13

‐ 447

‐ cv (L)

Amara v. CIGNA Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2013

Argued: February 10, 2014

Decided: December 23, 2014

Nos. 13

‐ 447

‐ cv (Lead), 13

‐ 526 (XAP)

_____________________________________

J ANICE C. A MARA

, G ISELA R. B RODERICK

, AND A NNETTE S. G LANZ

, individually

and on behalf of others similarly situated,

Plaintiffs

‐ Appellants

‐ Cross

‐ Appellees

,

v.

CIGNA C ORPORATION AND CIGNA P ENSION P LAN

,

Defendants

‐ Appellees

‐ Cross

‐ Appellants.

_____________________________________

Before: J ACOBS

, L IVINGSTON

, L YNCH

, Circuit Judges

.

Appeal from a January 2, 2013 order of the United States District Court for the

District of Connecticut (Arterton, J .). The district court, inter alia

, reformed CIGNA

Corporation’s pension benefits plan to reflect the fact that all class members must

now receive “A+B” benefits. We conclude that the district court did not err in

1finding that the elements of reformation were met, that it properly denied the

motion of CIGNA Corporation and CIGNA Pension Plan to decertify the class of

plaintiffs seeking relief in this case, and that it was within the district court’s

discretion to reform the plan such that it provides class members with A+B benefits.

A FFIRMED

.

S TEPHEN R. B RUCE (Allison C. Pienta, on the

brief ), Stephen R. Bruce Law Offices,

Washington, D.C.; Christopher J. Wright,

Wiltshire & Grannis, LLP, Washington, D.C.,

for Plaintiffs

‐ Appellants

‐ Cross

‐ Appellees

.

J EREMY P. B LUMENFELD (Joseph J. Costello

and A. Klair Fitzpatrick, Morgan, Lewis &

Bockius LLP, Philadelphia, PA; Stephanie R.

Reiss, Morgan, Lewis & Bockius LLP,

Pittsburgh PA, on the brief ), for Defendants

‐ Appellees

‐ Cross

‐ Appellants

.

D EBRA A NN L IVINGSTON

, Circuit Judge :

This long

‐ running dispute arises from certain misleading communications

made by CIGNA Corporation (“CIGNA”) and CIGNA Pension Plan (together with

CIGNA, “defendants”) to CIGNA’s employees regarding the terms of the CIGNA

Pension Plan and, in particular, the effects of the 1998 conversion of CIGNA’s

defined benefit plan (“Part A”) to a cash balance plan (“Part B”). The case was

brought in December 2001 by individual plan participants on behalf of themselves

2and others similarly situated (“plaintiffs”). The district court granted plaintiffs’

motion to certify the class. After trial, it held, inter alia, that defendants had failed

to provide notice of a significant reduction in the rate of future benefit accrual under

the Part B retirement plan in violation of § 204(h) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1054(h), and that defendants failed

adequately to disclose material modifications to the plan in violation of ERISA § 102,

29 U.S.C. § 1022. Amara v. CIGNA Corp.

, 534 F. Supp. 2d 288, 363 (D. Conn. 2008)

[hereinafter “ Amara I ”]. The district court then issued a decision regarding

appropriate relief under ERISA for that violation, ordering defendants to provide

the benefits accrued under Part A at the time of the conversion plus the benefits

accrued thereafter under Part B, i.e. “A+B” benefits, and to issue new or corrected

notices to all class members under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).

Amara v. CIGNA Corp.

, 559 F. Supp. 2d 192, 222 (D. Conn. 2008) [hereinafter “ Amara

II ”]. This Court affirmed those decisions by summary order, Amara v. CIGNA

Corp.

, 348 Fed. App’x 627 (2d Cir. 2009), and both parties petitioned for certiorari.

The Supreme Court granted defendants’ petition and, in a decision issued on

May 16, 2011, vacated this Court’s judgment and remanded the case, concluding that

the relief afforded by the district court was not available under § 502(a)(1)(B).

3CIGNA Corp. v. Amara

, 131 S. Ct. 1866, 1870

‐ 71 (2011) [hereinafter “ Amara III ”]. The

Supreme Court instructed, however, that the district court should consider on

remand whether plaintiffs are entitled to relief under § 502(a)(3),

29 U.S.C. § 1132(a)(3), which provides for “appropriate equitable relief” to redress

specified violations of ERISA or of plan terms. Amara III

, 131 S. Ct. at 1882. In light

of its decision to grant defendants’ petition for certiorari and remand the case, a

week later, on May 23, 2011, the Supreme Court also granted plaintiffs’ petition, see

Amara v. CIGNA Corp.

, 131 S. Ct. 2900 (2011) [hereinafter “GVR Order”], which

requested the Supreme Court to review this Court’s affirmance of the district court’s

decision to order A+B benefits rather than a return to the Part A plan. See Petition

for Writ of Certiorari, Amara v. CIGNA Corp.

, 131 S. Ct. 2900 (2011) (No. 09

‐ 784), 2010

WL 17042. In accordance with the Supreme Court’s decisions, this Court vacated the

district court’s judgment on July 11, 2011, and remanded the case for further

proceedings.

On remand, the district court denied a motion by defendants to decertify the

class and again ordered CIGNA to provide plaintiffs with A+B benefits and new or

corrected notices, this time ordering such relief under § 502(a)(3). Amara v. CIGNA

Corp.

, 925 F. Supp. 2d 242, 265

‐ 66 (D. Conn. 2012) [hereinafter “ Amara IV ”]. The

4present appeals ensued. CIGNA argues that the district court erred in declining to

decertify the class and in ordering equitable relief pursuant to § 502(a)(3). Plaintiffs

argue that the court erred in limiting relief to A+B benefits, as opposed to affording

them the benefits they would have received pursuant to Part A.

We conclude, first, that the district court acted within the scope of its

discretion in denying CIGNA’s motion to decertify the plaintiff class. Next, we

conclude that the district court did not abuse its discretion in determining that the

elements of reformation have been satisfied and that the plan should be reformed

to adhere to representations made by the plan administrator. Finally, based on the

particular facts of this case, we hold that the district court did not abuse its

discretion in limiting relief to A+B benefits rather than ordering a return to the terms

of CIGNA’s original retirement plan.

BACKGROUND

A. Facts

The facts of this case are set forth in considerable detail in the several prior

opinions concerning this matter and we do not repeat them all here. This litigation

stems from CIGNA’s alteration of the terms of its standard pension benefit plan in

1998. CIGNA’s original plan

‐‐ Part A

‐‐ granted beneficiaries defined benefits upon

5retirement. These defined benefits were generally provided in the form of an

annuity in an amount based upon a number of factors such as the employee’s salary,

date of first employment at CIGNA, years of service, and age at retirement. By

contrast, the new plan

‐‐ Part B

‐‐ provided benefits to most of CIGNA’s employees in

the form of a lump sum cash balance calculated on the basis of defined annual

contributions. 1 Under Part B, an employee could choose at retirement to receive his

or her account balance in lump sum form or else as whatever annuity that lump sum

could buy at the time that employee retired. To facilitate the transition between the

plans, the new Part B plan included a formula whereby an employee would accrue

new benefits to be deposited into his or her retirement account, as well as a formula

for converting an employee’s already

‐ accrued Part A benefits into a Part B cash

balance. The new plan also guaranteed that employees would receive at least the

value of their already

‐ accrued Part A benefits. That is, if an employee’s total Part B

benefits at retirement, including that employee’s initial account balance and all

benefits accrued by that employee under Part B thereafter, amounted to less than the

total of that employee’s Part A benefits as of December 31, 1997, then the employee

1 Employees with a combined age and service of 45 years or more were

grandfathered under the old Part A plan and continued to accrue benefits under that plan.

6would receive the amount of his or her Part A benefits rather than the amount in the

employee’s account under Part B.

Instead of shifting immediately to Part B, CIGNA accomplished the transition

between the plans in two stages. CIGNA first froze its Part A plan. As

communicated to employees in a November 1997 newsletter, employees’ Part A

benefits ceased accruing as of December 31, 1997. Employees’ account balances

were then calculated during 1998, and balances were retroactively credited to each

employee as of January 1, 1998.

CIGNA communicated the terms of the new plan and the process for plan

conversion to its employees through that November 1997 newsletter, as well as

through a summary of material modifications to the plan, two summary plan

descriptions (“SPDs”), and other materials. Among other things, CIGNA told

employees that the new plan would “significantly enhance its retirement program.”

E

‐ 204. One SPD describing the plan informed each employee that “your benefit will

grow steadily throughout your career.” E

‐ 265. It also told each employee that his

or her “opening balance [in the new Part B plan] was equal to the lump sum value

of the pension benefit [he or she] earned through December 31, 1997.” Id. In

individualized compensation reports, CIGNA assured each employee that his or her

7initial account balance “represent[ed] the full value of the benefit [he or she] earned

for service before 1998 payable to you at age 65.” 2 J.A. 138. CIGNA also stated in

a newsletter introducing the new plan that it would not receive any cost savings

from its conversion from Part A to Part B.

The parties do not dispute that CIGNA’s communications regarding its new

plan were inaccurate. CIGNA actually saved an estimated $10 million by converting

to its Part B plan. Contrary to CIGNA’s descriptions of the plan to its employees,

moreover, the new Part B plan did not preserve the full value of each employee’s

Part A benefits. The new plan was inferior in a number of critical ways. For

instance, under Part A, employees had a valuable right to retire early with only

moderately diminished benefits

– a right that the Part B plan did not preserve. And

at least two additional features left many employees worse off:

First, the amount in each employee’s initial retirement account actually did not

reflect the entirety of that employee’s Part A benefits because the calculation

converting Part A benefits into the Part B lump sum included an adjustment that

reduced each employee’s account balance. This “haircut” was undertaken to offset

2 For certain employees, the value of the account was calculated according to a

retirement age of 62 rather than 65 and those employees’ individualized compensation

reports reflected this fact. See, e.g.

, E

‐ 1328 (providing an example of a compensation

report for one such employee).

8the fact that under the new Part B plan, an employee’s survivors were guaranteed

to receive that employee’s benefits (whether or not the employee died before

retirement) whereas under Part A, the employee received benefits in annuity form

(and therefore only received benefits if he or she was still alive at retirement). To

compensate for this change, each employee’s Part A benefits were not only

converted into lump sum form, but were also discounted by the probability that the

employee would live to retirement age. For example, if according to CIGNA’s

model, an employee had a 90% chance of living to retirement, the amount obtained

by converting his or her Part A benefits into a lump sum was multiplied by 90% to

obtain that employee’s initial account balance. This meant that those employees

surviving to retirement would receive less in retirement benefits than they otherwise

would have received under Part A.

Second, under the new Part B plan, employees were not protected from

fluctuating interest rates as they were under the Part A plan. The amount that an

employee received under Part A was fixed according to factors, such as the

employee’s salary, which do not directly depend on interest rates. By contrast, the

amount an employee receives under Part B is dependent on interest rates in two

ways: (i) the rate of accrual of an employee’s Part B account hinges on interest rates;

9(ii) if an employee were to elect to receive an annuity at retirement under Part B, the

price of the annuity would be affected by the then

‐ current interest rate (so that an

employee would receive a lower annual benefit for the same lump sum price if

interest rates were low when he or she retired). Because people tend to be risk

averse with respect to their retirement savings, the insulation from interest

‐ rate risk

under the Part A plan was valuable.

Because of these differences between Part A and Part B, employees also

risked experiencing what is known in the benefits industry as “wear away.” Wear

away occurs when an employee continues to work at a company but does not

receive additional benefits for those additional years of service. While the new plan

did guarantee that an employee would receive at least the amount of his or her Part

A benefits as of December 31, 1997, it was possible for an employee to work for years

after the conversion date before the amount in that employee’s Part B account

equaled the amount of benefits the employee would have been due under Part A at

the time of the switch.

B. Procedural History

In 2001, plaintiffs, acting on behalf of approximately 25,000 beneficiaries of the

CIGNA Pension Plan, filed suit. Plaintiffs claimed, inter alia

, that by failing to give

10them proper notice of their benefits and misleading them regarding the nature of

their benefits, defendants violated §§ 102(a) and 204(h) of ERISA,

29 U.S.C. §§ 1022(a) and 1054(h). In 2008, in a decision pertaining solely to CIGNA’s

liability, Judge Kravitz of the United States District Court for the District of

Connecticut agreed that defendants had violated ERISA. Amara I

, 534 F. Supp. 2d

at 363. He held that the appropriate standard of injury for determining whether an

ERISA violation has occurred is “likely harm,” and concluded that plaintiffs had

demonstrated likely harm in this case. Id. at 351, 354. In a separate decision, the

district court ordered CIGNA to reform the terms of its plan under § 502(a)(1)(B),

which allows a plan “participant or beneficiary” to bring an action “to recover

benefits due to him under the terms of his plan, to enforce his rights under the terms

of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29

U.S.C. § 1132(a)(1)(B); Amara II

, 559 F. Supp. 2d at 222. Although plaintiffs indicated

their preference for “a declaration that Part B is void and an injunction ordering a

return to Part A,” the district court instead ordered CIGNA to reform the terms of

its plan to provide A+B benefits. Id. at 203, 222. Under this remedy, CIGNA was

required to ensure that “all class members

. . . receive their accrued benefits under

Part A, in the form in which those benefits were available under Part A, and in

11addition their accrued benefits under Part B, in whatever form those benefits are

available under Part B.” Id. at 222. 3

The district court expressed doubt regarding whether relief would be

available to plaintiffs under § 502(a)(3), which provides for equitable relief. Id. at

205

‐ 06. But because the court ordered relief under § 502(a)(1)(B), it declined to

examine fully whether relief was available under § 502(a)(3). Id. Critically, in

ordering relief under § 502(a)(1)(B), the district court held that “the materially

misleading statements in CIGNA’s notices and disclosures” actually “constitute

benefits under the terms of the plan.” Id. at 205. The district court found that

CIGNA’s misleading communications promised A+B benefits and that because these

communications could be interpreted as the actual terms of the plan, plaintiffs were

entitled to A+B benefits. Id. at 204

‐ 05.

3 We note that the term “A+B” is slightly misleading since the district court’s remedy

does not actually award an employee the total of all his Part A benefits plus all of the

benefits that would be due to that employee if Part B were fully implemented. Instead, the

remedy ordered by Judge Kravitz consists only of the Part A benefits accrued through

December 31, 1997, plus the Part B benefits accrued going forward from January 1, 1998.

The “A+B” remedy thus does not include the amount of Part B benefits resulting from the

conversion of an employee’s Part A benefits into a lump sum amount. As Judge Kravitz

pointed out, Section 701(a)(1) of the Pension Protection Act (amending ERISA § 204(b), 29

U.S.C. 1054(b)) now requires this A+B benefits structure for all new plans resulting from

transitions from cash balance plans that take place after June 29, 2005. See Amara II

, 559 F.

Supp. 2d at 212 n.6.

12The district court noted “the peculiar factual circumstances” which led it to

conclude that the appropriate remedy was to order CIGNA to provide its employees

with A+B benefits rather than to require a return to Part A. See id. at 206

‐ 11. ERISA

§ 204(h) allows for the invalidation of plan amendments not preceded by proper

notice. Id. at 209. The court observed, however, that such a remedy under § 204(h)

“would be cold comfort to Plaintiffs” because of the manner in which CIGNA’s new

plan was implemented. Id. at 209

‐ 10. The district court explained that CIGNA

“unambiguously froze benefit accruals under Part A, and no one disputes that

Amendment 4 [to CIGNA’s Pension Plan, imposing this freeze] was validly noticed

under § 204(h) or that CIGNA employees understood that Part A was being frozen.”

Id. at 207. Accordingly, a remedy under § 204(h) “would be a return not to a viable

benefit plan, but to a freeze.” Id. at 209. At the same time, the district court

determined that “the remedy for the first two disclosure violations, regarding wear

away and early retirement benefits, is straightforward.” Id. at 211. It found that

CIGNA’s statements “created a reasonable expectation on the part of plan

participants that Part B would protect all Part A benefits, including early retirement

benefits

. . . and that Part B benefits would begin accruing immediately.” Id.

(emphasis in original). Because defendants’ representations misled beneficiaries into

13thinking that these were the terms of the plan, the district court held that “these

representations have become the terms of the Plan,” and the court ordered CIGNA

to provide benefits according to those terms under § 502(a)(1)(B). 4 Id. at 212.

The parties cross

‐ appealed the district court’s decision. Plaintiffs argued that

the district court should have ordered a full return to Part A benefits, while

defendants argued that no change in the plan should have been ordered at all. This

Court affirmed the decisions of the district court by summary order. Amara v.

CIGNA Corp.

, 348 Fed. App’x at 627. The Supreme Court then granted certiorari on

the question whether “likely harm” is the appropriate standard to apply in

determining CIGNA’s liability under ERISA. Amara III

, 131 S. Ct. at 1871. But the

Supreme Court found that it could not answer this question without first examining

whether § 502(a)(1)(B) authorized the relief that the district court had granted. Id.

The Supreme Court held that it was inappropriate for the district court to grant the

remedy of A+B benefits under § 502(a)(1)(B) because documents summarizing the

plan could not “constitute the terms of the plan for purposes of § 502(a)(1)(B).” Id.

at 1878 (emphasis in original).

4 The district court followed the analysis of this Court in Frommert v. Conkright

, 433

F.3d 254 (2d Cir. 2006), which reasoned that an SPD “is of such importance that ‘where the

terms of the plan and the SPD conflict, the SPD controls.’” Id. at 265 (quoting Burke v. Kodak

Ret. Income Plan

, 336 F.3d 103, 110 (2d Cir. 2003)).

14Yet, the Supreme Court found that § 502(a)(3), which provides for

“appropriate equitable relief” to redress specified violations of ERISA or the terms

of a plan, “authorizes forms of relief similar to those that the court entered.” Id. at

1871. It determined that “[t]he District Court strongly implied, but did not directly

hold, that it would base its relief upon [§ 502(a)(3)] were it not for (1) the fact

that

. . . § 502(a)(1)(B)

. . . provided sufficient authority; and (2) certain cases from

this Court that narrowed the application of the term ‘appropriate equitable relief.’”

Id. at 1878. Concluding that the district court was mistaken in its assumption that

prior cases might foreclose the remedy at issue here from being “appropriate

equitable relief” under § 502(a)(3), it invited the district court to examine three

equitable remedies that the district court’s relief resembled: reformation, estoppel,

and surcharge. Id. at 1879

‐ 80.

The Court then concluded, regarding the question on which it had granted

certiorari, that “the relevant standard of harm will depend upon the equitable theory

by which the District Court provides relief.” Id. at 1871. It remanded for the district

court to analyze whether the requirements for any of these equitable remedies had

been met, stating that “[w]e cannot know with certainty which remedy the District

Court understood itself to be imposing, nor whether the District Court will find it

15appropriate to exercise its discretion under § 502(a)(3) to impose that remedy on

remand.” Id. at 1880.

On remand, in a decision by Judge Arterton, the district court found both

reformation and surcharge to be available based on the facts of the case. Amara IV

,

925 F. Supp. 2d at 251. 5 The district court next determined that reformation did not

require decertification of the Rule 23(b)(2) class, concluded that “[s]urcharge

. . .

presents thornier issues under (b)(2),” and accordingly elected to “order reformation

rather than surcharge.” Id. at 263

‐ 64. Turning to the substance of the appropriate

remedy, the district court approvingly incorporated Judge Kravitz’s earlier

“calibration of the interests at stake” and exercised its discretion to require

defendants to reform the plan to provide A+B benefits. Id. at 265. It stated that

“class members will receive (1) the full value of ‘their accrued benefits under Part

A,’ including early retirement benefits, in annuity form; and (2) ‘their accrued

benefits under Part B,’ in annuity or lump sum form.” Id. (quoting Amara II

, 559 F.

Supp. 2d at 222). It stated that “retirees and former employees will be entitled to

receive the difference in value between the full

‐ value of the Part A annuity

. . . and

the lump sum.” Id. The court required these “past

‐ due benefits to be paid in a lump

5 Having found these remedies to be available, the court declined to examine

whether estoppel could also be established. Id.

16sum” and for those employees to receive “the amount of the [Part B] monthly

annuity payments going forward.’” Id. (internal quotation marks omitted). Both

parties again appealed.

DISCUSSION

We review the district court’s decision regarding class certification and its

determinations regarding whether the individual requirements of Federal Rule of

Civil Procedure 23 have been met for abuse of discretion. Myers v. Hertz Corp

., 624

F.3d 537, 547 (2d Cir. 2010). “The party seeking class certification bears the burden

of establishing by a preponderance of the evidence that each of Rule 23’s

requirements has been met.” Id

. The district court’s award of equitable relief also

may be reversed “only for an abuse of discretion or for a clear error of law.”

Malarkey v. Texaco, Inc.

, 983 F.2d 1204, 1214 (2d Cir. 1993). Where the district court’s

determinations regarding class certification and equitable remedies are supported

by findings of fact, such findings are reviewed under the “clearly erroneous”

standard. In re U.S. Foodservice Inc. Pricing Litig.

, 729 F.3d 108, 116 (2d Cir. 2013)

(discussing the standard of review for class certification); EEOC v. KarenKim, Inc.

,

698 F.3d 92, 99 (2d Cir. 2012) (per curiam) (discussing the standard of review for

injunctive relief). To the extent they rely on conclusions of law, these legal

17conclusions are reviewed de novo

. Parker v. Time Warner Entm’t Co., 331 F.3d 13, 18

(2d Cir. 2003) (discussing the standard of review for class certification); KarenKim

,

698 F.3d at 99 (discussing the standard of review for injunctive relief).

A. Class Certification

Certification of a class under Rule 23(b)(2) is appropriate where the remedy

sought is “an indivisible injunction” that applies to all class members “at once.” 6

Wal

‐ Mart Stores, Inc. v. Dukes

, 131 S. Ct. 2541, 2558 (2011). Class actions based on

claims for individualized monetary relief

– implicating the due process rights of

absent class members, who need not be given notice and opt

‐ out rights pursuant to

6 Rule 23 provides in relevant part as follows:

(a) Prerequisites. One or more members of a class may sue or be sued as

representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests

of the class.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is

satisfied and if

. . .

(2) the party opposing the class has acted or refused to act on grounds that

apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole

. . . .

18Rule 23(b)(2)

– are impermissible under this provision. See id. at 2558

‐ 59. The

Supreme Court has left open the question whether incidental monetary relief may

be sought on a class

‐ wide basis pursuant to Rule 23(b)(2). See id. at 2560. But our

sister circuits have concluded that such relief may be appropriate where it “flow[s]

directly from liability to the class as a whole ” from “claims forming the basis of

. . .

injunctive or declaratory relief.” Id. (emphasis in original) (quoting Allison v. Citgo

Petroleum Corp

., 151 F.3d 402, 415 (5th Cir. 1998)); see also Johnson v. Meriter Health

Servs. Emp. Ret. Plan

, 702 F.3d 364, 371 (7th Cir. 2012) (concluding that incidental

monetary relief may be awarded in a Rule 23(b)(2) class action pursuant to a pension

plan’s reformation). We find these decisions persuasive and conclude that, while

Wal

‐ Mart abrogates the standard for monetary relief in Rule 23(b)(2) class actions

that we announced in Robinson v. Metro

‐ North Commuter R.R. Co.

, 267 F.3d 147, 164

(2d Cir. 2001), it does not foreclose an award of monetary relief when that relief is

incidental to a final injunctive or declaratory remedy.

Here, defendants argue that the district court should have granted their

motion to decertify the class for failure to satisfy Rule 23. First, they argue that the

district court’s A+B remedy harms some class members, and that the presence of

these individuals in the class violates both Rule 23(b)(2)

– on the theory that a (b)(2)

19class should be decertified if “a ‘single injunction or declaratory judgment’ cannot

provide a benefit ‘to each member of the class, ’” Appellees’ Br. at 22 (quoting Wal

‐

Mart

, 131 S. Ct. at 2557)

– and Rule 23(a)(4), because class representatives who

benefit from the A+B remedy have interests adverse to those harmed by it. They

next contend that the relief granted by the court violates Rule 23(b)(2) for the

additional reasons that “Rule 23(b)(2) does not permit monetary relief that is

incidental to reformation, ” and, in any event, “there is nothing ‘incidental’ about the

monetary relief ordered by the district court.” Appellees’ Br. at 23, 25 (emphasis

added)

. 7 We conclude that the district court did not abuse its discretion in denying

defendants’ motion to decertify.

i) Defendants Have Not Shown Harm to Class Members

According to the defendants, the district court’s A+B remedy will make some

class members worse off because they will receive less money from that remedy than

from Part B alone. The district court did not make factual findings on this point,

likely due to the fact that defendants raised the argument only on remand after

Supreme Court review, and only in a post

‐ hearing brief to which plaintiffs did not

7 Defendants also argue that establishing mistake, an element of plaintiffs’

reformation claim, requires individualized proof of mistake and cannot be shown on a

class

‐ wide basis, rendering decertification appropriate pursuant to Rule 23(a)(2). We take

up this argument infra

.

20have an opportunity to respond. See Defendants’ Post

‐ Hearing Brief in Support of

Their Motion To Decertify the Class and in Opposition to Plaintiffs’ Requested

Relief, Amara v. CIGNA Corp.

, No. 3:01

‐ cv

‐ 02361

‐ JBA (D. Conn. Apr. 16, 2012), ECF

No. 362. Nonetheless, Rule 23(c)(1)(C) requires courts to “reassess

. . . class rulings

as the case develops,” Boucher v. Syracuse

, 164 F.3d 113, 118 (2d Cir. 1999), and to

ensure continued compliance with Rule 23 ʹ s requirements. See General Tel. Co. of

Southwest v. Falcon

, 457 U.S. 147, 160 (1982) (deciding that “actual

. . . conformance

with Rule 23(a) remains

. . . indispensable”); Phillips Petroleum Co. v. Shutts

, 472 U.S.

797, 812 (1985) (holding that “the Due Process Clause of course requires that the

named plaintiff at all times adequately represent the interests of the absent class

members”). This obligation is particularly solemn in the Rule 23(b)(2) context

because absent class members need not receive notice or an opportunity to opt out.

See Wal

‐ Mart

, 131 S. Ct. at 2559.

Our review of the record does not reveal support for defendants’ argument

that the A+B remedy will harm class members. Defendants rely on the report and

testimony of their actuarial expert, Lawrence Sher, who concluded that some

plaintiffs would receive less money under the A+B remedy than under the Part B

plan alone. This conclusion is not based on a general sampling of the class members,

21however, but only on an examination of “class members who terminated from

CIGNA

. . . and whose Part B benefits either exceeded or were within 10% of their

corresponding Part A and A+B benefits.” E

‐ 838

‐ 39. Thus, and critically, every

person Sher considered had already left CIGNA. But under the terms of the district

court’s remedial order, any employee who has left the company is “entitled to

receive the difference in value between the full

‐ value of the Part A annuity” and the

lump sum he or she has already received under Part B. Amara IV

, 925 F. Supp. 2d

at 265 (emphasis added). In other words, “payback [of received benefits] is not

required,” and class members who no longer work for CIGNA receive only

“additional” benefits to which they are entitled under the A+B remedy. Amara II

,

559 F. Supp. 2d. at 217; see Amara IV

, 925 F. Supp. 2d at 265 (adopting the remedy

from Amara II ). As a result, even assuming Sher succeeded in his task of identifying

individuals who received more under Part B than they would be entitled under A+B,

the structure of the remedy prevents any class member he identified from being

worse off.

Furthermore, the record is devoid of evidence that current CIGNA employees

will be harmed by the A+B remedy. The A+B remedy is no surprise: the district

court awarded identical relief in 2008, but defendants did not raise the problem of

22harmed class members on appeal or before the Supreme Court. Even now, despite

having control over all the relevant employment information, defendants have not

identified a single current employee who will be harmed by A+B. See Johnson

, 702

F.3d at 372 (refusing to rule that a remedy harmed class members when defendant

“either didn’t look for such a class member, which would be inexcusable, or it

looked but didn’t find one, which would probably mean that there isn’t any such

class member”). Sher’s report and testimony are of little value on this issue. As

described above, Sher only considered employees who have already received

benefits from the company. And of the 27 individuals that he pulled from his

sample for closer examination, all but one retired before 2002. The one who did

retire later

– in 2008

– performed better under the A+B remedy than under Part B

alone. E

‐ 887. The plaintiffs’ actuarial expert, Claude Poulin, used Sher’s data to

discuss how one could go about identifying other “individuals for whom A+B or a

return to Part A might increase the individual’s total benefit by less than 10% .” E

‐

963

‐ 64 (emphasis added). But neither actuary extrapolates Sher’s report to provide

an explanation for how any current employees could be made worse off by the

reformed A+B plan. We therefore find no factual support for defendants’ argument

23that the district court’s remedy will harm some class members. 8

Given this dearth of proof, the district court’s decision to deny the motion for

decertification does not run afoul of Rules 23(a)(4) or (b)(2). See Charron v. Weiner

,

731 F.3d 241 (2d Cir. 2013) (finding no violation of Rule 23(a)(4) absent evidence of

a “fundamental conflict between class members necessitating separate

representation”). Nor does Rule 23(b)(2) require decertification simply because

some class members may receive the same retirement benefits under A+B as under

Part B alone. For one, the district court’s remedy still provides these class members

some benefit in the form of new notice. See Amara IV

, 925 F. Supp. 2d at 265. But

more importantly, “[i]t is often the case in class litigation that by the time the

remedial phase is reached, some of the original plaintiffs will not be entitled to

recover.” Abbott v. Lockheed Martin Corp.

, 725 F.3d 803, 808 (7th Cir. 2013); see also

8 Defendants also argue that A+B frustrates class members’ ability, pursuant to Part

B, to take their benefits under the plan (including the lump sum given an undisclosed

“haircut” by the defendants and supposedly representing the full value of their Part A

accrued benefits) as a lump sum or before they turn 65. But defendants have offered no

reason, legal or practical, why any class member seeking a lump sum payment of the whole

A+B benefit could not simply convert the Part A portion of the benefit into a lump sum

through an ordinary commercial transaction on the open market. Perhaps because there

is no bar to such a transaction (or perhaps because no class member values the lump sum

and survivorship options enough to give up the greater overall benefit of A+B), not a single

member of the certified class has attempted to intervene in order to object either to the class

certification or to the relief ordered by the court, on the ground that the court’s relief was

less advantageous to that employee than Part B.

24Walters v. Reno

, 145 F.3d 1032

, 1047 (9th Cir. 1998). Wal

‐ Mart did not make all such

class actions impermissible. Instead, the decision simply emphasized that in a class

action certified under Rule 23(b)(2), “each individual class member” is not “entitled

to a different injunction.” 131 S. Ct. at 2557 (emphasis in original). The district

court’s A+B remedy complies with that requirement.

ii) The Class Remedy Was Proper Under Rule 23(b)(2)

We similarly reject defendants’ claim that, even assuming a benefit to all class

members, the district court’s reformation remedy and award of monetary damages

are simply not permitted under Rule 23(b)(2). This provision authorizes class

actions where “the party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). Relying principally on the Supreme Court’s statement in Amara III that “the

relief entered [by the district court in Amara II ], insofar as it does not consist of

injunctive relief, closely resembles three other traditional equitable remedies,” Amara

III

, 131 S. Ct. at 1879, defendants contend that reformation (one of these three

equitable remedies) does not constitute injunctive relief and so cannot support the

provision of monetary relief in the form of the A+B remedy. Rule 23(b)(2),

25defendants argue, “does not permit monetary relief that is incidental to reformation”

because reformation is a traditional equitable remedy and “[t]he Rule does not speak

of ‘equitable’ remedies generally but of injunctions and declaratory judgments.”

Appellees’ Br. at 23 (citing Wal

‐ Mart

, 131 S. Ct. at 2561). For the following reasons,

we disagree.

At the start, defendants read their single sentence from Amara III shorn of its

context. The Supreme Court did not declare in Amara III that reformation may not

be granted to a Rule 23(b)(2) class because reformation is not injunctive relief.

Instead, the Court was simply differentiating between the forms of relief that the

district court had ordered in Amara II

, which the Supreme Court described as

involving two steps: first, an order that “the terms of the plan [be] reformed,” which

the Court ultimately concluded was beyond the scope of § 502(a)(1)(B), and second,

an order that the plan administrator “enforce the plan as reformed,” which it

deemed “consistent with § 502(a)(1)(B).” Amara III

, 131 S. Ct. at 1876. The passage

that defendants quote suggests nothing more than that, to the extent the district

court’s reformation remedy went beyond the specific form of relief authorized by

§ 502(a)(1)(B), it might still be permissible pursuant to ERISA’s § 502(a)(3). The

Supreme Court was not commenting upon Rule 23(b)(2) and did not make a

26definitive statement on the availability of reformation under that provision.

By contrast, courts confronting the specific question whether reformation is

available to a Rule 23(b)(2) class in the context of ERISA claims have answered that

question in the affirmative, and with good reason. As the Seventh Circuit explained

in Johnson

, 702 F.3d 364, reformation in this context is essentially “a declaration of

the rights that the plan confers and an injunction ordering [the defendant] to

conform the text of the plan to the declaration.” Id. at 371; see also Mezyk v. U.S. Bank

Pension Plan

, Nos. 3:09

‐ cv

‐ 384(JPG)(DGW), 3:10

‐ cv

‐ 696(JPG)(DGW), 2011 WL

6729570 (S.D. Ill. Dec. 21, 2011); cf. Gooch v. Life Investors Ins. Co. of America

, 672 F.3d

402, 427 (6th Cir. 2012) (“Of course, Rule 23(b)(2) certification remains available in

other circumstances, including when the plaintiffs seek a declaration about the

meaning of a contract.”). That reasoning is sound. Historically, reformation is “a

way station, a precursor to some other and final remedy.” 1 Dan B. Dobbs, Law of

Remedies § 4.3(7) at 618 (2d ed. 1993); see 4 John Norton Pomeroy, Equity Jurisprudence

and Equitable Remedies § 1375 (1905). Where that “way station” is on the road to

injunctive relief, rather than a different equitable remedy like the back pay at issue

in Wal

‐ Mart

, reformation is consistent with Rule 23 ʹ s requirement that the “ final

injunctive relief” be “appropriate respecting the class as a whole.” Fed. R. Civ. P.

2723(b)(2) (emphasis added); Wal

‐ Mart

, 131 S. Ct. at 2557 (“The key to the (b)(2) class

is the indivisible nature of the injunctive or declaratory remedy warranted

. . . .”)

(internal quotation marks omitted). Here, the Supreme Court has already confirmed

that an order requiring defendants to enforce a plan providing A+B benefits is

injunctive. See Amara III

, 131 S. Ct. at 1876. That the district court used reformation

as a route to that result does not render the final relief inconsistent with the

mandates of Rule 23(b)(2).

The defendants also contend that the monetary relief flowing from such

reformation is not incidental to the A+B remedy, rendering a Rule 23(b)(2) class

improper. But, this overlooks the fact that, as described above, reformation can be

properly understood as a declaration of the plaintiffs’ rights under the plan and an

injunction ordering the plan to be reformed to reflect that declaration. When the

plan is reformed according to the district court’s order, monetary benefits flow as

a necessary consequence of that injunction. Accordingly, monetary relief is

incidental to the A+B remedy.

Further, as defendants acknowledge, the reason that we require monetary

relief to arise only incidentally from a defendant’s liability to the class as a whole is

to “protect[] the legitimate interests of potential class members who might wish to

28pursue their monetary claims individually.” Allison

, 151 F.3d at 415; see Appellees’

Br. at 23. The district court decided that absent class members have no need for such

protection in this case because the monetary relief does not depend on “complex

individualized determinations” for which litigation specific to each individual could

make a difference. Amara IV

, 925 F. Supp. 2d at 264; see Allison

, 151 F.3d at 415

(explaining that Rule 23(b)(2) is inappropriate where such determinations are

required). We detect no abuse of discretion in that analysis. See In re U.S.

Foodservice Inc. Pricing Litig.

, 729 F.3d at 116. The evidentiary hearing on the remedy

issue confirmed that the damages due each individual class member after the court

enjoins CIGNA to reform the terms of its pension plan are easily “capable of

computation by means of objective standards.” Allison

, 151 F.3d at 415. Individual

litigation would make no difference because “each individual class member would”

not “be entitled to a different injunction or declaratory judgment.” See Wal

‐ Mart

, 131

S. Ct. at 2557 (emphasis in original). 9 Instead, this proceeding has “generate[d]

common answers apt to drive the resolution of the litigation.” See id. at 2552

(internal quotation marks omitted; emphasis omitted).

9 Defendants do not oppose this point. Instead, they argue that the purpose of this

class action has been to recover money. However, Wal

‐ Mart did not direct courts to divine

the plaintiffs’ motivation for bringing a lawsuit. And in this case, unlike Hecht v. United

Collection Bureau, Inc.

, 691 F.3d 218 (2d Cir. 2012), on which the defendants rely, the class

seeks prospective injunctive relief and involves members that would benefit from such a

decree. See id. at 223

‐ 24.

29B. Reformation

Defendants’ next set of arguments on appeal

– that the district court erred in

ordering reformation of the CIGNA Pension Plan to reflect the A+B remedy

– relies

on two principal contentions: first, that the court erroneously applied contract,

rather than trust, principles in reforming the plan; and, second, that even assuming

contract principles applied, it erred in concluding that the elements of reformation

had been established. We are not persuaded.

i) Contract Principles Were Properly Applied

The defendants argue, first, that the district court erred in reforming the

CIGNA Pension Plan in accordance with contract, rather than trust law principles.

They propose that the court should have applied trust law and considered the

settlor’s intent when reforming the plan. Since CIGNA, as settlor, was not shown to

have “intended to provide A+B, or anything other than the benefits described in the

actual Part B plan document,” there can be no reformation. Appellees’ Br. at 34. For

the following reasons, we disagree.

“Retirement plan documents are similar to both trusts and contracts.” Skinner

v. Northrop Grumman Ret. Plan B

, 673 F.3d 1162, 1166 (9th Cir. 2012). In Amara III

, the

Supreme Court did note that ERISA typically treats a plan fiduciary as a trustee and

30a retirement plan as a trust. Amara III

, 131 S. Ct. at 1879. But in discussing the

availability of a reformation remedy under § 502(a)(3), the Court exclusively referred

to principles of contract law, not trust law. Id. at 1879, 1881. That focus is consistent

with the Restatement (Third) of Trusts, which explains that trust reformation is

dictated by principles of contract law “[w]here consideration is involved in the

creation of a trust.” Id. § 62 cmt. a (2003); see also id. § 12 cmt. a (same). And under

contract law, when a party induces assent to a writing by fraud or intentional

misrepresentation, a court may reform that writing to reflect the terms as

represented to the innocent party. See Rest. (Second) of Contracts § 166; see also Nat’l

Am. Corp. v. Fed. Rep. of Nigeria

, 597 F.2d 314, 322

‐ 23 (2d Cir. 1979) (“[T]he defrauded

party

. . . should be given the benefit of the expected settlement.”); De Pace v.

Matsushita Elec. Corp. of Am.

, 257 F. Supp. 2d 543, 566

‐ 67 (E.D.N.Y. 2003).

We agree with the district court that, because the CIGNA Pension Plan is part

of a compensation package for employees that stems from their employment

agreements, plaintiffs have given consideration for their participation in the

retirement plan so that it is appropriate, to the extent this plan constitutes a trust, to

analyze reformation under contract principles. 10 The district court therefore

10 Defendants confusingly argue that the payment of consideration does not alter the

outcome of the reformation analysis by invoking a separate provision of the Restatement.

31properly reformed the CIGNA plan to reflect the representations that the defendants

made to the plaintiffs. Indeed, as the district court observed, defendants have not

identified a single pre

‐ merger case showing that a court of equity would have

applied the standards of trust reformation to “an analogous trust

‐ contract

hybrid,

. . . rather than contract reformation.” Amara IV

, 925 F. Supp. 2d at 251. To

hold otherwise

– and rule that reformation of an ERISA plan is governed solely by

the settlor’s intent even in cases involving intentional misrepresentations

– would

produce the unreasonable result that a pension plan could only be reformed when

the employer is mistaken about its attributes, but not when employees are

deceived. 11

They incorrectly imply that the reason that the payment of consideration alters the

requirements for proving reformation is that under common law principles, consideration

causes the party providing it to be deemed the trust’s settlor. See Appellees’ Br. at 35; Rest.

(Third) of Trusts § 10 cmt. e. They note that this common law rule “has been abrogated by

ERISA’s specific statutory provisions defining the ‘plan sponsor.’” Appellees’ Reply Br.

at 17. But there is no support for the position that consideration alters the reformation

analysis under the common law only because of the doctrine that consideration transforms

the identity of the settlor. Moreover, while ERISA does define the plan sponsor, it says

nothing regarding the specific requirements necessary to prove reformation under

§ 502(a)(3) and therefore does not abrogate the common law (as properly understood) on

that subject.

11 None of the parties in this case has ever contended that CIGNA was mistaken

about the terms of the new plan. See, e.g.

, Amara I

, 534 F. Supp. 2d at 305 (“CIGNA was

aware that its Plan could result in wear away

. . . .”); id. at 343 (“CIGNA was well aware of

the true effects on the rate benefit accrual likely to result from the shift to Part B

. . . .”). But

this is no bar to the A+B remedy. Where consideration is involved in the creation of a trust

32ii) Plaintiffs Established the Prerequisites for Reformation

Defendants next argue that the district court erred in concluding that the

elements of reformation have been established

– in particular, that plaintiffs satisfied

their burden of establishing mistake. In applying the standards of contract

reformation in the context of ERISA, this Court looks to federal common law rather

than any particular state’s contract law. See Devlin v. Empire Blue Cross & Blue Shield

,

274 F.3d 76, 84 n.5 (2d Cir. 2001) (“[I]n ERISA cases, state law does not control.

Instead, general common law principles apply.”). A contract may be reformed due

to the mutual mistake of both parties, or where one party is mistaken and the other

commits fraud or engages in inequitable conduct. 12 Simmons Creek Coal Co. v. Doran

,

and the settlor induces assent to the trust’s terms by fraud or misrepresentation, the

reasonable perceptions of the beneficiaries determine the nature of the reformation remedy.

12 Citing the Supreme Court’s opinion in Amara III

, defendants argue that

reformation under § 502(a)(3) also requires a showing of “actual harm.” Appellees’ Br. at

43. But we agree with the district court that this misreads the Supreme Court’s opinion.

Quite to the contrary, in answering the question that it certified

– whether “likely harm”

is the appropriate standard for determining whether plaintiffs are entitled to relief

– the

Court makes clear that “[t]he relevant substantive provisions of ERISA do not set forth any

particular standard for determining harm.” Amara III

, 131 S. Ct. at 1881 (emphasis added).

Instead:

[A]ny requirement of harm must come from the law of equity.

Looking to the law of equity, there is no general principle that ‘detrimental reliance’

must be proved before a remedy is decreed. To the extent any such requirement

arises, it is because the specific remedy being contemplated imposes such a

33142 U.S. 417, 435 (1892); see also Amara III

, 131 S. Ct. at 1879 (“The power to reform

contracts

. . . is a traditional power of an equity court

. . . and was used to prevent

fraud.”); 27 Williston on Contracts § 69:55, at 160 (4th ed. 2010) (reformation is

available in a situation where “owing to the fraud of one of the parties and mistake

of the other[, the writing] fails to express the agreement at which they arrived”).

Since the parties agree that CIGNA was not mistaken about the terms of the plan,

plaintiffs, to establish that reformation was appropriate, were required to show that

defendants committed fraud or similar inequitable conduct and that such fraud

reasonably caused plaintiffs to be mistaken about the terms of the pension plan. See

requirement.

Id. The Supreme Court goes on to discuss the requirement of actual harm in the context

of surcharge, but never does it indicate that reformation requires a showing of actual harm.

Id. at 1881

‐ 82. Defendants cite a decision from the Southern District of New York, Osberg

v. Foot Locker, Inc.

, 907 F. Supp. 2d 527 (S.D.N.Y. 2012), in support of their interpretation

that Amara III requires actual harm to be proven for reformation, but that portion of the

district court’s decision has since been vacated by a summary order of this Court, which

declared that “the district court erroneously applied an ‘actual harm’ requirement.” Osberg

v. Foot Locker, Inc.

, 555 Fed. App’x 77, 80 (2d Cir. 2014) (summary order). Moreover,

reformation does require a showing of mutual mistake or mistake coupled with fraud, so

that harm (actual or otherwise) flows from the mistaken party’s failure to receive its

expected agreement. Traditional equitable principles do not require a separate showing

of harm for reformation. See, e.g.

, Baltzer v. Raleigh & Augusta R. Co.

, 115 U.S. 634, 645 (1885)

(“[I]t is well settled that equity would reform the contract, and enforce it, as reformed, if

the mistake or fraud were shown.”); 1 Dobbs, Law of Remedies § 4.3(7) at 617 (2d ed. 1993)

(“When parties come to an agreement, but by fraud or mistake write it down in some

fashion that does not truly reflect their contract, equity will reform the writing to make it

reflect the parties’ true intention.”)

.

34Rest. (Second) of Contracts § 166. The facts required to satisfy the elements of

reformation must be proven by clear and convincing evidence. See 2 Dobbs, Law of

Remedies § 11.6(1) at 743; Healy v. Rich Products Corp.

, 981 F.2d 68, 73 (2d Cir. 1992).

Based on our review of the record as a whole, we conclude that the district

court did not err

– much less clearly err

– in determining that the plaintiffs

established “a basis for [the court] to reform the CIGNA Pension Plan due to

CIGNA’s fraud paired with Plaintiffs’ unilateral mistake.” Amara IV

, 925 F. Supp.

2d at 252. We address the elements at issue in turn.

(a) Fraud

While no “single statement

. . . accurately define[s] the equitable conception

of fraud,” it generally consists of “obtaining an undue advantage by means of some

act or omission which is unconscientious or a violation of good faith.” 3 John N.

Pomeroy, A Treatise on Equity Jurisprudence § 873 at 420

‐ 21 (5th ed. 1941). Here,

defendants misrepresented the terms of CIGNA’s new pension plan and actively

prevented employees from learning the truth about the plan. As Judge Kravitz put

it in Amara I

, “CIGNA employees suffered from the lack of accurate information in

CIGNA’s disclosures, and CIGNA was aware of this fact.” Amara I

, 534 F. Supp. 2d

at 342; see also id. at 349 (deciding that CIGNA made “materially misleading

35statements” about wear away)

. CIGNA’s misbehavior was designed to “ease the

transition to a less favorable retirement program.” Id. at 343. As a result, the district

court did not err in finding that defendants obtained undue advantage through

these actions by avoiding adverse employee reactions. See Amara IV

, 925 F. Supp.

2d at 253 (ruling that “CIGNA engaged in fraud or similarly inequitable conduct”).

As discussed above, defendants now contend, based on actuarial calculations,

that some employees will not benefit or will even be made worse off from the A+B

remedy. Because of this, CIGNA argues that its disclosures were accurate with

respect to these employees and, accordingly, that there can be no finding of fraud

(or mistake) on a class

‐ wide basis. But this logic is flawed. Even assuming

defendants have shown that some employees who have already terminated their

relationship with the company received a benefit under Part B as large as under the

A+B remedy, CIGNA’s statements to those employees were still deceptive. Among

other things, CIGNA concealed the possibility of wear away from its employees and

misled them about the conversion of their accrued benefits into the Part B plan.

Amara II

, 559 F. Supp. 2d at 211; Amara IV

, 925 F. Supp. 2d at 259. Regardless of how

benefits actually accrued under plaintiffs’ plans, at the time of the conversion to Part

B their accrued benefits were at risk of wear away due to fluctuating future interest

36rates. 13 By hiding the truth about the plan, CIGNA prevented all of its employees

from becoming disaffected, spreading knowledge regarding the plan to others who

stood to lose more from the benefit conversion, and from planning for their

retirement. Therefore the district court did not err in determining that CIGNA

committed fraud or inequitable conduct against all of the class members.

Defendants also argue that any fraud was committed by CIGNA acting in its

capacity as plan administrator, which is not a basis for reformation because ERISA

does not “giv[e] the administrator the power to set plan terms indirectly by

including them in summary plan descriptions.” Amara III

, 131 S. Ct. at 1877

‐ 78

(noting that ERISA “carefully distinguishes” the roles of sponsor and administrator);

see also id. at 1884 (Scalia, J., concurring in the judgment) (same). We agree with the

district court that to deny reformation solely due to the general distinction between

sponsor and administrator in ERISA would be inequitable in the circumstances here,

where CIGNA performed both roles and used that dual position intentionally to

mislead employees about plan terms. 14 See Amara IV

, 925 F. Supp. 2d at 254. It is

13 By contrast, benefits under the A+B remedy are not subject to wear away

because the same benefits already earned by the employee (that employee’s benefits

under Part A) are guaranteed.

14 Contrary to defendants’ claim, this conclusion does not entitle a plan’s participants

to reformation any time a plan communication contains an error. First, reformation under

37noteworthy, moreover, that the Supreme Court was aware that the misleading

summary descriptions of the plan were proffered to employees by CIGNA in its role

as plan administrator. See Amara III

, 131 S. Ct. at 1872

‐ 73, 1876. Yet, it still

remanded the case for the district court to determine whether the plan (provided to

employees by CIGNA as plan sponsor) could be reformed in order to remedy these

falsehoods. Id. at 1882.

Further, while ERISA generally does draw a distinction between the roles of

plan administrator and plan sponsor, § 502(a)(3) can be used to redress harms

committed by both types of entities. See Varity Corp.

, 516 U.S. at 492

‐ 505 (affirming

§ 502(a)(3) relief requiring reinstatement of employees into a plan to redress

inequitable conduct by a plan administrator, when the administrator was also the

employer); cf. Retirement Plan of UNITE HERE Nat. Retirement Fund v. Kombassan

Holding A.S.

, 629 F.3d 282, 284

‐ 85 (2d Cir. 2010) (upholding a finding of liability

§ 502(a)(3) is likely unavailable when ERISA offers another adequate remedy. See Varity

Corp. v. Howe

, 516 U.S. 489, 515 (1996) (“[W]e should expect that where Congress elsewhere

provided adequate relief for a beneficiary’s injury, there will likely be no need for further

equitable relief, in which case such relief normally would not be ‘appropriate.’”). Second,

this is not a case of mere mistake or error in describing a plan. We need not and do not

decide whether a court may properly disregard the distinction between sponsors and

administrators when the entities that perform these roles are distinct or when plaintiffs do

not make a showing of fraud or inequitable conduct on the part of both.

38under §§ 502(a)(3) and 4301(a) for an entity deemed to be the plan sponsor under the

‘alter ego’ theory). 15 That § 502(a)(3) provides for an equitable remedy, moreover,

further supports preventing CIGNA from gaining advantage by virtue of its dual

roles, since the traditional purpose of equity is to redress wrongful conduct causing

harm that would otherwise be uncompensated by a rigid interpretation of the law.

See 3 John N. Pomeroy, A Treatise on Equity Jurisprudence § 848 (5th ed. 1941) (noting

that “equity will, in general, relieve the one who has

. . . been injured” through

inequitable conduct). This conclusion is supported by the reasoning of the Third

Circuit, which upheld a remedy issued under § 502(a)(3) that affected an entity’s

actions as plan sponsor even though the remedy was issued in response to actions

the entity carried out in its capacity as plan administrator. See In re Unisys Corp.

Retiree Medical Benefits ERISA Litig.

, 579 F.3d 220, 236

‐ 37 (3d Cir. 2009). There, the

court declared that “the specific equitable relief provision of ERISA

. . . trumps the

15 Indeed, Kombassan illustrates that the entity on which liability is imposed through

§ 502(a)(3) need not in all circumstances be the exact same entity committing the acts

leading to liability. See 629 F.3d at 284

‐ 85. There, this Court held Kombassan Holdings A.S.

liable for the actions of a separate entity, Hit or Miss (“HOM”), because even though it

“assigned its HOM shares to four Turkish corporations

. . . , it continued to exercise

complete control over HOM.” Id. at 285. Here, the district court found that CIGNA

retained control of the content of the information released by the plan administrator and

should therefore “be treated as a de facto administrator.” Amara I

, 534 F. Supp. 2d at 330

‐ 31;

Amara IV

, 925 F. Supp. 2d at 254.

39application of the general principle that ERISA does not regulate settlor activity.”

Id. at 237.

Finally (and contrary to defendants’ claim), reforming the CIGNA retirement

plan partly in light of the misleading representations made in the SPDs and other

plan communications is consistent with the applicable principles of reformation. As

described above, under contract law, when a party induces assent to a writing by

fraud or intentional misrepresentation, a court may reform that writing to reflect the

terms as represented to the innocent party. See Simmons Creek Coal

, 142 U.S. at 435 ;

Rest. (Second) of Contracts § 166. In Amara III

, the Supreme Court stated that the

documents CIGNA provided summarizing the new plan “do not themselves

constitute the terms of the plan for purposes of § 502(a)(1)(B) .” Id. at 1878 (first

emphasis in original). These documents, however, do “provide communication

with beneficiaries about the plan.” Id. (emphasis in original). The district court did

not read CIGNA’s communications about the plan to be terms of the plan itself.

Instead, representations CIGNA made in its capacity as plan administrator

constituted evidence of CIGNA’s fraud and evidence regarding what CIGNA’s

employees understood the transition from Part A to Part B to entail. See Young v.

Verizon’s Bell Atl. Cash Balance Plan

, 615 F.3d 808, 818

‐ 21 (7th Cir. 2010) (holding that

40reformation of a plan’s terms was appropriate based in part on summaries of the

plan given to employees by the plan administrator); see also Cent. Laborers’ Pension

Fund v. Heinz

, 541 U.S. 739, 743 (2004) (“There is no doubt about the centrality of

ERISA’s object of protecting employees’ justified expectation of receiving the

benefits their employers promise them.”). We therefore agree with the district court

that, in the circumstances of this case, reforming the CIGNA plan based in part on

CIGNA’s misleading representations does not impermissibly grant plan

administrators “the power to set plan terms.” Amara III

, 131 S. Ct. at 1877.

(b) Mistake

Defendants next contend that the district court erred in concluding that

mistake had been shown as to the members of the class. Proving mistake for

purposes of granting reformation requires a showing that a party entered a contract

“in ignorance or mistake of facts material to its operation.” Ivinson v. Hutton

, 98 U.S.

79, 82 (1878). Defendants argue that determining mistake is “an individualized

inquiry that depends on each class member’s state of mind and cannot be decided

on a classwide basis.” Appellees’ Br. at 30. But plaintiffs can prove ignorance of a

contract’s terms through generalized circumstantial evidence in appropriate cases.

Such proof may be more than sufficient, moreover, in certain cases where, as here,

41defendants have made uniform misrepresentations about an agreement’s contents

and have undertaken efforts to conceal its effect. Moore v. PaineWebber, Inc.

, 306 F.3d

1247, 1253 (2d Cir. 2002); see In re U.S. Foodservice Inc. Pricing Litig.

, 729 F.3d at 118.

By way of analogy, in In re U.S. Foodservice Inc. Pricing Litigation we held that

plaintiffs could establish reliance on a class

‐ wide basis by generalized circumstantial

evidence where the defendant had systematically inflated invoices provided to class

members who thereafter paid based on the invoices

– demonstrating,

circumstantially, their reliance on the implicit representation that the stated amounts

were honestly owed. Id. at 119

‐ 20; see also Klay v. Humana

, 382 F.3d 1241, 1258

‐ 59

(11th Cir. 2004) (ruling that, “based on the nature of the misrepresentations at issue,”

generalized circumstantial evidence “could lead a reasonable factfinder to conclude

beyond a preponderance of the evidence that each individual plaintiff relied on the

defendants’ misrepresentations”). 16 A similar analysis holds true for the reformation

remedy at issue here.

The district court did not clearly err in determining that defendants’

misrepresentations about the contents of the retirement plan were uniform, and

16 We note that the Supreme Court later held that reliance need not be proven at all

for the type of claim at issue in Klay

, but this holding did not implicate Klay ’s logic

regarding generalized proof. See Bridge v. Phoenix Bond & Indem. Co.

, 553 U.S. 639, 661

(2008).

42helped to establish that the plaintiffs did not know the truth about their retirement

benefits. See In re U.S. Foodservice Inc. Pricing Litig.

, 729 F.3d at 118 (applying an

abuse of discretion standard). As to uniformity, CIGNA’s misrepresentations came

in the form of two SPDs, a summary of material modifications, and a 204(h) notice.

Amara I

, 534 F. Supp. 2d at 334. These documents were sent to the entire class and

were “essential in informing employees of their rights under employers’ pension

plans.” Amara I

, 534 F. Supp. 2d at 345.

The district court likewise committed no clear error in finding, based on

record evidence, that “employees read the disclosures looking for harmful changes,”

and that “others expected that they would hear through the office grapevine if the

notices disclosed detrimental changes to the benefits.” Amara IV

, 925 F. Supp. 2d at

259. For instance, according to an internal CIGNA survey, 92% of those who

responded “thoroughly read the retirement communications [they] received” about

the switch to Part B. E

‐ 416

‐ 17; see Amara III

, 131 S. Ct. at 1881 (“[Employees who did

not read CIGNA’s communications about the transition between plans] may have

thought fellow employees, or informal workplace discussion, would have let them

know if, say, plan changes would likely prove harmful.”). Moreover, this

widespread focus on the plan materials was no surprise to CIGNA. The company

43was “aware of the significant reduction in the rate of future benefit accrual,” Amara

I

, 534 F. Supp. 2d at 344, the fact that a “sizeable group of employees” would suffer

from wear away, id. at 348, and of complaints from employees at other companies

that had switched to defined contribution plans, id. at 343. Facing these obstacles to

a smooth transition to Part B, CIGNA “sought to negate the risk of backlash by

producing affirmatively and materially misleading notices.” Id. at 344; see id. at 343

(quoting internal documents that “highlight CIGNA’s desire to ‘[q]uickly dispel

perceptions of take aways’ and ‘focus on the potential additional benefits’” (internal

quotation marks omitted)).

CIGNA’s misrepresentations achieved the desired result: defendants have not

pointed to evidence that any employee understood the ways in which Part A

benefits were reduced as a result of the plan conversion or provided testimony from

even a single employee stating that he or she understood that the new plan could

cause wear away. See Oral Argument, Amara v. CIGNA Corp.

, No. 3:01

‐ cv

‐ 02361

‐ JBA

(D. Conn. Nov. 6, 2013), ECF No. 406, at 94

‐ 95 (“I expected you to have some

witnesses who testified that they knew full well [about the ways in which the new

plan could disadvantage them], but we actually had a trial and I didn’t hear that

from anybody.”). We can discern no error, moreover, in the district court’s inference

44that informed employees, aware that their pension benefits were less valuable,

would have protested the change, requested a higher salary, filed a lawsuit, or left

for another employer. Amara I

, 534 F. Supp. 2d at 354.

Defendants argue that somehow plaintiffs could not have been mistaken as

to their benefits, since they knew the exact balances resulting from the conversion

of their Part A benefits into Part B. But the plan terms were confusing and CIGNA

intentionally withheld details that would provide employees with a direct

comparison of their benefits under Part A with their anticipated benefits under Part

B. See Amara I

, 534 F. Supp. 2d at 341

‐ 44. In fact, the district court found that

CIGNA specifically instructed its benefits department and consulting company “ not

to provide benefits comparisons under the old and new plans,” Amara IV

, 925 F.

Supp. 2d at 253 (citing Amara I

, 534 F. Supp. 2d at 343) (emphasis in original), even

though employees explicitly requested such a comparison. By doing so

– and by

affirmatively misrepresenting the effects of the conversion

– CIGNA successfully

lulled employees, thus avoiding any ”notable controversy.” Amara I

, 534 F. Supp.

2d at 343. Indeed, CIGNA reported in an internal memo that “[u]like some

employers instituting these plans, we have avoided any significant negative reaction

from employees.” Id. (finding that “in September 1997, several articles began to

45appear on cash balance conversions at other companies, and in some cases,

complaints by employees resulted in partial or complete rollbacks of the proposed

changes”). In all, the evidence before the district court was sufficient to support its

conclusion that defendants’ misrepresentations led to a class

‐ wide mistake about the

terms of the plan.

D. The District Court’s Discretion To Order A+B Benefits

Having concluded that the district court did not abuse its discretion in finding

the elements of reformation were met, we now turn to the question whether the A+B

remedy ordered by the district court was, as plaintiffs contend, an abuse of

discretion.

Plaintiffs argue that the district court should have granted plan beneficiaries

the benefits that they were due under the original Part A plan rather than ordering

the A+B remedy. They state that the district court did not take into account the

Supreme Court’s GVR Order when the district court, on remand, declined to grant

any “relief broader than that which was previously ordered.” Appellants’ Br. at 24

(citing Amara IV

, 925 F. Supp. 2d at 265). Plaintiffs argue that the district court’s

adoption of Judge Kravitz’s reasoning regarding the appropriate remedy was error

because it did not “offer a reasoned consideration of the equitable factors in the

46intervening decision that favor relief” and because its finding was “necessarily

rejected by an appellate court’s reasoning.” Appellants’ Br. at 25 (citing United States

v. Minicone

, 994 F.2d 86, 89 (2d Cir. 1993)). We are not persuaded that the district

court failed to explain its reasoning to the extent required by law or that it exceeded

its discretion.

Nothing in the Supreme Court’s GVR Order required the district court to

order relief beyond the A+B remedy originally granted by Judge Kravitz. The

Supreme Court may issue a GVR Order where it has reason to believe that the

original order rests upon a “premise that the lower court would reject if given the

opportunity for further consideration.” Lawrence on Behalf of Lawrence v. Chater

, 516

U.S. 163, 167 (1996). But matters remanded in this manner, when they are otherwise

within the court’s discretion, “require only further consideration.” Id. at 168. Here,

the primary reason that the Supreme Court issued the GVR Order was simply that

it had already remanded the case to correct the district court’s erroneous impression

that relief was unavailable under § 502(a)(3). See GVR Order

, 131 S. Ct. at 2900 (“The

Court vacated the judgment below in CIGNA Corp. v. Amara

, 131 S. Ct. 1866 (2011).

Therefore, the petition for writ of certiorari is granted, and the case is remanded

. .

. .”). The district court has now ordered relief under § 502(a)(3). Yet, it is

47permissible for the district court to reason that the logic of Judge Kravitz’s prior

decision nevertheless supports granting the same remedy despite the fact that relief

is now being granted under a new provision.

In the district court’s opinion on remand, Judge Arterton states that “Judge

Kravitz’s prior remedies opinion, although finding its authority in § 502(a)(1)(B)

rather than § 502(a)(3), was the result of careful calibration of the interests at stake.”

Amara IV

, 925 F. Supp. 2d at 265 (citing Amara II

, 559 F. Supp. 2d at 206

‐ 23). She

thereby incorporated Judge Kravitz’s equitable analysis, which in turn incorporated

the facts found in his prior opinion. See Amara II

, 559 F. Supp. 2d at 195. While

Judge Kravitz considered facts and factors in the context of granting a remedy under

§ 502(a)(1)(B), his analysis still contains many conclusions and observations that

provide equal support for applying the A+B remedy granted under § 502(a)(3) rather

than a remedy of returning to Part A. For example, among other things, Judge

Kravitz found the following:

• “The one thing that is absolutely clear from CIGNA’s communications

with its employees is that (with the exception of grandfathered

employees) all CIGNA employees would stop receiving benefits under

Part A as of December 31, 1997.” Amara II

, 559 F. Supp. 2d at 208.

48“[N]o one disputes

. . . that CIGNA employees understood that Part A

was being frozen.” Id. at 207.

• “[T]he terms of Part B themselves are legally valid under ERISA and

CIGNA provided substantial accurate information to its employees

regarding, for example, the method by which they would accumulate

pay and interest credits.” Id. at 209.

• Transferring all employees from Part B back to Part A would be

difficult, complicated, and time consuming, delaying plan

implementation. See id. at 209.

• Plan participants had a “reasonable expectation

. . . that Part B would

protect all Part A benefits, including early retirement benefits

. . . and

that Part B benefits would begin accruing immediately.” Id. at 211

(emphasis in original).

These observations provided ample support for Judge Arterton’s conclusion

that an A+B remedy was more appropriate than a return to Part A. The beneficiaries

of the CIGNA Pension Plan clearly understood that the plan would be changing, but

believed that under the new plan all of their benefits accrued under Part A would

be protected. The A+B remedy reforms the contract according to that

49understanding, whereas a return to Part A would ignore the fact that beneficiaries

clearly understood that going forward they would earn benefits under the new Part

B scheme. Further, the analysis Judge Arterton incorporated into her opinion made

clear that a return to Part A would involve a much greater degree of administrative

difficulty than imposing the new A+B remedy, which could complicate beneficiaries’

efforts to receive their benefits. Because the analysis incorporated by Judge Arterton

justifies the A+B remedy, she did not abuse her remedial discretion in ordering a

remedy that continued to conform to the A+B formula.

Having concluded that the district court did not abuse its discretion in

reforming the plan to grant the A+B remedy, we need not address whether relief

would alternatively have been proper pursuant to different equitable remedies such

as surcharge or estoppel.

CONCLUSION

We have considered the parties’ remaining arguments and have concluded that they

are either waived or without merit. For the reasons discussed above, we AFFIRM

the December 20, 2012 decision of the district court.

50