Tenth Circuit Notes Split Re Whether ERISA Imposes a Duty of Disclosure

Jensen v. Solvay Chemicals, Inc., --- F.3d ----, 2010 WL 3472945 (10th Cir. Sept. 7, 2010):

Plaintiffs' remaining criticism of Solvay's disclosure is that it “Breached Its Fiduciary Duties By Refusing to Provide Information in Response to Inquiries from Employees.” Aplt. Br. at 58. Their complaint alleges that this fiduciary duty to disclose arises under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), although their discussion of the issue in their appellate brief does not cite that provision.

It is an interesting question whether the fiduciary duties imposed by § 404(a)(1) include a duty of disclosure. The Supreme Court left the issue open in Varity Corp. v. Howe, 516 U.S. 489, 506 (1996) (“[W]e need not reach the question whether ERISA fiduciaries have any fiduciary duty to disclose truthful information on their own initiative, or in response to employee inquiries.”). The circuit courts are divided on the matter. Some have held that any duty to disclose is imposed only by ERISA's specific disclosure requirements. See Faircloth v. Lundy Packing Co., 91 F.3d 648, 657 (4th Cir.1996); Ehlmann v. Kaiser Found. Health Plan of Tex., 198 F.3d 552, 555 (5th Cir.2000); Sprague v. Gen. Motors Corp., 133 F.3d 388, 405 (6th Cir.1998) (en banc). Others, however, have held that § 404(a) can impose additional duties of disclosure. See Glaziers & Glassworks Union Local No. 252 Annuity Fund v. Newbridge Sec. Inc., 93 F.3d 1171, 1181-82 (3d Cir.1996); Shea v. Esensten, 107 F.3d 625, 628-29 (8th Cir.1997); Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750-51 (D.C.Cir.1990).

We need not enter the debate, however, because Plaintiffs have not adequately presented the issue in their appellate brief. They have not specified a single employee question to which Solvay did not respond. Without more, we cannot determine what, if any, fiduciary duties were violated. Appellate courts will not address abstract legal issues that are not tied to specific events. See United States v. Allen, 603 F.3d 1202, 1209 (10th Cir.2010) (A court will not “analyze the record for [the appellant] to determine whether a violation occurred. That task was for [appellant's] counsel and it has not been performed.”). We therefore decline to consider this argument. See Cisneros v. Aragon, 485 F.3d 1226, 1233 (10th Cir.2007) (arguments not adequately addressed on appeal are waived).

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