actual fraud; it is enough 

that the misconception of the law was the result of, or even aided or accompanied 

by, incorrect or misleading statements, or acts of the other party.” Id.; see id. 

§ 847. Other treatises agree with this approach. See, e.g., 76 C.J.S. Reformation 

of Instruments § 45 (for reformation, inequitable conduct includes “concealing, or 

failing to disclose, what of right, or under duty, should have been disclosed”). 

Courts have applied this distinction in finding “inequitable conduct” sufficient to 

require reformation without also finding any intentional deception. E.g., Gross v. 
16

Stone, 197 A. 137, 143 (Md. 1938); Exch. Nat. Bank v. Barron, 31 S.W.2d 420, 

421 (Ark. 1930); Blair v. Kingman Implement Co., 117 N.W. 773, 776 (Neb. 

1908). 

 Other treatises on equity simply fold “inequitable conduct” into “fraud” by 

expanding the definition of “fraud” in the equitable context, in contrast to “fraud”

as defined in the courts of law. They reach the same result, noting that “[w]hat 

constitutes fraud at law will always be treated as fraud in equity, but there are 

many acts deemed fraudulent in equity which are not so considered at law. Equity 

will not only relieve against actual deception, but will extend its interference in all 

cases of unfair dealing, and prevent the dishonest circumvention of one person by 

another.” J. Eaton, Handbook of Equity Jurisprudence § 120, at 286 (1901); 1 J. 

Story, Commentaries on Equity Jurisprudence § 187, 213–14 (4th ed. 1846) 

(“Fraud, indeed, in the sense of a Court of Equity, properly includes all acts, 

omissions, and concealments, which involve a breach of legal or equitable duty, 

trust, or confidence, justly reposed, and are injurious to another, or by which an 

undue and unconscientious advantage is taken of another.”). For instance, Justice 

Story’s treatise makes a distinction between “actual fraud,” “where there is an 

intention to commit a cheat or deceit upon another to his injury,” and “the large 

class of implied or constructive frauds” “within the remedial jurisdiction of a Court 

of Equity.” 1 J. Story, supra § 187, at 213 (4th ed. 1846); see also Christopher G. 

Tiedeman, A Treatise on Equity Jurisprudence § 226, at 267 (1893) (“Constructive 

fraud . . . is a term employed to include all those cases of wrongful advantage 

obtained by one person over another, under circumstances which do not prove that 
17

the party obtaining the advantage has been guilty of any willful misrepresentation 

or untruth; but in consequence of a wrongful advantage obtained, a court of equity 

considers it inequitable, and affords relief from such undue advantage by the 

employment of appropriate remedies.”); id. § 507, at 595 (reformation available 

when mistake of one party is combined with the fraud of the other); John Willard 

& Platt Potter, A Treatise on Equity Jurisprudence, § 210, at 258 (2d ed. 1875) (for 

“constructive or implied frauds,” “the design is not to deceive the individual with 

whom the contract is made, but to gain some advantage inconsistent with fair 

dealing or the rights of third persons”).

5

 In applying the principles articulated above to claims of equitable 

reformation, at least one Supreme Court case and a Sixth Circuit case have held 

that an award of reformation was appropriate without requiring a showing of 

intentional deception. In Bradford v. Union Bank of Tennessee, 13 How. 57, 66 

(1852), a case cited by Amara III, 563 U.S. at 441, the Supreme Court specifically 

declined to rely on fraud to reform the contract, Bradford, 13 How. at 66, and 

instead relied on the fact that “the case falls within the established principles of 

equity, in granting relief against contracts entered into upon a mistake, and 

misapprehension of the facts, and where the enforcement of which would enable 

one of the parties to obtain a most unconscientious advantage over the other.” Id. 

at 68; accord Bush v. Merriman, 49 N.W. 567, 569 (Mich. 1891) (citing Bradford). 

This Court’s decision in Connecticut Fire is also instructive. 80 F.2d 717. 

 

5

 The Supreme Court relied on treatises by Pomeroy, Story, and Eaton in its 

description of reformation as an equitable remedy. Amara III, 563 U.S. at 441. 
18

There, the insured attempted to update the addenda that were attached to her 

unexpired policy. Id. at 718. Instead of following her request, the insurance 

company sent her a policy with materially different addenda, without her requested 

addenda, and the company did not notify her of the changes it made. Id. at 719. 

She accepted the policy, believing her instructions were followed. Id. (holding that 

the insured “had the right to assume that if [the insurer] returned the policy . . . its 

provisions and conditions would be similar to those of the old one”). The Court 

permitted reformation because the insurer failed to provide notice of the changed 

policy as required by “law and equity,” and the change was “advantageous” to the 

insurer and “disadvantageous” to the insured. Id. at 719. In absence of any intent 

to deceive, the insurer’s conduct constituted “inequitable conduct” sufficient for 

reformation. Id. 

 Furthermore, the Sixth Circuit precedent relied on by this Court in Pearce I, 

Edwards v. State Farm Mutual Automobile Insurance Co., supports this 

interpretation as well, though the decision did not specifically discuss equitable 

reformation. 851 F.2d 134, 136 (6th Cir. 1988), abrogated on other grounds by 

Amara III, 563 U.S. 421. There, an “SPD contained an ‘obviously misleading’ 

statement regarding sick leave, and we held in favor of the employee because the 

employer ‘should have realized that the explicit language of the [SPD] could or 

would have caused [the employee] and similarly situated unsophisticated lay 

employees to rely upon [the plan administrator’s] inadvertant [sic] 

misrepresentation to their detriment.’” Pearce I, 615 F. App’x at 347–48 (quoting 

Edwards, 851 F.2d at 136)). In other words, in Edwards this Court determined that 
19

it did not matter whether the employer knew the SPD was incorrect or misleading, 

nor whether the employer intended such a result, because the employer should 

have known the SPD was inaccurate, given the asymmetry of information between 

the knowledgeable employer and the less knowledgeable employees who relied on 

the SPD. 

 The binding authorities, the treatises on equity, and decisions from other 

circuits all agree: a plaintiff need not show an intent to deceive in order to obtain 

the equitable remedy of reformation. 

III. Equitable Reformation May Be Appropriate Here 

 While the district court correctly noted that reformation is not automatically 

available for any conflict between an SPD and the Plan document, see Pearce III, 

2017 WL 1130087, at *2 (reformation not available based “solely on the fact that a 

conflict exists between the SPD and the plan documents”), requiring an “intent to 

deceive” is not a proper basis for drawing a line between meritorious and meritless 

claims. District courts have some discretion to determine if reformation is 

“appropriate” in a particular case, taking into consideration other relief requested 

and the facts and circumstances of the violation. See 29 U.S.C. § 1132(a)(3) 

(“appropriate” equitable relief). But public policy supports some remedy here. 

Quoting Congress, Pearce I noted that “[i]t is grossly unfair to hold an employee 

accountable for acts which disqualify him from benefits if he had no knowledge of 

these acts or if these conditions were stated in a misleading or incomprehensible 

manner in the plan booklets.” 615 F. App’x at 348 (quoting H.R. Rep. No. 93-533, 

93d Cong., 2d Sess. (1973), reprinted in 1974 U.S.C.C.A.N. 4639, 4646). The 
20

court should also weigh the fact that reformation may be directed at only the 

plaintiff and other participants who are similarly mistaken and suffered from the 

inequitable conduct. E.g., Eaton, supra § 309 (recognizing that reformation may 

not apply against some parties while applying to others); see also Young v. 

Verizon’s Bell Atl. Cash Balance Plan, 615 F.3d 808, 822 (7th Cir. 2010) 

(recognizing equitable defenses may defeat equitable reformation claims). As the 

Second Circuit held in Osberg, reformation can also be applied to an entire class of 

participants. See Osberg v. Foot Locker, Inc., ___ F.3d ____, No. 15-3602-cv, 

2017 WL 2871358, at *9–11 (2d Cir. July 6, 2017) (affirming district court’s 

award of reformation “to all participants” because evidence showed they all were 

reasonably mistaken as to the plan’s terms, based on class-wide misrepresentations 

made by fiduciaries). 

Three additional considerations exist to separate this case from others 

involving more run-of-the-mill misrepresentations about plan terms, all of which 

appellant discusses in his opening brief. Appellant’s Br. at 31, 34, 36–37, 44–45. 

First, as this Court has already held, the SPD was “directly inconsistent with the 

Pension Plan,” and the discrepancy was “material.” Pearce I, 615 F. App’x at 347–

348; see E. Merwin, Principles of Equity & Equity Pleading § 502, at 270–271 

(1895) (reformation may be appropriate where one party “misrepresent[s] a 

material fact”); see also Krohn, 173 F.3d at 547 (“[A] fiduciary breaches its duties 

by materially misleading plan participants”). Second, the misrepresentations in 

this case, which concern a significant and readily identifiable condition on the 

availability of 30-and-out benefits, arose from the SPD, the primary document that 
21

ERISA expects participants to rely on to gain an understanding of the benefits they 

are owed. Supra Part I; see 1 J. Story, Commentaries on Equity Jurisprudence 

§ 187, at 201 (13th ed. 1886) (“Fraud, indeed, in the sense of a Court of Equity, 

properly includes all acts, omissions, and concealments which involve a breach of 

legal or equitable duty, trust, or confidence, justly reposed, and are injurious to 

another, or by which an undue and unconscientious advantage is taken of another.”

(emphasis added)); see also Connecticut Fire Ins. Co., 80 F.2d at 719 (reformation 

appropriate where insurance policy holder had reasonable expectation that new 

policy would be the same as her prior policy, based on the company’s 

representations to her). Third, although a plaintiff need not show detrimental 

reliance to obtain reformation, Amara III, 563 U.S. at 443 (equity courts did not 

require a showing of detrimental reliance for award of reformation); cf. Osberg, 

2017 WL 2871358, at *8 (detrimental reliance need not be shown to obtain 

reformation for ERISA section 404(a) violation), the fact that Pearce did rely on 

the Plan’s misrepresentations about 30-and-out benefits when he declined the 2008 

retirement buyouts remains a relevant factor weighing in favor of awarding him 

equitable relief, see Lemon v. Kurtzman, 411 U.S. 192, 203 (1973) (“It is well 

established that reliance interests weigh heavily in the shaping of an appropriate 

equitable remedy.”); see also id. (citing cases). 

* * * 

 Based on the foregoing, an ERISA plaintiff need not show an intent to 

deceive on the defendant’s part to obtain plan reformation. The district court 

therefore erred when it dismissed Pearce’s reformation claim based on his failure 
22

to show that the Plan acted with an “intent to deceive.” 

CONCLUSION 

 The Secretary respectfully requests that this Court reverse the district court’s 

grant of the Plan’s motion for summary judgment.

Date: July 28, 2017 

Respectfully Submitted, 

NICHOLAS C. GEALE

Acting Solicitor of Labor 

G. WILLIAM SCOTT

Associate Solicitor 

for Plan Benefits Security 

THOMAS TSO

Counsel for Appellate & Special 

Litigation 

/s/ Eirik Cheverud 

EIRIK CHEVERUD

Trial Attorney 

Plan Benefits Security Division 

Office of the Solicitor 

U.S. Department of Labor 

200 Constitution Ave. NW, N-4611

Washington, DC 20210 

202.693.5516 (t) | 202.693.5610 (f)

cheverud.eirik.j@dol.gov
CERTIFICATE OF COMPLIANCE 

1. This amicus curiae brief complies with the type-volume limitations of 

Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 6,025 words, 

excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii). 

2. This amicus curiae brief complies with the typeface requirements of 

Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of 

Federal Rule of Appellate Procedure 32(a)(6) because it was prepared in a 

proportionally spaced typeface using Microsoft Word and Times New Roman 14 

typeface. 

/s/ Eirik Cheverud 

EIRIK CHEVERUD

Trial Attorney

CERTIFICATE OF SERVICE 

 I hereby certify that a copy of the foregoing was filed electronically using 

the CM/ECF system, which will send notification of such filing to the following: 

Lawrence J. Breskin 

Law Office 

615 Griswold, Seventh Floor 

Detroit, MI 48226 

Breskin@ATT.net 

Attorney for Appellant

William E. Altman 

Vercruysse, Murray & Calzone 

31780 Telegraph Road, Suite 200 

Bingham Farms, MI 48025 

Attorney for Appellee

/s/ Eirik Cheverud 

EIRIK CHEVERUD

Trial Attorney