NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1027n.06 No. 11-1824 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OHN L OFF REDO, et al., Plaintiffs-Appellants,

v. DAI ML ER AG, Def endant- Appellee , STATE STREET BAN K AND T RUST COMPANY, Def endant- Appellee , DI ETER Z ETSCHE, Def endant- Appellee , THOMAS L ASORDA, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MOORE, SUTTON and STRANCH, Circuit J udg es. SUTTON, J ., delivere d the opinion of the court except for Section I I throug h I I .A. STRANCH, J ., joined in all parts except Section I I throug h I I .A and delivere d a separ ate concur ring opinion (p. 17). MOORE, J ., concurre d in the judgme nt and delivere d a separ ate opinion (pp. 18–23), in which STRANCH, J ., joined and which c onstitut es the opinion of the c ourt.No. 11-1824

Loffr edo v. D aimler AG J ohn L offr edo and his co-pla intiffs are former Chry sler executives. When the company went bankrupt in 2009, they lost most, in some case s all, of their benef its under its Supplemental Ex ecutive Retirement Plan. Claiming that the Plan would have survived the bankruptc y had it been proper ly manag ed, they sued Chry sler’s former pare nt company , sever al of Chry sler’s (other) former executives and the trustee responsible for manag ing t h e retire ment funds. The district court dismiss ed the claims, holding that the fede ral Employ ee Retirement I ncome Security Act, 29 U.S.C. § 1001 et seq ., pree mpted plaintiffs’ state-law claims: ag e discrimination, brea ch of fiduciar y duty , promissory es t o ppel and silent fra ud. We aff

irm the dismiss al of all of the claims, save the ag ediscrimination claim.

I

.
At various ti mes befor e 2007, J ohn L offr edo and other Chry sler executives pa rticipated in the company ’s Supplemental Ex ecutive Retirement Plan. To fac ilitate be nefit pay ments, Chry sler established a trust, held by State Street Bank and Trust C o mpany as t rustee, in which it deposited assets intended to cover the Plan benef its. The trust document provided that Chry sler could use trust funds to pay benef

its under the Plan and rela ted expenses, except that “[i] n the event of I nsolvency of [Chry sler], all money

or other pr operty

contributed to the Tr

ust .
. . shall be available to pa y the claims of any g ener al cre ditor” of Chry sler. R. 25-3 at 8, Pag eI D 290. The P l an also authorized Chry sler to buy out an employ ee’ s rig ht to bene fi t s by cre ating an annuity pay ing an equivalent stream of income.

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Loffr edo v. D aimler AG I n 1998, Chry sler discussed a merg er with Daimler. Wh en s o m e C hry sler executives expressed conce rn over the merg er’ s implications for their supplemental benef its, Daimler’ s Chief Financ ial Offic er told them that “it has a lway s been the understanding that as long as [Daimler] is

a majority stakeholder of any aff iliate, [Daimler] internally sees to it that the aff iliate has sufficie nt assets to meet its obliga tions with a third party .” R. 31-2 at 9, Pag eI D 462. Plaintiffs rema ined employ ed with Chry sler. The companies merg ed later that y ear , producing a new company , Daimler Chry sler AG, in whic h Chry sler bec ame a wholly owned subsidiary

.
J ump forwa

rd a few y ear s. By 2005 or 2006, plaintiffs claim, the defe ndants knew Chry sler’s financ ial s i t u ation was preca rious and that the company might need t o file for bankruptc y . Ba sed

on this knowledg e, the defe ndants alleg edly used trust assets to pur chase annuities for some active Chry sler executives, as well as some selec ted retire es (not including the plaintiffs). This

secur it i z at i o n protec ted the selec ted benef iciarie s from any future shortfalls in the trust acc ount, while the rema ining participa nts continued to depend on the trust for their monthly benef its chec ks. The defe ndants alleg edly hid the true state of Chry sler’s financ es from the rema ining trust benef iciarie s, preve nting them f rom ca shing in their ow n benef its for annuities.

I n 2007, Daimler Chry sler AG sold its majority interest in Chr y sler to Cerber us Capital Manag ement, L .P. Chry sler eventua lly beca me insolvent and filed for bankruptc y in 2009

. Consist ent with the t erms of the Plan, the rema ining assets of the Plan beca me part of Chry sler’s bankruptc y estate. Had the Plan been fully funded, plaintiffs alleg e, the fede ral g overnme nt (which

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Loffr edo v. D aimler AG participa ted i n the bankruptcy proce eding s) would have ensure d the P lan s urvived the bankruptc y intact. The Plan’s unse cure d benef iciarie s instead lost most of their benef its. The plainti ffs (on behalf

of a c lass) sued Daimler, C erbe rus and State Street Bank, as well

as Dieter Z etsche and Thomas L aSorda, both of whom serve d as Chry sler executives befor e the sale to Cerber us, in state court. They alleg ed state-law claims of promissory estoppel, brea ch of fiduciar y duty , ag e discrimination, fra ud and statutory conver sion. Be cause the plaintiffs did not contest the dismiss al of their c onversion cla im ag ainst State Street, we w ill not address that claim.

The defe ndants remove d the case to fede ral court. Once there , the plaintiffs ag ree d to dismiss Cerber us. Loffr edo v. Cerberus Capital Mgt. , No. 10-14214, ECF #17 (E.D. Mich. Fe b. 14, 2011). The rema ining defe ndants filed motions to dismi s s , ar guing that ERI SA pree mpted the state-law claims. The district cour

t gr anted the motions.

I I

.
ERI SA has competing objectives: to e n f o r c e e mp lo y

e r s ’ r e ti r e me n t- rela ted promises without dis co u ra gi n g employ ers from making the promises in the first place

. See Pilot Life Ins. Co. v. Dede aux , 481 U.S. 41, 54 (1987). Striking a balanc e, Congr ess cre ated a robust enfor ceme nt reg ime under which employ ees could vindicate these fede ral rig hts and a robust pree mption regi m e t o protec t employ ers from a patchwor k of additional state-by -state require ments. See Aetna Health Inc. v. Dav ila , 542 U.S. 200, 208 (2004).

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Loffr edo v. D aimler AG Congr ess also rec og nized that the optimal equi l i b ri u m betwee n protec tion and promotion falls in differ ent place s for differ ent g roups of worke rs. Whil e some worke rs need the protec tion of

ex p ansive fiduciar

y duties, others do not, including some manag ement executives. See Bakri v. Venture Mfg. Co. , 473 F.3d 677, 678 (6th Cir. 2007). For the latter g roup, Congr ess cre ated a retire ment-plan opti on that “cuts a swath t hroug h [ER I SA’s] reg ulatory thicket,” removing many of the employ er require ments, including its fiduciar y duty and minimum funding obliga tions. Alexande r v. Brigham & W omen’ s Physicians Org., Inc. , 513 F.3d 37, 43 ( 1st Cir. 2008); see also Bakri , 473 F.3d at 678. Known as “top-ha t” plans, these retire ment plans are unfunded, meaning the employ er may not se t the m up in a separ ate acc ount insulate d from the employ er’ s cre ditors in the

case of insolvency and meaning that benef iciarie s are not taxed until they rec eive the benef its. See In re I T Group, Inc. , 448 F.3d 661, 665 ( 3d Cir. 2006).

The parties ag ree that Chry sler’s Supplemental Ex ecutive Retirement Plan is a top-hat plan. As such, many of ERI SA’s otherwi s e- appli cable protec tions (and rig hts of action) do not apply , which explains why plaintiffs have larg ely fra med their claims under state law. A threshold question is whether Congr ess’s less-intrusive reg ulation of top-hat plans permits a more -intrusive sy stem of
state reg ulation. The ans we r i s n o . ERI SA has one express-pre emption provision, see 29 U.S.C. § 1144(a) , and (with some exceptions not rele vant here ) it applies equally to all ERI SA benef it plans, pree mpting all state-law claims that “re late to any employ ee benef it plan,” id

. “The policy choice s ref lected in the inc lusion of cer tain reme dies and the exclusion of others under the fe dera l scheme would be completely undermined if ERI SA-plan participa nts
. . . wer e fre e to obtain reme dies under

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Loffr edo v. D aimler AG state law tha t Congre ss rejec ted in ERI SA.” Pilot Life Ins. Co. , 481 U.S. a t 54. “Pree mption thus applies to ever

y plan cover ed by ERI SA, which nece ssarily includes top hat pla ns.” Panec casio v. Unisource W

orldwide, I

nc. , 532 F.3d 101, 113 (2d Cir. 2008) ; see also Cogan v. Phoenix Life I ns. Co. , 310 F.3d 238, 242 ( 1st Cir. 2002); Olander v. Buc yrus-Erie Co. , 187 F.3d 599, 604, 606 ( 7th Cir. 1999)

. “[A]ny state-law cause of action that duplicates, supplements, or supplants the ERI SA civil enforc ement re medy conflicts with the clea

r cong ressional intent to make the ERI SA remedy exclusive and is there fore pre- empt ed

. ” Aetna Health Inc. , 542 U.S. at 209; see also Penny /Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp. , 39 9 F. 3 d 692, 698 (6th Cir. 2005) (holding that ERI SA pree mpts state laws that “provide alterna te enf orce ment mecha

nisms”).

ERI SA contains just one express-pre emption provision, § 1144, but the courts have cre ated

a complete- pree mption doctrine to g o with it. Complete pree mption is “a doctrine only a judge could love,” Bartholet v. Reishauer A.G. ( Zurich) , 953 F.2d 1073, 1075 (7th Cir. 19 9 2 ), an d o n e only judge s could confusing ly name. M o re p ro ductively thought of as a jurisdictional rathe r than a pree mptive r

ule, complete pree mption amounts to an exception to the well-plea ded complaint rule that conver

ts a state-law claim that could have been broug ht under § 1132 into a fede ral claim, Aetna Health Inc. , 542 U.S. at 209, and makes the rec hara cter ized claims remova ble to fe d er al court, Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 67 (1987). Section 1132 cre ates ERI SA’s civil action, permitting claims by a benef iciary “to rec over benef

its due to him under the terms of his plan, to enforce his rig hts under the terms of the plan, or to clar ify his rig hts to future benef its under the terms of the plan.” 29 U.S.C. § 1132(a) (1)( B)

. Complete pree mption applies when a p l ai n t i ff

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Loffr edo v. D aimler AG dresse s up a claim for benefits under a pension plan i n s t at e- l aw clot hing beca use ER I SA has “so fill[ ed] e very nook and cr anny ” of the are a “tha t it is not possible to f rame a complaint under state law.” Bartholet , 953 F.2d a t 1075. Put another way , “a c omplaint reciting that the claim depe nds

on the common law of contra cts is really based on [ER I SA] if the contra ct in question is a pension plan. Congr ess has blotted out (almost) all state law on the subject of pensions, so a complaint about pensions rests on fe dera l law no matter w hat label its author a ttaches.” Id.

The distinction betwee n the two doctrines comes up most fre quently in remova l case s, wher e the jurisdictional import of “complete pree mption” applies. Her e, howeve r, we fac e no such problem, as the fede ral courts have jurisdiction over the case under another statute, the Class Action Fa irness Act (CAFA ). I n this instance , all of plaintiffs’ claims, save the ag e-discr imination claim, conflict with ERI SA in one way or anothe r.
A. Fiduciary Duty. When Congr ess exempts a plan from ERI SA’s fiduciar y -duty require me nts,

as it did with top-hat plans, plaintiffs may not use state law to put back in what Congr ess has taken out. See Pilot Life Ins. Co. , 481 U.S. at 54. Even if the fac ts of a g iven case make “an ERI SA action [unavailable] ag ainst parti c u la r d e f e n d a n ts , th e r e li e f p r o v id e d by ERI SA is the only relief available .” Smith v. Provident Bank , 170 F.3d 609, 615 (6th Cir. 1999). No one disputes that the plaintiffs are ERI SA benef

iciarie s and may sue fiduciar ies for money damag es and non-fiducia ries for equitable

re lief under ERI SA’s civil enfor ceme nt scheme

. See 29 U.S.C. § 1132(a)

. The only qu es t i o n i s

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Loffr edo v. D aimler AG whether plaintiffs may sue non-fiduciaries for money damag es—whe ther state law may cre ate an alterna tive to the civil enfor ceme nt mecha nisms ERI SA alre ady provides. Penny /Ohlmann/Nieman, Inc ., 399 F.3d at 698. I t may not: ERI SA pree mpts the plaintiffs’ claims for money damag es ag ainst the non-fiduc iary

defe ndants. Our decision in Thurm a n v. P f i z er , Inc. , 484 F.3d 855 (6th Cir. 2007), say s nothing to the contra ry . Thurman s ued for losses alleg edly cause d by misrepre sentations that pre- dated his participa tion in the ERI SA plan. Be cause he fell outside the class o f p eo p l e cover ed by ERI SA, fede ral law did not pree mpt his state-law misrepre sentation claim. Id. at 861. The same is not true here

.
J udg e Moore, joined by J udg e Stranch, would reje ct this claim under th e d o c trine of complete pree mption. The distinction betwee n complete and express pree mption matters most when it has jurisdictional conseque nces—w hen, for example, complete pree mption cre ates fede ral jurisdiction—and in some instances it may aff ect the ease with which a complaint may be amende d or indee d whether

it needs to be a mended. No suc h issues arise here. We have jurisdiction under CAFA, eliminating that potential problem. And it would be futile to g ive plaintiffs an opportunity to re- file an ERI SA claim when the fede ral statute exempts top-hat plans from its cover ag e. As our jurisdiction is cer

tain and as amending the complaint would be futile, I see no need for the court to resolve whether , as a matter o f n o m en cl ature , it is more appropr iate to say that the claims are completely

pree mpted under § 1132 or expressly pree mpted under § 1144. J udg e Moore makes a plausible case for one tag line: complete preemption. But th er e is a plausibl e case to be made for

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Loffr edo v. D aimler AG the other: Ex press pree mption is the label we g ave a simil ar claim in PON I , and it seems a bit awkwa rd (thoug h that may n o t be say ing much when it comes to “complete pree mption”) to char acte ri z e a st ate- law claim as a fede ral claim in disguise when federa l law ex pressly prec ludes such a c laim, prec ludes in other wor ds the disguise d and undisguised ve rsion of the c laim.

B.

Fraud

. The executives also alleg e that the defe ndants brea ched “a leg al and equitable duty to Plaintiffs, as participa

nts in the

. . . Trust, to inform them of the prec arious financ ial position of” Chry sler. R. 31-2 at 20, Pag eI D 473. But a state l aw that g ives ERI SA plan participa nts rights to information by virtue of their s t at u s as participa nts in the plan conflicts with ERI SA’s exis ting disclosure require ments and enfor ceme nt mecha nisms. Aetna Health Inc. , 542 U.S. at 209. Section 1144(a) there fore expressly pree mpts these claims. See id

.
Plaintiffs insist that the claim esca pes pree mption beca

use it relies on an independe nt statel aw d uty to disclose that g oes bey ond the ERI SA rela tionship. But state law imposes no s u ch g ener alized duty

. Under Michig an law, this ty pe of claim, known as “silent fra ud,” require s selec tive

conce alment that cre ates “a repr esenta tion that what is disclosed is the whole truth. The g ist of the action is fra

udulently producing a false impression upon the mind of the other party .” W olfe v. A.E. Kusterer & Co. , 257 N.W. 729, 730 (Mich. 1934) (empha sis added)

. “[T] he touchstone of liability for

. . . ‘silent fra

ud’ is that some form of repr esenta tion has been made and that it was or proved to be false.” M&

D, Inc. v. W

.B. McConke

y , 585 N.W.2d 33, 38 (Mich. Ct. App. 1998). I n the absenc e

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Loffr edo v. D aimler AG of any alleg ation that the defe ndants made dece ptively partial disclosures (as opposed to rema ining completely

silent), state law imposes no leg al duty independe nt of the Plan rela tionship.

The executives invoke two case s to support a broade r duty to disclose, but neither one does the trick. I n Clement-Rowe v. Michigan Health Care Corp. , the court held that a company may not “avoid liability afte r omitti ng to disclose, when asked , known economic instabilit y which later leads to economica lly -base d lay offs.” 538 N.W.2d 20, 24 (Mich. Ct. App. 1995) (per curia m) (empha sis added)

. The executives do not claim they asked about Chry sler’s financ es, making Clement-Rowe ’s duty to disclose irrele vant. The other case —an unpublished fede ral district court opinion—draws

on Clement-Rowe but does not discuss the “whe n asked” proviso. See Van Vels v. Premier Athletic Ctr. of Plainfield, Inc. , No. 1:97-CV-665, 1998 U.S. Dist. L EXI S 10993, at *22 (W.D. Mich. J une 9, 1998).

C. Promissory estoppel. The executives also filed a promissory -estoppel claim stemming from Daimler’ s alleg ed 1998 commit ment to “see [] to it that [C hry sler] has sufficient assets t o meet it s obliga tions.” R. 32-1 at 9, Pa geID 4 6 2. There is some debate whether employ ees may bring promissory -estoppel claims direc tly under ERI SA itself, see Bloemk er v. Laborers’ Local 265 Pension Fund , 605 F.3d 436, 440 (6th Cir. 2010), but we need not resolve the point. Either way , the executives fac e a problem. I f ER I SA permits such claims direc tly under the sta t u t e, the s tate-la w promissory estoppel claims impermissibly “duplicate [] ” ERI SA’s enfor ceme nt m ec h an isms, and

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Loffr edo v. D aimler AG § 1132 completely pree mpts them—and any eff ort at amendment would be futile. Aetna Health Inc. , 542 U.S. at 209. I f ERI SA does not permit promissory -estoppel claims, the state-law claims amount to an im permissible alterna tive to ERI SA’s reticula ted enforce ment regime, and § 1144 expressly pree mpts them. Penny

/Ohlm a n / N i em a n , Inc. , 399 F.3d at 698; see also Armistead v. Vernitron Corp. , 944 F.2d 1287, 1300 (6th Cir. 1991) (noting that modification of plan ter ms by promissory estoppel could jeopa

rdize other par

ticipants’ bene fits).

One other pro b l em d ef

eats this theory

. Even if the claim could s urvive preemption (or be ref rame d as an E R I S A cl aim), the executives did not adequa tely plead it. Promissory estoppel presuppose s a broken promise. See Gore v. Flagstar Bank, FSB , 711 N.W.2d 330, 333 (Mich. 2006) (asking whether “injustice can be avoided only by perf ormanc e of the promise”) ; Cohen v. Cowles Media Co. , 501 U.S. 663, 671 (1991). But the executives alleg e no s u ch t h i n g . They locate Daimler’ s promise in its statement that “as long as [Daimler] is a majority s t ak eholder of any aff iliate, [Daimler] internally sees to it that the aff iliate has sufficie nt a ssets to meet its obliga tions with a third party .” R. 31-2 at 9, Pag eI D 462. Yet, in discussing Daimler’ s brea ch, they ref rame the obliga tion, say ing the company failed “to make cer tain that [C hry sler] had s u ff i cient assets to purcha se annuities or otherwise secur itiz e the re tirement bene fits of the re tired employ ees.” Id. at 13. Ensuring internally that an aff iliate has sufficie nt assets to meet its obliga tions is distinct from

secur itiz ing those obliga tions exte rnally

. I n the context of an unfunded top-hat plan—desig ned not to secur e benef

its for benef

iciarie s, see Comrie v. IPSCO, Inc. , 636 F.3 d 8 3 9 , 840 (7th Cir. 2011)—that diffe renc e is signific ant. Be cause they do not a lleg e Da imler failed to do what it said

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Loffr edo v. D aimler AG it would do, only that it failed to do more than it said it would do, the executives fail to s t ate a cog nizable claim for pr omissory estoppel for

this reason a s well.

D. Age discrimination. The executives’ ag e-discr imination claim far es better. ERI SA’s saving clause say s that nothing in the statute “shall be construed to alter, amend, modify , invalidate, impair,

or superse de any law of the United States.” 29 U.S.C. § 1144(d). The clause prese rves other fede ral laws and some state laws that “provide [] a mea ns of enf orcing ” a f

eder al l aw’ s commands. Shaw v. De lta Air L ines, Inc. , 463 U.S. 85, 102 (1983).

Shaw illust rate s the s ome-state- laws poi nt. I t held that ERI SA does not pree mpt state-law discrimination claims arising from conduct that is also illega l under Title VI I

. The Court rea soned that Title VI I relies o n s tate laws to enfor ce the fede ral law and that disallowing the para llel state claims would “impair” fede ral lawin violation of § 1144(d). Id.

L ike Title VI I , the Ag e Di s cr i m i n ation in Employ ment Act uses state-law counter parts to bolster enfor ceme nt of the fede ral law. See 2 9 U. S

. C. § 633(b). Section 1144(d) thus prese rves state-law cl ai m s fr o m pree mption to the extent they mirror ADEA claims. See Dev lin v. Transp. Commc’ns Int’l Union , 173 F.3d 94, 100 (2d Cir. 1999); Hurlic v. S. Cal. Gas Co. , 539 F.3d 1024, 1036 (9th Cir. 2008)

. The plaintiffs’ ag e-discr imination claim falls into this cate g ory . They arg ue t h at secur itiz ing the retire ment benef its of active employ ees but not most retire d employ ees had a disparate impact on older benef iciarie s. The ADEA cover s s u ch cl ai m s. See Smith v. City of

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Loffr edo v. D aimler AG Jack son , 544 U.S. 228, 243 (2005). Nor is the claim an implausible one: The sec u ritiz ed benef iciarie s on aver ag e we re y oung er tha n the re tirees whose benef its were not se cure d.

The defe ndants offe r three counter -ar g uments, all unavailing at the ple a d in g s ta g e. First, they point out that the ADEA g ives employ ers an aff irmative defe nse if the disparate impact results from relianc e on “re asonable fa ct ors other than ag e.” See 29 U.S.C. § 623(f) (1); Meac ham v. Knolls Atomic Power Lab. , 554 U.S. 84, 87 (2008). True enoug h. But, as an aff irmative defe nse not anticipated in the pl eading s, it provides no basis for re lief on a motion to dismiss , as opposed to a motion for summary judgme nt. See Pfeil v. State St. Bank & Trust Co. , 671 F.3d 585, 599 (6th Cir. 2012). Second, State Street arg ues that it cannot be subject to an employ ment-discrimination claim beca use it did not employ the plaintiffs. But Michigan an d fede ral law extend liability to an employ er’s “a gen t , ” see Mich. Comp. L aws § 37.2201(a) ; 29 U.S.C. § 630(b), and the complaint alleg es State Street a cted a s Chry sler’s a g ent. Third, defe ndants claim that Michig an’s three -y ear statute of limit ations bars these claims. See Mich. Comp. L aws § 600.5805(1), (10). Under Michig an law, a claim “ac crue s at the time the wrong upon which the claim is based was done reg ardle ss of the time when damag e results. Id. § 600.5827. The Michig an Supreme Court has rea d this statute to require a n “ actionable wrong ,” meaning that all of t he elements of t he claim must be present before the limit at i o n s period beg ins to run. See Connelly v. Paul R u d d y’ s E q u i p . Repair & Serv. Co. , 200 N.W.2d 70, 72–73 (Mich.

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Loffr edo v. D aimler AG 1972). One element of a disparate -impact claim is an adver se impact, which is to say an injury

. See Donnelly v. R.I. Bd. of Gove rnors for Higher Educ. , 110 F.3d 2, 5 n.2 (1st Cir. 1997); Coe v. Y ellow F r ei g h t S ys., Inc. , 646 F.2d 444, 451 (10th Cir. 1981). Yet this impact/injury did not beco m e actionably adver se here until it was clea r that the trea tment of the active employ ees—buy ing them taxable annuities in exchang e for their rig ht to continue rec eiving p aym en t s from the trust—was

more favor able than t h e t rea tment of the retire es beca use the trust lacke d funds to pay out the

rema ining claims. The complaint sug g ests this may have occur red as late as 2009, making the lawsuit timely , at least acc ording to the pleading s. The ag e-discr imination claim is rema nded for further proce eding s consistent with this opi nion.

I I I

.
ERISA c laims. Having decide d that ERI SA pr eempts three of the plaintiffs’ four state -law claims, we must consider whether the district court err ed in deny ing plaintiffs leave to amend their complai n t t o ra i s e new ERI SA-based claims. The plaintiffs proper ly prese nted just one of those claims to the district court: that they are entitled to equitable restitution and an acc ounting under 29 U.S.C. § 1132(a)(3) , which author izes “other appr opriate e quitable re lief.”

To plead claims for equitable relief , howeve r, the plaintiffs would have to alleg e either that the defe ndants curr ently (and improperly ) possess the assets dispersed from the trust or that they reta in profits g ener ated from that proper ty
. See Great-W

est Life & Annuity Ins. Co. v. Knudson , 534 U.S. 204, 214 (2002) (“[F]or restitution to lie in equity , the action g ener ally must seek not to impose

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Loffr edo v. D aimler AG persona l liabilit y

on the def

endant, but to re store to the plaintiff particula r funds or proper

ty in the defe ndant’s possession.”); id. at 214 n.2 (discussing equitable ac co u n t i ng ). The plaintiffs never alleg ed an y s uch fac ts, and in deciding whether to g rant leave to amend the district court was not require d to a ssume that the plaintiffs would alleg e new fac ts to support new claims. Cf. Harv ey v. Great Senec a Fin. Corp. , 453 F.3d 324, 328 (6th Cir. 2006) (“[T]his court should not assume fac ts that wer e not pled.”)

.
Be fore the district c ourt, the plaintiffs also arg ued they could bring claims under 29 U.S.C. § 1132(a) (1)( B) “to rec over the benef its which they have lost as a . . . result of Def endants’ conduct in violation of the terms of the” Plan and trust documents. R. 31 at 33, Pag eI D 436. Yet they did not alleg e conduct of the defe ndants that violated provisions of any trust doc ument, and as a result the district court de nied their motion to a mend. On appea l, the plaintiffs for the first time point to particula r conduct and particula

r contra ctual obliga tions to support their claim of brea ch

. But beca use the plaintiffs did not prese nt these claims to the district court, they cannot do so for the first time on appea l. See M

cFarland v. He nderson , 307 F.3d 402, 407 ( 6th Cir. 2002).

I V.

Dismissal of claims against Zetsche

. One of the defe ndants, Dieter Z etsche , is a citizen and resident of Ger

many . The parties stipulated in November 2010 that the plaintiffs failed to serve him with the complaint. When the district court, in J une 2011, addre ssed the other defe ndants’ motions to dismiss , it noted that the claims ag ainst Z etsche wer e identical to the claims ag ainst L aSorda but

- 15 -No. 11-1824

Loffr edo v. D aimler AG that Z etsche had not filed a motion to dismiss beca use he had not been serve d. The district court g ave the plaintiffs ten day s to show cause why Z etsche should not be dismiss ed from the case on the

same merits-base d gro u n d s as L aSorda. The plaintiffs did not respond, and the district court dismiss ed their claims ag ainst Z etsche in J uly 2011. Due to their fail u re to object to Z etsche ’s dismiss al in the district court, they have no rig ht to complain about the dismiss al now (althoug h, as noted, the district c ourt should not have dismiss ed the ag e-discr imination claim). See McFarland , 307 F.3d a t 407.

V.

For these rea sons, we reve rse the district court’s dismiss al of the s ta te
- la w a g e - discrimination claim, af firm its dismi ssal of the other issues and re mand.

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Loffr edo v. D aimler AG KA REN NELSO N MOORE, Circuit Judge, concurring in the ju dg m ent

. To para phrase Tolstoy , eac h ERI SA pree mption case is complicated in its own way . Although I ag ree that L offr edo’s state-law claims for brea ch of fiduciar y duty and silent fra

ud are pree mpted, his ag ediscrimination claim is not pree mpted, and his promissory -estoppel claim was not adequately pleade d, I write separ ately in hopes of providing both a deg ree of clar ity to at least one aspec t of this tang led web and a more thoroug h analy sis of the pree mption issue as it rela tes to the case befor e us.

ERI SA can pree mpt state-law claims in two way s: complete pree mption under 29 U.S.C. § 1132(a) and express pree mption under 29 U.S.C. § 1144. Normally , the conseque nce of the former is that the suit containing those claims can be remo v ed t o fe d er al court; a completely pree mpted state-law claim “a ri s es u n d er” fede ral law and thus vests the district court with fede ral-que stion jurisdiction. W

right v. Gen. Motors Corp. , 262 F.3d 610, 613 (6th Cir. 2001). By contra st, express pree mption under § 1144 is a defe nse; it is g rounds for d i s m i s s al , b u t not for remova l. See id. at 6 1 4

– 1 5 ; W

a r n er v. Ford Motor Co. , 46 F.3d 531, 533–35 (6th Cir. 1995) (en banc)

. Our pri o r ERI SA pree mption case s have not alway s clea rly differ entiated be tween the two conce pts, but we should take ca

re to do so in the future

.
I n addition to its jurisdictional impact, complete pree mption of a state-law claim by ERI SA also aff ects how the fede ral court should trea t that claim, reg ardle ss of how it arr ived in fede ral court. Be cause state-law claims that are completely pree mpted are , in fac t, fede ral claims, the court should trea t them as such, evalua ting them as ERI SA claims and, unless doing so would be futile, g ranting the plaintiff leave to amend the complaint to re -p l ea d t h ose claims to confor m with ERI SA. The - 17 -No. 11-1824

Loffr edo v. D aimler AG question in such situations i s wh et h er t he plaintiff could state an ERI SA claim based on the alleg ations underly ing h i s ostensible state-law claim, not whether , looking at the complaint as pleade d, he has done so; a plaintiff not expecting to find himself with an ERI SA claim may not have pleade d ever

y known fa ct that could support such a claim (such as i dentify ing specific Plan terms that the defe ndants violat ed in support of an § 1132(a) (1)( B) claim), and should thus have an opportunity to do so. The plaintiff could also seek to amend the complaint with new ERI SA claims, subject to Fe dera l Rule of Civil P ro ce d u re 15. By contra st, state-law claims that are expressly pree mpted under § 1144 should be dismiss ed with prejudice

. See Briscoe v. Fine , 444 F.3d 478, 501 (6th Cir. 2006). The differ ence in trea tment stems from the fac t tha t c ompletely pree mpted claims “fa ll within the scope” of ERI SA’s civil-enfor ceme nt reg ime, Aetna Health Inc. v. Davila , 542 U.S. 200, 221 (2004), a

nd expressly

pree mpted claims interfe re w ith that reg ime.

Daimler arg ued befor e the district court that L offr edo’s state-law claims should be dismiss ed

as completely pree mpted. The district court corr ectly rec og nized that this arg ument misunderstands t h e d o ctrine of complete pree mption. Complete pree mption under § 1132(a) is not g rounds fo r dismiss al. See Franciscan Skem p Healthcare

, Inc. v. Cent. States Joint Bd. Health & W elfare Trust Fund , 538 F.3d 594, 596 (7th Cir. 2008) (“Complete pree mption [i s] rea lly a jurisdictional rathe r than a pree mption doctrine

. . . .”); 13D Charles Alan Wright, Arthur Miller, Edwar d Cooper & Richard Fr eer , Fe dera l Practice & Procedur e § 3566 at 297 (3d ed. 2008) (“‘ Complete pree mption’

. . . is actua lly a doctrine of subject matter jurisdiction.”). I f an ostensible state-law claim is in fac t

an ERI SA claim, it cannot be dismiss ed as pree mpted by ERI SA; that is, ERI SA cannot pree mpt an

- 18 -No. 11-1824

Loffr edo v. D aimler AG ERI SA claim. See A cke rman v. Fortis Bene fits Ins. Co. , 254 F. Supp. 2d 792, 816–17 (S.D. Ohio 2003). A state-law claim that is not completely pree mpted can nonetheless be expressly pree mpted, and thus subject to dismiss al, under § 1144. See Thurman v. Pfizer, Inc. , 484 F.3d 855, 860–61 (6th Cir. 2007).

J ust as the results of the two ty pes of pree mption are differ ent, so are t h e an al y s es. A plaintiff’s state-law claim is completely p re empted “if [he] , at some point in time, could have broug ht his claim under ERI SA” and “ther e is no other independe nt leg al duty that is implicated by

a defe ndant’s actions.” Davila , 542 U.S. at 210; see also Montefiore Med. Ctr. v. Teamsters Local 272 , 642 F.3d 321, 328 (2d Cir. 2011) (desc ribing complete pree mption under ERI SA as a “two-pa rt test”); Marin Gen. Hosp. v. Modesto & Empire Traction Co. , 581 F. 3 d 941, 946 (9th Cir. 2009) (same) ; Franciscan Skemp Healthcare , 538 F.3d at 597 (same) . A pl aintiff “could have broug ht” a state- law cla im under ERI SA if he or she has standing to br ing suc h a cla im and if the cla im can be construe d as a c olorable c laim for re cover y under ERI SA. See M

ontefiore Med. Ctr. , 642 F.3d at 328 & n.7. When making this determination, we should consider the substance of the state-law claim, not its label. See Davila , 542 U.S. at 214; Peters v. Lincoln Elec. Co. , 285 F.3d 456, 469 (6th Cir. 2002).

A claim is expressly pree mpted, and thus subject to dismiss al, if it is based on a state law that “may now or here afte r rela te to any employ ee benef

it plan.” 29 U.S.C. § 1144(a)

. State-law claims “re late to” ERI SA plans for § 11 4 4 p re em p tion purposes if they “‘( 1) mandate employ ee benef it structure s or their administration; (2) provide alterna te enfor ceme nt mecha nisms; o r (3 ) bind - 19 -No. 11-1824

Loffr edo v. D aimler AG employ ers or plan administrators to particula r choice s or prec lude uniform administrative prac tice, thereb y fu n ct i o n i n g as a reg ulation of an ERI SA plan itself’” or otherwise seek a reme dy that is “primar ily plan-re lated.” Thurman , 484 F.3d at 8 6 1 ( q u o ti n g P e n n

y/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp. (

PO NI ), 399 F.3d 692, 698 (6th Cir. 2005)) (interna l quotation marks omitted). Apply ing these st andar ds to the case before u s re v ea ls this ERI SA pree mption case ’s own brand of com p lication. The alleg ations underly ing L offr edo’s state-law brea ch-of -fiducia ry -duty claim—misuse of funds, s el f- d ea l ing, actions not in participa nts’ best interests—appe ar to be the prec ise ty pe of claim that “could have [been] broug ht” under § 1132(a) (2). Davila , 542 U.S. at 210; see also Smith v. Provident Bank , 170 F.3d 609, 6 1 3

– 14 (6th Cir. 1999) (apply ing the doctrine of complete pree mption to § 1132(a) (2)) ; 29 U.S.C. §§ 1104, 1109 (desc ribing fiduciar y duties under ERI SA). As a benef

iciary of the Plan, L offr edo unquestionably would have standing to bring such

a claim. The twist is that ERI SA’s fiduciar y -re sponsibili ty provisions do not apply to top-hat plans. See 29 U.S.C. § 1101(a )(1)

. Nonethele ss, we have held that “it is the nature of the c laim—brea ch of fiduciary duty

—that deter

mines whether ERI SA applies, not whether the claim wi l l s u cc eed.” Smith , 170 F.3d at 613. To ensure uniformity and consistency , Congr ess int en d ed fi d u ciar y -duty claims to pr ocee d throug h the sy stem established by ERI SA, subje ct to the limit ations that ERI SA imposes. As to Da vi l a ’s second prong , Daimler’ s decision t o purcha se annuiti es selectively does not implicate any duty independe nt of ERI SA; L offr edo does not contend otherwise. Unlike J udg e

- 20 -No. 11-1824

Loffr edo v. D aimler AG Sutton, I believe that this claim was completely pree mpted. This claim clea rly cannot suc cee d as 1 an § 1132(a )(2) claim, howeve r, so leave to a mend would be f

utile; dism issal would be prope r for failure to state a c laim under ERI SA, not because it is preempted by ERI SA. 2

L offr edo’s silent-fra

ud claim alleg es a fail u re t o disclose information about Chry sler’s financ ial situation. B eca

use ERI SA does not provide a c ause of action for

failure to disc lose such information, L offr edo could not have broug ht this claim under ERI SA. A lthough it is not a dire ct claim for benef

its, the resulting harm from the alleg ed fra ud was that L offr edo did not take steps to

ac ce s s those benef

its prior to Chry sler’s bankruptcy

. By seeking to hold the defendants li able fo r conduct that alleg edly resulted in l ost benef its without challeng ing the denial of benef its itself, L offr edo is attempting to cre ate an “alter nate enfor ceme nt mecha

nism” to ERI SA’s vehicle for

rec overy of bene fits such that the cla im is expressly pree mpted under § 1144. Thurman , 484 F.3d at 861 (quoting PONI

, 399 F.3d a t 698). Finally , L offr edo’s failure to plead a claim for promissory estoppel rende rs unnece ssary any pree mption analy sis as t o that claim. I note o n l y that, as described above, di ffe rent consequenc es follow from pree mption under § 1132(a) or § 1144, so we cannot simply state that a state-law claim

J udg e Sutton phrase s the question broadly as whether a plaintiff can sue a non-fiducia ry for 1 money damag es under state law, but the more prec ise question is whether the plaintiff can sue i n d i v i d u als or entities for brea ch of fiduciar y duty under state law when ERI SA does not impos e fiduciar y duties upon them. Even construing this claim somewhat awkwa rdly as an § 1132(a) (1)( B) claim, in which the 2 defe ndants denied L offr edo benef its or violated the Plan by failing to pur chase an annuity for him, g ranting leave to reple ad the claim as such appea rs futile. As the district court conclude d, the Plan authorizes the administrators to purc hase a nnuities on a selec tive basis. - 21 -No. 11-1824

Loffr edo v. D aimler AG is preempted e ither wa

y and be done with it.

As the expe ri en ce of courts around the nation, including this court and even the Supreme Court, demonstrates, clar ity may be a virtue that simply does not “re lat e t o ” E R I S A pree mption. Wit h these observa tions, I concur in the judgme nt rema nding the ag e-discr imination claims and otherwise a ffirming the judg ment of the district cour t.

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Loffr edo v. D aimler AG JANE B. STRANCH, Circuit Judge . I c o n c u r in Ju d g e Su

tton’ s opinion with the exception of Sections I I

. throug h the conclusion of Section I I .A. I join Section I I .C. based on the rea soning that the executives did not ad eq u at ely plead promissory estoppel. I concur fully in J udg e Moore’ s opinion.

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