

                  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 &amp; 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 &amp; Crosby ("TPF&amp;C"),

to gather the necessary data.  On May 24, 1991, Manns  gave TPF&amp;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.  &amp;  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-
