United States Court of Appeals
For the First Circuit
No. 00-1650
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE,
Plaintiff, Appellee,
v.
DENMAN TIRE CORPORATION,
DENMAN OPERATING CORPORATION, AND
THE DENMAN TIRE CORPORATION PENSION PLAN,
Defendants, Appellants,
v.
EAGLE INDUSTRIES, INC.,
EAGLE INDUSTRIAL PRODUCTS CORPORATION, AND
THE EAGLE INDUSTRIES, INC. PENSION PLAN,
Defendants and Cross-Claim Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Anthony A. Scibelli, with whom Brian E. Whiteley and Scibelli and
Whiteley were on brief for appellants.
Frederick J. Sperling, with whom Paul E. Greenwalt, III, Schiff
Hardin & Wait, Natalie S. Monroe, and Sullivan & Worcester were on
brief for defendants and cross-claim defendants-appellees.
Dennis J. Kelly, with whom Renee Inomata and Burns & Levinson were
on brief for plaintiff-appellee.
February 14, 2001
LYNCH, Circuit Judge. State Street Bank and Trust Company,
as the trustee for two pension plans, filed an interpleader complaint
to determine which of the two plans should receive $602,462.44 held by
the Bank. A predecessor trustee had mistakenly allocated that sum to
the Denman Tire Corporation Plan, taking it from the Eagle Industries
Plan at a time when the corporate sponsors of both plans were under
common ownership. Over the objections of the purchaser of the Denman
Tire Corporation and the Denman Plan, the district court directed that
the sum, plus its accumulated earnings, go back to the Eagle Plan, the
original owner. The district court also held that the action by the
purchaser of Denman Tire against the seller, Eagle Industrial Products
Corporation (EIPC), the former parent of both Denman Tire and Eagle
Industries, was time-barred.
The two Denman entities appeal, saying they were innocent
of any wrongdoing and, due to the error as to the assets in the pension
plans, an inflated purchase price was paid for Denman Tire. Further,
they say that the Denman Plan had a fiduciary duty to its beneficiaries
to make an effort to keep the misallocated monies. That effort has
cost State Street more than $150,000 in legal fees, which it has
charged back to the Denman Plan. In light of these two harms, they say
that the Denman Plan should keep the $602,462.44 in misallocated
assets, or at least the earnings. Denman also says the action against
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the corporate seller should be reinstated. We affirm the dismissal of
the action.
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I.
Denman appeals from dismissal of its breach of warranty claim
against EIPC, and Denman and the Denman Plan appeal from summary
judgment against the Denman Plan on State Street's interpleader
complaint.1 We summarize the facts in the light most favorable to the
Denman entities.
At one time, both Denman and Eagle Industries were
subsidiaries of EIPC, and each had its own, separate employee ERISA
pension plan. In March of 1996, the then-trustee of the plans,
Northern Trust, mistakenly allocated $602,462.44 in assets, comprised
of mutual funds and a small amount of cash, from the Eagle Plan to the
Denman Plan in the course of transferring assets from the plans to a
new trustee, State Street Bank and Trust. When State Street took over
as trustee of the plans in May, 1996, Northern Trust's error was not
detected.
EIPC entered into an agreement on August 30, 1996, to sell
all its shares in Denman to Pensler Capital Corporation. The terms of
the Stock Purchase Agreement called for Pensler to pay an estimated $8
million at closing, subject to adjustments, and included both a
warranty that the Denman Plan was in compliance with ERISA and a
1 We refer to Denman Tire Corporation and Denman Operating
Corporation collectively as Denman; Eagle Industries, Inc., and Eagle
Industrial Products Corp. will be referred to as EIPC. The Eagle Plan
and the Denman Plan are separate legal entities from their respective
sponsors, EIPC and Denman.
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provision indemnifying Pensler against loss resulting from any breach
of warranty by EIPC. The Agreement also stated that EIPC's warranties
and indemnification obligations "shall expire on the second (2nd)
anniversary of the closing." In a side letter agreement, EIPC agreed
to advise Pensler of the Denman Plan's investments as of the closing
date.
Between the signing of the Agreement in August, 1996, and the
closing on October 1, 1996, Pensler assigned its rights under the
Agreement to Denman. On November 21, 1996, in a post-closing
agreement, Denman assumed Pensler's obligations and liabilities under
the Stock Purchase Agreement, and EIPC delivered to Denman a statement
of the stockholders' equity in Denman as of the closing date for the
purpose of adjusting the purchase price, pursuant to the Stock Purchase
Agreement. On February 5, 1997, as part of a settlement agreement,
Denman agreed to pay EIPC an additional $1,412,800 based on the
adjusted figures. None of the parties apparently were aware that
during their negotiations the Denman Plan contained $602,462.44 in
assets misallocated from the Eagle Plan. They each apparently had
documents from which they could have learned this.
In September, 1997, an independent audit of the Eagle Plan
uncovered the error. EIPC contacted Denman seeking return of its
plan's funds. Denman claimed ownership of the assets on its behalf and
on behalf of the Denman Plan. EIPC asserted both EIPC's and the Eagle
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Plan's rights to the funds. Denman and EIPC both notified State Street
of their ownership claims. As trustee for the Denman and Eagle Plans,
State Street brought an interpleader action to resolve these competing
claims, placing the disputed assets in a separate account.
In response, Denman brought a third-party complaint against
Northern Trust and a counterclaim against State Street, both for breach
of fiduciary duty, and the Denman Plan brought a counterclaim for a
declaratory judgment that it owned the assets. Denman also brought a
cross-claim against EIPC for breach of the Agreement's warranty that
the Denman Plan was ERISA compliant, claiming that Pensler overpaid
EIPC to acquire Denman because it relied on State Street's figures,
which erroneously included the misallocated assets.
The district court granted the Eagle Plan's motion for
summary judgment against Denman and the Denman Plan on both State
Street's interpleader complaint and the Denman entities' counterclaim
that the Denman Plan owned the disputed assets. The court directed
State Street to transfer those assets, which had appreciated in value
to $1,091,788.40, to the Eagle Plan. The court also dismissed as time-
barred Denman's claim that EIPC was in breach of its warranty in the
Stock Purchase Agreement by failing to administer the Denman Plan in
accordance with ERISA.2
2 Northern Trust's motion to dismiss Denman's third-party
complaint and State Street's motion for judgment on the pleadings both
were allowed. The district court concluded that neither Northern Trust
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nor State Street was liable as a fiduciary under ERISA because each had
acted merely in a record keeping capacity. The court also noted that
because there was no evidence of harm to the Denman Plan, no damages
under ERISA were available. Denman and the Denman Plan do not appeal
those decisions.
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II.
A. Contractual Statute of Limitations
We review de novo allowance of a Rule 12(b)(6) motion to
dismiss, accepting all well-pleaded facts as true and drawing all
reasonable inferences in favor of Denman. See Massachusetts Sch. of
Law v. American Bar Ass'n, 142 F.3d 26, 40 (1st Cir. 1998). A motion
to dismiss should be granted only if it "appears to a certainty that
the plaintiff would be unable to recover under any set of facts." Roma
Const. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir. 1996); see also
LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.
1998) ("Granting a motion to dismiss based on a limitations defense is
entirely appropriate when the pleader's allegations leave no doubt that
an asserted claim is time-barred."). We also review de novo the
district court's interpretation of the contract, a question of law.
Principal Mutual Life Ins. Co. v. Racal-Datacom, Inc., 233 F.3d 1, 3
(1st Cir. 2000).
The Stock Purchase Agreement specifies that Illinois law
applies. Under Illinois law parties are "free to contract for a time
period within which a suit may be brought . . . which [is] less than
the general statute of limitation period applicable to written
contracts." Board of Educ. v. Hartford Acc. & Indem. Co., 504 N.E.2d
1000, 1005 (Ill. App. 1987); see Koclanakis v. Merrimack Mut. Fire Ins.
Co., 899 F.2d 673, 675 (7th Cir. 1990) ("Illinois law recognizes the
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validity of reasonable contractual limitations on the time to file
suit.").
The dispute here is whether the parties intended to create
a statute of limitations in their Agreement. Section 8.1(c) of the
Agreement, which expressly applies to the warranty at issue, states
that EIPC's representations and warranties "shall expire on the second
(2nd) anniversary of the Closing . . .." Denman argues that the
language of the Agreement is ambiguous and so the district court erred
in dismissing and not considering relevant extrinsic evidence. The
Agreement, Denman argues, should be read as imposing only a notice
requirement for breach of warranty claims, and not a limitations
period. Under this theory, its suit is not barred because it notified
EIPC of its claim on June 11, 1998, well within two years of the
closing on October 1, 1996.
EIPC argues that the plain language of the Agreement
demonstrates that the parties agreed to a two-year statute of
limitations for bringing claims under the Agreement, and so Denman's
suit, filed in 1999, is too late. Whether contract terms are ambiguous
is a question of law for the court. See Outboard Marine Corp. v.
Liberty Mut. Ins. Co., 607 N.E.2d 1204, 1212 (Ill. 1992). Ambiguity
does not exist where there is mere disagreement about the proper
interpretation of a contract, but only if the contractual language is
reasonably susceptible to more than one meaning. See Johnstowne
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Centre Partnership v. Chin, 458 N.E.2d 480, 481 (Ill. 1983); Seven
Bridges Courts Ass'n v. Seven Bridges Development, Inc., 714 N.E.2d
601, 606 (Ill. App. 1999). The district court concluded that the terms
"shall expire" operated as a statute of limitations.
Courts applying Illinois law have construed similar contract
language as unambiguously requiring a party to file suit within the
stated period. In Latek v. LeaseAmerica Corp., 1992 WL 170546 (N.D.
Ill. July 16, 1992), aff'd, 7 F.3d 238 (7th Cir. 1993), the court
rejected the defendant's ambiguity argument, finding that a provision
that warranties "shall survive" for 18 months from the closing date
"clearly describes a contractual statute of limitations." Id. at *3.
See also Commonwealth Fin. Corp. v. USAmeribancs, Inc., 1987 WL 19142,
at *2 (N.D. Ill. Oct. 20, 1987) (cause of action filed over one year
after closing was time-barred where provision stated seller shall
indemnify buyer for one year after closing). To say that something
"shall survive" for a period of time, which the Latek court found to
unambiguously imposed a statute of limitations for filing a breach of
warranty claim, is very much like saying something "shall expire" after
a period of time, the language in the Agreement between EIPC and
Denman/Pensler.
We reject Denman's interpretation of the Agreement as merely
requiring notice of a breach of warranty claim. Like the Agreement
between EIPC and Denman/Pensler, the contract in Latek did not include
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any language stating that a claim for breach of warranty must be filed
within the limitations period. Nevertheless, the court found that the
language was "reasonably susceptible to only one meaning: that any
claim based on warranties contained in the Purchase Agreement must be
brought within [the specified time period] of the closing." 1992 WL
170546, at *3; see also Commonwealth Fin. Corp., 1987 WL 19142, at *4
(rejecting plaintiff's argument that limitations period only requires
defendant to indemnify plaintiff for any breach that occurs within one
year of the closing regardless of when the actions are actually
brought). Because Illinois law forecloses the argument, Denman's
contract claim filed in 1999 is barred, and so the district court
appropriately granted EIPC's motion to dismiss Denman's cross-claim.
B. Restitution of the Misallocated Monies
We review a restitution order under a bifurcated standard:
whether restitution is available is a question of law we review de
novo, Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60
F.3d 867, 874-75 (1st Cir. 1995), while our review of a district
court's decision to grant or withhold an equitable remedy is for abuse
of discretion, id. at 875.
Because the issues in this case involve the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., we
turn to that statutory scheme first to assess its impact. ERISA here
affects the nature of the claims that may be made, who may make them,
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and the outcome of the ultimate question.3 ERISA is a comprehensive
statute with a carefully drafted remedial scheme that catalogues
parties who may pursue civil actions to redress ERISA violations, as
set forth in 29 U.S.C. § 1132(a). Under § 1132(a)(3), only a
"participant, beneficiary, or fiduciary" may seek relief to redress
ERISA violations. Employers and pension funds are not among the
enumerated parties empowered to sue for violations of ERISA. See
Kwatcher v. Mass. Serv. Employees Pension Fund, 879 F.2d 957, 964-65
(1st Cir. 1989).
In this case, the Denman Plan asserted a claim for a
declaratory judgment that it was the rightful owner of the disputed
assets, while the Eagle Plan sought restitution.4 Despite the limits
on standing to sue and remedies available in suits involving ERISA
3 No party contends that the case is governed by state law
principles of restitution, regardless of the consonance or dissonance
of those principles with ERISA.
4 The limitations on ERISA standing to sue are not directly
present here because plaintiff State Street brought an interpleader
action under Fed. R. Civ. P. Rule 22, with federal jurisdiction
premised on diversity of citizenship between State Street, the
stakeholder, and claimants. See 7 C. Wright et al., Federal Practice
and Procedure § 1710, at 547 (2d ed. 1986). Although State Street
purported to bring its interpleader action under both Rule 22 and
statutory interpleader, statutory interpleader is not available in this
case based on diversity in federal court because the potential
claimants are not diverse. See 28 U.S.C. § 1335 (providing
jurisdiction to federal courts over interpleader actions having "[t]wo
or more adverse claimants, of diverse citizenship"). Denman Tire
Corporation and Eagle Industrial Products Corporation are both Delaware
corporations.
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plans, courts recognize that in certain cases, a party otherwise unable
to sue under ERISA may nevertheless pursue a federal common law action
for restitution or other equitable relief. Concerned about ERISA's
expansive preemptive sweep, the Supreme Court has held that "courts are
to develop a federal common law of rights and obligations under
ERISA-regulated plans." Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 110-11 (1989) (internal quotation marks omitted). "[T]he
traditional equitable action for restitution is part and parcel of
ERISA's federal common law." Kwatcher, 879 F.2d at 966; accord Luby v.
Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176, 1186
(3d Cir. 1991) ("Although ERISA itself does not explicitly provide a
statutory right of restitution, it is clear that Congress intended
federal courts to fashion a federal common-law under ERISA, and this
permits application of a federal common-law doctrine of unjust
enrichment if restitution would not override a contractual provision of
an ERISA plan."). But courts are careful not to allow federal common
law to rewrite ERISA's carefully crafted statutory scheme, and
recognize that federal common law will only give rise to a claim
pursuant to ERISA in the limited class of cases "where the issue in
dispute is of central concern to the federal statute." Provident Life
& Accident Ins. Co. v. Waller, 906 F.2d 985, 990 (4th Cir.) (internal
quotation marks omitted), cert. denied, 498 U.S. 982 (1990); see
Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1,
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25-26 (1983); United McGill Corp. v. Stinnett, 154 F.3d 168, 171 (4th
Cir. 1998) ("Courts should only fashion federal common law when
necessary to effectuate the purposes of ERISA.") (internal quotation
marks omitted).
In Kwatcher, we concluded that an employer may pursue a
federal common law action for restitution to recover overpayments
mistakenly made to an ERISA fund, even though an employer would not
have standing to sue under ERISA's civil enforcement provision. We
held that the availability of restitution is "fully consonant" with
ERISA's policies and supplements ERISA's remedial scheme by "providing
a tool for courts to use when one party 'has been unjustly enriched at
the expense of another.'" 879 F.2d at 967, quoting Restatement (First)
of Restitution § 1 (1937).
Other courts have ordered restitution of disputed ERISA plan
assets in actions brought by pension funds and fund trustees, as well
as by employers. In Luby, the Third Circuit awarded a plan restitution
of payments mistakenly made to a plan beneficiary, concluding that the
equitable remedy available to an employer to recover mistaken
overpayments to ERISA plans should extend to an ERISA plan itself. See
944 F.2d at 1186. Similarly, in Provident, the Fourth Circuit
concluded there was an implied right of action for a plan administrator
to pursue a federal common law action for restitution of payments
mistakenly made to a plan beneficiary. See 906 F.2d at 989-90.
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Moreover, in Malden Mills Indus., Inc. v. Alman, 971 F.2d 768, 774-75
(1st Cir. 1992), a pension plan's claim for reimbursement from an
employer for benefits overpayments was allowed. We conclude that where
funds are mistakenly transferred from one ERISA plan to another, as in
the case of funds mistakenly paid into a plan by an employer, a plan is
entitled to pursue a federal common law action for restitution to it of
its missing funds. Thus the interpleader action, where both plans seek
the funds, is appropriate.
ERISA also impacts the resolution of the ultimate question.
At least two ERISA principles are involved. The first is the
principle, embedded in 29 U.S.C. § 1104(a)(A)(i)-(ii), that the
exclusive purpose of an ERISA plan is "providing benefits to
participants and their beneficiaries" and paying reasonable expenses of
plan administration. The second is the anti-inurement principle
embedded in 29 U.S.C. § 1103(c)(1), that plan assets "shall never inure
to the benefit of any employer" but "shall be held for the exclusive
purposes of providing benefits to participants in the plan and their
beneficiaries . . .." Restitution in a case such as this does not run
afoul of ERISA's policy of protecting employee pension plans because
the Denman Plan "[is] not entitled to funds to which [it] had no right
in the first place." Kwatcher, 879 F.2d at 967 (citation omitted).
Indeed, the rationale in Kwatcher is even more compelling in this case
because returning the disputed assets to their rightful owner, the
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Eagle Plan, protects the interests of that pension plan's participants.
As in Luby, "[t]o permit restitution here would only further the goals
of ERISA, that is to safeguard the corpus of funds set aside under the
[Plan] for valid [] Fund beneficiaries." 944 F.2d at 1186.
The Denman Plan argues that restitution is inappropriate
because it obtained, as transferee, Denman's rights to the misallocated
assets as a bona fide purchaser, cutting off the Eagle Plan's claim to
its funds. See Restatement (First) of Restitution § 172 cmt. a
(acquisition by bona fide purchaser "cut[s] off" the constructive
trust). The premise of the argument is questionable. It is not likely
Denman was ever a bona fide purchaser of plan assets. Plan assets are
held in trust for the beneficiaries. What Pensler purchased, and then
transferred to Denman, was a corporation. Conversely, the Denman Plan
was not a bona fide purchaser of anything here.5 It received more than
$600,000 and paid nothing for the assets. Similarly, the doctrine
under the Restatement (First) of Restitution -- that a bona fide
purchase cuts off a constructive trust -- has little application here.
This is not a situation of a "constructive" trust (which may arise to
offset a fraud) being subverted to a bona fide purchaser where equity
must choose which of two innocent victims to compensate.
5 We do not suggest that the corporate Denman suffered no harm.
The purchase price paid for the corporate Denman may well, as alleged,
have been calculated in part based on the value of the assets in the
Denman Plan. If so, then the corporate Denman's recourse was against
the seller. Unfortunately for Denman, it did not act quickly enough.
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More fundamentally, even if there were an arguable bona fide
purchaser argument available, the structure of ERISA is not hospitable
to the Denman entities' argument. As the Supreme Court has held,
"[a]lthough trust law may offer a starting point for analysis in some
situations, it must give way if it is inconsistent with the language of
the statute, its structure, or its purposes." Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 447 (1999) (internal quotation marks omitted).
It would thwart ERISA's purpose of protecting the interests of pension
plan members if the Eagle Plan's interest in those misallocated funds
was cut off by operation of the bona fide purchaser doctrine here.
Denman also argues the district court was compelled under
Kwatcher to do an equitable analysis and that it failed to do so. We
conclude that the district court did, in fact, properly weigh the
equitable factors and found them to favor restitution to the Eagle
Plan. Given the two ERISA principles described before -- exclusive
benefit and non-inurement -- it would take a very strong showing to tip
the equitable balance toward the Denman Plan. The Eagle Plan has been
deprived of assets stemming from payments made on behalf of its plan
beneficiaries. "A person who has been unjustly enriched at the expense
of another is required to make restitution to the other." Restatement
(First) of Restitution § 1 (1937).
There are some equities on Denman's side, to be sure. It
bears little culpability here, as the mistake was the trustee's. This
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error has imposed costs on Denman and the Denman Plan. If, after the
restitution, the Denman Plan would be underfunded by ERISA standards --
and there is no evidence in the record that it would be -- Denman must
make payments to bring it up to ERISA-compliant levels.6 State Street
has also extracted over $150,000 from the Denman Plan's account to
cover the Bank's attorneys' fees incurred in this litigation. But
there are none of the countervailing considerations courts have
recognized as reasons not to grant restitution. Restoring the funds to
the Eagle Plan would not override an explicit contractual provision in
the Denman plan. Cf. Cummings v. Briggs & Stratton Retirement Plan,
797 F.2d 383, 390 (7th Cir. 1986). Nor would it give the Eagle Plan
participants benefits not afforded by the Plan document. Cf. Van Orman
v. American Ins. Co., 680 F.2d 301, 312 (3d Cir. 1982). It would be
unjust to allow the Denman Plan to retain the assets that belong to the
Eagle Plan and its beneficiaries. See Kwatcher, 879 F.2d at 967. The
district court did not abuse its discretion in ordering restitution.7
6 If the misallocation had resulted in overfunding of the
Denman Plan -- and again the record is bare -- that would not have
produced an increase in benefits to the Plan beneficiaries because the
Plan is a defined benefit plan. There is no evidence that the Denman
Plan beneficiaries suffered any harm by returning the misallocated
assets to the original owner. Cf. Plucinski v. I.A.M. Nat'l Pension
Fund, 875 F.2d 1052, 1057-58 (3d Cir. 1989).
7 We observe the irony of this outcome: the party apparently
responsible for this situation, Northern Trust, has escaped liability
for any damages resulting from its error. It was Northern Trust that
misallocated the funds from the Eagle Plan to the Denman Plan. The
Denman entities' claim against Northern Trust was dismissed because
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C. Restitution of Appreciated Value of Assets
Denman argues that the district court erred in ordering
restitution of the earned income by ordering restitution of the
appreciated value of the disputed assets, $1,091,788.40 at the time of
judgment. The district court ordered State Street to transfer the
actual assets misallocated by Northern Trust -- mutual fund shares and
a small amount of cash in a short term investment fund -- back to the
Eagle Plan. We are guided by comment a to the Restatement (First) of
Restitution § 1 that "[a] person obtains restitution when he is
restored to the position he formerly occupied either by the return of
something which he formerly had or by the receipt of its equivalent in
money." The investments of the disputed assets remained the same from
the time they were misallocated from the Eagle Plan, throughout the
time they were in the Denman Plan's account, and until the date
judgment entered. At least in theory, mutual funds increase in value
over time, like money in a bank. In this case, the investments yielded
returns. Had the $602,462.44 remained in the Eagle Plan's account, the
Eagle Plan would have seen those assets appreciate similarly. The
misallocated funds are identifiable and their present monetary value
has been established. That the assets might have been invested
differently had they remained in the Eagle Plan does not alter the
Northern Trust was not acting as a fiduciary within the meaning of
ERISA when it made the accounting error. Denman does not appeal that
decision.
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analysis, nor make the matter so speculative as to deny an award, cf.
Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 771 (1st Cir. 1996)
("Because every calculation of lost profits has some element of
uncertainty, a plaintiff need not calculate lost profits with
mathematical exactness.") (internal quotation marks omitted). Thus,
the district court properly ruled that the Eagle Plan is entitled to
restitution of the appreciated assets. Cf. Luby, 944 F.2d 1179
(awarding restitution with interest of mistakenly paid benefits).
This case is unlike Kwatcher, where we noted that the
employer was entitled to restitution of its overpayments only, as
awarding interest that accrued while the funds were retained by the
pension plan would offend ERISA's anti-inurement principle by
benefitting the employer at the expense of the plan. See 879 F.2d at
967. Here, the Eagle Plan is entitled to restitution of its assets and
the gains realized while in the Denman Plan's account, gains which will
inure to the benefit of the Eagle Plan's participants. Moreover, the
court ordered restitution of the trust corpus itself (the assets in
their present, appreciated form), not a fixed cash award; that the
Eagle Plan elected to have the assets returned in their cash
equivalent, rather than the mutual fund shares, does not change our
conclusion.
III.
We affirm the district court's orders. No costs are awarded.
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