                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 18a0223p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 MEAD VEST,                                              ┐
                                  Plaintiff-Appellant,   │
                                                         │
                                                         >      No. 18-5046
        v.                                               │
                                                         │
                                                         │
 RESOLUTE FP US INC.,                                    │
                                 Defendant-Appellee.     │
                                                         ┘

                         Appeal from the United States District Court
                    for the Eastern District of Tennessee of Chattanooga.
                   No. 1:17-cv-00196—Thomas W. Phillips, District Judge.

                            Decided and Filed: October 10, 2018

                  Before: SILER, GRIFFIN, and STRANCH, Circuit Judges.
                                  _________________

                                         COUNSEL

ON BRIEF: R. Scott Wilson, ERIC BUCHANAN & ASSOCIATES, PLLC, Chattanooga,
Tennessee, for Appellant. Ian H. Morrison, Jules A. Levenson, SEYFARTH SHAW LLP,
Chicago, Illinois, for Appellee.

         GRIFFIN, J., delivered the opinion of the court in which SILER, J., joined. STRANCH,
J. (pp. 8–10), delivered a separate dissenting opinion.
                                     _________________

                                          OPINION
                                     _________________

       GRIFFIN, Circuit Judge.

       Plaintiff Mead Vest contends defendant Resolute FP US Inc. breached its fiduciary-duty
obligations set forth in the Employee Retiree Income Security Act when it failed to notify her
 No. 18-5046                        Vest v. Resolute FP US Inc.                            Page 2


late husband of his right to convert a group life insurance policy to an individual life insurance
policy after he ceased employment and began drawing long-term disability benefits. The district
court ruled plaintiff did not adequately plead a breach-of-fiduciary-duty cause of action. We
agree and affirm.

                                                 I.

       Arthur Vest worked nearly forty years for Resolute. During his employment, Resolute
offered group life insurance benefits (“the Plan”) to its employees in the form of base and
optional life insurance coverage; Resolute provided coverage equal to an employee’s annual
salary and permitted employees to purchase additional optional coverage. Arthur purchased an
additional $300,000 of coverage.

       Due to complications arising from diabetes, Arthur ceased working in September 2015,
and began drawing short- and then long-term disability benefits. Under the Plan, employees
maintained base life insurance coverage when receiving long-term disability benefits, but lost
optional coverage.    However, employees had “the right to port or convert” the expiring
additional group coverage to individual coverage within 31 days of ending active employment.
Accordingly, Resolute ended Arthur’s optional coverage on May 18, 2016. Resolute did not,
however, provide him “with any information concerning his right to port or convert the coverage
that ended.”   He died in October 2016, and Resolute’s life insurance carrier paid Vest’s
beneficiary, plaintiff here, only the base coverage amount.

       Mead Vest commenced this one-count ERISA action thereafter. She alleges Resolute
breached its fiduciary duty by failing to inform Arthur of his right to port or convert the optional
life insurance coverage and requests “appropriate equitable relief” under ERISA § 502(a)(3),
29 U.S.C. § 1132(a)(3). The district court held Resolute had no such duty, and dismissed the
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

                                                II.

       We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6).
Giasson Aerospace Science, Inc. v. RCO Eng’g Inc., 872 F.3d 336, 338 (6th Cir. 2017). Under
 No. 18-5046                         Vest v. Resolute FP US Inc.                             Page 3


that rule, the district court may dismiss the plaintiff’s complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). We accept the truth of all of plaintiff’s
well-pleaded material allegations and only “affirm the district court’s grant of the motion . . . if
the moving party is entitled to judgment as a matter of law.” Wilmington Tr. Co. v. AEP
Generating Co., 859 F.3d 365, 370 (6th Cir. 2017). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

                                                 III.

       ERISA “establish[es] standards of conduct, responsibility, and obligation for fiduciaries
of employee benefit plans, and . . . provid[es] for appropriate remedies, sanctions, and ready
access to the Federal courts.” 29 U.S.C. § 1001(b). A fiduciary must “discharge his duties with
respect to a plan solely in the interest of the participants and beneficiaries.” § 1104(a)(1). It
must act “with the care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims.” § 1104(a)(1)(B). A beneficiary
may sue the plan, as plaintiff has done here, “to obtain other appropriate equitable relief.”
§ 1132(a)(3).

       “[T]he contours of an ERISA fiduciary’s duty to disclose information to beneficiaries”
are well defined. Haviland v. Metro. Life Ins. Co., 730 F.3d 563, 572 (6th Cir. 2013) (quoting
James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 450 (6th Cir. 2002)). A fiduciary may not
be liable “for a failure to disclose information that it is not required to . . . disclose,” for “[i]t
would be strange indeed if ERISA’s fiduciary standards could be used to imply a duty to disclose
information that ERISA’s detailed disclosure provisions do not require to be disclosed.”
Sprague v. Gen. Motors Corp., 133 F.3d 388, 405, 406 (6th Cir. 1998) (en banc). However, we
have recognized three conditions under which a fiduciary may breach its disclosure duty:

       (1) an early retiree asks a plan provider about the possibility of the plan changing
       and receives a misleading or inaccurate answer or (2) a plan provider on its own
 No. 18-5046                         Vest v. Resolute FP US Inc.                           Page 4


        initiative provides misleading or inaccurate information about the future of the
        plan or (3) ERISA or its implementing regulations required the employer to
        forecast the future and the employer failed to do so.

Haviland, 730 F.3d at 572 (quoting Sprague, 133 F.3d at 406) (emphasis omitted).

        In dismissing plaintiff’s complaint, the district court drew heavily from—and ultimately
distinguished—our decision in Krohn v. Huron Memorial Hospital, 173 F.3d 542, 548 (6th Cir.
1999), reasoning she failed to plead “unique facts or circumstances” showing defendant knew its
“silence might be harmful” and thus failed to establish her entitlement to equitable relief. It was
right to do so.

        Krohn illustrates how a fiduciary may be liable for providing misleading or inaccurate
information. An automobile accident left Margaret Krohn permanently disabled. 173 F.3d at
544. Her husband sought information from her employer about her benefits’ coverage and only
received information about her short-term disability options. Id. at 545. She filed suit, claiming
the plan administrator breached its fiduciary duty by failing to provide additional information
about her long-term disability benefits. Id. at 546. We agreed, noting that fiduciaries “must give
complete and accurate information in response to participants’ questions,” and that providing
“materially misleading” information, whether negligently or intentionally, or by statement or
omission, breaches this duty. Id. at 547 (citations omitted and emphasis added). In so holding,
we followed the lead of several of our sister circuits:

        [O]nce an ERISA beneficiary has requested information from an ERISA fiduciary
        who is aware of the beneficiary’s status and situation, the fiduciary has an
        obligation to convey complete and accurate information material to the
        beneficiary’s circumstance, even if that requires conveying information about
        which the beneficiary did not specifically inquire. . . . [T]he duty to inform is a
        constant thread in the relationship between beneficiary and trustee; it entails not
        only a negative duty not to misinform, but also an affirmative duty to inform
        when the trustee knows that silence might be harmful.

Id. at 547–48 (internal citations omitted and emphasis added).

        We then held “Krohn’s failure to specifically request information from Huron Memorial
about long-term disability benefits did not relieve the hospital of its fiduciary duty to provide
complete information about her disability insurance options.” Id. at 548–49. This was because
 No. 18-5046                         Vest v. Resolute FP US Inc.                             Page 5


“Huron Memorial received notice repeatedly that the plaintiff would be eligible for and would
need long-term disability benefits.” Id. at 549. This was similar, we reasoned, to a decision
from the D.C. Circuit involving an HIV-positive employee’s request to his insurer for
information about his conversion rights under the policy, but who was told that he had no rights
to continue his coverage (and this difference in terms mattered). Id. at 548–49 (citing Eddy v.
Colonial Life Ins. Co. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)). The D.C. Circuit held for the
employee, commenting that “[r]egardless of the precision of his questions, once a beneficiary
makes known his predicament, the fiduciary is under a duty to communicate . . . all material facts
in connection with the transaction which the trustee knows or should know.” Eddy, 919 F.2d at
751 (citation omitted and emphasis added). Our subsequent case law applying Krohn continues
to require this question-and-response pattern. See, e.g., Gregg. v. Trans. Workers of Am. Int’l,
343 F.3d 833, 846–48 (6th Cir. 2003).

       In plaintiff’s view, Krohn dictates the outcome of this case. After all, the argument goes,
Resolute should have known conversion rights were important to Arthur Vest because he
purchased extra life insurance during his employment and had to go on long-term disability leave
due to his diabetes, which “mad[e] it more likely that he might, in fact, die.” We disagree.

       Plaintiff’s allegation that Resolute was required to disclose life insurance conversion
information falls outside all three of Sprague’s conditions for fiduciary liability. Her claim
plainly does not fall within Sprague condition three (not receiving future forecasts required by
ERISA or its implementing regulations). Nor does it satisfy, like the claim in Krohn, Sprague
condition one—receiving a misleading or inaccurate answer in response to a question. As
discussed, Krohn dealt with an affirmative request for information, which was met with an
affirmative omission. Here, plaintiff does not contend her breach of fiduciary duty claim rests on
a request to Resolute.      In the district court’s words, plaintiff’s complaint lacks specific
allegations concerning communications between the Vests and Resolute to show the Vests
“requested information regarding [Arthur’s] benefits until after his death or that they
communicated an interest in maintaining certain benefits prior to his death,” or that Resolute
“knew of specific facts related to his health condition . . . or that he would never return to work.”
 No. 18-5046                              Vest v. Resolute FP US Inc.                                      Page 6


        That leaves us with the plan provider’s own-initiative condition (Sprague condition two)
but the complaint fails to allege either a misrepresentation or inaccurate statement by Resolute
regarding Arthur Vest’s conversion rights. See, e.g., James, 305 F.3d at 453–56. First, Sprague
makes clear that a failure-to-disclose claim cannot proceed when nothing requires the fiduciary
to expressly disclose the information at issue. 133 F.3d at 406. “ERISA does not contain any
provision that requires a plan administrator to provide notice to plan participants other than a
summary plan description and information of the benefits plan as discussed under 29 U.S.C.
§§ 1021(a)(1) and 1022.” Walker v. Fed. Exp. Corp., 492 F. App’x 559, 566 (6th Cir. 2012).
Neither ERISA nor the Department of Labor’s implementing regulations require summary plan
descriptions to contain conversion information, see §§ 1021(a)(1), 1022; 29 C.F.R. § 2520.102-3,
and plaintiff herself concedes “there is no general duty requiring ERISA fiduciaries to provide
life insurance conversion notices.”           Second, and as the district court correctly highlighted,
plaintiff does not contend Resolute was required “to provide information regarding conversion
rights beyond that contained in the [summary plan description].” Indeed, the Summary Plan
Description details that insurance “will cease” upon termination of active employment, that an
employee “may convert the amount that ends to an individual Life Insurance policy,” and that
“Totally Disabled” employees, like Arthur Vest, “may be eligible for continued Life Insurance
coverage subject to premium payment.”1

        Finally, plaintiff’s complaint contains no specific facts indicating Resolute knew the
ability to convert the optional life insurance would be important to Arthur Vest. Krohn requires
distinct factual allegations showing Resolute knew “that [its] silence might be harmful,”
173 F.3d at 548, and plaintiff’s complaint is devoid of these requisite facts.




        1We,     like the district court, may consider the Summary Plan Description at this stage because it was
referred to in the complaint and central to plaintiff’s claim. See Berry v. U.S. Dep’t of Labor, 832 F.3d 627, 637–38
(6th Cir. 2016). Plaintiff does not contend Resolute failed to provide a copy of the Summary Plan Description to
Arthur. See Walker, 492 F. App’x at 566.
 No. 18-5046                       Vest v. Resolute FP US Inc.                         Page 7


       Accordingly, we agree with the district court that plaintiff did not adequately plead an
ERISA breach-of-fiduciary-duty claim.

                                              IV.

       We affirm the district court’s judgment.
 No. 18-5046                         Vest v. Resolute FP US Inc.                          Page 8


                                        _________________

                                             DISSENT
                                        _________________

       JANE B. STRANCH, Circuit Judge, dissenting. I agree with much of the majority
opinion’s description of the facts and of the fiduciary duties imposed by ERISA. But because I
believe that the district court failed to correctly analyze one of the conditions for fiduciary
liability that we established in Sprague, I respectfully dissent.

       At issue here is the second Sprague condition, which applies where a plan provider “on
its own initiative provide[s] misleading information.” Sprague v. Gen. Motors Corp., 133 F.3d
388, 406 (6th Cir. 1998) (en banc). After almost four decades of work at Resolute, Arthur Vest
left employment due to disability in September 2015. Without any solicitation from the Vests,
Resolute sent the Vests a notice, the May 23, 2016 Employee Benefit Summary Report (Benefits
Summary), that contained information about a number of benefits, including the life insurance
plan in question. This was not a document required by ERISA. The Benefits Summary omitted
material information—namely, it failed to state that Mr. Vest needed to act within 31 days to
convert his optional group life insurance policy to an individual life insurance policy. Mr. Vest
carried $300,000 in optional life insurance but failed to convert the policy within 31 days. Upon
his death, Mrs. Vest received only the basic life insurance benefit of $100,000.

       I conclude that Mrs. Vest has stated a plausible claim for breach of fiduciary duty under
Sprague’s own-initiative condition because Resolute’s omission rendered the Report misleading.
The majority opinion states that Mrs. Vest’s claim for breach of fiduciary duty cannot fall within
the own-initiative category because she does not “allege either a misrepresentation or inaccurate
statement by Resolute regarding Arthur Vest’s conversion rights.” (Maj. Op. at 6) That is one
way to violate Sprague’s second condition. But we have also explained that a material omission
qualifies as misleading information. See Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th
Cir. 1999) (“Furthermore, a fiduciary breaches its duties by materially misleading plan
participants, regardless of whether the fiduciary’s statements or omissions were made negligently
or intentionally.”). Krohn’s holding that a material omission in response to a question (the first
 No. 18-5046                        Vest v. Resolute FP US Inc.                           Page 9


Sprague condition) can be misleading is likewise applicable to a material omission in a
document the plan provider chooses to send (the second Sprague condition).

       The majority opinion also concludes that Sprague’s second condition does not apply
because there was no requirement for Resolute to provide a conversion notice beyond what was
set forth in the Summary Plan Description (SPD). (Maj. Op. at 6) But Sprague’s own-initiative
condition is exactly that—an action of the employer’s own initiative, not one required by ERISA.
And nothing in Sprague or its progeny indicates that the second condition applies only where
there is a disclosure requirement. Indeed, James v. Pirelli Armstrong Tire Corp., our circuit’s
primary case on the own-initiative condition, says otherwise:

       Turning back to Sprague, although we found that there was no breach of fiduciary
       duty where GM had issued booklets containing a reservation of rights clause,
       Sprague does not stand for the proposition that a reservation of rights provision in
       a SPD necessarily insulates an employer from its fiduciary duty to provide
       “complete and accurate information” when that employer on its own initiative
       provides inaccurate and misleading information about the future benefits of a
       plan. Indeed, Sprague explicitly allows for a breach of fiduciary duty claim under
       such a circumstance. Were it otherwise, an employer or plan administrator could
       provide, on its own initiative, false or inaccurate information about the future
       benefits of a plan without breaching its fiduciary duty under ERISA, simply
       because of the existence of a reservation of rights provision in the plan. However,
       this would be contrary to the basic concept of a fiduciary duty, which “entails not
       only a negative duty not to misinform, but also an affirmative duty to inform
       when the trustee knows that silence might be harmful.” Krohn, 173 F.3d at 548;
       see also Mullins v. Pfizer, Inc., 23 F.3d 663, 668 (2d Cir. 1994) (noting that
       “when a plan administrator speaks, it must speak truthfully”).

305 F.3d 439, 454–55 (6th Cir. 2002). Just as the reservation of rights in James did not control
the own-initiative analysis, including a conversion notice in the SPD (which here is not a
paragon of clarity) does not relieve Resolute of its duty to provide full and complete information
when providing, on its own initiative, the Benefits Summary.

       Finally, the majority concludes that Mrs. Vest did not satisfy Krohn’s requirements
because her complaint does not include “factual allegations showing Resolute knew ‘that [its]
silence might be harmful.’” (Maj. Op. at 6 (quoting Krohn, 173 F.3d at 548)). But Resolute sent
Mr. Vest a Benefits Summary stating that his additional life insurance coverage was no longer
effective without mentioning his conversion rights. At the motion to dismiss stage, we may
 No. 18-5046                         Vest v. Resolute FP US Inc.                         Page 10


consider this undisputed fact and draw the “reasonable inference,” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), that Resolute knew its silence might cause the Vests to lose the $300,000 in
coverage that they had purchased.

       The majority opinion affirms the decision of the district court to dismiss Mrs. Vest’s
complaint for failure to state a claim upon which relief can be granted. At this stage of the case,
I would hold that Mrs. Vest has stated a claim for which Sprague provides the possibility of
relief. Therefore, I respectfully dissent.
