
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1611                                    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 Ponsor, U.S. Magistrate Judge]                                           _____________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               John  C. Sikorski,  with  whom  Robinson  Donovan  Madden  &               _________________               ____________________________          Madden, P.C., was on brief for appellant.          ____________               Richard  J. Pautler,  with  whom  Richard  P.  Sher,  Peper,               ___________________               _________________   ______          Martin,  Jensen, Maichel  and Hetlage,  Francis  D. Dibble,  Jr.,          _____________________________________   ________________________          Bulkley,  Richardon and Gelinas,  and John  S. Morrison,  were on          _______________________________       _________________          brief for appellees.                                 ____________________                                   February 2, 1994                                 ____________________                    TORRUELLA,  Circuit  Judge.   Appellant  Leo  Vartanian                                ______________          ("Vartanian")  brought   claims  against  his   former  employer,          Appellee  Monsanto  Chemical  Company   ("Monsanto"),  under  the          Employment  Retirement Income Security Act ("ERISA"), 29 U.S.C.            1001  et seq.,  pursuant to  Section 502(a)  of ERISA,  29 U.S.C.                _______          1132(a), as well  as under common  law,1 asserting that  Monsanto          breached   its   fiduciary   duty   and   engaged   in   unlawful          discrimination  and   misrepresentation.    The   district  court          dismissed  Vartanian's complaint  for failure  to  state a  claim          under Federal Rule of Civil Procedure 12(b)(6). Vartanian appeals          the district court's dismissal of his claims.                    According to the facts alleged by  Vartanian, Vartanian          worked for Monsanto for nearly 37 years.  He was a participant in          the Monsanto  Company  Salaried  Employees  Pension  Plan  ("1986          Plan").    The 1986  Plan  offered several  options  to retirees,          including  the  option  to  receive  various  types  of  periodic          payments (annuities) or to take all  benefits in a lump sum.   In          accordance  with the  requirements of  the  1986 Plan,  Vartanian          submitted a lump sum distribution request at least one year prior          to  his anticipated early  retirement date.   Vartanian submitted                                        ____________________          1    Vartanian's  complaint  alleges   a  claim  for  common  law          misrepresentation, without specifying whether he means federal or          state  common law.   The  district court  in its  opinion clearly          interpreted  the claim  to be  a  claim under  state common  law.          Rather than filing a motion to reconsider with the district court          and  explaining  to the  district  court that  it  had mistakenly          considered  his claim to  assert a state law  claim rather than a          federal  law claim, Vartanian appealed the district court's order          of  dismissal.   In  the  present case,  we  review the  district          court's decision and  find it unnecessary to  recognize a federal          common law claim.  See infra note 5 and accompanying text.                             ___ _____                                         -2-          this request in  March, 1990 for an  anticipated early retirement          date of May 1, 1991.                    In  February, 1991,  Vartanian started  to hear  rumors          that  Monsanto  was  going  to  offer  a   more  favorable  early          retirement package  as a retirement incentive in the near future.          Monsanto  had a  history  of  using  early  retirement  incentive          programs, having done  so in 1981, 1985  and 1990.  As  rumors of          early  retirement offerings  persisted, sometime  in  February or          March, 1991, Vartanian asked his supervisor about the possibility          of an early retirement offering and requested that the supervisor          inquire about this possibility.  Several weeks later, Vartanian's          supervisor responded  that he  could not  confirm any rumors  and          that there were "no plans" regarding the early retirement offer.                    In  April, 1991, Vartanian repeated the same inquiry to          his  supervisor  who again  responded  that there  were  no plans          regarding  an  early  retirement  arrangement.    Vartanian  also          questioned  the  Springfield  Personnel   Supervisor  as  to  the          possibility of  an early  retirement incentive  offering and  was          told that  there  were no  plans  for  any such  offering.    The          Springfield supervisor asked  Vartanian if he would  refrain from          retiring  on  May 1, 1991  if  such  a  program  were  available.          Vartanian responded that  he would want to study  any new program          and certainly have  the option of delaying the  effective date of          his early retirement, depending on  the option.  Vartanian had in          fact  postponed a previously elected early retirement so he could          work on certain  projects for Monsanto.  Vartanian  retired as of                                         -3-          May 1,  1991, and took  a lump sum distribution  of approximately          $509,000 under the 1986 Plan.                    On   or  about  June  28,  1991,  Monsanto's  Board  of          Directors   approved   a   restructuring  plan   which   involved          consolidating   manufacturing    operations,   closing    plants,          reorganizing businesses and reducing the number of employees.  As          of February, 1991,  when Vartanian made specific  inquiries about          early  retirement incentive  programs,  Monsanto  had,  in  fact,          already  given  serious  consideration to  staff  reductions  and          changes  in  the 1986  Pension  Plan  and was  contemplating  the          formation  of  the  Monsanto  Special Voluntary  Retirement  Plan          ("1991 Plan").                    Vartanian  alleges  that  he  was  denied  a reasonable          opportunity  to make  an informed  decision about when  to retire          because  Monsanto  failed  to disclose  its  consideration  of an          enhanced severance program.   If Vartanian had  received complete          and  truthful information,  he would  have continued  to work  at          Monsanto  until December  1,  1991  and,  thus, would  have  been          eligible for full benefits under  the 1991 Plan announced on June          28, 1991.                    Vartanian exhausted  all administrative  procedures and          plan appeal procedures  in his claim for benefits  under the 1991          Plan.  Monsanto denied  Vartanian's claim because he had  retired          on May  1, 1991 and, therefore,  was not employed by  Monsanto on          October 1,  1991,  which  was a  requirement  for  eligibility to          participate in the 1991 Plan.                                         -4-                    In  the court  below, Vartanian  alleged  that Monsanto          breached its fiduciary  duty in violation of 29  U.S.C.   1104(a)          by  failing to  disclose  its  intention to  create  a new,  more          generous retirement  package  or the  fact that  the company  was          giving "serious consideration" to such a plan.  Vartanian claimed          that  as  a  result  of  his reliance  on  Monsanto's  misleading          statements  to the  effect that  the  company did  not intend  to          create   a  more  generous  retirement  package,  he  missed  the          opportunity to retire  under the more advantageous  provisions of          the new plan which went into effect shortly after his retirement.          Vartanian also alleged  unlawful discrimination  in violation  of          Section 510 of ERISA, 29 U.S.C.   1140.                    Under Section 502 of ERISA, 29 U.S.C.   1132(a), only a          "participant"  or "beneficiary" may bring a private civil action.          Vartanian claims  that he  had standing to  sue because he  was a          "participant."  The district court found, however, that Vartanian          was not  a "participant"  as defined by  29 U.S.C.    1002(7)  of          ERISA  and thus, did not have standing  to sue under Section 502.          Because Section  502 is the  sole civil enforcement  provision of          ERISA, the  district court  dismissed both  of Vartanian's  ERISA          claims.  The district court also dismissed Vartanian's common law          claims  alleging misrepresentation.  The court found that because          these  are state  law claims  which "relate  to" ERISA,  they are          therefore  preempted by  Section 514(a)  of ERISA,   29  U.S.C.            1144(a).                    On appeal, Vartanian maintains that the  district court                                         -5-          erred in  dismissing his claims.   Vartanian argues that,  at the          time  Monsanto  made  the alleged  misrepresentations,  he  was a          "participant"  in an employee benefit  plan (the 1986 Plan), that          Monsanto's breach  of  its fiduciary  duty  caused him  to  leave          shortly before the 1991 Plan was adopted.  Furthermore, Vartanian          claims that but for Monsanto's misrepresentations,  he would be a          "participant" in the 1991  Plan under 29 U.S.C.   1002(7) and, as          such, he  has standing to  assert claims for breach  of fiduciary          duty,   unlawful  discrimination   and  misrepresentation   under          ERISA.2  He argues  that the  ERISA  definition of  "participant"          refers to  a person who  is, or may become  eligible for benefits          "from an  employee benefits plan"  and does not require  that the           _______________________________          person be eligible for benefits from two  employee benefit plans.                                               ___          Thus, because he  was a participant  in the 1986 Plan,  he claims          that, it was not  necessary that he be a participant  in the 1991          Plan in order to have standing under  ERISA.  In the alternative,          Vartanian  argues that,  even if  he  does not  have standing  to          assert claims under ERISA, this federal statute does not  preempt          his state common law claims  and this case should be remanded  to          the  district  court  for further  proceedings  to  determine the          merits of his common law claims.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We  review the district  court's decision to  grant the                                        ____________________          2    Vartanian  also  points  out  that  the 1991  Plan  had  two          components, enhancement  of benefits  under the 1986  Plan and  a          separate cash payment.   He suggests that he is  a participant in          that portion of  the 1991 Plan that consists of an enhancement of          benefits under the 1986 Plan.                                         -6-          motion to dismiss  Vartanian's claim under Federal  Rule of Civil          Procedure  12(b)(6)  de novo.    Kale  v.  Combined Ins.  Co.  of                               __ ____     ____      ______________________          America, 925 F.2d 1161, 1165 (1st Cir. 1991).  We must accept the          _______          allegations of the  complaint as true, and if,  under any theory,          the  allegations are  sufficient to  state a  cause of  action in          accordance  with the  law, we  must deny  the motion  to dismiss.          Knight v. Mills, 836 F.2d 659 (1st Cir. 1987).          ______    _____                                      PREEMPTION                                      PREEMPTION                                      __________                    We  first examine  the  district  court's finding  that          Vartanian's state law  claims are preempted by  Section 514(a) of          ERISA, 29 U.S.C.   1144(a).                    Section 514 of ERISA supersedes "any and all State laws          insofar  as they  may now  or  hereafter relate  to any  employee                                                   ______          benefit plan . . . ."  29 U.S.C.   1144(a) (emphasis added).  The          Supreme  Court  has  established  that  "a law  'relates  to'  an          employee  benefit plan  . .  .  if it  has a  connection  with or          reference to such a plan."  Ingersoll-Rand, Co. v. McClendon, 498                                      ___________________    _________          U.S. 133, 139 (1990).                    In  Ingersoll-Rand, Co.,  the Supreme  Court identified                        ___________________          two tests for determining whether  a cause of action "relates to"          and  is thus,  preempted by  ERISA.   First, a  law is  expressly          preempted by ERISA  where a plaintiff, in order  to prevail, must          plead, and the court must find,  that an ERISA plan exists.   Id.                                                                        ___          at 140.   The cause of action "relates to" an  ERISA plan in this          context because the court's inquiry must be directed to the plan.          Id.  Second, even where there  is no express preemption, a  cause          ___                                         -7-          of action  is preempted  if it conflicts  directly with  an ERISA          cause of action.  Id. at 142.                            ___                    In the present case, the  existence of the 1991 Plan is          inseparably  connected  to any  determination of  liability under          state common law of misrepresentation.   There is simply no cause          of action  if there is  no plan.   See id.  at 140.   The alleged                                             ___ ___          misrepresentations by  Monsanto relate  to the  existence of  the          1991 Plan and  in order to prevail under a state common law claim          for misrepresentation, Vartanian would undoubtedly have to plead,          and the Court would have to find, that the 1991 Plan exists.  See                                                                        ___          id. at 140.  Thus, under  the first test set forth in  Ingersoll-          ___                                                    __________          Rand, Co., Vartanian's  claims "relate to" an ERISA  plan and are          _________          expressly  preempted by ERISA.   See Smith  v. Durham-Bush, Inc.,                                           ___ _____     _________________          959  F.2d 6,  11-12 (2d Cir.  1992); see  also Sanson  v. General                                               _________ ______     _______          Motors Corp., 966  F.2d 618, 621 (11th Cir.  1992), cert. denied,          ___________                                         ____________          113 S. Ct. 1578 (1993).                    Therefore,  we  affirm  the  portion  of  the  district          court's  opinion holding that Vartanian's state common law claims          of negligent misrepresentation are preempted by ERISA.                                     ERISA CLAIMS                                     ERISA CLAIMS                                     ____________                    Next,  we  examine the  district  court's finding  that          Vartanian did  not have  standing to pursue  a civil  claim under          ERISA.                    Section 502, the civil  enforcement provision of ERISA,          provides that a "civil action may be brought by a  participant or                                         -8-          beneficiary3 to recover  benefits due 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."   29  U.S.C.     1132(a)(1)(B).   ERISA  defines the  term          "participant" as:                      any  employee  or former  employee  of an                      employer, or any member or former  member                      of  an employee  organization, who  is or                      may become eligible to  receive a benefit                      of any type from an employee benefit plan                      which covers  employees of  such employer                      or members of such organization, or whose                      beneficiaries may be  eligible to receive                      such benefit.          29 U.S.C.   1002(7).                    In Firestone Tire  & Rubber Co. v. Bruch,  489 U.S. 101                       ____________________________    _____          (1989), the  Supreme  Court discussed  the  meaning of  the  term          "participant":                      the term "participant"  is naturally read                      to   mean   either  "employees   in,   or                      reasonably expected  to be  in, currently                      covered    employment,"    Saladino    v.                                                 ________                      I.L.G.W.U. National Retirement  Fund, 754                      ____________________________________                      F.2d  473,  476  (CA2  1985),  or  former                      employees who "have  . .  . a  reasonable                      expectation  of   returning  to   covered                      employment"  or  who  have  "a  colorable                      claim"  to  vested   benefits,  Kuntz  v.                                                      _____                      Reese,  785 F.2d  1410,  1411 (CA9)  (per                      _____                                 ___                      curiam),  cert.  denied,   479  U.S.  916                      ______    _____________                      (1986).  In order to establish that he or                      she "may become eligible" for benefits, a                      claimant must have a colorable claim that                      (1) he or she will prevail in a suit  for                      benefits,   or   that   (2)   eligibility                      requirements  will  be fulfilled  in  the                      future.        "This    view   attributes                      conventional  meanings  to  the statutory                      language since  all employees  in covered                                        ____________________          3  Appellant does not claim to be a beneficiary.                                         -9-                      employment  and former  employees with  a                      colorable claim  to vested  benefits 'may                      become eligible.'  A former employee  who                      has neither  a reasonable  expectation of                      returning  to  covered employment  nor  a                      colorable  claim   to  vested   benefits,                      however, simply  does not fit  within the                      [phrase] 'may become eligible.'" Saladino                                                       ________                      v. I.L.G.W.U.  National Retirement  Fund,                         _____________________________________                      supra, at 476.                      _____          Firestone, 489 U.S. at 117-18.          _________                    Since  Vartanian  did   not  allege  that  he   has  an          expectation of  returning  to covered  employment,  the  district          court,  relying  on  Firestone, focused  its  inquiry  on whether                               _________          Vartanian had a colorable claim to vested benefits.  Finding that          Vartanian had  no  such  claim,  the  district  court  held  that          Vartanian did  not have standing  to pursue a claim  under ERISA.          We  disagree  with  the district  court's  interpretation  of the          standing requirements under ERISA.                    The Supreme  Court's  discussion in  Firestone  of  the                                                         _________          ERISA  term "participant" was developed outside of the "standing"          context and therefore, does not mandate a  finding that Vartanian          has no standing  to assert his claims.  See  Christopher v. Mobil                                                  ___  ___________    _____          Oil Corp., 950 F.2d 1209, 1221 (5th Cir. 1992), cert. denied, 113          _________                                       ____________          S. Ct. 68 (1992) ("Firestone . . . [cannot] be read to reduce the                             _________          standing  question to a straightforward formula applicable in all          cases.").                    The Sixth Circuit  recently addressed the issue  of who          is a "participant," for purposes of standing:                      In  determining who  is a  "participant,"                      for purposes of  standing, the definition                      found in 29 U.S.C.   1002(7) must be read                                         -10-                      in the context of traditional concepts of                      standing,   not   in   the   context   of                      adjudicating  the ultimate  issue of  the                      merits  of plaintiffs' claim . . . .  The                      doctrine  of standing  is concerned  with                      whether a person  is the proper  party to                      request  adjudication  of   a  particular                      issue, whether a person  has alleged such                      a  personal stake in  the outcome  of the                      justiciable controversy that he should be                      entitled   to    obtain   its    judicial                      resolution.     Standing  focuses   on  a                      person's  effort  to  get  his  complaint                      before  a court and  not on the  issue he                      wishes to have adjudicated.                                       *  *  *                      [The  ultimate  question is  whether  the                      _________________________________________                      plaintiff   is]   within  the   zone   of                      _________________________________________                      interests ERISA was intended to protect.                       _______________________________________          Astor v. International  Business Machines Corp., 7 F.3d 533, 538-          _____    ______________________________________          39 (6th Cir. 1993), (quoting  Hughes v. General Motors Corp., 852                                        ______    ____________________          F.2d  568 (6th Cir. 1988) (unpublished) (citations omitted)); see                                                                        ___          also Data Processing Service v. Camp, 397 U.S. 150, 153 (1970).          ____ _______________________    ____                    The  legislative   history  of  ERISA   indicates  that          Congress  intended the  federal  courts  to  construe  the  Act's          jurisdictional  requirements  broadly  in   order  to  facilitate          enforcement of its remedial provisions:                      The  enforcement  provisions   have  been                      designed specifically to provide both the                      Secretary [of Labor] and participants and                      beneficiaries  with  broad  remedies  for                      redressing  or  preventing  violations of                      the  [Act].  . .  .   The  intent  of the                                            ___________________                      Committee is to provide the full range of                      _________________________________________                      legal and equitable remedies available in                      _________________________________________                      both  state  and  federal  courts and  to                      _________________________________________                      remove   jurisdictional  and   procedural                      _________________________________________                      obstacles  which in  the  past appear  to                      _________________________________________                      have  hampered  effective  enforcement of                      _________________________________________                      fiduciary  responsibilities  under  state                      ___________________________                      law  or  recovery   of  benefits  due  to                                         -11-                      participants.          S. Rep. No. 127, 93d Cong., 2d Sess., 3 (1974), reprinted in 1974                                                          ____________          U.S.C.C.A.N. 4639, 4871 (emphasis added).                    To  hold that Vartanian's  state common law  claims for          breach of fiduciary duty are preempted by  ERISA, and that he has          no  standing  to assert  his  claims under  ERISA,  would clearly          frustrate  Congress's  intention  to  remove  jurisdictional  and          procedural obstacles to such claims.                    At  the   time  of   the  alleged   misrepresentations,          Vartanian was a "participant" in the  1986 Plan, and as such, the          administrators of  the plan had  a fiduciary duty not  to mislead          Vartanian as to the prospective  adoption of a plan under serious          consideration.  See Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154,                          ___ ______    ___________________          1163-64 (6th Cir. 1988).   Vartanian's claims thus fall  squarely          within the  "zone of interests"  ERISA was designed to  protect.           See Astor, 7 F.3d at 538-39 (former  employees who are within the          ___ _____          zone  of interests  ERISA  was  intended to  protect  held to  be          "participants" for purposes of standing).                    We recognize that  the 1991 Plan had not  yet been made          available   to  Vartanian  at  the  time  of  Monsanto's  alleged          misrepresentations  nor at the time of Vartanian's retirement and          thus, Vartanian could not technically  be a "participant" in  the          1991 Plan.  We believe, however, that given the broadly inclusive          scope  of the  ERISA statute,  and  its preclusion  of all  other          judicial recourse, it would be entirely consistent with the ERISA          statute for this court to decline  to bar Vartanian, for lack  of                                         -12-          "standing",  from  showing  that, "but  for"  Monsanto's wrongful          conduct,  he would  be a  "participant" in  the 1991  Plan.   Cf.                                                                        ___          Christopher, 950 F.2d at 1221.          ___________                    In  reaching our conclusion,  we rely on  the fact that          Vartanian  did not know  Monsanto had made  misrepresentations to          him  and  therefore,  he  could  not have  alleged  a  breach  of          fiduciary  duty by Monsanto  until after he  had received payment          under the 1986  Plan.  To hold otherwise would imply that when an          employer breaches its fiduciary duty to an employee under  ERISA,          the  employee would  have standing  to sue  only if  the employee          finds  out all of the facts  constituting the breach prior to his          receipt of retirement  benefits.  Such a holding  would enable an          employer to  defeat the employee's right  to sue for a  breach of          fiduciary duty by keeping his  breach a well guarded secret until          the employee receives his benefits or, by distributing a lump sum          and terminating benefits before the  employee can file suit.  The          employee would  have no  standing to state  a claim  under ERISA,          even where the employer's breach of fiduciary duty takes the form          of misrepresentations  that induced  the employee  to retire  and          receive the  payment of benefits.   Congress did not  intend such          unjust and arbitrary results.4                                        ____________________          4  We are aware of decisions  of other courts that are frequently          cited  for the proposition  that the term  "participant" excludes          plaintiffs who have already received all of their vested benefits          in the form of  a lump sum payment under  a benefit plan.   E.g.,                                                                      ____          Kuntz v. Reese, 785 F.2d 1410 (9th Cir.  1986), cert. denied, 479          _____    _____                                  ____________          U.S. 916 (1986); Yancy v.  American Petrofina, Inc., 768 F.2d 707                           _____     ________________________          (5th  Cir. 1985); Raymond v. Mobil Oil Corp., 983 F.2d 1528 (10th                            _______    _______________          Cir. 1993),  cert. denied,  114 S. Ct.  81 (1993); and  Berger v.                       ____________                               ______          Edgewater  Steel Co.,  911 F.2d  911, 921  (3d Cir.  1990), cert.          ____________________                                        _____                                         -13-                    Our conclusion is consistent  with the Fifth  Circuit's          decision in Christopher, in which the court indicated that                      ___________                      it  would seem . .  . logical to say that                      but for the employer's conduct alleged to                      be  in violation  of ERISA,  the employee                      would  be  a  current   employee  with  a                      reasonable   expectation   of   receiving                      benefits, and the  employer should not be                      able  through  its   own  malfeasance  to                      defeat the employee's standing.          Christopher, 950 F.2d at 1221.  Contra Raymond, 983 F.2d at 1536.          ___________                     ______ _______                    We  hold that where  an employee alleges  a decision to          retire  based  on  alleged  misrepresentations  by  his  employer          amounting to a breach of fiduciary duty,  and the true facts, are          not  available  to the  employee  until  after  the employee  has          received all his vested benefits under a plan; and further, where          the employee shows  that in the absence of  the employer's breach          of fiduciary duty he would have been entitled to greater benefits          than those which he received,  then his receipt of payment cannot          be  used  to deprive  him  of  "participant"  status  and  hence,          standing to  sue under  ERISA.  Thus,  Vartanian has  standing to          assert his claims under ERISA even though he has already received          his benefits under the 1986 Plan.                                  FEDERAL COMMON LAW                                  FEDERAL COMMON LAW                                  __________________                    On appeal, Vartanian requests that this court recognize          a federal common law claim for misrepresentation.                    Although  this  court  has  noted  that  Congress   has                                        ____________________          denied,  499  U.S.  920  (1991).   These  cases  hold  that  such          ______          plaintiffs  lack standing to sue  under ERISA because they cannot          establish that they were former  employees with a colorable claim          to vested benefits.                                         -14-          contemplated  that  the  federal  courts  "in  the  interests  of                                                     __  ___  _________  __          justice, would engage in interstitial lawmaking in ERISA cases in          _______                                                        __          much the same way as the courts fashioned a federal common law of          ____ ___ ____ ___ __ ___ ______ _________ _ _______ ______ ___ __          labor  relations under  section  301  of  [the  Labor  Management          _____  _________ _____  _______  ___          Relations  Act][,]" Nash  v. Trustees  of Boston Univ.,  946 F.2d                              ____     _________________________          960,  965  (1st  Cir.   1991)  (citations  omitted),     we  deny          Vartanian's request  because it  is not necessary  that we  reach          this issue given the present ruling.                    Because we  have held  that Vartanian  has standing  to          pursue  his claims  under ERISA,  we find  that justice  does not          require that we recognize a federal common law claim of negligent          misrepresentation.5                    We  affirm that portion  of the district  court's order                    _______________________________________________________          dismissing  Vartanian's  state claims  for  common law  negligent          _________________________________________________________________          misrepresentation.    We   reverse  the  portion  of   the  order          _________________________________________________________________          dismissing Vartanian's claims under ERISA and remand this case to          _________________________________________________________________          the  district court  for decision  on the  merits of  Vartanian's          _________________________________________________________________          ERISA claims.          ____________                                        ____________________          5  We express no  view on whether, under different circumstances,          such a federal common law claim should be recognized.                                         -15-
