Leslie Nolan v. Detroit Edison Co. ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0068p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
LESLIE D. NOLAN,
│
Plaintiff-Appellant,
│
> No. 19-1867
v. │
│
│
DETROIT EDISON COMPANY; DTE ENERGY CORPORATE │
SERVICES, LLC; DTE ENERGY COMPANY RETIREMENT │
PLAN; DTE ENERGY BENEFIT PLAN ADMINISTRATION │
COMMITTEE; JANET POSLER; QUALIFIED PLAN APPEALS │
COMMITTEE; MICHAEL S. COOPER; RENEE MORAN; │
JEROME HOOPER, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:18-cv-13359—David M. Lawson, District Judge.
Argued: February 6, 2020
Decided and Filed: March 23, 2021
Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Eva T. Cantarella, HERTZ SCHRAM, PC, Bloomfield Hills, Michigan, for
Appellant. Chris K. Meyer, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellees.
ON BRIEF: Eva T. Cantarella, HERTZ SCHRAM, PC, Bloomfield Hills, Michigan, for
Appellant. Chris K. Meyer, Mark B. Blocker, SIDLEY AUSTIN LLP, Chicago, Illinois, for
Appellees.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 2
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Leslie Nolan is one of many American workers
impacted by the previous decision of employers to move away from traditional pension plans.
In 2002, her employer, Detroit Edison Company (DTE),1 created a cash balance pension plan for
all new employees and invited its existing employees to transfer from their traditional defined
benefit plan to the new plan. Nolan accepted. When she retired in December 2017, DTE told
Nolan that her monthly pension benefit would be what she had accrued as of 2002 under the old
traditional pension plan, despite her participation in the new cash balance plan for 15½ years
after transfer. Nolan brings class action claims alleging that DTE made misleading promises and
failed to explain the new plan’s risks, in violation of several provisions of the Employee
Retirement Income Security Act (ERISA).2 The district court granted DTE’s motion to dismiss,
finding that Nolan’s allegations were untimely or failed to state a claim. We REVERSE in part,
AFFIRM in part, and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
A. Traditional Pension Plans and Cash Balance Pension Plans
This case centers around DTE’s invitation to employees to transfer from a traditional
defined benefit pension plan to a cash balance plan, another type of defined benefit (DB) plan.
Traditional DB plans typically compute pensions as a percentage of an employee’s average
salary for their most recent or highest earning years multiplied by years of service and a plan-
specific multiplier. Dana M. Muir, Counting the Cash: Disclosure and Cash Balance Plans,
37 J. Marshall L. Rev. 849, 854 (2004). This calculation produces a benefit expressed as a
1The other Defendant-Appellees are DTE Energy Company Services, LLC, DTE Energy Company
Retirement Plan, DTE Energy Benefit Plan Administration Committee, Janet Posler, Qualified Plan Appeals
Committee, Michael S. Cooper, Renee Moran, and Jerome Hooper. This opinion refers to all Defendants as DTE.
2Specifically, Nolan claims DTE breached the terms of the Plan and failed to provide appropriate
disclosures in violation of ERISA § 102, codified at 29 U.S.C. § 1022 and ERISA § 204(h), codified at 29 U.S.C.
§ 1054(h).
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 3
monthly annuity payable at normal retirement age for the rest of the participant’s life. Id. Cash
balance plans, on the other hand, define benefits by reference to a hypothetical account
periodically credited with assumed contributions as well as interest credits. Id. at 855–56.
Contribution credits are hypothetical contributions an employer makes, “usually expressed as a
percentage of wages or salary,” and interest credits are modeled earnings linked to an outside
index such as the one-year Treasury bill rate. Register v. PNC Fin. Servs. Grp., Inc., 477 F.3d
56, 62 (3d Cir. 2007).
In the 1990s, many employers began converting their defined benefit plans from
traditional into cash balance plans to reduce their pension costs. Edward A. Zelinsky, The Cash
Balance Controversy, 19 Va. Tax Rev. 683, 705, 713 (Spring 2000) (“Zelinsky Paper”).
Conversions often eliminate early retirement benefits, which are typically available under
traditional plans. Zelinsky Paper at 699. And a move from traditional to cash balance plans
tends to involve “wear away,” which “occurs when an employee continues to work at a company
but does not receive additional benefits for those additional years of service.” Amara v. CIGNA
Corp., 775 F.3d 510, 516 (2d Cir. 2014). This happens when the cash balance benefit never
exceeds the already-earned annuity benefit under the traditional formula. Zelinsky Paper at 702.
“[A]fter the cash balance conversion, the employee’s actual pension entitlement does not grow
until her hypothetical account balance under the cash balance methodology equals (‘wears
away’) and begins to exceed the value of the benefit she had earned previously under the
traditional pension formula.” Id. It can take years for the cash balance benefit to catch up to the
traditional plan benefit. Id. at 703–04. And it inevitably takes longer for the cash balance
benefit of older workers with longer terms of service to catch up to their traditional benefit
because they have amassed a larger benefit under the traditional plan than younger employees
with shorter terms of service. Private Pensions: Implications of Conversions to Cash Balance
Plans, U.S. General Accounting Office (Sept. 2000), 5, 9 (“GAO Report”).
Pursuant to ERISA and the Age Discrimination in Employment Act (ADEA), “the rate of
an employee’s benefit accrual” may not be ceased or reduced because of the employee’s age.
ERISA § 204(b)(1)(H); 29 U.S.C. 623(i)(1)(A). A “participant’s accrued benefit” may also not
be “reduced on account of any increase in his age or service.” ERISA § 204(b)(1)(G).
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 4
Plan amendments that convert traditional plans to cash balance plans do not violate these ERISA
requirements and ADEA protections against age discrimination if they define employees’
accrued benefit as the “sum of” the pre-conversion accrued benefit under the traditional plan and
the credits earned under the cash balance plan. ERISA § 204(b)(5)(B)(iii). This is because
benefits calculated using this “sum of” method do not lead to the wear-away phenomenon. See
Amara, 775 F.3d at 527 n.13.
As employers converted traditional plans into cash balance plans, plan administrators
often failed to provide participants with adequate information about the effects of adopting cash
balance plans. Zelinsky Paper at 729–30, 754; GAO Report at 6, 39.
B. ERISA Disclosure Requirements
Congress created ERISA to protect the interests of participants in their employee benefit
plans, including by (1) “requiring the disclosure and reporting to participants and beneficiaries”;
(2) “establishing standards of conduct, responsibility, and obligation for fiduciaries of employee
benefit plans”; and (3) “providing for appropriate remedies, sanctions, and ready access to the
Federal courts.” 29 U.S.C. § 1001(a)–(b). ERISA requires that information be provided
regularly to participants to aid them in protecting their benefits. ERISA § 102 requires that
summary plan descriptions (SPDs) and summaries of material modifications (SMMs) be
provided and written accurately, comprehensively, and in terms calculated to be understood by
the average plan participant. ERISA § 102(a). Circumstances that may result in benefit losses
must be appropriately disclosed in the SPD. ERISA § 102(b).
Congress added ERISA § 204(h) in 1986 and amended it in 2001 to require that pension
plan amendment notices authorizing “a significant reduction in the rate of future benefit accrual”
(i) be “written in a manner calculated to be understood by the average plan participant,”
(ii) “provide sufficient information (as determined in accordance with regulations prescribed by
the Secretary)” to allow participants to “understand the effect of the plan amendment,” and
(iii) be furnished “within a reasonable time before the effective date of the plan amendment.”
Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA). P.L. 107-16 (June 7,
2001), § 659(b); ERISA § 204(h)(2)–(3) (2001). These changes to ERISA § 204(h) applied to
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 5
“plan amendments taking effect on or after the date of the enactment” of the Economic Growth
and Tax Relief Reconciliation Act, June 7, 2001. P.L. 107-16 (June 7, 2001), §659(c)(1). Until
the Treasury Department issued new regulations under ERISA § 204(h) in 2003, a plan was
treated as meeting ERISA § 204(h)’s updated requirements if it made a “good faith effort to
comply with such requirements.” Id. § 659(c)(2).
C. DTE’s Traditional and Cash Balance plans
In 2002, DTE invited its employees to transfer from a traditional plan to a cash balance
plan. At that time, the traditional and cash balance plans became part of a single pension plan
document, and new employees, who had never participated in the traditional plan, could enroll
only in the cash balance plan. The plan was amended effective December 31, 2001 and “unless
specified otherwise in the Plan, the Plan provisions” became effective on that date. Section
5.02(b) describes the new cash balance plan and states that employee elections became effective
on June 1, 2002.
DTE provided participants with a Decision Guide that served as a Summary of Material
Modifications. According to the Complaint, the Guide promises that if employees agree to
transfer to the cash balance plan, they will receive their “frozen and protected” traditional plan
benefit earned as of the date of the transfer and contribution credits and interest credits earned
under the cash balance plan. The Complaint labels this methodology “the A+B Benefit
Promise.” Drawing all reasonable inferences in Nolan’s favor, A is defined as the “frozen and
protected” traditional plan benefit, and B defined as contribution credits and interest
credits earned under the cash balance plan.3 The “A+B” methodology is the same
as the “sum of” computation described in ERISA § 204(b) and discussed above. ERISA
§ 204(b)(1)(H)(vi)(5)(B)(iii); see also Amara, 775 F.3d at 527 n.13.
3The A+B Promise is not always clearly defined in the Complaint. In some places, Nolan appears to define
B as the annuity accrued under the cash balance formula, which would already include her traditional plan annuity in
the form of the initial cash balance. In other places, however, the Complaint says B means “benefit accruals under
the Cash Balance Plan in the form of ‘Contribution Credits’ and ‘Interest Credits,’” without the initial cash balance.
On appeal, Nolan makes clear that A+B means her frozen and protected traditional plan benefit plus contribution
and interest credits. Thus, this opinion construes the allegations in Nolan’s favor and evaluates the claims using this
second explanation of the B portion of the A+B promise.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 6
The Guide explains that under the traditional plan, pensions are computed as a percentage
of pay multiplied by years of service and are payable as annuities only. Under the cash balance
plan, benefits earned through the traditional plan “would be converted to an initial cash balance
benefit,” that “increases each year” with contribution credits, equal to 7% of the participant’s
eligible annual earnings and interest credits based on the 30-year Treasury rates. Unlike the
traditional plan benefit, which is expressed as an annuity and paid as an annuity at retirement, the
cash balance benefit is expressed as a lump sum and can be taken as a lump-sum payout or an
annuity.
Regarding converting the accrued benefit from the traditional plan into “an initial cash
balance benefit,” the Guide specifies that the plan would use “a present value conversion factor”
based on participants’ age. The traditional plan benefit would be “frozen and protected,” and
participants would “stop earning benefits” under the traditional plan and “begin earning benefits
under” the cash balance plan.
The Guide includes eight graphs for four hypothetical employees to help employees
compare benefit accrual rates between the traditional and cash balance plans. The graphs
compare the value of each retirement program, “varying the assumption for future cash balance
interest credits from 6% to 8%” to show how these different potential interest rates impact
benefit projections. The parts of the graphs showing the “value of benefits” are not assigned any
numbers, making it difficult to determine the real value difference between the depicted
traditional and cash balance benefit. Some of the graphs show that employees would earn a
lower benefit by transferring to the cash balance plan than they would accrue by remaining in the
traditional plan, but the graphs all show the employees continuing to earn new benefits after the
transfer. In other words, none of the graphs represent the effect that switching plans will have on
the actual amount received from the pension (the wear away period). It thus may be difficult to
understand from the graphs that employees electing to transfer to the cash balance plan do not
add meaningful value to their pension entitlements until the wear away period is over. For
example, for the hypothetical employee Terry, who had twenty-two years of service at the time
of the cash balance transfer and an initial cash balance of $63,208.05, the graphs show a steadily
increasing benefit under the cash balance formula under either interest rate:
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 7
(R. 1-3, Guide, PageID 244)
The Guide references a presentation with slides given at a financial planning seminar
presented by Ayco, an independent consulting firm hired by DTE. One slide is titled “How Your
Cash Balance Benefit Grows in 2002,” and shows four example employees, listing their initial
cash balance, their hypothetical interest credits and compensation credits, and the sum of those
terms which it shows as the employee’s cash balance benefit at the end of the following year.
Terry had an accrued benefit under the traditional plan of $1,788-per-month annuity beginning at
age sixty-five, which annuity translated into a lump-sum initial cash balance benefit of $63,226.
According to the chart, Terry would see his cash balance benefit grow to $71,661 by the end of
2002 once interest and compensation credits of $3,465 and $4,970 were added to his initial
balance:
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 8
(R. 3-10, Presentation, PageID 348) The presentation materials include nine additional graphs
showing steadily increasing benefit accruals under the cash balance plan, even where the charts
indicate that an employee would be better off participating in the traditional plan.
Under the heading “What Should I Keep in Mind as I review All of My Modeler
Results,” the Guide lists, among other things, “Your Age.” Under that subheading, this text
appears:
The pension benefit you earned at conversion under the Traditional Pension Plan
is protected under [the cash balance plan]. Although the [cash balance plan]
grows at a steady rate, do you find the [plan] does not catch up to the frozen
accrued benefit under your Traditional Pension Plan for a number of years? If
this happens and you are planning to leave DTE Energy during this time, your
pension may not grow.
Do you notice more than one crossover point? Which benefit is better if you
expect to leave DTE Energy at an age before or after each crossover point?
(R. 1-5, Guide, PageID 254) On the next page, page 32 of the Guide, a text box with the
heading “If you are close to early retirement age…” states, that even though the cash
balance account “grows at a steady rate,” participants may notice that their “benefit does
not catch up to the frozen accrued benefit under your Traditional Pension Plan for a
number of years” in part “because the value of your early retirement factors were not
included in your initial cash balance benefit.” It continues,
If you choose the [cash balance plan], effective on June 1, 2002, your traditional
pension plan benefit on May 31, 2002 is frozen and protected. Therefore, the
value of your [cash balance plan] benefit will never be less than the greater of the
benefit that you had on December 31, 2001 or May 31, 2002 under the Traditional
Pension Plan.
(Id.) The Guide explains that benefits depend “on the retirement program you choose,”
including “changes in your pay, years of service,” and “changes in the interest rates.”
D. Nolan’s Experience
Nolan agreed to transfer from her traditional plan to the new cash balance plan, believing
that her accrued benefit under the traditional plan would be “frozen and protected” and that she
would receive that benefit plus new credits accrued under the cash balance plan when she retired.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 9
When she transferred, Nolan had twenty-two and a half years of service with DTE and had
earned a benefit under the traditional plan of $1,581.19 per month. This benefit was computed
as a percentage of Nolan’s pay, multiplied by years of service, and expressed as a monthly
annuity.
A few years later in 2005, Nolan received a letter signed by DTE’s Project Manager for
Retirement Services, which stated:
Please find enclosed the 2004 Cash Balance Statement. This statement reflects
the benefits under the New Horizon Cash Balance Plan only. You may be eligible
for additional benefits under a prior plan if you are a transferred employee.
(R. 3-8, Schmidtzinsky Letter, PageID 328-29) The attached 2004 Cash Balance Statement
shows Nolan’s benefits increasing with contribution credits and interest credits.
Nolan retired from her position as a Financial Analyst with DTE 15 ½ years after the
transfer and after 38 years of service. A few months before Nolan retired in 2017, DTE sent her
a “pension calculation statement,” which included her payment options and the pension she
would receive under each option if she retired on December 2, 2017. The statement listed
Nolan’s purported “Minimum 5/31/2002 Benefit” and “Minimum 12/31/2001 Benefit” without
defining the term “minimum benefit.” On October 14, 2017, Nolan wrote to the plan
administrator requesting clarification of undefined terms including the references to her
minimum benefit; she also asked for the pension calculation methodology, copies of the
traditional and cash balance plans, and copies of the SPDs.
Emily Sharp, DTE’s Supervisor of Retirement Income Benefits, responded on November
6, 2017. To Nolan’s question about what “Minimum 5/31/2001 Benefit” meant, Sharp wrote,
In 2002, you were given the option to (1) continue accruing benefits under the
DTE Traditional Plan, or (2) have your accrued benefit converted to an opening
balance in the [cash balance plan], and thereafter earn benefits in the [cash
balance plan]. You elected to move into the [cash balance plan].
The IRS does not allow pension participants to be paid a lower benefit than has
been accrued at any point in your career. As a result, your DTE Traditional
benefit was preserved as a minimum when you moved to the [cash balance plan]
and that minimum benefit is called the “Minimum 5/31/2002 Benefit.” Your
minimum 5/31/2002 Benefit was calculated based on the DTE Traditional Plan
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 10
formula reflecting your earnings and years of service up to 5/31/2002. In your
case, this Minimum 5/31/2002 monthly benefit is larger than the equivalent
monthly benefit you have earned in the Cash Balance Plan because you were a
full-time employee through November 27, 2001 and reduced to part-time status
after that date. Your Minimum 5/31/2002 Benefit was primarily based on your
annual compensation as a full-time employee, while the annual Contribution
Credits to your Cash Balance account were based on your lower annual
compensation as a part-time employee. Because your Minimum 5/31/2002
Benefit is the larger benefit, your monthly Plan benefit payable at your December
2, 2017 commencement date is your Minimum 5/31/2002 Benefit.
(R. 3-4, Sharp Letter, PageID 297–301) Sharp stated that Nolan had earned a monthly benefit of
$987.83 through the cash balance plan, calculated by dividing her cash balance account amount
of $190,874.93 by the “Lump Sum Factor” of 193.2273, which was based on IRS specified rules
for assumed future life expectancy and interest rates. DTE would pay Nolan the pension she
earned under the traditional plan ($1,581.19 per month) because it was “larger” than the
$987.83-per-month pension earned through the cash balance plan. Sharp also provided Nolan
with a copy of the Plan. Sharp did not provide any SPD in effect in 2002 when DTE invited
Nolan to transfer to the cash balance plan.
Nolan initially concluded that her benefit should have equaled $2,569.02 per month, the
sum of her “frozen and protected” traditional plan benefit ($1,581.19) and the benefit she
believed, based on DTE’s representations, she accrued under the cash balance plan ($987.83).
Nolan filed an administrative claim for that amount.
After the plan administrator denied her claim, Nolan retained an actuary to review the
pension calculations. Nolan’s actuary determined that the annuity earned under the cash balance
plan was $402.55 per month at Nolan’s early retirement age of 59 years and 3 months, and that
Nolan was entitled to a total benefit of $1,983.74 per month ($1,581.19 + $402.55). According
to her actuary, when Nolan transferred to the cash balance plan, her traditional plan benefit was
converted into “the initial cash balance benefit,” using the 30-year Treasury rate of 5.48% for
September of the prior year. This yielded a $59,932.23 initial cash balance benefit. Under the
cash balance benefit plan, Nolan then accrued interest credits and contribution credits. When a
higher interest rate is used to convert a lump sum into an annuity, the calculation will lead to a
higher annuity than if a lower interest rate is used. If the same interest rate that was used to
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 11
compute Nolan’s initial cash balance benefit were also used to convert the protected benefit back
to an annuity, then the result would be her initial $1,581.19 annuity. Use of a lower rate to
convert the lump sum to an annuity yields a smaller annuity. DTE used lower annuity
conversion rates to translate Nolan’s initial cash balance back to an annuity such that when she
retired, the value of what she thought was her “frozen and protected” $1,581.19-per-month
annuity had purportedly fallen to $585.25 per month. When this decreased initial cash balance is
added to the annuity Nolan’s actuary derived from her contribution and interest credits of
$402.55 per month, the sum is $987.83 per month—the amount DTE determined Nolan was
entitled to under the cash balance plan. The significant devaluing of Nolan’s initial cash balance
is relevant if she is entitled only to her accrued traditional plan benefit or her total cash balance
plan amount, but it does not impact her benefits if she is entitled to “A+B”—the frozen and
protected initial cash balance plus interest credits and contribution credits.
E. Proceedings Below
On October 26, 2018, Nolan filed a putative class action Complaint against DTE. She
alleged (1) a claim for benefits under ERISA § 502(a)(1)(B) for a breach of Plan terms (Count I);
(2) a violation of ERISA § 102 (Count II); and (3) a violation of ERISA § 204(h) (Count III).
Count I alleges that Nolan is entitled to a benefit based on the “A+B Promise.” In the
alternative, Nolan alleges in Counts II and III that the Guide inaccurately described the plan by
failing to inform her of the potential downsides of the cash balance formula, including the
likelihood that her benefits would be subject to the wear-away phenomenon.
On January 11, 2019, Defendants moved to dismiss the Complaint on the grounds that
her claims were time-barred and that Counts II and III failed to state a claim. On July 9, 2019,
the district court issued an opinion and order granting Defendants’ motion, dismissing the
Complaint, and entering judgment for Defendants. Nolan timely appealed.
II. ANALYSIS
“We apply de novo review to a district court’s grant of a motion to dismiss.” Hill v.
Snyder, 878 F.3d 193, 203 (6th Cir. 2017). “We construe the complaint in the light most
favorable to the plaintiff, accept all well-pleaded factual allegations as true, and examine whether
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 12
the complaint contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Id. (internal quotation marks omitted) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). We may also consider documents attached to the complaint. Cates
v. Crystal Clear Techs., LLC, 874 F.3d 530, 536 (6th Cir. 2017). When a document contradicts
allegations in the complaint, rendering them implausible, “the exhibit trumps the allegations.”
Id. (quoting Williams v. CitiMortgage, Inc., 498 F. App’x 532, 536 (6th Cir. 2012)); see also
Creelgroup, Inc. v. NGS Am., Inc., 518 F. App’x 343, 347 (6th Cir. 2013) (explaining that a
plaintiff cannot survive a motion to dismiss if a “written instrument plainly contradicts the
pleadings”). If, on the other hand, the document provides support for both parties’ version of
events, we view the facts in the light most favorable to the plaintiff. See Jones v. City of
Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (accepting allegations in a complaint as true even
where conflicts existed between those allegations and attachments to the defendants’ motion to
dismiss); see also Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 442 (6th Cir. 2012) (same);
Luis v. Zang, 833 F.3d 619, 631 (6th Cir. 2016) (resolving inconsistencies in the non-moving
party’s favor at the motion to dismiss stage).
A. Statute of Limitations
We first consider DTE’s position that Nolan’s claims are barred by a six-year statute of
limitations, which began to run in 2002. “Congress did not provide a statute of limitations for”
non-fiduciary duty claims under ERISA, so courts “borrow the time limit from the forum state’s
most analogous cause of action.” Winnett v. Caterpillar, Inc., 609 F.3d 404, 408 (6th Cir.
2010). The parties agree that Nolan’s claims are subject to a six-year limitations period. They
dispute when the limitation period began to run. “Although state law sets the length of the
statute of limitations, ‘federal law’ establishes when ‘the statute of limitations begins to run.’”
Winnett, 609 F.3d at 408 (quoting Mich. United Food & Commercial Workers Union & Drug
Emp. v. Muir Co., 992 F.2d 594, 598 (6th Cir.1993)). Under federal law, the limitations period
starts “when the claimant discovers, or in the exercise of reasonable diligence should have
discovered, the acts constituting the alleged violation.” Id.No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 13
1. Count I (Breach of Plan Terms)
For Nolan’s claims that DTE refused to honor “the A+B Promise,” the parties agree we
apply the “clear repudiation” rule, which holds that a claim accrues “when a fiduciary gives a
claimant clear and unequivocal repudiation of benefits.” Morrison v. Marsh & McLennan Cos.,
439 F.3d 295, 302 (6th Cir. 2006). DTE argues that Nolan’s claims are time barred because the
statute of limitations expired in 2008, six years after Nolan received the Guide. According to
DTE, the Guide clearly and unequivocally notified Nolan that the benefits she would receive
differ from those to which she claims to be entitled. Nolan alleges that the Guide froze and
protected her traditional plan benefits in announcing the “A+B Promise,” and that the clock
began to run on her statute of limitations only when she learned in 2017 that DTE would not
honor that promise.
The Guide and the Ayco presentation include support for Nolan’s interpretation of the
cash balance formula. These materials do not plainly state that an employee will receive only the
larger of the two pension benefits. And Nolan’s contention that she was entitled to the “A+B
Promise” is also supported by the following:
• The Guide emphasizes that traditional plan benefit would be “frozen and protected,”
and participants would “stop earning benefits” under the traditional plan and “begin
earning benefits under” the cash balance plan.
• Under the cash balance plan, benefits earned through the traditional plan “would be
converted to an initial cash balance benefit,” that “increases each year” with
contribution credits, equal to 7% of the participant’s eligible annual earnings and
interest credits based on the 30-year Treasury rates.
• The Guide references the Ayco presentation, which includes a chart that we can
reasonably infer shows benefits being calculated using the “A+B” formula.
Other language in the Guide, however, confuses the issue. For example:
Although the [cash balance plan] grows at a steady rate, do you find the [plan]
does not catch up to the frozen accrued benefit under your Traditional Pension
Plan for a number of years? If this happens and you are planning to leave DTE
Energy during this time, your pension may not grow.
(R. 1-5, PageID 254) Although this language may cloud the issue, it does not clearly and
unequivocally repudiate Nolan’s understanding that she would be entitled to the sum of A (her
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 14
accrued traditional plan benefit translated into an initial cash balance) and B (contribution and
interest credits she earned under the cash balance plan). The first sentence is a question that the
examples provided throughout the DTE materials presumably help answer; those examples show
only steadily increasing cash balance benefits.4 Even where illustrations show the cash balance
benefit as lower than the traditional benefit, the benefits are shown as having increased from the
initial cash balance (i.e., the benefit accrued under the traditional plan as of transfer). The
examples do not indicate that an employee will be entitled to only the larger of the cash balance
or traditional plan benefit. Other parts of the Guide and attachments, moreover, support Nolan’s
view that she was entitled to the sum of her accrued traditional plan benefit and the contribution
and interest credits that she would earn annually under the cash balance plan. DTE argues that
the reference to a “catch up” period makes the “larger of” methodology obvious, but the
corresponding graphs show scenarios where participants’ benefits do not grow as quickly (i.e.,
“catch up”) without explaining the wear away period. This interpretation is also supported by
language in the Guide relied on by DTE referring to a slower growth rate than under the
traditional plan.
Nolan’s impression that she was entitled to the A+B Promise, that her pension would
show some increase for her continued years of service, was reinforced by the 2004 cash balance
plan statement sent to her. The letter accompanying the statement and signed by DTE’s Project
Manager for Retirement Services stated that she might “be eligible for additional benefits under a
prior plan if a transferred employee.” The statement showed her benefits increasing with
contribution credits and interest credits without showing how the real value of her accrued
benefit under the cash balance formula compared to her frozen and protected traditional plan
benefit or explaining the wear away period.
Given that the materials attached to Nolan’s Complaint include support for both parties’
views and that, at this stage, we view the allegations and draw reasonable inferences in Nolan’s
favor, we cannot conclude that Nolan received a “clear and unequivocal repudiation of benefits”
in 2002 when she accepted DTE’s invitation to transfer from the traditional pension plan to the
4The modeling tool that DTE argues participants should have used to answer this question was not attached
to the Complaint and is therefore not relevant to our review of DTE’s motion to dismiss.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 15
cash balance plan. Drawing all reasonable inferences in Nolan’s favor, Nolan received notice
that DTE would not honor the “A+B Promise” in 2017, and the clock began to run on her six-
year limitations period only then. Nolan’s breach-of-the-plan claim, Count I, was timely filed in
2018.
2. Counts II and III (ERISA Disclosure Claims)
We next address whether Nolan’s ERISA disclosure claims, Count II regarding ERISA
§ 102 and Count III regarding ERISA § 204(h), were timely filed. These claims overlap to some
extent because ERISA § 102 and ERISA § 204(h) both require that an SMM, Summary of
Material Modifications, be “written in a manner calculated to be understood by the average plan
participant.” ERISA § 102(a), ERISA § 204 (h)(2). Section 204(h) separately provides
procedural timing requirements for when SMM notice must be delivered. ERISA § 204(h)(3).
Claims for violation of ERISA’s disclosure requirements accrue when a plaintiff “knew
or should have known” that a plan amendment “had the effect which triggered the notice
requirement[.]” Romero v. Allstate Corp., 404 F.3d 212, 225 (3d Cir. 2005). Nolan alleges that
DTE failed to disclose that (i) employees who chose the cash balance plan would receive only
the “larger of” the pension earned under the traditional or cash balance plan, meaning they would
forfeit one or the other benefit, and that some employees would earn no new pension benefits
despite continuing to work for many years; and (ii) employees’ “initial cash balance benefit”
might be significantly devalued rather than “frozen and protected” if interest rates fell. Nolan
also claims that to the extent that DTE provided employees with the SMM notice required under
ERISA § 204(h), it did so at least forty-five days too late. Whether a six-year statute of
limitations bars Nolan’s substantive and procedural disclosure claims are distinct questions and
are addressed in turn.
DTE argues that Nolan knew or should have known enough to bring her substantive
disclosure claims in 2002 when it provided her the Guide. DTE cites Winnett v. Caterpillar,
Inc., in which we held that a litigant “cannot postpone the accrual of a cause of action by
claiming that, even though the company gave notice of a change in benefits in year one, the
change did not affect the litigant’s health or pocketbook until year four.” 609 F.3d at 410.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 16
In Winnett, retirees filed their ERISA § 102 claims too late because their employer provided
them with “a new labor agreement that altered the healthcare benefits available to retirees” and
“announced new costs for obtaining them” more than six years before the retirees filed their
claims. Id. at 409. The participants filed claims only after their employer began deducting a
monthly healthcare premium from the retirees’ pension even though the Summary Plan
Description delivered to them years earlier, “left no doubt about the legal stakes of the changes,
notifying the retirees that monthly premiums ‘will be required.’” Id. at 407, 412 (quoting the
SPD).
Nolan counters that the Guide did not properly give notice of the change in benefits
because it is consistent with her interpretation of the Plan. Nolan states that she did not know
enough to bring either of her disclosure claims until 2017, when she received a copy of the Plan.
Drawing all reasonable inferences in Nolan’s favor, the Guide does not disclose that the cash
balance plan would yield only the “larger of” the pension earned under the traditional or cash
balance plan. Although the Guide asks a few questions that provide some clues about the
potential for wear away—i.e., does their cash balance benefit “catch up to the frozen accrued
benefit under” their traditional plan—it nowhere clearly explains the negative impact that the
wear away period will have for employees who switch plans. Even where the Guide indicates
that a participant’s pension “may not grow initially or may grow at a slower rate than under the
Traditional Pension Plan,” rather than explaining what this means, language elsewhere in the
Guide contradicts this statement, telling participants that their “cash balance benefit increases
each year with two types of credits.” Charts in the Ayco presentation also could lead a
reasonable participant to believe her benefit was being calculated using the “A+B” formula.
To be sure, the Guide does say that participants might be better off remaining in the
traditional plan, but Nolan has not alleged that the Guide fails to make this general disclosure.
Nolan claims that the Guide fails to disclose that employees’ “initial cash balance benefit” might
be significantly devalued by falling interest rates, which is also supported by factual allegations
in the Complaint and the exhibits. The Guide repeatedly says that participants’ initial cash
balance will be “frozen and protected.” It says “[t]he pension benefit you earned at conversion
under the Traditional Pension Plan is protected under” the cash balance plan.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 17
Unlike in Winnett, where notices “left no doubt about the effect” of benefit changes, here
the Guide is unclear. Nolan alleges that the first time she had enough information to bring her
substantive disclosure challenges was in 2017 when she received a letter from the administrator
and a copy of the Plan. And there is nothing in the documents attached to the pleadings that
directly contradicts this allegation. Therefore, Nolan’s claims regarding the Guide’s substantive
defects are not time barred.
Nolan’s procedural claim that the Guide was provided at least forty-five days too late,
however, is untimely. Under ERISA § 204(h), notice of plan amendments that provide “for a
significant reduction in the rate of future benefit accrual” must be furnished “within a reasonable
time before the effective date of the amendment.” ERISA § 204(h)(3). An amendment that
“eliminates or significantly reduces any early retirement benefit or retirement-type subsidy . . .
shall be treated as having the effect of significantly reducing the rate of future benefit accrual.”
P.L. 107-16 (June 7, 2001), §659(b); ERISA § 204(h)(9) (2001). At the very least, Nolan knew
or should have known in 2002 that transferring to the cash balance plan would eliminate her
early retirement benefit because the Guide states that for those transferring from the traditional to
cash balance plans, “the value of your early retirement factors” are “not included in your initial
cash balance benefit.” Nolan knew or should have known enough in 2002 to bring her claim that
DTE failed to provide the SMM notice within a reasonable time before the effective date of the
amendment. Nolan’s procedural claim that the Guide was late is therefore time barred.
B. Violations of ERISA’s Substantive Disclosure Requirements
Turning to the merits, DTE moved to dismiss only Nolan’s ERISA disclosure claims
(Counts II and III) for failure to state a claim. If the Plan document is found to not adopt an
“A+B” methodology, Nolan alleges in Count II that she is still entitled to relief under ERISA
§ 102. Specifically, Nolan claims in Count II that DTE failed to adequately disclose the
calculation method and other cash balance formula downsides, including the significant negative
impact falling interest rates would have on employees’ converted initial cash balances. In Count
III, Nolan reiterates these allegations regarding the Guide’s substantive disclosure defects.
Count III also includes her ERISA § 204(h) procedural claim that we have found to be
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 18
time-barred. DTE argues that the Guide and other exhibits attached to the Complaint render
Nolan’s allegations regarding violations of ERISA § 102 and ERISA § 204(h) implausible.
1. ERISA § 102 (Count II)
Pursuant to ERISA § 102, plans must state their manner of operation in clear and
understandable terms in the Summary Plan Description (SPD). ERISA § 102(a). The SPD
“shall be written in a manner calculated to be understood by the average plan participant and
shall be sufficiently accurate and comprehensive to reasonably apprise such participants and
beneficiaries of their rights and obligations under the plan.” Id. “A summary of any material
modification in the terms of the plan” (SMM) must also “be written in a manner calculated to be
understood by the average plan participant.” Id. The SPD “shall contain” information related to
circumstances which may result in the loss of benefits. ERISA § 102(b).
Department of Labor regulations enforcing ERISA § 102 require that plan administrators
consider whether the SPD is written in a manner understandable to “the average plan
participant.” 29 C.F.R. § 2520.102-2(a). “The format of the summary plan description must not
have the effect to misleading, misinforming or failing to inform participants and beneficiaries.”
Id. § 2520.102-2(b). “Any description of exceptions, limitations, reductions, and other
restrictions of plan benefits shall not be minimized, rendered obscure, or otherwise made to
appear unimportant,” and “[t]he advantages and disadvantages of the plan shall be presented
without either exaggerating the benefits or minimizing the limitations.” Id.
In Osberg v. Foot Locker Inc., disclosure materials distributed to plaintiffs violated
ERISA § 102 because they led plaintiffs to reasonably believe they would receive their accrued
traditional plan benefit plus the added benefits they continued to accrue, but in reality,
participants were entitled only to the larger of their now-frozen and stagnant traditional plan
benefits or the differently calculated cash balance benefit. Osberg v. Foot Locker, Inc., 862 F.3d
198, 205 (2d Cir. 2017). A memo distributed to employees stated that participants would “have
the option of taking the lump sum payment equal to your account balance” upon retirement.
Id. at 204. This language “lacked any description of wear-away or any indication that the
conversion would cause a benefits freeze for most participants.” Id. “That false impression was
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 19
further reinforced by ‘total compensation’ statements that participants began receiving annually
and which showed participants’ account balances increasing each year due to the receipt of pay
and interest credits.” Id.
As in Osberg, aspects of the Guide have the effect of obscuring that their actual take-
home pension benefit amount would remain stagnant for anyone experiencing wear away.
Specifically, the examples in the Guide compare only the “present values,” i.e., lump-sum values
under each retirement program. The false impression is reinforced by the chart in the Ayco
presentation showing employees’ accounts increasing with contribution and interest credits
without explaining how the lump-sum cash balance account would be translated into an annuity.
For employee Terry—whose accrued benefit under the traditional plan ($1,788 per month)
translated into a lump-sum initial cash balance benefit of $63,226—the chart showed his cash
balance benefit growing to $71,661 by the end of 2002 once interest and compensation credits of
$3,465 and $4,970 were added to his account. From this information, participants could
reasonably infer that they are eligible for their protected traditional plan benefit plus benefits that
accrued under the cash balance plan as they continued to work. The Guide arguably led
participants to believe that the benefits they received at retirement would inevitably increase
beyond their already earned annuity because the Guide did not clearly explain the effect of the
wear-away period after converting to the lump sum.
Also, because the Guide arguably failed to clarify that the initial cash balance could be
significantly devalued by falling interest rates, a participant would not necessarily recognize this
significant risk in switching to the new plan. When an employee switched from the old to the
new plan, DTE would convert her earned annuity into an opening balance for the cash balance
formula using the current interest rate. In other words, they would calculate the present value of
the annuity and use that figure as the starting point for her new account. Later, when the
employee retired, they would take her account balance—her starting sum plus any accrued
value—and convert it back into an annuity using whatever interest rate applied then. If the
interest rate used for the first conversion exceeded the interest rate for the second conversion, the
value of the initial cash balance could be substantially lost.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 20
In Amara v. CIGNA Corporation, defendants also failed to provide adequate notice under
ERISA § 102 and ERISA § 204(h). There, CIGNA told employees that under the new cash
balance plan, “your benefit will grow steadily throughout your career.” Amara, 775 F.3d at 515
(quoting SPD). “It also told each employee that his or her ‘opening balance [in the new cash
balance plan] was equal to the lump sum value of the pension benefit [he or she] earned
through’” the old, traditional plan. Id. (quoting the SPD) This information was misleading,
however, because the new plan did not preserve the full value of each employee’s accrued
traditional plan benefits. Employees’ initial cash balance was devalued in part: if an employee
elected to receive an annuity at retirement under the cash balance plan, “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).”
Id. at 516.
Here too, the disclosure materials indicate to employees that their benefits will grow
steadily throughout their careers. Employees were told that their benefits would increase each
year with contribution and interest credits. And every example shows employees earning new
benefits after the transfer. None of the graphs represent the effect of wear away and the lack of
increase in the actual realized value of their available pension benefits. It is thus reasonable to
infer from the graphs that employees electing to transfer to the cash balance plan would earn new
benefits beyond their initial cash balance benefit from further years of employment.
DTE argues that the Guide explained that benefits depend “on the retirement program
you choose,” including “changes in your pay, years of service,” and “changes in the interest
rates.” But this disclosure that benefits would be impacted by interest rates does not make clear
that decreasing interest rates might cause the participant’s initial cash balance benefit to be
significantly devalued because of the extended wear-away period. That “changes in interest
rates” would affect benefits can be interpreted to mean merely that the amount of interest credits
earned annually under the cash balance formula would depend on interest rates. This
interpretation makes sense in the context of the graphs provided to help employees compare
benefit accrual rates under varying interest rates, which show only that growth of the traditional
and cash balance benefits depends on interest credits.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 21
DTE also argues that we should not rely on Osberg or Amara because it claims that
employers in those cases deliberately misled participants and that the transfers to cash balance
plans were mandatory. Under ERISA § 102, however, malicious intent need not be alleged to
state a claim. Section 102 requires certain information to be provided to plan participants in a
form that is accurate, comprehensive, and in clear language understandable to average plan
participants. A plaintiff, therefore, may plead factual allegations showing that a notice had the
“effect” of “misleading, misinforming or failing to inform participants and beneficiaries.”
29 C.F.R. § 2520.102-2(b).
For the reasons already described, the Guide and other exhibits attached to Nolan’s
Complaint do not plainly contradict her allegations that the Guide failed to adequately inform her
of the potential downsides of the cash balance formula, including that she would not be entitled
to the A+B Promise and that her purportedly “frozen and protected” initial cash balance could
shrink significantly if interest rates fell. Drawing reasonable inferences in Nolan’s favor, the
average plan participant could not intuit the concept or likelihood of the wear-away phenomenon
or the effect that dropping interest rates would have on the conversions of the opening cash
balance. Nor can we say at this stage that an average employee would have understood these
concepts based on questions posed like: “Although the [cash balance plan grows at a steady rate,
do you find the [plan] does not catch up to the frozen accrued benefit under your Traditional
Pension Plan for a number of years?” and “Do you notice more than one crossover point? Which
benefit is better if you expect to leave DTE Energy at an age before or after each crossover
point?” These questions ultimately communicate only that some participants might be better off
remaining in the traditional benefit plan, but they do not disclose how the calculations actually
work. The suggestion of a “catch up” period, for example, can be interpreted to inform a
participant only that her benefit might grow faster under the traditional plan. The same is true of
the phrase “crossover point,” which can reasonably be interpreted as expressing a difference in
benefit accrual between the traditional and cash balance plans without explaining that a
participant is eligible only for the larger of the two benefits. These alternative interpretations are
particularly compelling in light of other parts of the Guide and exhibits that, construed in Nolan’s
favor, support her allegations regarding the A+B Promise.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 22
DTE also cites Jensen v. Solvay Chemicals, Inc., 625 F.3d 641 (10th Cir. 2010) to
support its view that Nolan has failed to state a claim under ERISA § 102’s disclosure
requirements. In that case, plaintiffs did not allege that their employers’ disclosures were
inaccurate, only that they were deficient. 625 F.3d at 651. Unlike in this case, the notice in
Jensen showed the actual dollar amount of the annuity benefit under the traditional plan and cash
balance plan for sixteen hypothetical employees, described in detail the negative impact of
declining interest rates on the value of annuity benefits, and discussed a fifty-four-year-old
employee who would earn no new benefits for seven years. Id. at 647–49, n.8–n.9. The notice
explained the impact of interest rates this way:
Some participants may notice that while their lump sum benefit always grows,
their monthly benefit may not increase at the same rate or at all in some years.
This could be due to changes in prevailing interest rates. The lower the interest
rate used to convert account balances to annuities, the smaller the annuity
equivalent of your account balance will be (and vice versa).
Id. at 649 n.9. Importantly, the notice also clearly explained the concept of the wear-away period
and provided an example of a six-year wear-away period. Id. at 649, 656.
In this context, the Tenth Circuit affirmed a district court’s granting of the employer’s
motion for summary judgment, finding the notice provided by the employer in Jensen satisfied
ERISA § 204(h). Because the notice satisfied ERISA § 204(h), it also satisfied ERISA § 102.
Id. at 657 (“a notice that complies with the disclosure requirements of [ERISA] § 204(h) would
satisfy in that respect the requirements for an SMM [under ERISA § 102]”). The court
concluded that “wear-away need not be disclosed as a new eligibility requirement after
conversion” and that the notice adequately demonstrated that participants would receive the
greater of their benefit under the old method, frozen as of the new plan’s commencement, or the
benefit earned under the new plan, which could take significant time to catch up to the
previously accrued benefit. Id. at 658.
The Guide and Nolan’s allegations distinguish this case from Jensen. Nolan alleges not
only that the Guide provided deficient notice, but also that it misled plan participants by failing
to disclose the wear away period or the impact falling interest rates could have on what they
believed was a “frozen and protected” initial cash balance. Unlike the notice in Jensen, which
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 23
disclosed the likelihood of wear away through examples, none of the examples provided by DTE
demonstrate the lack of added value to the actual received benefit amount during the wear away
period. The Jensen guide told participants that they may notice differences between their
growing lump-sum benefit and their monthly benefit, which might not “increase at the same rate
or at all” because of “changes in prevailing interest rates.” Id. at 649 n.9. This concept was
further illustrated by the notice provided in Jensen because the examples compared expected
monthly benefits under the old and new plan for different ages, compensation, and years of
service. In contrast, the DTE materials neither explain this difference between the growth rate of
a participants’ lump-sum- and monthly-benefits nor offer examples of expected monthly
benefits. Instead, all the DTE examples show employees’ initial cash balance benefits increasing
to larger lump-sum benefits as interest and compensation credits are accrued.
In sum, Nolan has a colorable claim that DTE did not explain in plain English in the
Guide or the Ayco presentation materials its position on appeal that employees transferring to the
cash balance plan would not actually receive any new benefits if the benefit accrued under the
new plan did not catch up to their frozen traditional plan benefit. Likewise, DTE failed to
explain the effect that interest rates could have on depreciating the already-earned benefits
during conversion rather than simply slowing the growth of added benefits. Nolan stated a
plausible claim that DTE’s notice was defective under ERISA § 102 because it failed to describe
the plan in a manner understandable to the average plan participant.
2. ERISA § 204(h) (Count III)
Nolan’s procedural claim under ERISA § 204(h) is time barred, but her claim that DTE
failed to comply with the substantive disclosure requirements of § 204(h) remains. Just as
ERISA § 102(a) requires that SPDs and SMMs “be written in a manner calculated to be
understood by the average plan participant,” ERISA § 204(h) requires that notice of an
amendment providing “for a significant reduction in the rate of future benefit accrual,” i.e., a
Summary of Material Modifications, be “written in a manner calculated to be understood by the
average plan participant.” ERISA § 204(h)(2).
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 24
Despite this overlapping instruction, the ERISA § 102 and ERISA § 204(h) inquiries
diverge somewhat. For example, in the case of an “egregious failure to meet any” ERISA
§ 204(h) requirement, plaintiffs are entitled to special relief:
(i) the benefits to which they would have been entitled without regard to such
amendment, or
(ii) the benefits under the plan with regard to such amendment.
ERISA § 204(h)(6)(A)(i)–(ii). Although Nolan’s Complaint alleges that DTE’s failure to
provide her with § 204(h) notice was “egregious,” entitling her to this additional relief, on appeal
Nolan does not provide an argument that any ERISA § 204(h) violations rise to the level of
egregious failures.5
To the extent that Nolan seeks relief under ERISA § 204(h) that cannot be obtained under
ERISA § 102, such further relief is available in this case only if Nolan’s allegations show DTE
failed to make a “good faith effort” to comply with § 204(h)’s requirements. When Congress
amended § 204(h) in 2001 to include substantive requirements similar to those in § 102, it
specified that until the Treasury Department issued new regulations interpreting ERISA
§ 204(h), a plan was treated as meeting the section’s updated requirements if it made a “good
faith effort to comply with such requirements.” P.L. 107-16 (June 7, 2001), § 659(c)(2). This
“good faith” standard applies to Nolan’s § 204(h) claim because DTE provided her with notice
during the period between 2001 and 2003 when the good-faith standard governed.
The allegations in and the materials attached to the Complaint show that DTE satisfied
the requirement to make a good faith effort to comply even though the notice provided to
employees was ultimately inadequate under ERISA § 102. Even assuming that the Guide does
not successfully convey information in plain English about the wear away period or the impact
of interest rates on employees’ supposedly “frozen and protected” initial cash balance to an
average plan participant, it does contain “explanations, comparisons, and cautions,”
and indicate a “multi-modal informational campaign.” Nolan v. Detroit Edison Company, et. al.,
5Nolan does label DTE’s violations “egregious” in her Statement in Support of Oral Argument, but she
does not discuss the statutory definition of “egregious” or argue that DTE’s failures meet this definition in her
analysis.
No. 19-1867 Nolan v. Detroit Edison Co., et al. Page 25
-- F.Supp.3d --, No. 18-13359, 2019 WL 2996178, at *42 (E.D. Mich. July 9, 2019). Thus, even
accepting Nolan’s allegations as true, Nolan has failed to state a claim under the good-faith
standard applicable to her ERISA § 204(h) claim.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of DTE’s motion to
dismiss Counts I and II, AFFIRM the dismissal of Count III, VACATE the judgment below,
and REMAND for further proceedings consistent with this opinion.