concurring in part, dissenting in part:
I agree with the majority that the district court did not abuse its discretion in declining to award injunctive relief with respect to the Board’s attempted imposition of fees. I further agree that if the Eighth Circuit’s decision in Brumm v. Bert Bell NFL Retirement Plan, 995 F.2d 1433 (8th Cir.1993), would have been material to a reasonable person’s decision to enter into the settlement agreement at issue here, the Board had a fiduciary duty to disclose it. I disagree, however, with the majority’s conclusion that Brumm was not material to a reasonable employee’s decision-making process in this circumstance, and I therefore dissent from Part I of the majority’s opinion.
We have not yet articulated the test for materiality in the context of an ERISA fiduciary’s failure to disclose. See Cal. Ironworkers Field Pension Trust v. Loomis Sayles & Co., 259 F.3d 1036, 1045 (9th Cir.2001) (agreeing with district courts that facts were not material without articulating standard for materiality). I agree with the majority’s suggestion, however, that the proper standard for materiality lies in analogous situations involving an ERISA fiduciary’s misrepresentations. See Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir.1993) (concluding that a fiduciary’s misrepresentation “is material if there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision about if and when to retire”); Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir.1999) (observing that “a misrepresentation is material [in the ERISA context] if there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision in pursuing disability benefits to which she may be entitled”).
I disagree with the majority’s conclusion that ignorance of Brumm was not substantially likely to have misled a reasonable employee in making “an adequately informed decision” whether to agree to the *826December 1998 settlement agreement. Actually Brumm’s invalidation of the criteria by which the Board had previously denied Washington’s claims for football-related benefits would have been material to a reasonable employee in Washington’s position in two ways.
First, knowledge of Brumm would likely affect a reasonable employee’s decision on whether, and for how much, to relinquish his claims under the old Plan. Even if it were evident from the new Plan’s language that the Board could no longer deny Washington football-related disability benefits due to Washington’s inability to trace his disability to a single injury, it would not have been evident to Washington that the Board acted arbitrarily and capriciously in doing so between 1983 and 1993. The Board notified Washington of his increased benefits under the new Plan, but did not disclose to him that the criteria it had used in its denial of his claim for football-related benefits had been held unreasonable, and that the new Plan was a response to this holding. Although the majority is correct that Washington’s latest claim was for reclassification under the new Plan, the plain terms of the settlement agreement required Washington to surrender more than this most recent claim. The settlement agreement specified that it constituted “full satisfaction of any and all claims of Mr. Washington for past and future disability benefits under the Player Retirement Plan as in effect during the term of the 1993 collective bargaining agreement ... or under any plan in effect during any prior collective bargaining agreements between the National Football League Players Association of the National Football League Management Council.” (Emphasis added).1 The majority’s position that Brumm was not relevant because the new Plan’s language mooted the Board’s previous imposition of the “single football injury” requirement ignores that the settlement required Washington to relinquish any claims under the old Plan. There is a substantial likelihood that a reasonable employee who knew that the Board’s reasons for denying his prior claims had been held to be arbitrary and capricious by a federal appeals court — and that in response to this decision, the employer had revamped the relevant sections of the retirement plan — would evaluate the costs of such relinquishment much differently from one who knew only that the Plan had changed.2
Second, knowledge that the Board could no longer rely on its previous reason for *827denying Washington’s attempts to get football-related benefits might have increased Washington’s estimated chances at ultimately securing such benefits, and thus whether and for how much to settle. The Board gave no new reasons for denying Washington’s request for reclassification under the “Football Degenerative” category in 1993, instead simply stating that “based on the evidence before it, the Board determined that your disability did not arise out of League football activities.” The Board’s records from its April 18, 1996 meeting indicate that the “evidence before it” consisted of Washington’s letters dated February 29, 1996 and the “Arbitration Decision dated 7/10/87.” There is a substantial likelihood that a reasonable employee would estimate he had a better chance of succeeding in his appeal for Football Degenerative benefits under the new Plan, which require a showing that his disability “arises out of League football activities,” if he knew that the only evidence before the Board were his letters and a decision based on invalidated criteria for determining “a football injury.” After all, the Board’s previous denial of Washington’s request under the old Plan had explicitly relied upon the invalidated criteria, and the Board did not provide any further explanation for its conclusion that Washington’s disability did not “arise out of League football activities.” It is, of course, possible that the Board eschewed any reliance on the conclusions of the 1987 arbitration — and the invalidated criteria therein — that the Board had “before it” when deciding that Washington did not qualify for the higher monthly benefit even under the new Plan’s broader language. However, the Board’s records and communications with Washington provide no such assurance, and a reasonable employee would not necessarily have assumed such scruples on the part of his employer-cum-adversary.
I therefore conclude that there was a “substantial likelihood” that the Board’s failure to disclose the invalidation of the criteria by which Washington’s previous classification request had been denied would have prevented “a reasonable employee [from] making an adequately informed decision about” whether and for how much to relinquish all claims under the old Plan and to settle a claim for reclassification under the new Plan. See Fischer, 994 F.2d at 135. Thus, the Eighth Circuit’s holding in Brumm was material, the Board violated its fiduciary duties to Washington by failing to disclose it to Washington and this failure to disclose was an adequate ground upon which to rescind the settlement agreement. I would affirm the district court.
. Nor had Washington given up on claiming benefits after the 1987 arbitration. Between 1987 and 1992, Washington gathered three more medical opinions supporting his claim that his disability was related to his football injuries, and sought a settlement agreement with the Board in 1992. The Board explicitly invoked the conclusions of the 1987 arbitration in rejecting Washington’s settlement proposal. At that time, the Board stated its position that it had "met its fiduciary responsibilities with regard to” Washington. There is no record that at any point between this 1992 assertion by the Board and the 1998 settlement negotiations, the Board disclosed that at least one federal appeals court had held that the Board's invocation of the Kagel criteria before 1993 was a violation of the Board's fiduciary duties. Thus, as far as we can tell from the record, Washington would not have known during settlement negotiations that the Board had reason to think that it had abrogated its fiduciary responsibilities to him or other disabled players whose claims under the old Plan the Board had denied in relying on the Kagel criteria.
. I note that even if ERISA's six-year statute of limitations with respect to a fiduciary’s breach of its duties, see 29 U.S.C. § 1113(1), barred Washington from suing the Board for some portion of the benefits to which he argued he was entitled under the old Plan, Washington undoubtedly could have pursued claims for any breach of fiduciary duty between 1992 and 1998. It is unclear what constitutes "the date of the last action which *827constituted a part of the [alleged] breach or violation” with respect to the use of the Kagel criteria to deny Washington football-related benefits under the old Plan. § 1113(1)(A). The final part of that breach might plausibly be placed in April 1987, when the Board first applied the Kagel criteria to deny Washington football-related benefits; in June 1992, when the Board again invoked the arbitration agreement to deny Washington’s renewed request for football-related benefits; in June 1993, the last month the Board paid Washington the $750 monthly benefit under the old Plan; or in April 1996, when the Board appeared to consider the invalidated arbitration criteria in denying Washington reclassification under the new Plan. The barring effect of the statute of limitations depends on the date on which the breach is considered complete, but at least some of these dates were within six years of the December 1998 settlement agreement. Thus, the settlement agreement’s clause surrendering any claims Washington might have had under the old Plan was not simply empty language, and knowing that such claims were bolstered by Brumm would have been material to a reasonable person relinquishing them.