Geoffrey Moyle v. Liberty Mutual Retirement Plan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GEOFFREY MOYLE, an individual, Nos. 13-56330
on behalf of themselves; PAULINE 13-56412
ARWOOD, an individual, on behalf
of themselves; THOMAS D.C. No.
ROLLASON, an individual, on 3:10-cv-02179-
behalf of themselves; JEANNIE GPC-MDD
SANDERS, an individual, on behalf
of themselves,
Plaintiffs-Appellants/ ORDER AND
Cross-Appellees, AMENDED
OPINION
v.

LIBERTY MUTUAL RETIREMENT
BENEFIT PLAN; LIBERTY MUTUAL
RETIREMENT PLAN RETIREMENT
BOARD; LIBERTY MUTUAL
INSURANCE COMPANY, a
Massachusetts company; LIBERTY
MUTUAL INSURANCE GROUP INC.,
a Massachusetts company,
Defendants-Appellees/
Cross-Appellants.

Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
2 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Argued and Submitted October 19, 2015
Pasadena, California

Filed May 20, 2016
Amended August 18, 2016

Before: Harry Pregerson and Consuelo M. Callahan,
Circuit Judges and Stanley Allen Bastian,* District Judge.

Order;
Opinion by Judge Pregerson

SUMMARY**

Employee Retirement Income Security Act

The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendants in a
class action under the Employee Retirement Income Security
Act.

Plaintiffs alleged that their new employer, which
purchased their former employer, told them that they would
receive past service credit, under the new employer’s

*
The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 3

retirement plan, for the time they worked with the former
employer.

The panel affirmed the district court’s summary judgment
on a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). The
panel held that the district court applied the correct abuse of
discretion standard of review, and the plaintiffs were not
entitled to past service credit under the plain terms of the
retirement plan.

The panel reversed the district court’s summary judgment
on plaintiffs’ claim for equitable relief under § 1132(a)(3).
Agreeing with the Eighth Circuit, the panel held that the
plaintiffs were not barred from bringing simultaneous claims
under § 1132(a)(1)(B) and § 1132(a)(3). Courts have
interpreted Varity Corp. v. Howe, 516 U.S. 489 (1996), to
mean that equitable relief under § 1132(a)(3) is not available
if § 1132(a)(1)(B) provides an adequate remedy. But under
CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), § 1132(a)(3)
authorizes equitable relief in the form of plan reformation,
even if plaintiffs also claim relief under § 1132(a)(1)(B). The
panel concluded that in light of Amara, prior Ninth Circuit
case law to the contrary was no longer binding. The panel
remanded for determinations of fact and equitable relief in the
form of reformation and surcharge.

The panel affirmed the district court’s summary judgment
on a claim that the new employer breached its fiduciary duty
to disclose information about past service retirement credit in
its Summary Plan Description. The panel held that the
plaintiffs did not prove harm or detrimental reliance.

On defendants’ cross-appeal, the panel held that class
certification was proper.
4 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

COUNSEL

Matthew Butler (argued) and Michael Olinik, The Butler
Firm, San Diego, California; Jack Winters Jr., Winters &
Associates, San Diego, California; Craig Nicholas and Alex
Tomasevic, Nicholas & Tomasevic, LLP, San Diego,
California, for Plaintiffs-Appellants/Cross-Appellees.

Ashley Abel (argued), Jackson Lewis P.C., Greenville, South
Carolina, for Defendants-Appellees/Cross-Appellants.

ORDER

The Opinion filed on May 20, 2016, is amended as
follows: in the last sentence on page 5 of the Slip Opinion,
the words “that the suit is not time-barred and” shall be
deleted so that the sentence reads, “We also find that class
certification was proper.”

Judges Pregerson, Callahan, and Bastian have voted to
deny Defendants-Appellees’ petition for panel rehearing.
Judge Callahan has voted to deny Defendants-Appellees’
petition for rehearing en banc, and Judges Pregerson and
Bastian so recommend.

The full court has been advised of the petition, and no
judge of the court has requested a vote on the petition for
rehearing en banc. Fed. R. App. P. 35. Defendants-
Appellees’ Petition for Rehearing or Rehearing En Banc is
therefore DENIED, and no further petitions for rehearing will
be accepted.
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 5

OPINION

PREGERSON, Circuit Judge:

Appellants are former employees of Old Golden Eagle
Insurance Company (“Golden Eagle”). Golden Eagle did not
offer a retirement plan to its employees. When Liberty
Mutual Insurance Company (“Liberty Mutual”) purchased
Golden Eagle through a conservatorship sale, Appellants
became employees of Liberty Mutual. Appellants state that
while the sale was underway, Liberty Mutual told Appellants
that they would receive past service credit for the time they
worked with Golden Eagle under Liberty Mutual’s retirement
plan. But, after Liberty Mutual purchased Golden Eagle,
Liberty Mutual denied Appellants’ claims for past service
credit. Liberty Mutual argues that it never made any
representation to Appellants that they would receive past
service credit for their time with Golden Eagle. Liberty
Mutual also argues that under the terms of the retirement
plan, Appellants are entitled only to past service credit for
purposes of eligibility, vesting, early retirement, and spousal
benefits, and not for retirement benefits accrual.

Appellants filed this class action against Liberty Mutual
for violating the Employee Retirement Income Security Act
(“ERISA”). At the district court, Appellants asserted four
claims for relief: (1) Appellants are entitled to past service
credit under the terms of the retirement plan, under 29 U.S.C.
§ 1132(a)(1)(B); (2) Appellants are entitled to equitable relief
under 29 U.S.C. § 1132(a)(3); (3) Liberty Mutual violated its
duty to provide Appellants with documents relevant to their
claim; and (4) Liberty Mutual violated its duty to disclose
information about past service retirement credit in its
Summary Plan Descriptions. Appellants seek the equitable
6 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

remedies of reformation and surcharge for both claims (2)
and (4).

The district court granted summary judgment in favor of
Liberty Mutual on all four claims. Appellants appealed on
claims (1), (2), and (4). Liberty Mutual cross-appealed,
alleging that Appellants’ suit is time-barred and that class
certification was improper.

We reverse the district court’s ruling as to claim (2).
Appellants can seek equitable relief under 29 U.S.C.
§ 1132(a)(3). We affirm the district court’s ruling as to
claims (1) and (4): Appellants are not entitled to past service
credit under the plain terms of the retirement plan, and
Appellants did not rely to their detriment on Liberty Mutual’s
failure to disclose information about past service credit in its
Summary Plan Descriptions. We also find that class
certification was proper.

FACTUAL BACKGROUND

I. Liberty Mutual’s Bid for Golden Eagle

On January 31, 1997, the California Department of
Insurance placed Golden Eagle into conservatorship with the
San Diego Superior Court. Seeing an opportunity to expand
its insurance business, Liberty Mutual took an immediate
interest in acquiring Golden Eagle, who had a large worker’s
compensation business.

However, many Golden Eagle employees—worried that
their jobs were in jeopardy—began to look for different
employment opportunities. From January 1997 to the
summer of that year, nearly fifty percent of Golden Eagle
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 7

employees left the company, and their departure had already
cost Golden Eagle about a half million dollars.

In April 1997, Liberty Mutual was in a bidding war with
American International Group, Inc. (“AIG”) for the
acquisition of Golden Eagle. To win the bidding war, Liberty
Mutual needed to not only match AIG’s bid, it also needed to
add enhancements to secure the Conservation Court’s
approval. On April 6, 1997, Liberty Mutual submitted its
enhanced bid, which included improved employee benefits
such as a retirement plan, a benefit not offered by Golden
Eagle. Including improved employee benefits for Golden
Eagle’s former employees served to benefit Liberty Mutual
in two ways: by retaining Golden Eagle’s employees, and by
increasing the likelihood that the court would approve Liberty
Mutual’s bid.

While the bid was going on, several Golden Eagle
employees approached George Kaerth, Senior Vice President
of Underwriting at Golden Eagle, and asked him if they
would get past service credit for their time with Golden Eagle
under Liberty Mutual’s retirement benefits program. Kaerth,
in turn, had about twenty conversations with David Long
from Liberty Mutual, and about ten to twelve conversations
with Tim Sweeney, also from Liberty Mutual, about the
Liberty Mutual benefits package for Appellants. Kaerth
repeatedly told Long and Sweeney that the Golden Eagle
employees were confused about past service credit. Kaerth
asked Long and Sweeney pointedly whether or not service
with Golden Eagle would count under the Liberty Mutual
benefits program, and, every time, Long and Sweeney
separately responded that this issue was still under
negotiation.
8 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

On May 29, 1997, the Conservation Court held an
evidentiary hearing to evaluate Liberty Mutual’s and AIG’s
competing bids. Among the exhibits that Liberty Mutual
submitted to the court, one exhibit expressly stated that the
value that Liberty Mutual added was to “increase employee
benefits (credit for prior year’s of service and participation in
the benefits plan).” Liberty Mutual also told the
Conservation Court that Golden Eagle employees would have
the rights that Liberty Mutual employees had with “X years
of service.” This representation was later repeatedly made to
Golden Eagle employees.1

Liberty Mutual’s representations at the May 29 hearing
were shared with Golden Eagle employees. At the time of the
hearing, Golden Eagle employees preferred Liberty Mutual’s
proposal because it was perceived that Liberty Mutual would
treat its employees better than AIG. On May 30, 1997, the
Conservation Court approved Liberty Mutual’s bid.

II. Golden Eagle Transitions to Liberty Mutual

Following the approval of Liberty Mutual’s bid, Liberty
Mutual drafted a Rehabilitation Agreement, which was meant
to settle any outstanding claims with policyholders, creditors,
and shareholders of Golden Eagle. Notably, Article 5 of the
Rehabilitation Agreement states that Golden Eagle
employees’ past service credit would count for the purposes
of eligibility, vesting, and early retirement subsidies under
Liberty Mutual’s retirement benefit plan, but past service

1
Brian Chambers, Vice President of Premium Auditing at Golden Eagle,
testified at his deposition: “[W]e understood that prior years service would
be covered, that if you were ten years with Golden Eagle, then you would
still register like ten years with the new company.”
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 9

credit would not be credited for the purpose of benefits
accrual. The Rehabilitation Agreement is the only document
that explicitly states that past service credit with Golden
Eagle would not count for benefits accrual, and this language
does not appear anywhere else during the time of transition or
in any of the communications with Golden Eagle employees.

Helen Sayles, Liberty Mutual’s Senior Vice President of
Human Resources and Administration, oversaw the
development of Article 5 as well as all Summary Plan
Descriptions (“SPD”)2. Sayles testified that it was “important
to be explicit at each agreement, including this one, what
people got and what people didn’t get.”

The Conservator in charge of the transition of Golden
Eagle to Liberty Mutual was not required to send notification
of the Rehabilitation Agreement to Golden Eagle employees.
Liberty Mutual never provided a copy of the Rehabilitation
Agreement to Golden Eagle employees.

During August 1997, Liberty Mutual hosted a series of
benefits enrollment meetings so that Golden Eagle employees
could discuss and obtain information about the transition to
Liberty Mutual. Liberty Mutual developed a uniform
“Facilitator Guide” that presenters used as a script at these
meetings to convey information about the terms and
conditions of employee benefits, including retirement
benefits. There was no mention in the Facilitator Guide that

2
Summary Plan Descriptions are summaries of the material provisions
of a retirement benefits plan, outlining the rights and obligations of plan
participants and beneficiaries. Under ERISA, plan administrators are
required to provide regular Summary Plan Descriptions to participants.
See 29 U.S.C. § 1022.
10 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

past service credit with Golden Eagle would not be credited
for benefit accrual, or that benefit accrual would begin on the
plan entry date of October 1, 1997.

During the enrollment meetings, Liberty Mutual failed to
indicate that there were any limitations to the treatment of
past service credit. Paula Tonsky, who organized new hire
orientations, testified that her understanding from attending
some of these meetings was that “previous years with Golden
Eagle would count towards . . . service with Liberty Mutual.”

Golden Eagle employees Geoffrey Moyle, Pauline
Arwood, Thomas Rollason, and Jeannie Sanders also testified
that this was their understanding after attending the meetings,
as well as the understanding of other Golden Eagle
employees. When asked if his understanding was that he
would get past service credit for his time with Golden Eagle
for all purposes under the Liberty Mutual retirement plan,
Moyle stated, “I know that was my understanding, because
everybody was quite happy after the meeting, that [sic] what
they were going to receive.” Similarly, Sanders testified,
“[B]ecause of the meeting . . . we all were told that our years
of service with Golden Eagle would be counted towards our
retirement benefit, meaning that our check we would receive,
the money, the years we worked for Golden Eagle, would be
calculated for that.”

Arwood testified that the question of past service credit
was asked at least three times during one meeting. She then
stated, “[W]e specifically asked and were told that our prior
years with Golden Eagle would apply to our retirement plan,
which we were all very excited about, because some of us
were getting ready to retire in a few years . . . I mean,
everybody was there. Basically, . . . that was the impression
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 11

we were given. That is why everybody stayed with the
company.”

Rollason testified that Mike Plavnicky from Liberty
Mutual told Golden Eagle employees during an enrollment
meeting that “[y]ou accrue, this, that.” Rollason went on to
state, “Plavnicky came out and said, yes, you will get
pension, pension for your Golden Eagle time through Liberty
Mutual. He said it point blank range.” Rollason testified that
he was looking for another job at that time: “[T]hen they said
that we would get the benefit—the pension and I said, well,
at my age . . . I will just stay here then.”

Also during the enrollment period, Golden Eagle
employees had two information documents available to them:
the operative 1987 Plan (“87 Plan”) and the Summary Plan
Descriptions. The 87 Plan, however, did not address past
service credit or any credit for vesting, eligibility, or
participation. Similarly, the Summary Plan Description,
which was dated 1996, did not address past service credit.

III. Golden Eagle Formally Becomes Part of Liberty
Mutual

On October 1, 1997, Liberty Mutual officially acquired
Golden Eagle and formed Golden Eagle Insurance Company,
a subsidiary of Liberty Mutual. Golden Eagle employees
who stayed on were now Liberty Mutual employees. For the
next four years, Liberty Mutual did not amend the 87 Plan to
address past service credit. Liberty Mutual’s Summary Plan
Descriptions from 1997 to 2001 also did not address past
service credit.
12 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

In 2001, Liberty Mutual finally amended the Liberty
Mutual Retirement Benefit Plan (“the Retirement Plan”) to
include provisions that specifically addressed Golden Eagle
employees. The Summary Plan Description dated 2002 also
addressed Golden Eagle employees. Both the Retirement
Plan and the 2002 Summary Plan Description stated that past
service credit for Golden Eagle employees would be “credited
for eligibility, vesting, early retirement, and spouse’s benefits
. . . ;” in 2009, the word “solely” was added to this clause.

Between 2002 and 2006, the Liberty Mutual Retirement
Benefit Plan Retirement Board (“Liberty Mutual Board”), the
Retirement Plan’s administrator, denied the claims of almost
a dozen former Golden Eagle employees who sought past
service credit, including the claims of Moyle, Arwood,
Rollason, and Sanders. Liberty Mutual’s justification for the
denials was that it had informed former Golden Eagle
employees about when past service credit applied and
therefore, former Golden Eagle employees should have
known when past service credit did not apply.

PROCEDURAL BACKGROUND

On March 14, 2005, Moyle filed an action against Golden
Eagle Insurance Company and Liberty Mutual in district
court, seeking benefits payment for his past service credit
with Golden Eagle. Moyle amended the complaint on August
23, 2005 to include the Retirement Plan as a defendant. On
November 14, 2005, the district court granted the defendants’
motion to dismiss for failure to exhaust administrative
remedies. Moyle appealed and this court affirmed the district
court’s dismissal on August 23, 2007.
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 13

On January 26, 2008, Moyle filed a claim with Liberty
Mutual. On July 18, 2008, Rollason filed a claim; on August
21, 2008, Arwood filed a claim; and on December 4, 2008,
Sanders filed a claim. John R. St. Martin, Liberty Mutual’s
Manager of Pension, Savings, and Benefits, denied Moyle’s
claim on April 23, 2008, and subsequently denied the claims
of Rollason, Arwood, and Sanders.

Moyle, Rollason, Arwood, and Sanders consolidated their
claims and sought administrative review with Liberty Mutual.
On October 23, 2009, Helen Sayles, Senior Vice President of
Human Resources and Administration, denied Appellants’
appeal on behalf of the Liberty Mutual Board.

On October 19, 2010, Moyle, Rollason, Arwood, and
Sanders filed the instant class action complaint against the
Retirement Plan, the Liberty Mutual Board, Liberty Mutual
Group, Inc., and Liberty Mutual (collectively, “Liberty
Mutual”) for violations of ERISA. The district court granted
Appellants’ motion for class certification on April 10, 2012.
On April 24, 2012, Liberty Mutual filed a petition with this
court for permission to appeal the district court’s order
granting class certification. This court denied Liberty
Mutual’s petition for permission to appeal on July 11, 2012.

On October 12, 2012, Appellants filed a third amended
complaint which alleged the following four causes of action:
(1) payment of benefits under the Retirement Plan pursuant
to 29 U.S.C. § 1132(a)(1)(B); (2) equitable remedies under
29 U.S.C. §1132(a)(3); (3) civil penalties for failure to
provide documents under § 29 C.F.R. § 2560.503-1(h)(2)(iii);
and (4) failure to meet the requirements for Summary
Retirement Plan Descriptions as required by 29 C.F.R.
§ 2520.102-3(l) and 29 C.F.R. § 2520.102-2(a). The
14 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

equitable remedies that Appellants seek under claims two and
four are reformation and surcharge.

On July 1, 2013, the district court granted Liberty
Mutual’s motions for summary judgment on all four claims
and denied all of Appellants’ motions for summary judgment.
On July 30, 2013, Appellants timely filed a notice of appeal
in this court. Liberty Mutual filed their notice of cross-appeal
on August 13, 2013, arguing that Appellants’ § 1132(a)(1)(B)
claims are barred by the statute of limitations and the doctrine
of laches, and that class certification was not proper.

DISCUSSION

I. Appellants Cannot Receive Benefits for Past Service
Credit with Golden Eagle under the Terms of the
Retirement Plan.

A. The District Court Applied the Correct Standard of
Review.

Under 29 U.S.C. § 1132(a)(1)(B), a civil action may be
brought “by a participant, beneficiary, or fiduciary [] to
recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan.” Denials
of benefits under this provision are “to be reviewed under a
de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan.” Firestone v. Bruch, 489 U.S. 101, 115 (1989).

If the administrator or fiduciary who is given
discretionary authority operates under a conflict of interest,
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 15

“that conflict must be weighed as a facto[r] in determining
whether there is an abuse of discretion.” Id.3 (citing
Restatement (Second) of Trusts § 187, Comment d (1959))
(internal quotations omitted). De novo review applies in
instances where the administrator has a serious conflict of
interest that the beneficiary can demonstrate with “material,
probative evidence, beyond the mere fact of an apparent
conflict, tending to show that the fiduciary’s self-interest
caused a breach of the administrator’s fiduciary obligations
to the beneficiary.” Gatti v. Reliance Standard Life Ins. Co.,
415 F.3d 978, 985 (9th Cir. 2005) (quotation marks omitted).
The administrator must have engaged in “wholesale and
flagrant violation[] of the procedural requirements of ERISA
and thus act[] in utter disregard of the underlying purpose of
the plan as well.” Abatie v. Alta Health & Life Ins. Co.,
458 F.3d 955, 971 (9th Cir. 2006).

Both parties agree that the Retirement Plan gives the
Liberty Mutual Board, as administrator, discretion to interpret
the Retirement Plan. However, Appellants argue that there is
a structural conflict of interest because of the close
connection between Liberty Mutual, who funds the
Retirement Plan, and the Liberty Mutual Board, who acts as
administrator of the Retirement Plan. Sayles, who approved
St. Martin’s denial of Appellants’ initial claims for benefits,
was both Director of Human Resources for Liberty Mutual
and a member of the Liberty Mutual Board of Directors.
Appellants argue that St. Martin and Sayles were involved
with the 1997 Benefit Enrollment meetings and drafted plan

3
The Supreme Court explicitly stated, “We express no view as to the
appropriate standard of review for actions under other remedial provisions
of ERISA.” Firestone, 489 U.S. at 108. We thus apply this standard only
to § 1132(a)(1)(B).
16 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

documents, including the Summary Plan Descriptions and
Facilitator Guide. Appellants contend that St. Martin and
Sayles were essentially relying on their own communications
when deciding to deny Appellants’ claims, and this conflict
of interest served as a bias against Appellants. Appellants
argue that for these reasons, de novo review applies.

The district court found that Appellants did not provide
specific evidence to show that a sufficiently serious structural
conflict of interest existed as to warrant de novo review. The
district court, however, did find that a conflict of interest
existed based on the significant overlap between the
employees who worked for both Liberty Mutual and the
Liberty Mutual Board, and thus reviewed the record for an
abuse of discretion, weighing the conflict of interest as a
factor.

The district court’s abuse of discretion standard of review
is correct. Appellants failed to provide “material, probative
evidence” that the Liberty Mutual Board engaged in
“wholesale and flagrant violations of the procedural
requirements of ERISA.” Gatti, 415 F.3d at 985; Abatie,
458 F.3d at 971. Additionally, Sayles testified that she had
never obtained a report that analyzed the actuarial soundness
of the Retirement Plan if Golden Eagle employees were given
past service credit for the purpose of benefits accrual.4
Absent this information, it is difficult to prove that Sayles
was motivated by the self-interest of the fiduciary when she
denied Appellants’ initial claims.

4
See also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443–46
(1999) (holding that certain amendments to pension plans do not trigger
fiduciary duties, as long as the plan is actuarily sound).
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 17

B. Liberty Mutual’s Interpretation of the Retirement
Plan Was Reasonable.

Under the abuse of discretion standard, an administrator’s
denial of benefits must be upheld “if it is based upon a
reasonable interpretation of the plan’s terms and if it was
made in good faith.” McDaniel v. Chevron Corp., 203 F.3d
1099, 1113 (9th Cir. 2000). The analysis is not based on
“whose interpretation of the plan documents is most
persuasive, but whether the [adminstrator’s] interpretation is
unreasonable.” Canseco v. Constr. Laborers Pension Tr.,
93 F.3d 600, 606 (9th Cir. 1996) (internal quotation marks
omitted). The court must “look to the plain language of the
[Retirement Plan] to determine whether the [administrator’s]
interpretation of that plan is ‘arbitrary and capricious.’” Id.
In the instant case, the abuse of discretion standard will be
applied with the conflict of interest being weighed as a factor
in determining whether the Liberty Mutual Board abused its
discretion. Abatie, 458 F.3d at 965.

Article 3 of the Retirement Plan lays out the various
formulas for calculating accrued benefits under the normal
retirement benefit. The formulas are based on a plan
participant’s “years of credited service.” According to the
relevant parts of Article 1.69(c) of the Retirement Plan, “year
of credited service” for full-time employees means “the
period of the Participant’s service with the Employer
following his Entry Date . . . . [T]he following periods of time
shall not be included in determining Years of Credited
Service and fractional Years of Credited Service: . . . any
period of time during which an Employee is not an Eligible
Employee.” “Entry date” is defined as “the first day of each
calendar month.” Article 1.25 of the Retirement Plan.
“Eligible Employee” includes “any Employee who . . . is
18 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

employed by a Participating Employer.” Article 1.19 of the
Retirement Plan. “Participating Employer” means “any other
Affiliated Employer which adopts the Plan with the approval
of [Liberty Mutual].” Article 1.50 of the Retirement Plan.

Under Article 1.4 of the Retirement Plan, “Affiliated
Employer” means “any corporation, trust, association or
enterprise (other than [Liberty Mutual]) which is (a) required
to be considered, together with [Liberty Mutual], as one
employer pursuant to the provisions of Sections 414(b),
414(c), 414(m), or 414(o) of the Code; or (b) which is
designated an Affiliated Employer by [Liberty Mutual].”
With regard to an affiliated employer, Article 2.16 of the
Retirement Plan also states:

(a) General. An individual’s employment
service with an employer prior to the date
such employer becomes an Affiliated
Employer shall not be considered employment
service with the Employer under this Plan,
unless otherwise provided by the Board of
Directors, or unless otherwise required by
Department of Labor or Treasury regulations.
Similarly, an individual’s employment service
with an employer who is not an Affiliated
Employer, or who ceases to be an Affiliated
Employer, shall not be considered
employment service with the Employer under
this Plan, unless otherwise provided by the
Board of Directors, or unless otherwise
required by Department of Labor or Treasury
regulations. Notwithstanding the following:

....
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 19

(d) Golden Eagle. The following special rule
applies to former employees of [Golden
Eagle] who became employed by the Golden
Eagle Insurance Corporation, a wholly owned
subsidiary of the Company, on October 1,
1997, as a result of the acquisition by the
Company of the assets of [Golden Eagle]. For
purposes of applying the eligibility and
participation provisions of Article 2 and the
vesting provisions of Article 6, and for
determining eligibility for early retirement
benefits under Section 4.1 and Spouse’s death
benefit under Section 7.3, such employees’
prior employment service with [Golden
Eagle] shall be considered employment
service with the Employer under this Plan.

The Liberty Mutual Board, as administrator, found that
under these provisions, Golden Eagle was never a
Participating Employer prior to October 1, 1997. Therefore,
Appellants were not Eligible Employees prior to October 1,
1997 and the time that they were employed by Golden Eagle
did not count as Years of Credited Service for the purposes of
calculating accrued benefits under Article 1.69(c). For these
reasons, the Liberty Mutual Board denied Appellants’ claims
for benefits. Liberty Mutual also contends that Article
2.16(d), which addresses Golden Eagle employees’ prior
employment service, specifically enumerates eligibility,
vesting, early retirement, and spousal benefits; it does not
mention benefits accrual or Article 3 of the Retirement Plan.

Applying the abuse of discretion standard while weighing
the conflict of interest as a factor, the district court correctly
found that the Liberty Mutual Board did not construe the
20 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

terms of the Retirement Plan in an arbitrary and capricious
manner. Under the plain language of the Retirement Plan, it
is not unreasonable to read the relevant provisions as
excluding service time with Golden Eagle from benefits
accrual. In particular, Article 2.16(d) pointedly contemplates
what past service credit with Golden Eagle would count
toward and suggests that it would be considered employment
service with Liberty Mutual only for the purposes of
eligibility, vesting, early retirement and spousal benefits. Our
analysis is based on whether the Liberty Mutual Board’s
reading of the Retirement Plan was reasonable, and not on
which party’s interpretation is more persuasive, and we find
such an interpretation to be reasonable.5 Canseco, 93 F.3d at
606.

II. Appellants Are Not Barred from Bringing
Simultaneous Claims Under 29 U.S.C. § 1132(a)(3)
and 29 U.S.C. § 1132(a)(1)(B).

A. The Varity Rule

Under 29 U.S.C. § 1132(a)(3), a civil action may be
brought “by a participant, beneficiary, or fiduciary (A) to
enjoin any act or practice which violates any provision of this
subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or

5
Because we affirm summary judgment in favor of Liberty Mutual’s
§ 1132(a)(1)(B) argument on the merits, the statute of limitations and
laches claims are moot. We decline to address Liberty Mutual’s argument
that the statute of repose in 29 U.S.C. § 1113 acts to bar some of
Appellants’ claims under 29 U.S.C. § 1132(a)(3). The district court may
consider such arguments on remand.
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 21

(ii) to enforce any provisions of this subchapter or the terms
of the plan.”

In Varity Corp. v. Howe, the Supreme Court described
§ 1132(a)(3) as a “‘catchall’ provision[] [that] act[s] as a
safety net, offering appropriate equitable relief for injuries
caused by violations that [§ 1132] does not elsewhere
adequately remedy.” 516 U.S. 489, 512 (1996). Courts have
subsequently interpreted Varity to mean that equitable relief
under § 1132(a)(3) is not available if § 1132(a)(1)(B)
provides an adequate remedy. See, e.g., Rochow v. Life Ins.
Co. of N. Am., 780 F.3d 364, 371–72 (6th Cir. 2015);
Korotynska v. Metro. Life Ins. Co., 474 F.3d 101, 106 (4th
Cir. 2006); Hall v. Lhaco, Inc., 140 F.3d 1190, 1197 (8th Cir.
1998).

B. Equitable Relief After Amara

In CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1879–80
(2011), the Supreme Court held that § 1132(a)(3) authorized
equitable relief in the form of plan reformation, even though
plaintiffs also claimed relief under § 1132(a)(1)(B). In
Amara, employees filed a class action suit against their
employer after the employer significantly changed the terms
of their pension plan. The employees alleged that their
employer did not provide adequate notice of the new plan as
required by ERISA. The Supreme Court found that although
the employer did violate its disclosure obligations,
§ 1132(a)(1)(B) could not authorize relief for the employees
in the form of plan reformation. Id. at 1876–78. The Amara
court held that § 1132(a)(1)(B) could only authorize the
enforcement of the terms of the plan, it could not change the
terms of the plan. Id. at 1876–77.
22 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

The Court, nonetheless, held that plan reformation was
available under § 1132(a)(3) as an equitable remedy, stating
that the power to reform contracts is a traditional power of an
equity court. Id. at 1879–80. Therefore, once the plan was
reformed under § 1132(a)(3) to reflect the terms of the old
plan, it could be enforced under § 1132(a)(1)(B). The fact
that this relief takes a monetary form does not remove it from
the category of equitable relief. Id. at 1880.

Appellants argue that Amara authorizes them to seek
relief under § 1132(a)(3) despite their alternative claim under
§ 1132(a)(1)(B). The district court granted summary
judgment against Appellants, stating that the plaintiffs in
Amara did not have a remedy under § 1132(a)(1)(B) and that
Amara did not address whether equitable relief was available
under § 1132(a)(3) if § 1132(a)(1)(B) provided an adequate
remedy. The district court concluded that Appellants’ claim
for surcharge, estoppel, and restitution were, in essence,
monetary relief “couched in terms of equitable of relief” and
therefore could not be claimed as an equitable remedy.

Both the district court and Liberty Mutual insisted on
applying Varity and gave Amara short shrift, even though the
latter is controlling authority. While Amara did not explicitly
state that litigants may seek equitable remedies under
§ 1132(a)(3) if § 1132(a)(1)(B) provides adequate relief,
Amara’s holding in effect does precisely that. After the
Amara court held that plaintiffs did not have reformation
available to them under § 1132(a)(1)(B), the Supreme Court
then went on to authorize reformation as a form of equitable
relief under § 1132(a)(3).

If Appellants’ factual allegations are true, then the instant
case is highly analogous to Amara: in both cases, there was
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 23

a material lack of disclosure about the terms of a pension
plan; in both cases, plaintiffs sought relief under
§ 1132(a)(1)(B); and in both cases, plaintiffs also sought
equitable remedies under § 1132(a)(3). Thus, applying
Amara to this case, if Appellants are unable to recover
benefits based on an interpretation and enforcement of the
Retirement Plan under § 1132(a)(1)(B), they can, however,
receive reformation of the Retirement Plan as an equitable
remedy under § 1132(a)(3). Additionally, Amara makes it
very clear that remedies such as reformation, surcharge,
estoppel, and restitution are traditionally equitable remedies,
and the fact that they take a monetary form does not alter this
classification. 131 S. Ct. at 1879–80.

C. Applying Amara in Light of Varity

Applying Amara’s conclusion that a plaintiff may seek
relief under both § 1132(a)(1)(B) and § 1132(a)(3) does not
contravene the ruling in Varity. In Varity, plaintiffs sought
relief under ERISA § 409(a), 29 U.S.C. § 1109(a), which
authorizes recovery to benefit plans for breaches of fiduciary
duty. Varity, 516 U.S. at 508–09. The Varity court found
that § 1109(a) provided relief only for benefit plans and not
individuals, but held that § 1132(a)(3) could provide
individualized relief. Id. at 509–12, 515. Thus, a key holding
in Varity was that § 1132(a)(3) extends to other sections of
the statute, even when § 1132 does not expressly provide a
remedy for those sections. Varity did not explicitly prohibit
a plaintiff from pursuing simultaneous claims under
§ 1132(a)(1)(B) and § 1132(a)(3).

We agree with the Eighth Circuit’s application of Amara
in Silva v. Metro. Life Ins. Co., 762 F.3d 711 (8th Cir. 2014).
There, the Eighth Circuit held that a plaintiff may seek relief
24 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

under § 1132(a)(1)(B) and § 1132(a)(3), stating that “[the
Amara court] addressed the issue in terms of available relief
and did not say that plaintiffs would be barred from initially
bringing a claim under the § 1132(a)(3) catchall provision
simply because they had already brought a claim under the
more specific portion of the statute, § 1132(a)(1)(B).”
762 F.3d at 727. The Eighth Circuit addressed prior cases
that prohibited plaintiffs from seeking relief under both
provisions and explained, “We do not read Varity . . . to stand
for the proposition that [a plaintiff] may only plead one cause
of action to seek recovery [for an ERISA violation]. Rather,
we conclude those cases prohibit duplicate recoveries when
a more specific section of the statute, such as § 1132(a)(1)(B),
provides a remedy similar to what the plaintiff seeks under
the equitable catchall provision, § 1132(a)(3).” Silva,
762 F.3d at 726 (emphasis in original). The Eighth Circuit’s
reading permits plaintiffs to present § 1132(a)(1)(B) and
§ 1132(a)(3) as alternative—rather than duplicative—theories
of liability. This approach is an accurate application of
Amara in light of Varity because it allows plaintiffs to plead
alternate theories of relief without obtaining double
recoveries.

This reading of Varity is consistent with other pre- and
post-Amara cases that have held § 1132(a)(1)(B) and
§ 1132(a)(3) claims may proceed simultaneously so long as
there is no double recovery. Forsyth v. Humana, Inc.,
114 F.3d 1467, 1475 (9th Cir. 1997) (holding plaintiffs could
not recover under § 1132(a)(3) because they “[had] already
won a judgment for damages under section 1132(a)(1) for the
injuries they suffered as a result of the defendant's actions”),
overruled on other grounds, Lacey v. Maricopa Cty.,
693 F.3d 896 (9th Cir. 2012). Other circuits have similarly
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 25

recognized that § 1132(a)(1)(B) and § 1132(a)(3) claims can
proceed simultaneously if they plead distinct remedies.

In Rochow v. Life Ins. Co. Of N. Am., a post-Amara case,
the Sixth Circuit prohibited the plaintiff from pursuing his
§ 1132(a)(3) claim because he had a remedy available under
§ 1132(a)(1)(B). 780 F.3d 364 (6th Cir. 2015). However, the
court reasoned that “[t]he purpose behind ERISA continues
to be remedial, and [the plaintiff’s] injury was remedied when
he was awarded the wrongfully denied benefits and attorney’s
fees.” Id. at 375. The plaintiff in Rochow had already
received his remedy under § 1132(a)(1)(B) and the court
essentially enjoined his § 1132(a)(3) claim, because, if
successful, it would result in a double recovery for the same
injury.

In Devlin v. Empire Blue Cross & Blue Shield, a pre-
Amara case, the Second Circuit held that “should plaintiffs’
claim under . . . § 1132(a)(1)(B) . . . fail, plaintiffs’ breach of
fiduciary duty claim is their only remaining remedy. Varity
Corp. clearly provides that, where a plan participant has no
remedy under another section of ERISA, she can assert a
claim for breach of fiduciary duty under § [1132](a)(3).”
274 F.3d 76, 89 (2nd Cir. 2001).

Both Rochow and Devlin support Appellants’ ability to
seek relief under § 1132(a)(3) despite also pursuing a claim
under § 1132(a)(1)(B). Here, Appellants seek the payment of
benefits under § 1132(a)(1)(B), but if that fails, Appellants
seek an equitable remedy for the breach of fiduciary duty to
disclose under § 1132(a)(3). This is permitted under pre- and
post-Amara cases across different circuits.
26 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Some of our pre-Amara cases held that litigants may not
seek equitable remedies under § 1132(a)(3) if § 1132(a)(1)(B)
provides adequate relief. See, e.g., Ford v. MCI Commc’ns
Corp. Health & Welfare Plan, 399 F.3d 1076, 1083–84 (9th
Cir. 2005) (“Because Ford asserted specific claims under
29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(2), she cannot obtain
relief under 29 U.S.C. § 1132(a)(3).”), overruled on other
grounds, Cyr v. Reliance Standard Life Ins. Co., 642 F.3d
1202 (9th Cir. 2011). However, those cases are now “clearly
irreconcilable” with Amara and are no longer binding. See
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en
banc) (holding that “a three-judge panel is free to reexamine
the holding of a prior panel” when the Supreme Court has
“undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly
irreconcilable”).

This approach not only comports with Amara and Varity,
it also adheres to the Federal Rules of Civil Procedure, which
requires that “[a] pleading that states a claim for relief must
contain . . . a demand for the relief sought, which may include
relief in the alternative or different types of relief.” Fed. R.
Civ. P. 8(a)(3) (emphasis added). Finally, allowing plaintiffs
to seek relief under both § 1132(a)(1)(B) and § 1132(a)(3) is
consistent with ERISA’s intended purpose of protecting
participants’ and beneficiaries’ interests. See, e.g., 29 U.S.C.
§ 1001; see also Varity, 516 U.S. at 513 (“ERISA’s basic
purposes favor a reading . . . that provides the plaintiffs with
a remedy.”).

Thus, the instant case turns on a factual determination of
whether Liberty Mutual breached its fiduciary duty by failing
to inform Golden Eagle employees that past service credit for
the purpose of benefit accrual did not include the period prior
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 27

to October 1, 1997, when they were first employed by Golden
Eagle. Because there are triable issues of fact, the district
court erred in granting summary judgment on this claim.

III. Liberty Mutual Failed to Notify Appellants in Its
Summary Plan Descriptions that Past Service
Credit with Golden Eagle Would Not Count for
Benefits Accrual, But Appellants Did Not Prove
Harm or Reliance on the Summary Plan
Descriptions.

Under 29 C.F.R. § 2520.102-3(l), Summary Plan
Descriptions must contain a statement “clearly identifying
circumstances which may result in disqualification,
ineligibility, or denial, loss, forfeiture, suspension, offset,
reduction, or recovery . . . of any benefits that a participant or
beneficiary might otherwise reasonably expect the plan to
provide.” Additionally, 29 C.F.R. § 2520.102-2(a) requires
the Summary Plan Description to be “written in a manner
calculated to be understood by the average plan participant
and shall be sufficiently comprehensive to apprise the plan’s
participants and beneficiaries of their rights and obligations
under the plan.”

The law is divided as to whether Appellants need to
demonstrate detrimental reliance on the Summary Plan
Descriptions.6 The Amara court held that in cases that sought

6
Several courts have held that reliance is necessary. See, e.g., Greeley
v. Fairview Health Servs., 479 F.3d 612, 614 (8th Cir. 2007) (“In order for
an employee to recover from his employer for a faulty [Summary Plan
Description], this court requires the employee to show he relied on its
terms to his detriment.”); Branch v. G. Bernd Co., 955 F.2d 1574, 1579
(11th Cir. 1992) (“We reiterate our holding that a beneficiary must show
reliance on the terms of the summary.”) (emphasis in original); Govoni v.
28 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

reformation and surcharge as remedies, detrimental reliance
was not always necessary. 131 S. Ct. at 1881. In these
instances, the plaintiffs need only show harm and causation.
Id. at 1881–82.

After Amara, we held in Skinner v. Northrop Grumman
Retirement Plan B that reformation under a fraud theory
requires a showing that “(1) one party seeks reformation,
(2) that party’s assent was induced by the other party’s
misrepresentations as to the terms or effect of the contract,
and (3) the party seeking reformation was justified in relying
on the other party’s misrepresentations.” 673 F.3d 1162,
1166 (9th Cir. 2012).

Liberty Mutual had a duty to identify in its Summary Plan
Descriptions circumstances which may have resulted in the
denial7 of any benefits that Appellants might otherwise have
reasonably expected the Retirement Plan to provide. In this
case, Appellants had the reasonable expectation, based on the
alleged oral representations made by Liberty Mutual about

Bricklayers, Masons & Plasterers Int’l Union, 732 F.2d 250, 252 (1st Cir.
1984) ( “[T]o secure relief, [a plaintiff] must show some significant
reliance upon, or possible prejudice flowing from, the faulty plan
description.”); but see Burke v. Kodak Ret. Income Plan, 336 F.3d 103,
106 (2d Cir. 2003) (“Moreover, requiring plan participants or beneficiaries
to show detrimental reliance to recover for a deficient SPD contravenes
ERISA’s objective to promote distribution of accurate SPDs to
employees.”).
7
The district court affirmed Liberty Mutual’s position that Liberty
Mutual was not required to state in its Summary Plan Descriptions which
benefits Appellants were disqualified or ineligible for because Golden
Eagle did not provide retirement benefits. However, the regulation also
requires Liberty Mutual to state which benefits Appellants would be
denied based on their reasonable expectations. 29 C.F.R. § 2520.102-3(l).
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 29

past service credit, that they would receive credit for the
purpose of benefits accrual. From 1997 to 2001, the
Summary Plan Descriptions did not contain this information.
Even when the Summary Plan Description was amended in
2002, it stated that past service credit with Golden Eagle
would count toward eligibility, vesting, early retirement, and
spousal benefits. In light of the alleged representations made
at the enrollment meetings, these terms—particularly
“eligibility” and “vesting”—lack clarity in communicating
how past service credit would be used and are not “written in
a manner calculated to be understood by the average plan
participant,” as required by § 2520.102-2(a). Given that past
service credit for the purpose of benefits accrual was at the
fore of Golden Eagle employees’ concerns during the benefits
enrollment meetings and other informal encounters, it was not
sufficient for Liberty Mutual to simply assume that
Appellants would understand that they would not get credit
for benefits accrual when they saw the words “eligibility” and
“vesting,” assuming that plan participants understood what
“accrual” meant at all. Excluding explicit statements about
benefits accrual was a material omission that Liberty Mutual
should have clearly disclosed, especially since it had the
opportunity to do so in its Summary Plan Descriptions.

With regard to reliance, Appellants are unable to prove
even the lower standard of harm and causation. The district
court found that Appellants were not harmed because they did
not rely to their detriment on the allegedly faulty Summary
Plan Descriptions. Based on the record, it is evident that
many Golden Eagle employees, including some of the named
Appellants, made the decision to stay with Liberty Mutual
during the bidding period because they were under the
impression that their past service credit would count toward
accrual under the Retirement Plan. In fact, Kaerth left
30 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

Liberty Mutual for another job in 1998 after discovering that
he would not get credit for benefits accrual. However, the
record shows that any opportunity costs that Appellants may
have incurred were based on the oral representations made by
Liberty Mutual and not on the Summary Plan Descriptions.
Thus, Appellants are unable to prove harm or detrimental
reliance on the Summary Plan Descriptions.

IV. Class Certification Was Appropriate.

The standard of review for class certification on appeal is
abuse of discretion. Yokoyama v. Midland Nat. Life Ins. Co.,
594 F.3d 1087, 1090 (9th Cir. 2010). While review of class
certification decisions is deferential, the decisions of district
courts are not afforded deference upon review of their
determinations of questions of law. Id. at 1091.

A. Commonality and Typicality

Rule 23 of the Federal Rules of Civil Procedure contains
two sets of class certification requirements set forth in Rule
23(a) and (b). United Steel, Paper & Forestry, Rubber, Mfg.
Energy, Allied Indus. & Serv. Workers Int’l Union v.
ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010).
Under Rule 23(a), a litigant may sue on behalf of other
members of a class if: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative
parties will fairly and adequately protect the interests of the
class. “Rule 23(a) ensures that the named plaintiffs are
appropriate representatives of the class whose claims they
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 31

wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541, 2550 (2011).

Liberty Mutual argues that the district court erroneously
certified Appellants as a class because the second and third
requirements of Rule 23(a)—commonality and typicality—
are not met in this case. Liberty Mutual contends that the
alleged misrepresentations are not the same for all Appellants
because they each received information about past service
credit from different sources. Additionally, Liberty Mutual
argues that Appellants’ underlying claims require
individualized proof of detrimental reliance, and the district
court erred by concluding that this reliance could be
presumed. Thus, commonality and typicality requirements
are not satisfied.

Liberty Mutual’s contention that Appellants did not
receive the same alleged misrepresentations is a question of
fact, and, given the standard of review, we defer to the district
court’s finding that Liberty Mutual’s claim “is not supported
by the evidence.” We need not decide whether the district
court erred in presuming Appellants’ reliance to certify the
class. Instead, we affirm the district court on the ground that
where the defendant’s representations were allegedly made
on a uniform and classwide basis, individual issues of
reliance do not preclude class certification. See Hanon v.
Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (“We
emphasize that the defense of non-reliance is not a basis for
denial of class certification.”). Therefore, the district court
correctly held that Appellants met the commonality and
typicality requirements.
32 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

B. Rules 23(b)(1)(A) and (B)

Under Rule 23(b)(1)(A), a class action can be maintained
if “prosecuting separate actions by or against individual class
members would create a risk of inconsistent or varying
adjudications with respect to individual class members that
would establish incompatible standards of conduct for the
party opposing the class[.]” Rule 23(b)(1)(B) states that a
class action can be maintained if “prosecuting separate
actions by or against individual class members would create
a risk of adjudications with respect to individual class
members that, as a practical matter, would be dispositive of
the interests of the other members not parties to the individual
adjudications or would substantially impair or impede their
ability to protect their interests[.]”

Liberty Mutual argues that class certification under Rule
23(b)(1)(A) was improper because Appellants seek monetary
damages and because some of the Appellants may be able to
make the necessary showing to be entitled to relief while
others may not. Liberty Mutual goes on to argue that class
certification was also improper under Rule 23(b)(1)(B)
because it would “be inconsistent with the terms of the
[Retirement Plan] and ERISA to award benefits to some
Plaintiffs and deny benefits to others depending on the oral
representations made to that particular Plaintiff.”

Liberty Mutual’s arguments are unpersuasive. While
Appellants seek monetary damages in this case, they also
seek relief in the form of equitable remedies. Liberty
Mutual’s remaining two arguments are essentially the same,
as they address the concern that some Appellants would
receive relief while others would not. However, this seems
to be an argument in favor of class certification. Rule
 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN 33

23(b)(1)(A) prevents the prosecution of separate actions that
would create the risk of “inconsistent or varying adjudications
. . . that would establish incompatible standards of conduct
for the party opposing the class.” Prosecuting separate
actions in this case would have the result of subjecting
Liberty Mutual to incompatible standards of conduct, a
consequence that Liberty Mutual has previously conceded
would likely happen. For the above reasons, the district
court’s class certification was proper.

CONCLUSION

For the foregoing reasons, we find the following:

1. Appellants are not entitled to past service credit under
the terms of the Retirement Plan. We therefore
AFFIRM the district court’s grant of summary
judgment as to claim (1) under 29 U.S.C.
§ 1132(a)(1)(B).

2. Appellants may pursue simultaneous claims under
29 U.S.C. § 1132(a)(1)(B) and § 1132(a)(3). We
therefore REVERSE the district court’s grant of
summary judgment as to claim (2) under 29 U.S.C.
§ 1132(a)(3), and REMAND for determinations of
fact and equitable relief in the form of reformation
and surcharge.

3. Appellants are unable to prove harm or detrimental
reliance on Liberty Mutual’s failure to disclose
information about past service credit in the Summary
Plan Descriptions. We therefore AFFIRM the
district court’s grant of summary judgment as to
34 MOYLE V. LIBERTY MUT. RET. BENEFIT PLAN

claim (4) under 29 C.F.R. §§ 2520.102-3(l) and
2520.102-2(a).

4. We AFFIRM the district court’s grant of class
certification.

AFFIRMED in part, REVERSED in part;
REMANDED. Each side to bear its own costs.