Dissenting:
Unlike the majority, I do not find a similarity between the circumstances here and those in Ackerman v. Warnaco, Inc., 55 F.3d 117 (3d Cir.1995), sufficient to prevent the award of summary judgment to J.C. Penney Co. For that reason, I respectfully dissent.
As the majority discusses, the statute, 29 U.S.C. § 1102(a)(1), requires that any change or modification to a welfare plan be in writing and that the plan administrators furnish participants with a summary of any material modifications, written in a manner calculated to be understood by the average participant. However, as we recognized in Ackerman, defects in fulfilling ERISA’s reporting and disclosure requirements do not “under ordinary circumstances” give rise to a substantive remedy. Id. at 124. We will allow the remedy of recission of an amendment to a plan only under the extraordinary circumstances “where the employer has acted in bad faith, or has actively concealed a change in the benefit plan, and the covered employees have been substantively harmed by virtue of the employer’s actions.” Id. at 125.
In Ackerman, the plaintiffs were production workers in an apparel factory. Unlike other plants operated by Warnaco, no meeting was ever held at plaintiffs’ plant to inform them of the elimination of the termination allowance and no employ*773ees at their plant ever received a copy of the updated plan handbook. We remanded the case so that the District Court could determine whether under such circumstances Warnaco could have acted in bad faith or actively concealed the rescission of the allowance.
In the present case, on the other hand, all participants in the Separation Allowance Program were profit sharing, management level employees and all were shareholders of the company. When J.C. Penney terminated the plan, notice of the termination was included in Notice of Meeting of the next shareholders meeting. Program participants, being shareholders, had an interest in the notice of the shareholders’ meeting. A Notice of Meeting is a type of communication which will be understood by management level, shareholder employees. Whether the notice of termination, entitled Separation Allowance Program, appeared on page 1 or page 30 or page 62 of the Notice of Meeting, it was directed at employees who were experienced in business affairs and interested in what would transpire at the shareholders meeting.
I would conclude that this type of notice to this level of participants satisfies the statutory notice requirements. The majority, however, not only concludes that it does not satisfy the notice requirements, the majority has even greater problems with the notice, concluding that it could support a reasonable inference that J.C. Penney intended to conceal the program’s termination from affected employees. If the affected employees had been production workers in an apparel factory, perhaps. However, they were not. They were management level, profit-sharing shareholders in the company.
Moreover, the Vice President of Human Resources, who was responsible to promote and implement the program, knew of its termination. He informed any participants, who asked him about its status, that it had been terminated.
For all the above reasons, I cannot conceive how this type of notice can constitute bad faith or active concealment on the part of J.C. Penney. In view of the circumstances of this case, which I do not find to be extraordinary ones, I would affirm the judgment of the District Court in favor of J.C. Penney.