Wayne

Opinion by Judge FLETCHER, Partial Concurrence and Partial Dissent by Judge FERNANDEZ

Plaintiffs are six former Pacific Bell employees who claim their employer induced them to retire under an early retirement incentive program by failing to disclose that it was seriously considering offering a more favorable program. Plaintiffs appeal from the district court’s order granting summary judgment for defendants Pacific Bell and Pacific Telesis Group (collectively “Pacific”) 1 on their claim for equitable re *984 lief for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (“ERISA”). We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

We recently held in Bins v. Exxon Company, U.S.A., 189 F.3d 929 (9th Cir.1999), that once an employer-fiduciary gives serious consideration to a proposal to change ERISA benefits, it has an affirmative duty to disclose information about the proposal to all plan participants and beneficiaries to whom the employer knows, or has reason to know, the information is material. Applying that rule here, we hold that Pacific had an affirmative duty to disclose such information, at the latest, when it offered plaintiffs’…

concurring and dissenting:

I concur in the majority opinion’s reversal of the summary judgment in this case. However, I dissent from that opinion to the extent that it relies upon the flawed decision in Bins v. Exxon Co., 189 F.3d 929 (9th Cir.1999). The reasons for my disagreement are set forth in my dissenting opinion in that case. See Bins, 189 F.3d at 941-43 (Fernandez, J. dissenting).

That is to say, as I see it there is evidence that questions about possible amendments were not properly answered, even after those amendments were under serious consideration by the company. See Fischer v. Philadelphia Elec. Co., 96 F.3d 1533 , 1539-40 (3rd Cir.1996). Moreover, there is evidence of actual mendacity, and that itself precludes summary judgment. See Ballone v. Eastman Kodak Co., 109 F.3d 117, 124-26 (2nd Cir.1997); Drennan v. General Motors Corp., 977 F.2d 246, 251-52 (6th Cir.1992).

Therefore, I do concur in the remand, but respectfully dissent from the direction that the district court apply the Bins theory in deciding this case on remand.