
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1556                                    LEO VARTANIAN,                                Plaintiff - Appellant,                                          v.                              MONSANTO COMPANY, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                            and Stearns,* District Judge.                                          ______________                                _____________________               John C. Sikorski, with whom Robinson Donovan Madden & Barry,               ________________            ________________________________          P.C. was on brief for appellant.          ____               Richard J. Pautler, with whom Peper, Martin, Jensen, Maichel               __________________            ______________________________          and Hetlage, Francis  D. Dibble, Jr. and  Bulkley, Richardson and          ___________  _______________________      _______________________          Gelinas were on brief for appellees.          _______                                 ____________________                                  December 15, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    STEARNS,  District  Judge.    This  appeal  involves  a                    STEARNS,  District  Judge.                              _______________          question  of  first  impression  in  this  circuit,  namely,  the          standard to apply in determining when an employer's consideration          of an employee  severance program gives rise to  a fiduciary duty          of disclosure under  the Employee Retirement Income  Security Act          of 1974, 29  U.S.C.    1001-1461 ("ERISA").   Plaintiff-Appellant          Leo Vartanian alleges that his former employer, Monsanto Chemical          Company ("Monsanto"), misled him by failing to respond adequately          to  his  inquiries  about  a  severance  package  that  was under          internal corporate consideration when he retired from the company          on May  1, 1991.   A benefits package  for which  Vartanian would          have  otherwise been eligible was  approved by the Monsanto Board          of Directors on June 28, 1991.                    Vartanian  filed a  complaint against Monsanto  in 1992          alleging two counts of breach  of fiduciary duty under ERISA, one          count of unlawful discrimination in  violation of   510 of ERISA,          and one  count of  common law  negligent misrepresentation.   The          district court, Ponsor, J.,1 granted Monsanto's motion to dismiss          the  action  on  the  grounds  that,  having  taken  a  lump  sum          distribution of all the vested benefits to which he was entitled,          Vartanian could not qualify as a "plan participant" with standing          to assert  ERISA violations.   Vartanian v. Monsanto Co.,  822 F.                                         _________    ____________          Supp.  36, 41  (D. Mass.  1993).   This Court  reversed, holding,          inter alia, that because Vartanian was  a plan member at the time                                        ____________________          1   Judge Ponsor  was at the  time a Magistrate  Judge.   He took          office as a District Judge on March 14, 1994.                                         -2-          the alleged misrepresentations were made,  he had standing to sue          under ERISA.   Vartanian v. Monsanto  Co., 14 F.3d 697,  703 (1st                         _________    _____________          Cir. 1994)(Vartanian I).                     _________                    On remand Judge Ponsor dismissed Vartanian's claim that          Monsanto had  breached an ERISA  duty by failing to  disclose its          prospective plans to reduce staffing, but permitted the claims of          misrepresentation  about the  possibility of an  early retirement          incentive plan  to proceed.   Vartanian v.  Monsanto Co.,  880 F.                                        _________     ____________          Supp. 63, 70-71  (D. Mass. 1995).  After  discovery, Judge Ponsor          granted  Monsanto's motion  for  summary  judgment, holding  that          because  no enhanced severance  package that would  have affected          Vartanian  was under  "serious  consideration"  at  the  time  he          retired,   no  actionable   misrepresentation   had  been   made.          Vartanian v.  Monsanto Co., 956 F. Supp.  61, 66 (D. Mass. 1997).          _________     ____________          We affirm.                                          I.                                          I                    Our review of a motion for summary judgment is de novo.          Associated Fisheries of Maine, Inc.  v. Daley, ___ F.3d ___, ___,          ___________________________________     _____          No.  97-1327, 1997 WL  563584 at  *3 (1st  Cir. Sept.  16, 1997).          Summary   judgment   is   appropriate   where   "the   pleadings,          depositions,  answers to interrogatories, and admissions on file,          together  with the  affidavits, if  any,  show that  there is  no          genuine issue as to any  material fact and that the  moving party          is entitled to a  judgment as a matter of law."   Fed. R. Civ. P.          56(c).   Inferences are drawn in the  light most favorable to the          nonmoving party.   Reich v. John Alden Life Ins. Co., 126 F.3d 1,                             _____    ________________________                                         -3-          6 (1st Cir.  1997).  The nonmovant  may not, of course,  defeat a          motion  for summary  judgment  on conjecture  alone.   "The  mere          existence   of  a  scintilla  of   evidence  in  support  of  the          plaintiff's position will be insufficient; there must be evidence          on  which the  jury  could reasonably  find  for the  plaintiff."          Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).          ________    ___________________                    The  following undisputed material facts are drawn from          the  parties'  Joint  Statement of  Stipulated  Facts, Defendant-          Appellee Monsanto's Statement of Undisputed Facts, and Plaintiff-          Appellant  Vartanian's  Response   to  Defendant's  Statement  of          Undisputed  Facts.  After thirty-six years at Monsanto, Vartanian          in December 1989 announced his  intention to retire on January 1,          1991 (later amended to May 1, 1991).  Vartanian was then employed          at Monsanto's plastics facility at Indian Orchard, Massachusetts.          Vartanian elected to take a lump sum distribution of his Salaried          Employee's  Pension Plan benefits.  During past restructurings of          its business,  Monsanto had offered early  retirement incentives,          sometimes  on  a  company-wide basis  and  sometimes  to specific          groups of employees.                    During 1990  and 1991, Monsanto's  sales stagnated  and          net  income  shrunk.   Rumors  began  circulating  among Monsanto          employees  that the  company was  pondering  an early  retirement          program as  a cost-cutting  device.   These  intensified when  in          October  of  1990  Monsanto   Agricultural  Company  (a  separate          Monsanto operating unit)  offered a severance program to  some of          its employees  as part  of a reorganization  plan.  In  the first                                         -4-          quarter of 1991, Robert Potter,  the president of Monsanto, began          discussing  with   his  senior  managers  various   proposals  to          streamline operations at  Monsanto Chemical.  These  included the          closing  of several plants,  but not the  Indian Orchard facility          where Vartanian worked.   No plans were  drawn up to implement  a          severance  package,2  although  Frank  Reining, Monsanto's  vice-          president of  finance,  prepared  an  estimate  of  the  cost  of          offering severance benefits to some 400 hypothetical employees.                    In March of  1991, Vartanian asked Charles  Eggert, his          immediate supervisor,  if the  rumors about  an early  retirement          plan   were  true.    After  investigating,  Eggert  reported  to          Vartanian  that  Monsanto  was  not  contemplating any  severance          program  for which  he would  be eligible.   On  March 25,  1991,          Vartanian  and his wife  executed an Affidavit,  General Release,          and  Agreement in  anticipation of  the release  of the  lump sum          benefits.                    During  the week  of April  15-21,  1991, after  gossip          about a possible severance plan revived, Vartanian contacted both          Eggert  and Lori Heffelfinger,  the personnel  representative for          his employee group.  Eggert and Heffelfinger told  Vartanian that          they  had  been  unable  to  confirm  the  rumors,  and  did  not          personally believe that any early  retirement package was in  the                                        ____________________          2   Vartanian  asserts  that  any  downsizing  discussions  would          inferentially  have involved  the  issue  of  severance  benefits          because of Monsanto's record of  offering such incentives as part          of past restructuring.                                           -5-          works.   Vartanian does  not dispute  the truthfulness  of either          statement.                     Between  April  21  and  May  1,  1991,  the  Monsanto          Management  Board met six times, eventually deciding to recommend          to  the  Board  of Directors  the  closure  of  six  plants.   No          presentation concerning  early retirement incentives  was made at          any of these  meetings, and no document analyzing  or proposing a          severance program was prepared.  Three alternate plans were drawn          up for restructuring Monsanto's multiple product lines.  None  of          the   product  lines   in  Vartanian's   Plastics  Division   was          recommended  for discontinuance.   Vartanian  retired  on May  1,          1991.                    On May 7, 1991, Potter met with  the Monsanto Executive          Management Committee, which endorsed in principle his proposal to          restructure  the company.    On  May 16,  1991,  John Manns,  the          director of employee  benefits, was asked to develop  a severance          program  for   potentially  impacted  employees.     Manns  asked          Monsanto's actuaries, Towers, Perrin, Forster & Crosby ("TPF&C"),          to gather the necessary data.  On May 24, 1991, Manns  gave TPF&C          an  outline of  his proposal.   On May  28, 1991, Manns  met with          Robert  Abercrombie, the  corporate benefits director,  and Barry          Blitstein,  a corporate  vice president,  to  discuss a  concrete          severance  plan.    It  was at  this  meeting  that  the idea  of          extending an offer of early retirement  to all Monsanto employees          was first raised.                                         -6-                    Coincidentally,  on  May  28, 1991,  a  St. Louis-based          Plastics Division employee  who had decided to retire  on June 1,          1991, was assured  by letter that  he would receive the  value of          any increase in benefits if an early retirement program for which          he would  otherwise have been  eligible was adopted  within three          months  of his retirement  date.  On  June 12, 1991,  another St.          Louis-based Plastics Division  employee who planned to  retire on          July  1, 1991,  was  given  a similar  written  assurance.   Both          employees  were  eventually  paid the  additional  benefits  from          Monsanto's corporate treasury.                    On  June  3,  1991,  Monsanto's  Executive   Management          Committee  endorsed the idea  of a company-wide  early retirement          program,  and authorized further development work on the project.          Potter  told his  division managers  that they  were to  make the          final decision whether to  offer the program to  their respective          employees.   John  Tuley, the  manager  of Vartanian's  division,          decided not to participate.  Tuley's decision was reversed by his          successor,  Arthur  Fitzgerald,   in  mid-June  of  1991.     The          retirement plan was  finalized on June 27, 1991,  and approved by          Monsanto's Board  of Directors on  June 28, 1991.   Had Vartanian          been  eligible  to   participate,  he  would  have   received  an          additional $174,700 in pension benefits.3                                         II.                                         II.                    Although  this  Court,  in  Vartanian  I,  stated  that                                                _________                                        ____________________          3   It is  unclear whether Vartanian  would have qualified  for a          lump sum distribution had he chosen the early retirement option.                                         -7-          Monsanto had "a fiduciary duty not to mislead Vartanian as to the          prospective adoption of  a plan under serious  consideration," 14          F.3d at 702,  it had no  occasion to reach  the question of  what          exactly constitutes "serious consideration."   The district court          on remand adopted  the standard espoused by the  Third Circuit in          Fischer  v.  Philadelphia  Elec.  Co.,  96  F.3d  1533  (3d  Cir.          _______      ________________________          1996)(Fischer II),  cert. denied,  117 S. Ct.  1247 (1997),  that                _______       ____________          serious consideration obtains  when "(1) a specific  proposal (2)          is being  discussed for purposes of implementation  (3) by senior          management with the  authority to implement the change."   956 F.          Supp. at 66  (quoting Fischer II, 96 F.3d at 1539).  Finding that                                _______          "[t]he  undisputed facts  reveal that  none of  this  occurred at          Monsanto  until weeks after  plaintiff retired," 956  F. Supp. at          66,  Judge Ponsor granted Monsanto's motion for summary judgment.          Id. at 67.          ___                    Monsanto  urges us to  follow the lead  of the district          court and adopt the Fischer II  test.  Vartanian asks for a  more                              _______          flexible standard loose enough to fit the facts of his case.  For          reasons  that  will  be  explained,  we  prefer  the  Fischer  II                                                                _______          approach.4                                        ____________________          4   We are aware that some courts  of appeals have recognized the          possibility  of an  affirmative duty to  advise a  beneficiary of          potential plan changes,  regardless of the existence  of employee          inquiry.  Antweiler  v. American Elec. Power Serv.  Corp., 3 F.3d                    _________     _________________________________          986, 991  (7th Cir. 1993);  Eddy v.  Colonial Life Ins.  Co., 919                                      ____     _______________________          F.2d 747, 750 (D.C. Cir. 1990); but see Pocchia v. NYNEX, 81 F.3d                                          ___ ___ _______    _____          275,  278 (2d  Cir.), cert.  denied,  117 S. Ct.  302 (1996)("[A]                                _____________          fiduciary is not  required to voluntarily  disclose changes in  a          benefit plan before they are adopted.").  This issue, however, is          not before us.                                         -8-                                          A.                                          A.                    It has been said that employers who offer benefit plans          wear  "two  hats,"    because  of  the  "distinction  between  an          employer s prerogative to initiate discretionary policy decisions          such as creating, amending,  or terminating a particular plan  as          compared  to  its  fiduciary  responsibilities  to  administer an          existing plan for  the benefit and interests of  its participant-          employees."  Drennan  v. General Motors Corp., 977  F.2d 246, 251                       _______     ____________________          (6th Cir.  1992).  When  a prospective change  in a benefit  plan          will  adversely impact  some or  all  plan participants,  tension          often  arises between the employer s fiduciary obligations to its          employees  and  its  institutional desire  to  keep  its internal          deliberations  confidential.  This conflict is, in many respects,          an  inherent  feature of  ERISA.5    As  one district  court  has          observed, "[w]hen acting on behalf  of the pension fund, there is          no   doubt  that  [the  employer]  must  act  solely  to  benefit          participants and  beneficiaries.  However, . . . . the  mere fact          that a company has named  itself as pension plan administrator or          trustee  does not restrict  it from pursuing  reasonable business          behavior . .  . ."  Sutton v.  Weirton Steel Div. of  Nat'l Steel                              ______     __________________________________          Corp., 567 F.  Supp. 1184, 1201 (N.D.W.Va.), aff'd,  724 F.2d 406          _____                                        _____                                        ____________________          5  The conflict has generated a fair amount of scholarly comment.          See Mary O.  Jensen, Separating Business Decisions  and Fiduciary          ___                  ____________________________________________          Duty in ERISA  Litigation?, 10 BYU J. Pub. L.  139 (1996); Steven          __________________________          Davi,  To Tell  the  Truth: An  Analysis of  Fiduciary Disclosure                 __________________________________________________________          Duties and Employee Standing to Assert Claims under ERISA, 10 St.          _________________________________________________________          John's  J. Legal Comment. 625  (1995); Edward E. Bintz, Fiduciary                                                                  _________          Responsibility under  ERISA: Is  There Ever  a Fiduciary  Duty to          _________________________________________________________________          Disclose?, 54 U. Pitt. L. Rev. 979 (1993).          _________                                         -9-          (4th Cir. 1983).   We are called  upon in this case  to delineate          the  point at  which  one form  of reasonable  employer behavior,          namely the  confidential consideration  of an  employee severance          proposal,  is  overbalanced by  the corresponding  fiduciary duty          imposed by ERISA.                    Early decisions grappling with the employer's duties in          this context focused mainly  on the extent of the cause of action          engendered by an employer's material misrepresentations regarding          prospective  changes  in plan  benefits.   See  Maez  v. Mountain                                                     ___  ____     ________          States  Tel.  &  Tel.,  Inc.,  54 F.3d  1488  (10th  Cir.  1995);          ____________________________          Vartanian I, 14  F.3d at 703; Fischer v.  Philadelphia Elec. Co.,          _________                     _______     ______________________          994 F.2d 130  (3d Cir. 1993)(Fischer I); Berlin  v. Michigan Bell                                       _______     ______     _____________          Tel. Co., 858 F.2d 1154 (6th Cir.  1988).  As a consensus on that          ________          issue developed, attention began to shift to the question of when          the  consideration of  a change  in benefits  reached a  point of          seriousness sufficient to trigger a fiduciary duty of disclosure.          See Hockett v.  Sun Co., Inc., 109 F.3d  1515, 1522-24 (10th Cir.          ___ _______     _____________          1997);  Muse v.  I.B.M., 103  F.3d 490,  493-94 (6th  Cir. 1996),                  ____     ______          cert.  denied, 117 S.  Ct. 1844  (1997); Fischer  II, 96  F.3d at          _____________                            _______          1538-41.                    Vartanian  urges  us  to reject  the  Fischer  II test,                                                          _______          ostensibly  because  it  is  too  deferential  to  an  employer's          corporate interests.   Citing  Varity Corp. v.  Howe, 116  S. Ct.                                         ____________     ____          1065  (1996),  Vartanian advocates  a more  diffuse test  of when          corporate   deliberations   achieve   the   level   of   "serious          consideration."  But he fails to  suggest much by way of  content                                         -10-          for his  proposed test.  It  is true that  Varity Corp. reaffirms                                                     ____________          the  common law  principle  that a  fiduciary must  discharge its          duties  "with respect  to a plan  solely in  the interest  of the          participants  and beneficiaries."   116 S.  Ct. at  1074 (quoting          ERISA  404(a),  29 U.S.C.  1104(a)).  Varity Corp.'s relevance to                                                ____________          the  facts of  this case,  however, is  questionable.   In Varity                                                                     ______          Corp., the employer  deliberately misled its employees  about the          _____          actuarial soundness of a benefit  plan to induce them to transfer          to  a new division which had been tacitly created for the purpose          of consolidating  the company's  money losing  ventures.   Id. at                                                                     ___          1068-70.  Because of the  deception, the Court determined that it          "need not reach  the question of  whether ERISA fiduciaries  have          any fiduciary duty to disclose truthful information  on their own          initiative, or in response to employee inquiries."  Id. at 1075.                                                              ___                    Vartanian proposes that, in  the alternative, we  adopt          the multiple factors  test used by the Second  Circuit to analyze          the materiality of an employer's misleading statements in Ballone                                                                    _______          v. Eastman Kodak  Co., 109 F.3d 117,  125 (2d Cir. 1997).   These             __________________          factors  include  "[h]ow   significantly  [the  false]  statement          misrepresent[ed]  the present  status  of internal  deliberations          regarding  future plan changes, the special relationship of trust          and confidence  between a plan  fiduciary and beneficiary, .  . .          and the  specificity of the assurance."  Id. (citations omitted).                                                   ___          Ballone,  however, is  also inapposite.    Although the  district          _______          court in Ballone,  like the district court here,  dismissed ERISA                   _______          claims  because  of   the  lack  of  any   evidence  of  "serious                                         -11-          consideration,"    109 F.3d  at  122,  the complaint  in  Ballone                                                                    _______          alleged  that   the  employer  falsely  informed   the  inquiring          plaintiff  that the  company had  decided not  to offer  an early          retirement plan for at  least two years.   Id. at 121.   It seems                                                     ___          reasonable that where an allegation of positive misrepresentation          is involved, that "aspect of the assurance can render it material          regardless of whether  future changes are under  consideration at          the time the misstatement is made."  Id. at 124.  We are not here                                               ___          presented  with  facts  that  suggest  a  deliberate  attempt  on          Monsanto's part to affirmatively mislead Vartanian, and therefore          have no occasion to consider whether we would apply Ballone in an                                                              _______          appropriate case.                    It is  true  that in  considering  the scope  of  ERISA          fiduciary duties,  we are  counseled "to  apply common-law  trust          standards [while] 'bearing in mind the special nature and purpose          of employee  benefit plans.'"  Varity Corp., 116  S. Ct.  at 1075                                         ____________          (quoting  H.R. Conf.  Rep.  No. 93-1280,  at  302, 3  Legislative          History of the Employee Retirement Income Security Act of 1974 at          4569 (1976)).  The common law impresses on a trustee the  duty to          give a beneficiary "upon his request at reasonable times complete          and accurate information as to the nature and amount of the trust          property .  . . ."  Restatement (Second)  of Trusts   173 (1957).          "[T]he beneficiary is always  entitled to such information as  is          reasonably necessary to  enable him to  enforce his rights  under          the  trust or to prevent or  redress a breach of  trust."  Id. at                                                                     ___          cmt. c.   Any application of trust principles in an ERISA context                                         -12-          must, however, as the Supreme Court cautioned in Varity Corp., be                                                           ____________          tempered by a scrupulous regard for the delicate balance Congress          struck in enacting ERISA.                    [C]ourts   may  have   to  take   account  of                    competing  congressional  purposes,  such  as                    Congress' desire to  offer employees enhanced                    protection  for their  benefits,  on the  one                    hand,  and, on the  other, its desire  not to                    create  a  system  that is  so  complex  that                    administrative costs, or litigation expenses,                    unduly discourage employers from offering . .                    . benefit plans in the first place.            Varity Corp., 116 S. Ct. at 1070.          ____________                    The Third  Circuit, in  our view,  carefully reconciled          these competing concerns in shaping the Fischer II test.                                                   _______                      The  concept  of   "serious  consideration"                    recognizes and moderates  the tension between                    an  employee's right  to  information and  an                    employer's need  to operate  on a  day-to-day                    basis.      Every   business   must   develop                    strategies,   gather  information,   evaluate                    options, and make decisions.  Full disclosure                    of each step  in this process is  a practical                    impossibility.     Moreover   .  .   .  large                    corporations regularly  review their  benefit                    packages as  part of  an on-going  process of                    cost-monitoring and personnel management. . .                    . A corporation  could not function if  ERISA                    required complete  disclosure of  every facet                    of these on-going activities. . . .                      Equally importantly,  serious consideration                    protects  employees.   Every  employee has  a                    need for material  information on which  that                    employee  can   rely  in   making  employment                    decisions.  Too low  a standard could  result                    in an avalanche of notices and disclosures. .                    . . [T]ruly material information could easily                    be  missed if the flow of information was too                    great.  The warning that a change in benefits                    was under serious  consideration would become                    meaningless if cried too often.          Fischer II, 96 F.3d at 1539.          _______                                         -13-                    The   Third    Circuit   concluded    that   "[s]erious          consideration  of a  change in  plan benefits  exists when  (1) a          specific   proposal  (2)  is  being  discussed  for  purposes  of          implementation (3)  by senior  management with  the authority  to          implement that change."   Id.6  Notably important  to the Fischer                                    ___                             _______          II court was the effect that a less definite standard might  have          on the availability of employee severance packages.                    Finally,  as a matter of policy, we note that                    imposing liability too quickly for failure to                    disclose  a potential  early retirement  plan                    could harm  employees by  deterring employers                    from   resorting   to   such  plans.      Our                    formulation  avoids  forcing  companies  into                    layoffs,   the    primary   alternative    to                    retirement   inducements.      This   further                    protects the interests of workers.          Id. at 1541 (internal citations omitted).          ___                    Those  of our sister circuit courts that have addressed          the issue have  generally followed the  reasoning of Fischer  II.                                                               _______          The Tenth Circuit recently applied  the Fisher II test in holding                                                  ______          that "serious  consideration" of a  severance plan did  not occur          until a meeting was convened that "gathered together the heads of          all  departments related  to  employee  benefits"  to  discuss  a          specific proposal.  Hockett,  109 F.3d at 1524.   In Hockett, the                              _______                          _______          Sun Company's vice  president of human resources was contacted by          the  plaintiff-employee  regarding  the possibility  of  an early                                        ____________________          6  We add a gloss to the Fischer II court's formulation by way of                                   _______          clarification.  To prevail under the Fischer II test, a plaintiff                                               _______          must  show that a  specific proposal under  serious consideration          would  have affected  him.    This we  recognize  is implicit  in          _________________________          Fischer II and  the rules governing ERISA standing,  but to avoid          _______          any misunderstanding it is best said explicitly.                                         -14-          retirement  program.   Id. at 1519.   The vice  president did not                                 ___          respond to the employee's inquiry,  despite the fact that he knew          that the subject  was being discussed by senior  management.  Id.                                                                        ___          at  1521.   Because of  the  employer's frequent  need to  review          retirement  plans, the Hockett panel determined that the "Fischer                                 _______                            _______          II  formulation appropriately narrows  the range of  instances in          which  an employer  must  disclose,  in  response  to  employees'          inquiries,  its tentative  intentions regarding  an  ERISA plan."          Id. at 1523.          ___                    Although  the Sixth Circuit's opinion in Muse v. I.B.M.                                                             ____    ______          did  not directly  refer to  Fischer II,  it advocated  a similar                                       _______          test,  holding that "serious  consideration" exists only  when "a          company focuses on a particular  plan for a particular  purpose."          103  F.3d at 494.  The Muse court  was guided by what it found to                                 ____          be  Congress's main object in imposing disclosure requirements on          ERISA  fiduciaries, namely,  to  "ensure  that 'employees  [would          have]  sufficient information  and data  to enable  them to  know          whether the plan was financially sound and being administered  as          intended.'"   Id. at  494 (alteration  in original)(quoting  H.R.                        ___          Rep. No. 533, at 11  (1974), reprinted in 1974 U.S.C.C.A.N. 4639,          4649).  Because  an early disclosure requirement  would "increase          the likelihood  of  confusion on  the part  of the  beneficiaries          [and] .  . . management would be unduly burdened by the continued          uncertainty of  what to  disclose and when  to disclose  it," the          court  required  the  existence  of  a  "particular  plan  for  a          particular purpose."   Id.   It also  found that "there  [was] no                                 ___                                         -15-          convincing  evidence   that  suggest[ed]  that  IBM  studied  the          possibility  of enhanced benefit plans for  any reason other than          to gain a general appreciation of its options."  Id.                                                           ___                    As  we have  already  indicated,  our  embrace  of  the          Fischer II  approach is influenced by similar appreciation of the          _______          conflicting interests that ERISA  seeks to reconcile.   A primary          concern of  Congress  in enacting  ERISA  was not  to  discourage          employers from  offering employee  pensions.   "We know  that new          pension plans  will not be  adopted and that existing  plans will          not  be expanded  and liberalized  if the  costs are  made overly          burdensome, particularly for employers who generally foot most of          the bill."   120  Cong. Rec.  29,945 (1974)(statement of  Senator          Long)(reprinted  in Jensen, supra  note 5,  at 155-56).   Equally                                      _____          important,  the practical constraints of a severance program, and          the  very  purpose for  which  it is  designed,  counsel delaying          disclosure   of  a  company's  plans  until  a  proposal  becomes          sufficiently firm.  "Changing circumstances,  such as the need to          reduce labor  costs, might  require  an employer  to sweeten  its          severance package, and an employer should not be forever deterred          from giving its employees a better deal merely because it did not          clearly indicate to a previous  employee that a better deal might          one  day be proposed."  Swinney  v. General Motors Corp., 46 F.3d                                  _______     ____________________          512,  520 (6th  Cir. 1995).   Indeed, it is  not implausible that          imposing  a  threshold  lower  than  that  of  Fischer  II  would                                                         _______          frustrate  the  very  purposes  for  which  a  severance  program          typically is designed: to reduce  a workforce by voluntary means.                                         -16-          See Pocchia, 81 F.3d at 279 ("Employees simply would not leave if          ___ _______          they  were  informed  that  improved  benefits  were  planned  if          workforce reductions were insufficient.").                    At  the  same time,  the fiduciary  concerns underlying          ERISA are not to  be ignored.  "After all, ERISA's  standards and          procedural   protections    partly   reflect    a   congressional          determination that  the  common  law  of  trusts  did  not  offer          completely satisfactory protection."  Varity Corp., 116 S. Ct. at                                                ____________          1070.  ERISA's  primary goal is  to "protect[] employee  pensions          and  other  benefits by  .  .  .  setting forth  certain  general          fiduciary duties applicable to the management of both pension and          nonpension  benefit  plans."   Id.    The  Fischer II  court  was                                         ___         _______          therefore  careful to emphasize  that "this formulation  does not          turn on  any single factor; the determination is inherently fact-          specific.   Likewise,  the factors  themselves  are not  isolated          criteria; the  three interact  and coalesce to  form a  composite          picture of serious  consideration."  Fischer II, 96  F.3d at 1539                                               _______          (citation omitted).                    Thus,  "[a]  specific   proposal  can  contain  several          alternatives,  and the  plan as  finally  implemented may  differ          somewhat from the  proposal.  What  is required, consistent  with          the  overall test, is  a specific  proposal that  is sufficiently          concrete  to support consideration  by senior management  for the          purpose of implementation."  Id. at 1540.  Correspondingly, while                                       ___          "[c]onsideration by senior  management is . . .  limited to those                                         -17-          executives  who possess the  authority to implement  the proposed          change," id., this prong                   ___                    should  not  limit serious  consideration  to                    deliberations by  a quorum  of  the Board  of                    Directors . . . .   It is sufficient for this                    factor that the plan  be considered by  those                    members    of    senior    management    with                    responsibility for  the benefits area  of the                    business,  and   who  ultimately   will  make                    recommendations   to   the   Board  regarding                    benefits operation.          Id.  This emphasis on flexibility permits a  trial court to apply          ___          the three-pronged  standard without slighting the  core fiduciary          principle that "[l]ying is inconsistent  with the duty of loyalty          owed  by all  fiduciaries  and codified  in section  404(a)(1) of          ERISA."    Varity  Corp.,  116  S. Ct.  at  1074  (alteration  in                     _____________          original) (quoting Peoria  Union Stock Yards Co.  Retirement Plan                             ______________________________________________          v. Penn Mut. Life Ins. Co., 698 F.2d 320, 326 (7th Cir. 1983)).             _______________________                    Our  primary reason  for  emphasizing  the  Fischer  II                                                                _______          test's flexibility is  to remove any temptation that  might exist          to deliberately  evade one  of its three  factors as  a means  of          subverting ERISA's fiduciary  commands.  If it is  clear from the          totality of the facts that a severance package is, in fact, under          serious consideration, we  do not think that  clever manipulation          of  the Fischer  II test  should relieve  a wrongdoer  from ERISA                  _______          liability.  The ultimate question is whether "a composite picture          of serious consideration" has developed.   Fischer II, 96 F.3d at                                                     _______          1539.     We recognize, of  course, that this cautionary  note is          directed to  the exceptional  case.  Thus,  in the  typical case,          where there is no evidence  of a deliberate attempt to circumvent                                         -18-          ERISA, a  straightforward application of  the Fischer II  test is                                                        _______          all that is required.                    We thus  conclude, modifying  Fischer II,  that serious                                                  _______          consideration  of a  change in  plan benefits  exists when  (1) a          specific proposal which would affect  a person in the position of          the   plaintiff  (2)   is  being   discussed   for  purposes   of          implementation (3)  by senior  management with  the authority  to          implement that change.                                          B.                                          B.                    Turning to the facts of this  case, it is clear that no          early  retirement  plan  affecting  Vartanian was  under  serious          consideration  by Monsanto's senior management on April 21, 1991,          the day  when  Vartanian began  his final  inquiries.   President          Potter had  begun conferring with  his senior managers  about the          possibility of  a corporate restructuring.   He had asked  for an          estimate of the  cost that Monsanto would incur  if 400 employees          were laid off.  But  these corporate ruminations, precipitated by          the   downturn  in  Monsanto's  business,  did  not  trigger  any          contemporaneous duty of disclosure.                    First,   there   was   no   specific   proposal   under          consideration.  At most, there  was a suggestion that an enhanced          severance package  might be  one way to  deal with  the company's          fiscal woes.  Second,  although Potter was certainly among  those          individuals qualifying  as "senior management with  the authority          to implement the  change," there is no evidence  that anything of          substance was, in fact, being  discussed for implementation.  The                                         -19-          ideas that were  floating among top management were  only that --          ideas.  As a result, the answers that Vartanian received in March          and April of 1991, that no material changes affecting his benefit          plan were being considered, were not misrepresentations.                    Potter received an endorsement  on May 7, 1991, of  his          restructuring  proposal  from the  Monsanto  Executive Management          Committee.  Nine days later,  he ordered the director of employee          benefits   to  begin  planning  a  severance  program  for  those          employees who  would be displaced.   Not until  the May 28,  1991          meeting of  senior managers was  it proposed to extend  the early          retirement plan to all Monsanto employees.  This is  the point at          which "the three [factors] interact[ed] and coalesce[d] to form a          composite picture  of serious  consideration," giving  rise to  a          fiduciary duty of disclosure.  Fischer II, 96 F.3d at 1539.7                                         _______                                      Conclusion                                      Conclusion                    Vartanian's additional  arguments on  appeal are  of no          merit.8  While  we recognize that the outcome  of this protracted                                        ____________________          7  It  appears that Monsanto went further than  we might require.          After serious consideration  had occurred, two employees  who had          announced  their  intention  to retire  without  inquiring  about          possible  changes in  their  retirement plans  were retroactively          paid the value of the benefits enhancement.          8   Vartanian  asserts error  in  the district  court's grant  of          summary judgment  to Monsanto on  his claim under  510  of ERISA,          which makes it unlawful for  any person to discriminate against a          plan participant for purposes of interfering with any right under          a benefit plan.   Vartanian's assertion, however,  depends upon a          finding of a material misrepresentation.             He also  suggests that,  because a  determination of  "serious          consideration" is  fact-specific, it  can only  be resolved by  a          jury.  At  the summary judgment stage, however,  only disputes of          material fact need be resolved by a fact-finder.  Fed. R. Civ. P.                                         -20-          litigation is  an unhappy one  for Vartanian, benefit  plan rules          and  practices  "inevitably  hurt   'some  individuals  who  find          themselves on the wrong side of the  line.'"  Palino, 664 F.2d at                                                        ______          859 (quoting  Rueda v. Seafarers  Int'l Union, 576 F.2d  939, 942                        _____    ______________________          (1st Cir.  1978)).   While it may  be small  comfort, Vartanian's          perseverance  has resulted in  the clarification of  an important          area of ERISA law in this circuit.                    For the foregoing reasons, the judgment of the district          court is affirmed.  Costs to appellees.                   affirmed                   ________                                        ____________________          56(c).             Finally, Vartanian asserts error in the district court's grant          of a  motion to strike  his jury demand.   Because we  affirm the          district court's grant of summary judgment, we need not reach the          issue of Vartanian's  failure to file a timely  notice of appeal.          See Smith  v. Barry,  502 U.S.  244, 248  (1992)(noncompliance is          ___ _____     _____          jurisdictional and fatal).                                         -21-
