06-3107-cv

Str om v. Sie gel Fenc hel & Peddy P.C. UNITED STATE S COURT OF APPEA LS FOR THE SEC OND CIRC UIT

August Term, 2006 (Argued: June 11, 2007 Decided: August 15, 2007) Docket No. 06-3107-cv

KAREN STRO M, Plaintiff-Appellant ,

– v. – SIEG EL FE NCH EL & P EDD Y P .C . P ROF IT SH ARIN G P LAN, SIEG EL FE NCH EL & PEDDY, P.C. DEFI

NED BEN

EFI T PENSI ON PLA

N, SIE GEL F ENCHEL

& PEDDY, P.C. CAS H BA LANC E P ENS ION P LAN, SA UL R. FEN CHE L, P .A. PLAN , S IEGE L FEN CHE L & PEDDY, P.C., in its capacity as Plan Administrator, WI LL IAM D. SIEGEL, in his capacities as Tru st ee a nd f

id uci ary, SA UL R. FEN CHE L, in hi s ca pac it ies as T rus tee and fid uci ary, TR ACIE P. PEDDY, i

n her ca pacities as Truste e and fid

uciary and 2 Plan

Administra

tor and SA

UL R. FENCHEL, P.A., in its capacity as Plan Administrator,

Defendants-Appellees

.

____________________________________________ Before: McL

AUGHLI N, CALABRESI

and SOTOMAYOR, Circuit Ju dges.

____________________________________________ Plaintiff-appellant Karen Strom appeals from a judgme nt of the United States District Court for the Eastern District of New York, partially granting defendants’ motion for summary judgment and dismissing Strom’s claims under the Employ ee Retirement Income Sec urity Act (ERI SA), for

benefit s under pe

nsion plan s. With resp ect to Strom’s claim s under th e Profit Sharing Plan, the district court erroneously deferred to a non-existent decision by the pension plan admi nistrators; with re spect to the Cash Ba lance Pe nsion Plan, the distri ct court errone ously held that Strom had w aived he

r claim by

failing to exhaust h er admin

istrative remedie s. Accordingly , the judgment of the district court is VACATED and REMANDED. Leslie Corwin (Neil A. Capobianco & Simon Miller, on the brief ), Greenberg Traur

ig, LL P, New York, N.Y., for plaintiff-appellant

.-2- Stephen B. Latham (Philip D. Ny kamp, on the brief

), Twomey, Lat

ham, Shea , Kelley

, Dubin & Quartar aro L LP, Riverhead, N.Y., for defendants-appellee s.

SOTOMAYOR, Circuit Judge : Plaintiff-appellant Karen Strom sued her former law f irm, defendant-appellee Siegel Fenchel & Peddy , P.C. (“SFP”), under the Employe e Retirement Income Secur ity Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. , claiming entitlement to benefits under pension plans administered by the fir

m. Strom now appeals from the September 30, 2005 judgment of the United Sta

tes Distri ct Court f

or the Ea stern Dis trict of N ew York ( Orenste in, M.J.), pa rtially granting defendants-a

ppellees’ motion for summary judgment on those claims. We vacate and remand that judgment because the plan administrators fa iled to offer any

interpretation of the plans’ terms to which the district court might have accorde d deference in granting summary judgment to SFP, and because the district court errone ously held that Strom had waived her claim under one of the plans by failing to exhaust her administrative remedies, of which remedies she was never inf

ormed by SFP. BACKGROUND Except where noted, the parties do not dispute the facts in this case. Strom started her career as a sec retary at a predecessor firm to SFP in 1980. She began attending law school in 1985, but continued to work at SFP part-time. After passing the New York bar exam in 1988, she joined the firm as an attorney . She was promoted to the position of “partner” at SFP, effective January 1, 1995, and was again promoted, this time to the position of “profit-sharing partner,” e ffective January 1, 1997. Although SFP was technically a professional1 The difference between the two levels of eligibility is substantial. For e xample, at one point during Strom’s employment with SFP, under the Profit Plan, the firm’s contributions totaled eighty -four percent of all annual income over $120,000 for participants eligible for the “incre ased con

tribution, ” but only

five per cent for those, lik e Strom, wh

o were e xcluded fr

om it. -3- corporation, the title of “partner” was given to those, like Strom, who were senior attorney s in the office. At the time of Strom’s elevation to “partner” status in 1995, the three individual defenda nts in this c ase — Willia

m Siegel , Saul Fe

nchel an d Tracie Peddy — were s harehol ders, and two other attorney s — Michael Schroder and Andrew Cang emi — were “profit-sharing partners” as well as “officers” of the firm. Nothing in the record explains the significanc e of the “officer” title within the corporate structure of SFP — for example, how it was assigned or what the officers’ roles and responsibilities were. Strom decided to leave SFP in 2000 to form a new firm with fellow SFP alumnus Michael Schroder. She then claimed entitlement to benefits under, inter alia , two of SFP’s pension plans: the SFP Profit Sharing Plan (“Profit Plan”) and the SFP Cash Balance Pension Plan (“Ca sh Plan”)(collectively , the “Pla ns”). Th e Plans ma

de pension benefi

ts availa ble to all employ ees, but r eserve d an “inc

reased contribu tion” for a define d subset of

employ ees. 1 This subset changed repeatedly over the duration of Strom’s employ ment at SFP as a result of several amendments to the Plans. Each amendment excluded a different g roup of employee s from the “incre ased con

tribution” : an amen

dment pur

portedly effec tive Janua

ry 1, 1995 exc luded all “salar ied assoc iates”; a

nother pu rported ly e ffectiv e January

1, 1996 exc luded all

“non-pr ofit sharing attorne ys” ; and a thi

rd amend ment purp ortedly

effec tive Janua

ry 1, 1997 exc luded all “non-equity prof

it-sharing attorney s with 13% or less profit share.” Notably , SFP claims that Strom was a member of each of the three e xcluded groups of employe es and candidly a dmits that-4-

the firm a mended th e langu

age of the Plans e

xpressly “to mainta

in[] the existin

g rate of benef it accrual for Strom and to allocate the increa sed contribution only to the office rs and shareholders.” With respect to the 1995 amendment, Strom insists that she could not have been excluded as a “salaried associate” bec ause she was a partner entitled to full benefits — specif ically, that she was entitled to the “increased contribution” benef its that Siegel, Fenchel, Peddy , Schroder and Cangemi all received. Strom claims, inter alia , that the 1996 and 1997 amendments were invalid as applied to her because they were passed by

the firm’s leadership without notice to her, and after her benefits had acc rued under the Plans’ unamended provisions, in contravention of various ERISA provisions . By contras t, the def

endants a rgue that beca

use SFP wa s a professional corporation and distinguished only between shareholders and non-share holders, the title “pa rtner” did not af

fect Strom’s status

under the Plans. The

y c laim that St

rom’s eli gibility for benefits is governed exclusively by the terms of the Plans, and tha t she was excluded from the “incre ased con

tribution” by e ach succ essive Pla

n amendme

nt, all of w

hich wer e passed in compliance with th e relev ant ERI SA provisions. I. Strom’s 20 00 Lawsuit In 20 00, Strom r

equeste d certa

in docume

nts from SF P relating

to its Profi

t Plan and C ash Plan. In an August 2, 2000 letter, SFP informe d Strom that it was in the process of computing her bene fits unde

r the Prof it Plan and

that, “[a]s

you know, y ou are no t a partic ipant in the [Cash Plan] as you were neither a shareholder, nor an officer of Siegel Fenchel & Peddy

, P.C.” The letter did not indicate which provisions of the Cash Plan were being interpr eted, or why the

fact that Strom was not a shareholder or officer of SFP re ndered her ineligible for any benefits under-5-

the terms of the Cash Plan or its operative amendments. On August 7, 2000, Strom and Schroder filed an ERI SA action in the United States District Court for the Eastern District of New York (Mishler, J.), aga inst SFP, as well as Siegel and Peddy. I

n that action — which is not before us in the present appeal — Strom claimed entitlement to benefits under both the Profit Plan and the Cash Plan. The district court did not reach the merits, however, but rather dismissed Strom’s complaint on Dec ember 7, 2000, for failure to exhaust administrative remedies. The district court also rejected Strom’s ar gument that SFP had denied her effective acc ess to the administrative remedies provided under the relevant Plans, but n

onethele ss gran

ted Strom “

the oppor tunity to file re quests for revie

w of [her Pr

ofit Plan and Cash Plan claims] on or before December 18, 2000.” By letters dated January 8, 2001, January 17, 2001, and April 25, 2001, Strom submitted to SFP a cl aim for be

nefits under both t

he Profit Plan and the Cash Pla

n. Even though the se letters came after the Dece mber 18, 2000 deadline set by the district court, SFP considered the claims on the merits. II. The Administrative Proceedings In response to the reque sts for Cash Plan benefits contained in Strom’s letters, SFP sent her a letter on April 23, 2001, summarily reiterating its position that Strom was ineligible for any Cash Plan b enefits “ as she wa s not a par tner or s harehol der.” L

ike the Au

gust 2, 2 000 lette

r, this letters did not purport to interpret a particular provision of the Cash Plan, nor did it provide further clarification as to why Strom was ineligible to claim benefits. Strom’s January letters to SFP also contained re quests for documentation relating to the Profit Plan and the Cash Plan. In its April 23, 2001 letter to Strom, SFP indicated that it had2 Because of the relatively spare record concerning

Schroder’s copy

of the Plan, a number of

details r emain unc lear. F irst, the e ffectiv e date of the copy is unclea r. In her lette r to SFP, Strom’s attorney “assume[d] that the copy of the plan document that [Schroder] gave us covered the period of time that Karen Strom was af filiated with your firm.” Sec ond, it is unclear whether the copy

of the Plan was complete; in particular, we do not know whether Schr oder’s copy of the Plan included a ny information conce

rning participants’ rights to appellate re view of their cla ims. -6- alread y pr ovided he r with the document s relatin

g to the Pr

ofit Plan o n January

5, 2001. With respect to her request for documents rela ting to the Cash Plan, SFP informed Strom that she was “not entitled to the Information requested in [her] letter,” be cause, as SFP had explained to her previously, she was “

neither a shareholder [n]or an officer of Sieg el Fenchel & Peddy , P.C.” However, SFP again did not explain why Strom’s ineligibility for benef its under the Cash Plan precluded her even from rec eiving documents relating to that Plan, from which she or he r counsel could determine her eligibility for Cash Plan benefits. Two day s later, on April 25, 2001, Strom responded to this letter. Based on a copy of a plan she had obtained from Michael Schroder, 2 her new law partner and a for mer SFP attorney, Strom explained why she believed she was a pa rticipan t in the Cash Plan and

theref ore eligible for b enefits t

hereund er. I n respons e to this letter, on June 12, 2001 SFP wrote to Strom and again summarily e xplained that she was not eligible to receive Plan documents or benefits, “[a]s she was not a pa rtner or shareholder.” Further , SFP’s Ap ril 23, 200 1 letter t o Strom con

ceded that she wa s entitled to benef its under the Profit Plan , but denie d the amou nt of bene fits Strom r

equeste d. The letter purp orted to explain how SFP had reached its lower benefits calculation, but it did not explain why SFP was using the precise figures that it did; that is, SFP did not offer, expressly or implicitly, an interpretation of the Profit Plan terms. The April 23, 2001 letter also set a deadline of June 25, 2001 for Strom to request an administrative hearing to review the decision. Strom exercised that-7-

right and requested a hearing by letter dated June 24, 2001. The he aring was conducted on January 22, 2002 before

Siegel, Fenchel and Peddy, who serve as the Plan administrators, and the near-exclusive focus was on Strom’s claim to benefits under the Profit Plan. Two days af

ter that hearing, on January 24, 2002, Strom made a formal request for a hearing with resp ect to he

r Cash Plan

claim. She

claims tha

t she wait ed until thi s date to d

o so because she only

learned that she was required to make a f ormal request for such a hearing at the January 22, 2002 hearing on her Profit Plan claim. While it is unclear what in particular spurred Strom’s formal request, Strom appears to argue that be cause SFP persistently de nied her status as a participant in the Cash Plan and refused to apprise her of any of her

rights thereunder, she was uncertain whether SFP would even have ente rtained a formal request for a hea ring under that Plan. Strom claims that it was only at the January 22 hearing that she learned that one of SFP’s defense s again st her Cash Plan cla ims was tha

t she had n

ot made a request for a he aring t

o review t hem. On March 12, 2002, SFP issued a “Decision After Hea ring” (the “Decision”), memorializing the January 22, 2002 hea ring. The Decision explained that the January 22, 2002 hearing was mean

t to revie w Strom’s Pr

ofit Plan c laim, and

that “Strom’s claim

reduce d itself to two aspects: (1) that the benefits to which she was entitled were not properly ca

lculated in respect to certain plan ye ars; and (2) that she was entitled to greate r contributions on the grounds that she was a ‘p artner ’ in a numb er of the Plan y ears.” The Dec ision then

procee ded to expla

in why it could not c onclusive ly r

esolve he r claims: The “hearing” consisted essentially of a colloquy among

Ms. Strom, her counsel and the presidin g Hear ing Off icer. Ap art from

the quest ion of the mathemat

ical comp utations, the quest ion was, a nd still is, o n what ba sis does Ms . Strom cla im that she

is entitle d to-8-

additiona l con tribu tionsin the

Sieg el Fe nche l & Pe ddy

[Prof it Pla n]? Ms. Strom’s counsel indicated that the basis for Ms. Strom’s claim for additional contribution in the [Profit Plan] was that she was a “partner.” However, there is no definition of the term “partner ” in the [Profit Plan] . . . . Assuming that the term “partner” would, in some way, qualify Ms. Strom for additional contribution, it was requested of Ms. Strom and/or her counsel that documentation be provided to establish (i) the position of “partner”; (ii) the significanc e of that position inside the SPF firm; and (iii) the significance as it relates to the Plan. No documentation was provided other than an announcement stating that Ms. Strom was a “partner” and a letter re ferring to Ms. Strom as “partner.” This appea red to be the sum total of Ms. Strom’s evidence in support of her position as a “partner.” How ever, no information, documentation or any evidence was proffered to esta blish the significance of this term. It was unclear whe ther Ms. Strom’s position was that “partner” was equivalent to owner of the firm or was equivalent to some position which would be recog nized by the pension plan as qualifying her for additional contribution. Indee d, upon being questione d as to the

absence of any substantia

l documen

tation to e stablish a

ny o f these propositions, Ms. Stro m’s couns el indica ted that th e materi al was “d elibera tely ” withhel d since Ms. Strom was involved in [other] litigation . . . against the SFP firm . . . . In any event, no explanation was offered by Ms. Strom or her counsel as to exactly how Ms. Strom qualified for additional contribution under the Plan terms or the significance of the te rm “par tner” a s it relat

es to this Pla

n. Whateve

r the posi tion of the

Claimant, it certainly wa s not made evident at the hearing, nor was a ny information provided at the hearing; in fact, it was indicated that it had been de liberately withheld. The Dec ision made

clear that it was o nly

tentative ly d

eny ing Strom ’s Profit Pl an claim: As noted, the exhaustion of administrative remedies is an absolute prerequisite. By the same token, the administrative remedy must be pursued “in good faith” by the Claimant. Appear ing at a hearing without ma

king a r easonab le effo rt to pres ent the e vidence in support of

the position is not pro

per use o f the adm

inistrativ e remed

y, n or does it constitute an exhaustion of the administrative remedy

. . . . Under the circumstances, since the administrators, at the he aring, were denied a submission by Claimant of all the relevant fac tors to make a full and genuine evaluation of her claim, it would be impossible and inappropriate for the administrators to reac h a final determination on Ms. Strom’s claim. Rather, the hearing should be adjourne d to a date for Ms. Strom and her representative to provide the ne cessary information in support of her claim so that the administrators can render a de termination. If Ms. Strom, having presented all the evidence in support of her position, is dissatisfied with the-9-

determination, she

can then properl y se ek her r

emedy in court. The Decision turned briefly to the Cash Plan claim, and noted (1) that a letter rejecting Strom’s Cash Plan claim had been sent on June 12, 2001; (2) that the denial in that letter “was plain, le aving no doubt tha t Claimant’ s counsel , an exper t in ERI SA law, ha

d she disa greed with the conclusion, should have exercised her right to a hea ring”; and (3) that Strom raised no questions about the Cash Plan prior to De cember 18, 2000. T

he Deci sion conc luded tha t, while the Cash Pla

n itself r equires that a cla imant req uest a he aring w

ithin sixty day s of an ad

verse decision, Strom did not make any such re quest following the June 12, 2001 letter. Moreover, the Decision noted tha t, in any event, Judg e Mishler

had orde red Strom to exercis e her ri ght to administr ative re view bef ore Dec ember 18 , 2000, an d “it is bey

ond dispute

that no suc

h reques t was made prior” to that date. Thus, the Decision concluded, since “[n]o request for a hearing [had] been made either under the Plan period or the period set by the [district court], Ms. Strom has intentionally waived her administrative remedy to r eview the denial under the [Cash Plan].” Another hearing on Strom’s Profit Plan claim was held on May 14, 2002, but no decision was issue d after

those pro ceeding s. III. The Prese

nt Lawsuit On March 18, 2003, Strom file d the comp laint that forms the

basis for this appe al. I

n this complaint, Strom sought a declaration of her rights under four of SFP’s pension plans (including the Cash Plan and the Profit Plan), as well as an award of additional benef its under each. She also added a separate claim asserting breach of fiduciary

duty by the Plans’ administrators. Defend ants-ap pellees , in their a

nswer to S trom’s co mplaint, a sserted ten aff irmative defense s, including that Strom’ s “claims

may be barr ed, in who le or in pa

rt, by the doctr ine of la ches,3 The distr ict cour t’s other holdings are not b efore u s on appe al. -10- waiver and/or estoppel, or by the applicable statute of limitations.” By conse nt of the parties, the case was refer red to United States Magistrate Judge James Orenstein. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Both sides moved for summary judgment, and after reviewing the parties’ submissions, the district court held, inter alia , (1) that Strom’s claim that she was a “partner” and there fore entitled to an increased contribution was “foreclosed by

an administrative decision that was neither arbitrary nor capricious”; and (2) that Strom “has waived her claim” under the Cash Plan beca use she failed to exhaust her administr ative re medies. 3 As the district court noted, Strom raised a “standard of review” argument against the March 12, 2002 Decision, which had denied her cla im that, as a “partner” of the firm, she was

en ti tl ed to th e s am e b en ef it s a s S ie ge l, Fe nc he l, Pe dd y, S ch ro de r a nd Ca ng em i. Sp ec if ic al ly, Strom argued that the district court must interpret the relevant Plan terms — “sa laried associate” and “non-profit sharing attorney ” — de novo , on the grounds that the administrators “interp reted”

the plans under a f lagra nt and inhe

rent con flict of i

nterest, refuse d even to accept Strom’s participant status in 3 of the 4 plans until after Strom commenced the instant liti gation, offere d vary ing and conflic ting pla

n “inter pretations” desig

ned solel y to deprive Strom of her rightful benefits, and did not apply the “interpretation” it now urges on the othe

r non-sha reholde r partne rs[, i.e., Schrode

r and Can gemi,] of SFP. The district court rejected Strom’s argument that a de novo standard of review applied. The court first explained that parties had conceded that the Profit Plan “gives the administrator or fiduciary discr

etionary author

ity to determine elig ibility for benefits or to construe the terms of the plan,” Firestone Tire & Rubbe r Co. v. Bruch , 489 U.S. 1 01, 115 (1 989), and that, accordingly , the administrators’ decision was subject to review for abuse of discretion.4 DeFelice dealt with the unrelated question of whether, when a plan is being reviewed de novo , a reviewing court may consider evidence outside the administrative record whe n the plan administrator was operating under a conf lict of interest. DeFelice , 112 F.3d at 65. -11- Regar ding Strom’s claim

that the a dministra tors reviewed he

r claims u nder a c onflict of

interest , the district court observed that such a conflict did not alter the standard of review, but rather that the “conflict must be weighed as a fa ctor in determining whether there is an abuse of discretion.” Id . (internal quotation marks and alteration omitted). The district court further noted tha t Strom’s reliance on DeFelic e v. Ame rican Int ernationa ll Life Assur

ance Com pany of Ne

w York , 112 F.3d 61 (2d Cir. 1997), was misplaced, because DeFelice involved a plan in which the plan administrators were not

given discretion to interpret ambiguous terms in the plan lang uage. 4 See id. at 65-66. Thus, the district c ourt reviewed the March 12 , 2002 Dec ision to determine w hether i t was arbitrary

and capricious. On the question of whether the Dec ision passed this standard, the dist rict c ourt s aid on ly the fol lowi ng: Under [the arbitrary

and capricious] standard of review, I must defer to the administrators’ decision to interpret the terms “salaried associate ” and “non-profit sharing attorne y” to mean a

ttorney s who wer

e neithe r share holders n or offic ers of SF P becaus e that interpretation was not “without reason, unsupported by substantial evidence or erroneous as a matter of law.” As to Strom’s Cash Plan claim, the district court explained that defendants-appellees were arguing, inter alia , (1) that the denial of Strom’s Cash Plan claim occurred no later than August 2, 2000, when Strom received the first letter stating that she was “not a participant in the [Cash Plan] as [she was] neither a shareholder nor an officer of Siege l Fenchel & Peddy , P.C.”; and (2) t hat Strom w aived he

r Cash Plan

claim bec ause, fo llowing t he Augu st 2, 2000 d

enial, Strom failed to seek review either before the Plan’ s sixty-day deadline or even before the later-12-

deadline of Dece mber 18, 2 000 spec ified in Judg e Mishler ’s order dismissing

Strom’s fi

rst ERISA action. The distr ict cour t then ass erted th at Strom fa iled to off er any meaning ful resp onse to defenda nts-appe llees’ c ontention s, and tha t her “e ntire re sponse to d

efenda nts[’] arg ument is contained in a footnote in her opposition brief,” which stated: While Strom attempted to appeal in 2001 and 2002 under both the [Profit Plan] and the [Cash Plan], Defendants absolutely refuse d to provide necessary [Cash Plan] documents. Defendants also refused to provide cer tain requested [Profit Plan] documents and did not grant or deny

Strom’s [Pro fit Plan] ap

peal. While

Defend ants initia lly m oved to dis miss Strom’s claims for failure to exhaust administrative remedies, that motion has been withdrawn. Given this, the district court noted that “[i]t thus appears that Strom concedes that she did not request an admini strative

hearing before the dead lines that the defe ndants ci te, and th at implicit concession is consistent with the record.” Nonetheless, the district court dec ided it would be prudent t o investig ate her

claim mor

e thoroug hly . In s o doing, the distri ct court found tha

t it did

not n eed to determ ine wh ether t he app ropri ate dea dlin e for S trom t o requ est a h earing w as Ju dge Mishler’ s Decemb er 18, 20 00 deadli ne or sixty

day s followin

g the Au gust 2, 2 000 lette

r. This was bec ause SFP also sent a letter to Strom on June 12, 2001, which again denied her Cash Plan claim. And, three day s later, Strom’s lawyer responded to SFP with a letter formally requesting “a hearing on the denial of [her] claim for bene fits from the [ Profit Plan],” but said nothing about a hearing on her claim under the Ca sh Plan. It was not until January 24, 2002 — two days afte r the hearing rega

rding the Profit Plan — that Strom finally re quested a hearing for her Ca sh Plan claim. And this date, the district court concluded, was well past the sixty-day dea dline, even assuming that the June 12, 2001 letter commenced the sixty-da y time period.-13-

The district court then acknowledged and, in turn, r ejected Strom’s argument that “the written denial of her claim for Cash Plan benefits set forth in the letter of June 12, 2001, was not sufficient under [the terms] of the plan” to provide her with notice of her rig ht of review, or the procedures governing

such an appeal. Observing that the June 12, 2001 letter “conta ined all of the requ ired information, i

ncluding the dead line for a ppeal, though it pe

rtains to t he [Profit Plan],” the district court reasoned that Strom was implicitly provided with suff icient information concerning the requirements g overning administrative review under the Cash Plan. Thus, the district court found that it was “difficult to believe this technicality ”— the letter’s inclusion of information concerning the Profit Plan, but not the Cash Plan —“prevented Strom from requesting a hearing to re view the administrators’ denial” of her rights under the Cash Plan. Becau se the dis trict cou

rt concl uded that Strom had “

waived” her Cash Plan clai m, it did not consider defendants-appellees’ alter native argument that the administrators’ denial of benefits under the Cash Plan must be sustained under the arbitrary and capricious standard of review. DISCUSSION On appeal, Strom argues that the district court err ed in holding (1) that the arbitrary and capric ious stand

ard of r eview a pplied to the Plan adm

inistrato rs’ Dec ision deny ing Strom ’s claim for enhanced benefits under the Profit Plan, and that the Plan administrators’ Decision rejecting Strom’s Profit Plan claim was neither arbitrary nor capricious; and (2) that Strom waived her Cash Plan c laim. I. The Profit P

lan Claim Strom raises two arguments why the district court should have applied a de novo standard-14-

of review to her claim under the Profit Plan. First, rely ing on this Court’s decision in Nichols v. Prudential Insurance Co. , 406 F.3d 98 (2d Cir. 2005), she contends that the Plan administrators never is sued a fi

nal deci sion on its r

eview of her Prof it Plan cla im, and the

refore that this c laim should be deemed denied by operation of law. See id. at 106 (“strongly suggest[ing]” that a plan administrator’s failure to comply with certain plan regulations “renders the claimant’s administr ative re medies e xhausted by

operati on of law

and cons equently

permits th e claima

nt to seek review in the federal courts without furthe r delay” ). A claim deemed denied by operation of law, Strom

claims, mu st be reviewed by the cour t de novo because the claim denial does not represent any

exercise of discretion by plan administrators. Id. at 109. Second, she contends that the P lan ad mini strat ors op erated under a confl ict of inter est ne cessi tati ng de novo review by the district court. We hold tha

t the distr ict cour t erred , and shou

ld have r eviewe d the admi

nistrators’ decision de novo . The distr ict cour t stated th at it was c ompelled to “defe r to the a dministra tors’ decision to interpret the terms ‘salaried associate’ a nd ‘non-profit sharing associate’ to mean attorneys who we

re neither shareholders nor office rs of SFP,” but the district court could not defer to an interpretation that the Decision never in fact made or explained. The Plan administrators specifically reserved decision on Strom’s claims, observing that in light of her alleged refusal to coopera te during the hearing, “it would be impossible and inappropr iate for the administrators to reach a final determination on Ms. Strom’s claim.” We express no opinion concerning SFP’s claim that Strom refused to cooper ate, but rather observe that the text of the Decision itself makes clear that no actual decision was made

. In Nichols , after Prudential failed to timely issue a final decision on Nichols’ appeal from5 SFP’s ar gument t hat the Pla

n administr

ators did not issue a

final de cision be cause Strom failed to comply with requests for c ertain documents does not change the fa ct that the Plan administr ators ne ver issue d a final

decision on Strom’s

claims, explaining

why , under th e terms of the Plan, she was ineligible for the benefits she cla imed.

6 We express no opinion as to the construction of the terms “salaried associate,” “non-pr ofit shar ing atto rneys,” or “n

on-equit y pr ofit-sha ring at torney s,” their applica tion to -15- a den ial of bene fits, she w ent d

irec tly to fe dera l cou rt and sue d her

insur er under ERIS A. We held that her claim was “deemed denied” by Prudential’s inaction and that her administrative remedies were exhausted by operation of law. Id. at 104, 109. Based on the Supreme Court’s decision inFirestone Tire & Rubbe r Co. , we obse

rved tha t “we may

give de ferent

ial revie w only to actual exercises of discretion,” and that “[a] ‘deemed denied’ claim is not denied by any exercise of discretion, but by ope ration of law.” Id. at 109. We i nstructe d the distr

ict cour t to review the plan administrator’s decision de novo because Prudential’s inaction “le[ft] the court without any decision or applica tion of expertise to which to defer.” Id . In the instant case, the Plan administrators explicitly refused to decide Strom’s cla im, and such a non-decision cannot be deemed an “exercise of discretion” to which the district cour t might have deferred. 5 Because a non-existent interpretation cannot be a reasonable one, the district court erred in defer ring to t he Profit Plan admin

istrator s’ Decis ion. Nor c ould the di strict co urt prope rly rely on the letters that SFP sent to Strom. None of those letters offers an interpretation of the Pro fit Plan’s language. Though SF P’s letters about the Cash Plan did state t hat Strom w as not elig

ible for any Cash Plan be

nefits because she was neither a shar eholder nor an officer — and its June 12, 2001 letter further asserted that Strom was not a “partne r,” see supra

— even tho se statements did not offer any explanation of why this was so, much less one that could be imputed to the terms of the Profit Plan

. 6Strom , or th e eff ect o f the amendmen

ts on h er el igib ility

under the Prof it Pla n or Ca sh Pla

n. We do note, however, that contrary to the assertion of the district court, the Decision rendered by the Plan admin

istrator s did not contain any analy sis of the t

erms “sa laried a ssociate ” or “non -profitsharing partner ,” which

go unde fined in the Profit Pla n. Nor did

the Plan a

dministra tors point t

o any other c ontextual language in the Plan which might require, or even suggest, the interpreta tion of these terms tha t the admin

istrator s essentia

lly u rged. Further

more, the Plan admin

istrator s did not adduce any

evidence to show that their purported interpretations of “sala ried associate” and “profit-sharing partner” we re consonant with common usage or practice in the legal marketplace. That is, the Plan administrators wholly failed to marsha l any support for their ow n construction of these terms. In construing the Plan de novo , the distr ict cour t on rema nd must fir st look to its

terms, and “unambiguous languag e in an ERISA plan must be interpreted a nd enforced in accordance with its plain meaning. ‘Lang uage is ambiguous when it is capable of more than one meaning when viewed objectively

by a rea sonably intelligent per son who has examined the context of the entire integrated agr

eement.’” Aramony v. United Way Re placement Benefit Plan , 191 F.3d 140, 149 (2 d Cir . 1999 ) (quo ting O’Neil v. Ret. Plan for Salaried Employees of RKO Gen., Inc ., 37 F.3d 55, 5 9 (2d Cir. 1 994)) (i nternal citations omitted). Whether ERISA p lan lang uage “ is ambiguous is a question of law that is resolved by reference to the contract alone.” O’Neil , 37 F.3d at 59 (internal quotation marks and citation omitted). Defendants-a ppellees have thus far provided no persuasive explanation why the terms “salaried associate” and “pr ofit-sharing partner” are ambiguous or should mea n anything othe

r than what they c learly denote

. Further, we express no opinion as to whether the amendments wer e passed in compliance with the relevant ERISA provisions, an issue the district court neve r addressed. -16- For these reasons, we vacate the district court’s grant of summary judgment dismissing Strom’s Pro fit Plan cl aim and r emand the

claim to th e distric t court for furthe r proce edings. II. The Cash Pla n Claim The parties concede that SFP’s letters to Strom did not comply with the notice require ments of ERISA, which man date tha t covere d employ

ee bene fit plans “

provide a dequate notice in writing to any

participant or beneficiary whose claim for benefits under the plan has been de nied, set ting for th the spe cific re asons for such den ial, writt en in a ma

nner ca lculated to be understood by

the part icipant, ” 29 U.S.C. § 1133(1) , and “a fford a reasona ble oppor tunity to any participa

nt whose claim for benefits has been denied for a full and fair review,” id.7 To the extent that SFP argues that Strom did have notice of the Cash Plan’s

review provisions, we observe that such an arg ument rests on two very thin re eds, neither of which withstands scrutiny. First, SFP re lies on the alleged similarity between the copy

of the Cash Plan that Strom obtained from Schroder and the Profit Plan, the provisions of which Strom knew. From this alleged similarity , the SFP appears to argue that Strom was g iven constructive notice of the appeals provisions of the Cash Plan. But absent a showing tha t Strom knew the Plans to be identical, SFP cannot show that Strom had knowledge of the Cash Plan’s review procedures merely

because she was aware of the procedures contained in the Profit Plan. Second, SFP suggests that Strom’s mere possession of Schroder’s c opy of the Cash Plan g ave her sufficient notice of its appeals provisions. But, again, abse nt any showing tha

t Schroder’s copy of the Cash Plan was true and complete, and that Strom knew the Plan to be operative dur ing the time peri od when he

r claims a rose, a c ourt coul d not find a ctual knowledge

on Strom’s

part. To the extent the district court relied on these arguments in finding that Strom rec eived adequ ate no tice o f her ri ghts t o admi nist rativ e revie w unde r the C ash Pl an, we r eject that f indi ng. -17- § 1133(2). 7 Additionally, ERI SA regulations elaborated at 29 C.F.R. § 2560.503-1(g )(1) require that notice to the claimant of an adverse benefit dete rmination “shall set forth, in a manner calculated to be understood by the claimant . . . [a] description of the plan’s review procedures and the ti me limits ap

plicable to such pr

ocedure s, includi

ng a sta tement of the claimant’s rig

ht to bring a civil action.” Thus, Strom argues on appeal that the district court erre d in determining th at s he h ad w aiv ed h er c lai m b eca use she fai led to ex hau st her adm in is tra ti ve r eme di es. In response, defendants-appellees ar gue that a failure to comply with the notice requirements of § 1133 will not save a plaintiff who had actual knowledge of her right to seek review. The district court conflated its finding that Strom waived her claims under the Cash Plan with its finding that she failed to exhaust her administrative remedies and was there fore precluded from bringing an a ction in federal court. Because the re is no suggestion that Strom forewent her Cash Plan claims “knowingly and voluntarily,” Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan , 935 F.2d 1360, 1367 (2d Cir. 1991), as would be required for her to wa ive those claims, w e must vac ate the d istrict c ourt’s fi

nding of waiver. Simply

put,-18-

Strom cannot have waived her rights to administrative review procedures of which she was not given notice by

SFP. SFP represented to Strom that she was ineligible to receive a ny information concerning her eligibility under the Cash Plan. We do not opine on the legitimacy of SFP’s repeated assertion that Strom was not in fact a participant unde r the Plan; we leave this question to the district court for resolution. But we find nothing in the record to support SFP’s a ssertion that Strom, as a putative non-participant in the Cash Plan, could not have access to Plan documents, on the basis of which she might have made an ar gument for her participation under the Plan or, more specifically , sought administrative review of SFP’s ostensible determination that she was a non-participant. SFP’s repeated r efusal to provide Strom with the requested documents because in its view she was a non-participant in the Plan clea rly ran a foul of ERISA’s notice provisions, which require that adverse benef it determinations be “calculated to be understood by the cla

imant” and contain notice of the claimant’s rights to administrative revie w. 29 C.F.R. § 2560.503-1(g)(1). Thus, Strom cannot be held to have wa ived any rig

hts of which she was never apprised. In a case such a s this one, where the plan administrator has denied a claimant’s ver y status as a plan participant and consequently refused to produce plan-related doc uments — which the claimant had specifically and repeatedly

requested — we hold that, as a matter of law, the plan cannot make the requisite showings concer ning the knowing or voluntary nature of the claimant’s alleged waiver of his or he r rights to administrative review. According ly, the “actual knowledge” exception articulated by this Court in Veltri v. Building Services 32B-J Pension Fund , 393 F.3d 318, 326 (2d Cir. 2004), is not implicated here. In Veltri , we held that, for purposes of the sta tute of lim

itations, a claimant will be he ld to her a

ctual knowledge , rega

rdless-19-

of the plan administrator’s failure to provide adequate § 1133 notice . We opined that, where a plan administrator fails to give adequate § 1133 notice of a right to appeal to a court, it may be appropriate to equitably

toll the statute of limitations, but that such an extraordinary remedy would not be appropriate when the claimant already knew she had a right to appeal to a cour t. See id. (“[A] plaintiff who has actual knowledge of the rig ht to bring a judicial action challenging the denial of her benefits may not rely on equitable tolling notwithstanding inadequate notice from her pension plan.”). This Court has not yet ruled whethe r the “actual knowledge” holding of Veltri applies to pension plan review procedures, cf. Garcia Ramos v. 1199 Health Care Employees Pension Fund , 413 F.3d 234, 238 (2d Cir. 2005) (observing that this Court “ha[s] never squarely held that [equitable tolling] a pplies to ti

me limits tha

t are spe cified in

[ERISA ] plan provisions” (altera tions in ori ginal; in

ternal q uotation ma

rks omitte d)), and

we need not do so he

re beca use our holding forecloses a waiver de fense in the circumscribed circumstances pr esent in this case. When a plan assiduously refuse s to provide a claimant with information concerning her eligibility or administrative re view rights under the plan, any alleged waiver simply

cannot be kn ow in g o r v ol un ta ry. To the extent that the district court’s holding with respect to the Cash Plan turns on Strom’s alleged failure to exhaust, the district court erred bec ause “[d]efendants who give inadequate notice of the right to administratively appeal a denial of benefits are thus pre cluded . . . from asserting failure to exhaust administrative remedies as a de fense.” Veltri , 393 F.3d at 324 (c itin g Burke v. Kodak Ret. Income Plan , 336 F.3d 103, 108 (2d Cir. 2003)). In conclusion, we find the district court’s waiver determination to be untenable in light of-20-

SFP’s non-compliance with the notice provisions of ERISA, and w e find SFP to be precluded from rai sing a f

ailure- to-exhaus t defens e. We ther efore v acate t

he distric t court’s holding w

ith respec t to Strom’s

Cash Plan c laims and r

emand for furthe

r proce edings c onsistent w ith this decision. CONCLUSION For the foregoing reasons, the judgmen t of the dis trict cou

rt is VACAT ED, and th e case is REMANDED

for fur ther pro ceeding s.