Hughes Salaried Retirees Action Committee Peter Formo Richard E. Miller Norman C. Rigby v. Administrator of the Hughes Non-Bargaining Retirement Plan

72 F.3d 686 64 USLW 2391 , 19 Employee Benefits Cas. 2269 , 95 Cal. Daily Op. Serv. 9584 , 95 Daily Journal D.A.R. 16 ,685, Pens. Plan Guide P 23915S HUGHES SALARIED RETIREES ACTION COMMITTEE; Peter Formo; Richard E. Miller; Norman C. Rigby, Plaintiffs-Appellants, v. ADMINISTRATOR OF the HUGHES NON-BARGAINING RETIREMENT PLAN, Defendant-Appellee. No. 93-55384. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1993. Opinion Filed Nov. 7, 1994. Order Granting Rehearing En Banc July 14, 1995. Argued and Submitted July 20, 1995. Decided Dec. 15, 1995. Jerome Tauber, Richard Dorn, Sipser, Weinstock, Harper & Dorn, New York City, for plaintiffs-appellants. Robert F. Walker, Paul, Hastings, Janofsky & Walker, Santa Monica, California, for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: WALLACE, Chief Judge, HUG, FLETCHER, PREGERSON, CANBY, NORRIS, REINHARDT, WIGGINS, BRUNETTI, O'SCANNLAIN, and RYMER, Circuit Judges. Dissent by Judge PREGERSON. WILLIAM A. NORRIS, Circuit Judge: This appeal presents two questions: 1 (1) whether Sec. 104(b)(4) of the Employee Retirement Income Security Act of…

Dissent by Judge PREGERSON.

This appeal presents two questions:

(1) whether § 104(b)(4) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1024 (b)(4), requires a plan administrator to furnish individual participants upon request with the names and addresses of other plan participants. We hold that it does not because such a list is not an “instrumente ] under which the plan is established or operated,” id,.;

(2) whether a plan administrator has a general fiduciary duty under ERISA § 404(a)(1)(A), 29 U.S.C. § 1104 (a)(1)(A), to furnish individual participants with the names and addresses of other plan participants. We hold that it does not because this information is not related to “providing benefits to participants and their beneficiaries [or] defraying reasonable expenses of administering the plan,” the exclusive purposes for which the plan administrator may discharge its duties, id.

I

Background

Plaintiffs are three retirees (the “Retirees") who receive defined pension benefits from the Hughes Non-Bargaining Retirement Plan (the “Plan”). They are members of a self-appointed committee called the Hughes Salaried Retirees Action…

joined by HUG, FLETCHER, and REINHARDT, Circuit Judges, dissenting:

The Retirees of the Hughes Non-Bargaining Retirement Plan seek a list of the names and addresses of plan participants for two purposes: (1) to communicate with other plan participants about increasing benefits from the plan’s $1 billion of surplus funds, and (2) to create a watchdog committee to ensure that the Administrator properly manages the plan. I dissent on two independent bases: I believe that the Administrator has a duty to furnish such a list under ERISA §§ 404(a)(1)(A) (the general fiduciary duty provision) and 104(b)(4) (as a plan instrument).

A. ERISA § 404(a)(1)(A)

ERISA § 404(a)(1)(A) provides that the Administrator, as a fiduciary to the plan, must discharge his duties of plan administration “solely in the interest of the participants and beneficiaries and — (A) for the exclusive *696 purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan...

In Acosta v. Pacific Enterprises, 950 F.2d 611, 619 (9th Cir.1991), we held that a plan administrator did not have a duty to disclose a list of participants’ shareholdings…