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April 29, 1980

Bernice M. TROMBLY, Plaintiff,
F. Ray MARSHALL, Defendant

The opinion of the court was delivered by: PRATT


Pursuant to the civil enforcement provisions of the Employee Retirement Income Security Act of 1974 (hereinafter ERISA), 29 U.S.C. § 1132, plaintiff has sued the Secretary of Labor to enjoin certain practices allegedly in violation of several provisions of ERISA. Defendant Secretary of Labor and intervenor defendant Chamber of Commerce have moved for dismissal, or alternatively for summary judgment. Plaintiff has also moved for summary judgment. The issues have been extensively briefed by all parties. For the reasons discussed below, we find that plaintiff lacks a private cause of action to maintain this lawsuit, and we grant summary judgment for the defendants.


 At the time of her husband's death, plaintiff Bernice Trombly was a named beneficiary of a pension plan participated in by her husband through his employer, the American Chain and Cable Company, Inc. (hereinafter ACCO). A brief booklet issued by ACCO in 1973 to describe benefits under the plan, provided in pertinent part:

A survivor's benefit will be payable to the wife (or husband) of an employee under either of the following two circumstances: a) An active employee who died and who is 50 or more and who has completed 15 or more years of continuous service.

 Plaintiff's husband died on January 8, 1975, at the age of 54 years, after having accrued 18 years of continuous service with ACCO. Although the above quoted provision in the pension plan booklet indicates that plaintiff should receive survivor's benefits, these benefits were denied because plaintiff's husband was not eligible for a retirement pension at the time of his death. The booklet noted elsewhere that to be eligible for the award of pension benefits, an employee must meet certain eligibility requirements, which in Mr. Trombly's case included his attaining the age of 55. Because Mr. Trombly died at age 54, he was not eligible for a retirement pension. Plaintiff applied for and was denied survivor's benefits.

 The booklet which contained the incomplete information as to plaintiff's right to survivor benefits also contained the following notation, which plaintiff refers to as a disclaimer: *fn1"

This booklet is not a part of and does not modify or constitute any provisions of the plan described herein, nor does it alter or affect in any way the rights of any participant under the plan. The plan and all descriptions and outlines thereof are governed by the formal plan document. A copy of this plan is on file at the office of the company and may be inspected, upon request, during normal business hours of any regular working day.

  Plaintiff brings this action against the Secretary of Labor *fn2" under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), which allows a beneficiary to sue "(A) to enjoin any act or practice which violates any provision of this subchapter ... or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this subchapter...." The gravamen of plaintiff's complaint is that the use of disclaimers in material disseminated in connection with a pension plan to summarize rights and obligations under the plan violates ERISA. Three specific violations are alleged.

 The first is that the use of disclaimers violates ERISA § 102(a)(1), 29 U.S.C. § 1022(a)(1). This section concerns Summary Plan Descriptions (hereinafter SPD), which are required to be sent to beneficiaries and participants to inform them of their rights and obligations under the plan. Plaintiff alleges that the use of disclaimers violates the statutory requirement that the SPD be "sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." 29 U.S.C. § 1022(a)(1).

 The second alleged violation is that the use of disclaimers constitutes an attempt to relieve fiduciaries from a responsibility or liability imposed under ERISA Subchapter I, Subtitle B, Part 4, 29 U.S.C. §§ 1101-1114, which is prohibited by ERISA § 410(a)(1), 29 U.S.C. § 1110(a). Section 1110(a) provides that "any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or liability for any responsibility, obligation, or duty under this part shall be void as against public policy." Plaintiff's allegation is that pension plan administrators are fiduciaries, and that the disclaimer provisions attempt to relieve these fiduciaries of their obligation to act "solely in the interest of the participants and beneficiaries," ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), and of their obligation to carry out their responsibilities "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." ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B).

 The plaintiff also alleges that the use of disclaimers in SPD's violates the public policies underlying the Act, which favor disclosure of pertinent information to beneficiaries and participants.

 The general reasoning underlying plaintiff's opposition to disclaimers is that they lead to inaccuracies in SPD's and make it impossible for participants and beneficiaries to rely on the SPD as a source of accurate information, forcing participants and beneficiaries to resort to the usually complex pension plan document itself. Plaintiff argues that this makes the SPD useless, and thus undermines the clear intent of Congress that beneficiaries and participants be informed in clear, plain, accurate and understandable terms of their rights and obligations under their pension plan.

 Prior to the initiation of this action, the Secretary of Labor reviewed these and other arguments during a two and one-half year period when regulations governing SPD's were under consideration. During this rulemaking proceeding, the Institute for Public Representation (INSPIRE), which represents the plaintiff in this action, petitioned the Secretary to provide regulations prohibiting any SPD from containing a disclaimer purporting to protect the drafter of the SPD against errors or misrepresentation in the document. Comment was apparently ...

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