policy and method." The administrator has the duty to administer the Plan. Healy alleges that Victor Axelrod controlled Axelrod Construction, Healy's employer and the plan administrator. Thus, the complaint alleges that Victor Axelrod exercised control over the administration of the Plan, thus making him a fiduciary within the meaning of ERISA. 29 U.S.C. § 1002(21).
It remains to be seen whether Healy properly alleged a violation of the fiduciary responsibilities. The fiduciary duties under ERISA include those derived from common law trust principles. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989); Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 626 (7th Cir. 1987). A fiduciary's duty extends through every dealing with beneficiaries. Eddy v. Colonial Life Ins. Co. of Am., 287 App. D.C. 76, 919 F.2d 747, 750 (D.C. Cir. 1990). A fiduciary can not mislead those to whom he or she owes a duty of loyalty. Id. (citing Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir. 1988)).
The duty of loyalty extends to the beneficiaries or participants of the trust. See Restatement (Second) of Trusts § 170. ERISA provides that a fiduciary must act solely in the interest of the participants and beneficiaries, must act for the exclusive purpose of providing benefits to participants, and must act in accordance with the documents and instruments which control the plan. 29 U.S.C. § 1104(a)(1). An ERISA fiduciary has a duty to disclose and inform a beneficiary of material facts which affect the interests of the beneficiary and of the fiduciary's knowledge of prejudicial acts by an employer such as failing to contribute to a pension fund. Eddy, 919 F.2d at 750-51 (citing Dellacava v. Painters Pension Fund, 851 F.2d 22, 27 (2d Cir. 1988)). The failure to provide information is a breach of fiduciary duty, Kleinhans, 810 F.2d at 621, as is the failure to pay benefits to a beneficiary when they become due. Winer v. Edison Bros., 447 F. Supp. 836 (E.D. Mo. 1978), aff'd, 593 F.2d 307 (8th Cir. 1979).
Healy alleges among other things that Victor Axelrod and Axelrod Construction deceived Healy and thereby caused him to fail to assert his rights under ERISA, failed to provide information, failed to include Healy as a participant, failed to provide Healy with requested information, failed to fund pension liabilities with respect to Healy, failed to purchase insurance on behalf of Healy, and failed to review in good faith Healy's claim for benefits, all as required by the Plan. Thus Healy has properly alleged a breach of 29 U.S.C. § 1104(a)(1).
As far as the requested relief is concerned, 29 U.S.C. § 1132 provides for equitable relief. The appropriate remedy is to restore a beneficiary to the position he would have occupied but for the breach. Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir. 1985). Although courts have held that recovery for breach of fiduciary duty inures to the benefit of the Plan as a whole, this court has noted that this holding "applies to cases in which a beneficiary sues for breach of fiduciary duty which affects the plan as a whole," not to those affecting "the suing beneficiary in a unique way." Bartz, 709 F. Supp. at 829 n.2. See also Villagomez v. AT & T Pension Plan, No. 90 C. 2620, 1991 U.S. Dist. LEXIS 747 at *10 (N.D. Ill. Jan. 22, 1991) (approving this distinction). The allegations in the complaint at hand involve instances of conduct affecting Healy specifically as a beneficiary or participant. Thus, insofar as Healy is asking to redress violations of fiduciary duties through equitable remedies, including declaratory judgment, injunction and constructive trust, he has properly brought this action.
Defendants next contend that this court should dismiss Healy's claim under 29 U.S.C. § 1140 because Healy has not alleged any effect on the employer-employee relationship. This section makes it unlawful to "discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under" a plan or "for the purpose of interfering with the attainment of any right to which such participant may become entitled under" a plan. The exact perimeters of this section have not been fully developed judicially. See Deeming v. American Standard, Inc., 905 F.2d 1124, 1127 (7th Cir. 1990). The clear language of the statute, however, covers actions directed at interfering with the attainment of rights, such as benefits, to which a participant may eventually become entitled. This section was intended to remedy discriminatory conduct designed to interfere with the attainment of either initial benefits or, for vested employees, additional benefits. Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 236 (4th Cir. 1991).
To allege an act of discrimination under § 1140, the plaintiff needs to allege economic injury, the actual or constructive loss of employment, or a threat of violence. Newton v. Van Otterloo, 756 F. Supp. 1121, 1135 (N.D. Ind. 1991). The economic injury can relate to the continuation of benefits itself under an ERISA plan. See Newton, 756 F. Supp. at 1137. Here, the alleged fraud against Healy was intended to prevent him from obtaining benefits.
A quick perusal of cases involving 29 U.S.C. § 1140 illustrates that fraudulent activity excluding an employee from participation in a benefit plan can constitute an act of discrimination. In Vogel v. Independence Fed. Sav. Bank, 692 F. Supp. 587, 593 (D. Md. 1988), the court noted that "while it is true the section most commonly is applied when an employee is wrongfully terminated to prevent his pension rights from vesting, the language of the statute cannot be read so as to limit its application solely to those situations." In McGinnis v. Joyce, 507 F. Supp. 654, 657 (N.D. Ill. 1981), the court held that threatening an employee with violence to prevent him from pursuing his lawsuit constituted a cognizable claim under 29 U.S.C. § 1140.
Further, a scheme aimed at avoiding future vesting of benefits would constitute an act of discrimination. Gavalik v. Continental Can Co., 812 F.2d 834, 857 (3rd Cir. 1987), cert. denied, 484 U.S. 979, 98 L. Ed. 2d 492, 108 S. Ct. 495 (1987). In Gavalik, the employer devised a scheme which identified unfunded liabilities and laid off employees who had not yet become eligible for pension benefits. Id. As the Third Circuit noted, the primary purpose of 29 U.S.C. § 1150 "is to prevent employers from intentionally interfering with impending pension eligibility whether motivated by malice toward the particular employees or by a general concern for the economic stability of the company." Id. at 857 n.39. ERISA protects rights about to be earned "but frustrated due to unlawful employer action [and] benefits earned but not paid." Conkwright, 933 F.2d at 237.
An act of fraud directed at preventing an employee's pension benefits from accruing is analogous to threatening or harassing an employee in order to prevent the accrual of benefits. Healy alleges that Victor Axelrod intended to prevent Healy's pension eligibility through his discriminatory actions. Healy asserts defendants' actions constitute discrimination in that they singled him out and excluded him from participation in the pension benefit plan through alleged misrepresentations.
Last, defendants ask the court to dismiss Count IV on an estoppel basis without providing any supporting authority or argument. While the Seventh Circuit has held a party may properly set forth a claim for estoppel under 29 U.S.C. § 1132, see Black v. T.I.C. Inv. Co., 900 F.2d 112 (7th Cir. 1990); Lockrey v. Leavitt Tube Employees Profit Sharing Plan, 748 F. Supp. 662 (N.D. Ill. 1990), neither party briefed the issue and therefore the court will not address it. "A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is a good point despite a lack of supporting authority or in the face of contrary authority, forfeits the point. We will not do his research for him." United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990) (citations omitted).
For the above reasons, the defendants' motion to dismiss is denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court