Payonk v. HMW Industries, Inc.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT GARTH, Circuit Judge: This appeal, which arises from two corporate reorganizations and the consequent termination of a pension plan, requires us to answer the question: do pension plan fiduciaries have a duty under § 404 (29 U.S.C. § 1104) and § 406 (29 U.S.C. § 1106) of the Employee's Retirement Income Security Act (ERISA) to notify the former members of a plan who now claim an interest in a plan surplus, of a termination of the plan prior to the ten day requirement of the Pension Benefit Guaranty Corporation (PBGC)1 regulations found at 29 C.F.R. 2616 et seq.l We conclude that in the circumstances presented here, no notification was required beyond the 10-day notice mandated by the regulation.2 The district court granted defendants’ motion for summary judgment and denied the plaintiffs’ motion for partial summary judgment, holding that the duties embodied in § 404 and § 406 did not apply to HMW’s business decision to terminate the pension plan. We affirm. I. The plaintiffs, represented by John J. Hamilton and Paul L. Payonk (“Payonk”), consist of a class of employees or former employees of Hamilton Precision Metals (“Metals”) and of Wallace Silversmiths, Inc. (“Wallace”) who withdrew from a defined benefit pension plan shortly before its termination and, therefore, did not share in the distribution of the surplus of the Plan. The defendants, HMW Industries, Inc., Hamilton Technology, Inc., Clabir Corp., Bernhardt, Kenneth R., Strantz, Gloria G., and Clarke, Henry D., Jr., are alleged to have breached their fiduciary duty by failing to inform Payonk of the impending plan termination and by self-dealing.3 The relevant facts, none of which are in dispute, have been detailed by the district court in its Memorandum and Order of June 27, 1988. We reproduce the pertinent portions of that recital supplemented by additional facts disclosed in the record. Prior to August 5, 1983, Wallace, Ham-Tech and H-K Exchange, were wholly owned subsidiaries of HMW. The employ — 223 — ees of these subsidiaries, including Metals, were participants in the HMW plan, an overfunded pension plan that was funded by both employer and employee contributions. On August 5,1983, Katy Industries, a corporation not a party to this action, acquired Wallace and Metals from HMW. As a result of this divestiture, Wallace and Metals employees were no longer considered employees of HMW under the terms of the HMW plan and could no longer accrue benefits under the Plan. However, the divestiture did not affect benefits that had already accrued to those employees and they were entitled to withdraw their accumulated employee contributions with interest at anytime. During the fall of 1983, HMW arranged with Connecticut General Life Insurance Company to purchase annuities covering the accrued benefits of the Wallace and Metals HMW plan participants. On October 25, 1983, in response to several requests from Wallace and Metals employees, defendant Strantz wrote to each Wallace and Metals employee stating the amount of employee contribution that each could withdraw from the HMW plan. Strantz’s letter explained further that the employees had the option of withdrawing their employee contributions from the HMW plan immediately or leaving their contributions in the plan until regular retirement age. This letter did not inform plaintiffs that they could share in any surplus should the HMW plan be terminated if they left their contributions in the plan until termination. Only a few employees withdrew their contributions during the last few months of 1983. On February 1, 1984, Wallace announced its new employee benefits package. The new package included a Guaranteed Retirement Income Plan pursuant to which the employees would be guaranteed payments at retirement at least as high as those they would have received as HMW plan participants. To be eligible for the new plan, all employees had to roll over their employee contributions from the HMW plan to the Wallace Plan. Hartford Life Insurance Co., the administering company of the new plan, also agreed to guarantee a 12.75% interest rate on the rolled over funds for the first five years. To take advantage of this guaranteed interest rate, however, the employees had to roll over their HMW contributions within a limited specified period. A similar announcement was made by Metals on February 23, 1984, followed by a confirming letter to the employees dated March 1, 1984. The new Metals plan offered the same plan and 12.75% interest rate opportunity as the Wallace plan. Both Wallace and Metals management encouraged their employees to roll over their HMW contributions to the new plans. These announcements were followed by mass withdrawals from the HMW plan. Soon after Katy Industries acquired Wallace and Metals. Defendant Clabir obtained a controlling interest in HMW. Cla-bir’s Director of Administration, Richard Van Hoesen, was directed to bring the HamTech (HMW’s remaining subsidiary) retirement program into conformity with the Clabir Plan which was an employer contribution plan rather than a matched employer-employee plan. In order to do so it appeared that the old HMW Plan would have to be terminated. On December 19, 1983 Van Hoesen received a copy of a letter from James M. Schell, his supervisor at Clabir, addressed to John L. Owen, the Human Resources Supervisor at HamTech, directing that preparation should begin in the process of terminating the HMW Plan. Although termination was still tentative, it was apparently Schell’s intention to get the administrative process started. On January 5, 1984, representatives of Clabir met with representatives of HamTech and Connecticut General Life Insurance Company to discuss the possible termination of the HMW plan and its replacement with a new retirement plan patterned after the plans at other Clabir subsidiaries. Because of the matters raised at the meeting, the tentative target date of February 1, 1984 for the termination of HMW’s plan was pushed back to March 1, 1984. After a number of meetings, the resolution of certain logistical problems and three changes in the proposed termination date, the HMW — 224 — Board of Directors passed a resolution on March 7, 1984 terminating the HMW plan effective March 31, 1984. In accordance with regulations promulgated by the Pension Benefit Guarantee Corporation (PBGC), defendant Strantz sent out a package of letters dated March 12y 1984 to Wallace and Metals for distribution to employees notifying them of the decision to terminate the HMW plan. These letters were accompanied by notices of termination dated March 14, 1984. HMW filed its notice of termination with the PBGC on March 21, 1984. The PBGC ultimately approved the termination effective March 31, 1984. PBGC approval for the termination of the old HMW Plan took fourteen months and was issued in May, 1985. It was then that management learned that only those employees who were still participants in the old HMW Plan on the March 31, 1984 termination date were entitled to share in the distribution of the plan surplus. In 1985, surplus plan assets were distributed in part to plan participants whose contributions remained in the HMW plan and in part to HMW. Those employees of Wallace and Metals who rolled over their contributions from the HMW plan to their new pension plans prior to the effective date of the plan termination received no part of the surplus distribution. Had these employees maintained their contributions in the HMW plan, they would have shared in the surplus reversion. Named plaintiffs filed suit in May 1986 alleging that HMW had breached its fiduciary duties of care and loyalty, inter alia, by failing to investigate Payonk’s right to share in the surplus and by failing to inform Payonk of the impending termination in violation of ERISA section 404, 29 U.S.C. § 1104. Payonk further alleged that HMW breached the prohibition against self-dealing contained in ERISA section 406, 29 U.S.C. § 1106, by failing to notify class members of “important and material facts about their interest in the HMW plan, thereby increasing the reversion of surplus assets to themselves or the corporate interests they represent.” HMW moved for summary judgment and Payonk moved for partial summary judgment. The district court granted HMW's motion on the grounds that the plan terminated by HMW was not subject to the fiduciary standards prescribed in § 404 and § 406, that the termination of HMW’s plan was made by HMW in its business capacity; that HMW had no duty to notify Pay-onk of the HMW plan termination until the termination date was fixed; that HMW as employer had no duty to disclose formula-tive or preliminary information leading up to the termination of the plan; that PBGC regulations prescribed the time and manner of notice of termination; that HMW had complied with those PBGC regulations and that therefore HMW had breached no duty to the former plan members. Payonk appealed. II. Our review of an appeal from the grant of a motion for summary judgment is plenary. Where factual controversies exist, disputes over material facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). However, where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, or where the facts are not disputed, there is no genuine issue for trial. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Here, the facts are undisputed. We must therefore determine whether the district court properly analyzed the relevant legal principles governing the parties’ dispute when it concluded that judgment should be entered for HMW. III. We first turn our attention to the question whether, under the circumstances of this case, HMW’s decision to terminate its plan was strictly a corporate management — 225 — business decision, which by its nature imposed no fiduciary duties on HMW, see Trenton v. Scott Paper Co., 832 F.2d 806 (3d Cir.1987) cert. denied, — U.S. —, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988); or whether the decision to terminate was an action subject to fiduciary duties governed by § 404 and § 406.4 The determination as to whether the decision taken was a business corporate management decision or whether it was an action falling within the fiduciary functions delineated by ERISA is a threshold determination in our analysis. As we understand the jurisprudence in this area, where an administrator of a plan decides matters required in plan administration or involving obligations imposed upon the administrator by the plan, the fiduciary duties imposed by ERISA attach. See Rosen v. Hotel Restaurant Emp. Bartenders Union, 637 F.2d 592 (3d Cir.) cert. denied, 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981). Where, however, employers conduct businesses and make business decisions not regulated by ERISA, no fiduciary duties apply. And, when employers wear “two hats” as employers and as administrators “... they assume fiduciary status ‘only when and to the extent’ that they function in their capacity as plan administrators, not when they conduct business that is not regulated by ERISA.” Amato v. Western Union Intern., Inc., 773 F.2d 1402, 1416-17 (2d Cir.1985) cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986). It is these principles that must guide us in our analysis and in assessing the arguments advanced by Payonk. A. Payonk’s arguments may be summarized as follows: first, Payonk does not contend that the decision by HMW to terminate its plan was a fiduciary decision. (Appellant Br. at 22.) Thus, Payonk concedes that when the district court concluded that HMW’s decision to terminate its plan was exempt from ERISA’s fiduciary obligations under the cases on which the district court relied, the district court was correct in relying on those authorities.5 (Appellant Br. at 23.) Payonk, however, contends that even though the termination of HMW’s plan was not a fiduciary decision, there was an obligation upon HMW to protect the existing interests and entitlement of the beneficiaries, i.e., the plaintiff class members in the termination process. Referring to the Sixth Circuit opinion in Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154 (6th Cir.1988) which reversed Ogden v. Michigan Bell Telephone Co., 657 F.Supp. 328 (E.D.Mich.1987), (the district court case upon which the district court in the instant action relied), Payonk argues that HMW had an affirmative duty to disclose termination information which it possessed. Payonk claims that rather than disclosing such information, HMW withheld that information in breach of its duty. — 226 — In short, we understand Payonk’s position to be that although the decision to terminate was not a fiduciary decision, fiduciary obligations arose as a consequence of HMW’s business decision to terminate. Stated otherwise, Payonk argues that while the decision to terminate is a business decision, that nevertheless the treatment of the interests of those who would claim as individual beneficiaries and participants fall within fiduciary responsibilities of the plan administrator. In this respect, Payonk’s argument resembles the argument made by plaintiffs in Berlin, supra, where the Berlin plaintiffs also conceded that Michigan Bell’s decision to offer a new plan (MIPP) from which plaintiffs were excluded, was a non-fiduciary decision. The Berlin plaintiffs argued that a distinction had to be drawn between the actual corporate decision to offer new benefits and communications made by fiduciaries to potential plan participants about such a new offering. Berlin, 858 F.2d at 1161. The district court in Berlin, had rejected any such distinction, finding that “[i]t would be illogical to hold that even though the ultimate decision to offer MIPP was a business decision, that representations about the eventuality were made in a fiduciary capacity.” Id. Because of its holding that the decision to offer MIPP benefits was a business decision and that therefore any communications relating to that decision were not fiduciary in nature, the district court in Berlin did not reach the question of whether misrepresentations which misled the Berlin plaintiffs, actually occurred with respect to the new MIPP plan. The court of appeals, in reversing the district court’s summary judgment in favor of Michigan Bell, focused its attention on the issue of affirmative misrepresentations and held that the plan fiduciary had a fiduciary duty not to make negligent or intentional misrepresentations to plan participants concerning the MIPP offering. This holding was reached in the context of facts that charged Michigan Bell with having excluded plan participants from the new plan by reason of affirmative misrepresentations made by Michigan Bell’s district Manager.6 Thus, the thrust of the Berlin opinion centered on the misrepresentations alleged by the Berlin plaintiffs. It is for that reason the Berlin court held that liability will lie only if material misrepresentations in violation of 29 U.S.C. § 1104 are proven by the plaintiffs. Id. at 1164. That holding distinguishes Berlin from the facts before us. For in the instant case, the record reveals no claims or assertions that HMW had misrepresented its termination decision. Rather, Payonk’s claim is that notification should have been given at a time when HMW merely contemplated the termination of the plan but had not yet decided to do so. In the absence of any claim that Payonk was mislead by affirmative misrepresentations made by HMW, Payonk cannot rely on Berlin as authority for imposing fiduciary duties on HMW. As noted, Payonk argues that HMW breached its fiduciary duty by failing to notify the Metals and the Wallace employees of HMW’s proposed plan termination. In support of this argument Payonk refers us to Delgrosso v. Spang and Co., 769 F.2d 928 (3d Cir.1985), cert. denied 476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 692 (1986), arguing that this court has held that “a business decision to terminate a pension plan does not render fiduciary obligations inapplicable to recapture of a surplus in which employees have a legitimate interest.” (Appellant Br. at 21.) Payonk also seeks to support his position by referring to Rosen v. Hotel & Restaurant Emp. Bartenders Union, 637 F.2d 592 (3d. Cir.), — 227 — cert. denied 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981). Payonk’s reliance on Delgrosso and Ro-sen is misplaced. In Delgrosso the employer breached its fiduciary duty under ERISA by unilaterally amending its pension fund to provide for a reversion of plan assets to itself in violation of the pension agreement. This fiduciary duty stemmed from its general duty under ERISA as an administrator of the plan and thus as a fiduciary. The employer’s decision to amend its plan in violation of the existing pension agreement to provide for a reversion to itself was not an action which could be given effect as a corporate management decision. Hence, fiduciary obligations attached. Here, on the other hand, no violation of the pension agreement occurred and the decision to terminate the HMW plan could only have been made and effectuated by HMW in its role as employer. No other party, including in particular HMW as administrator, had the authority to make that decision. Until the termination decision became final on March 7,1984 (to be effective March 31, 1984) disclosure was not required because (1) prior to March 7, 1984, the discussions concerning termination were preliminary, indefinite and subject to change; (2) as a corporate management decision, the decision to terminate did not impose fiduciary obligations on HMW in its role as employer; (3) no Berlin type misrepresentations took place which might implicate general fiduciary disclosure, see Berlin, supra; and (4) ERISA requirements of disclosure did not provide for notice until 10 days prior to March 31, 1984. Notice in fact was given in accordance with 29 C.F.R. 2616,7 on March 12, 1984, five days after the March 7, 1984 decision to terminate and well before the ten day deadline prescribed by regulation. Reliance on Rosen v. Hotel & Restaurant Emp. Bartenders Union, 637 F.2d 592, 599-600 (3d Cir.) cert. denied, 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981) is similarly misplaced. Rosen involved a situation where an employer failed to make contributions to the pension fund administered by the union. This failure resulted in denying Rosen, the employee, of his benefits since the trustee-union failed to inform Rosen of his employer’s delinquency and Rosen’s pension was dependent on his employer’s continuing contributions. We held that under such circumstances a trustee administering the fund, i.e. the plan administrator, had the fiduciary duty to inform an employee of his employer’s failure to make required contributions to the fund. Hence, Rosen did not address an employer’s fiduciary duty in connection with a corporate management decision. Rosen only addressed the fund administrator’s fiduciary duty to safeguard the fund for its beneficiaries. Accordingly, neither Delg-rosso nor Rosen address the issues in question here and are both inapposite on their respective facts. Other courts of appeals have even held that an administrator who has complied with the statutory standard for disclosure cannot be said to have breached a fiduciary duty of failing to provide information concerning preliminary or formulative discussions involving proposed changes. Stanton v. Gulf Oil Corp., 792 F.2d 432 (4th Cir.1986) (it is not a violation of ERISA to fail to furnish information regarding amendment to a plan before those amendments are put into effect.); Porto v. Armco, 825 F.2d 1274 (8th Cir.1987), cert. denied — U.S. —, 108 S.Ct. 1114, 99 L.Ed.2d 274 (1988) (an administrator who complies with ERISA standards for disclosure cannot be said to have breached his — 228 — duty by not providing earlier disclosure). In this circuit, a district court has also addressed this issue. See, Trexel v. E.I. Dupont De Nemours & Co., No. 85-759 (D.Del. September 9,1987), aff'd mem., 845 F.2d 1016 (3d Cir.1988). In Trexel, the plaintiff alleged a breach of a fiduciary duty based on the fact that among other things, he had not been informed of discussions concerning proposed early retirement benefits programs that were eventually approved and for which he would have been eligible had he delayed his retirement by one month. The district court found nothing in the language of ERISA to indicate that there was a duty imposed on an employer, here the defendant Dupont, to disclose information about benefit plans prior to the time they took effect. As a result Trexel was not eligible for the later approved benefits. In many ways Payonk presents a claim similar to Trexel’s in that in Payonk’s case the termination of the plan itself did not take place until after Payonk had withdrawn from the HMW plan to enter the Metals-Wallace plan. As we have previously observed, although HMW meetings were held in January 1984, HMW could not resolve differences concerning the makeup of the its plan. Payonk argues that the duty to act for the exclusive benefit of the beneficiaries required HMW to inform plan participants of the impending termination after a meeting held on January 5, 1984. However, neither the record nor the case law supports Payonk’s position. The record reveals that the participants at the January 5, 1984 meeting, Gloria Strantz, Manager of Employee Benefits at Hamilton Technology, and Richard H. Van Hoesen, Director of Administration of Cla-bir Corp., respectively aver in their affidavits that the January 5, 1984 meeting adjourned without decision on whether the plan would be terminated. (App. 142-43; 107). Strantz averred that “... there was no consensus reached that the proposed termination would proceed, because of various problems discussed regarding the proposal ... The meeting adjourned without a decision on whether to implement the proposed termination." (App. 142-43) (emphasis added). Van Hoesen stated “At the meeting, Kenneth Bernhardt, President of HamTech, expressed considerable misgivings regarding termination of the HMW Plan_ The meeting adjourned without decision on whether the Plan would be terminated. Indeed, Mr. Bernhardt’s strong urging to retain the early retirement package was a significant obstacle to reaching a final decision on termination. Since termination of the Plan was one step toward the desired goal of implementing a new benefits program at HamTech, a decision to terminate could not be reached until we determined what its replacement would be. While part of our concern was employee relations (as we did not want to announce a Plan termination to HamTech employees until we were also ready to announce the replacement retirement program), our concern was more fundamental: we viewed the potential termination of the HMW Plan and the institution of a new replacement plan as integral parts of a single process. (App. 107-08) Moreover, Payonk relies on the letter of December 19, 1983 to demonstrate that a decision had been made.8 But that letter only stated that this letter will “serve as your authorization to begin termination.” (App. 115). As the letter reflects, the process was a long and involved one and as the record reveals, contrary to Payonk’s assertions, by January 5, 1984 no final decision had been made. Accordingly, the original tentative termination date of February 1, 1984 date was delayed until March 31, 1984. On March 7, 1984, when HMW had finally resolved these differences and agreed to a termination date for the old plan, HMW notified their plan participants — 229 — within 5 days, well within the statutory 10 day requirement of 29 C.F.R. 2616.3 and 2616.4. Thus, as the uncontested record reveals, no final decision was made until March 7, 1984. Like the events described in Trexel, the HMW procedures for plan termination were not in effect at the point that the plan beneficiaries, such as Payonk, “opted-out”.9 Rather discussions were still ongoing to resolve the open issues. Under the then existing statutory requirements and case law, there was no duty to disclose preliminary termination discussions until a final decision was made. See, Porto, Stanton. Thus, the fallacy in Payonk’s argument lies in his failure to distinguish between the role played by HMW as an employer, who in that capacity owes a fiduciary duty not to the plan participants, but to its stockholders, and the role played by HMW as a fiduciary of the plan where its fiduciary obligations pertain solely to plan administration, and to the plan participants. Here, Payonk, while acknowledging that HMW was not acting in a fiduciary capacity with respect to plan participants when it made its termination decision, nevertheless insists that the information acquired in the decision-making process was possessed by HMW in just such a fiduciary capacity. As we have earlier explained, the fiduciary roles of the employer and plan administrator differ, as they are separate entities. Indeed, HMW, as plan administrator, would not normally be aware of the decision making process until after a decision on termination (or on any other plan change brought about by reason of a business decision) had been made by HMW as employer. This may explain why the regulations do not require HMW as administrator to disclose or provide notice of, an intention to terminate until HMW as administrator is in a position to file with the PBGC. Since the statute expressly sanctions an employer wearing “two hats,” see ERISA, § 408(c)(3), 29 U.S.C. § 1108(c)(3), we can perceive no reason why HMW’s decision to terminate its plan should put Payonk in a better position than Payonk would otherwise have been in had someone other than HMW been the plan administrator. Thus, we hold that an employer’s lawful termination decision, absent affirmative misrepresentations designed to mislead plan participants, is not governed by ERISA’s standards of fiduciary duties. As a consequence, the 10-day notice mandated by ERISA, see 29 C.F.R. 2616.3 and note 6 supra, when complied with, is all the notice that must be given when a plan such as HMW’s was terminated. D. Because the termination decision occurred in 1984, the relevant statutory provisions of ERISA and their regulations to which we have referred to in this opinion were those in effect at that time. Since that time, Congress has amended the termination and notice of termination provisions. These amendments give added support to the conclusions we have reached today. In 1986 Congress enacted the Single-Employer Pension Plan Amendments Act of 1986, Pub.L. No. 99-272, Title XI, 99th Cong., 2nd Sess., which, among other things, amended ERISA § 4041, 29 U.S.C. § 1341 (1986) by prescribing a new procedure for plan terminations. It is significant that although the requirement of advance notification to plan participants was previously established only by PBGC regulations, Congress amended ERISA § 4041 to require such notification as a matter of statute. Congress also increased the advance notification period from the 10 days prescribed by 29 C.F.R. 2616.3 to the 60 — 230 — days mandated by the 1986 statute. See ERISA § 4041(a)(2), 29 U.S.C. § 1341(a)(2) (1986) (as amended).10 The amended statute which is still measured from the proposed termination date and not from the date of preliminary discussions, also requires that more detailed notification be given to each participant, specifying the amount of benefits due to the participant as of termination, the form of benefits, and the various factors (including length of service, age, wages, interest rate assumptions, etc.) on which the benefits are calculated. ERISA § 4041(b)(2)(B), 29 U.S.C. § 1341(b)(2)(B) (as amended). But even the new amendments require no notification to plan participants of any management discussions held preliminary to the fixing of a termination date. Furthermore, in 1987 Congress amended § 4044 of ERISA, 29 U.S.C. § 1344, which treats with the distribution of assets upon termination. The amendment which is part of Title IX of the Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-203, Title IX, 100th Cong., 1st Sess., 101 Stat. 1330-359 is known as the Pension Protection Act. Under the amended § 4044, when a termination occurs in a contributory plan having a surplus, the surplus is to be shared not only by current plan participants, but by any former participants who cashed out of the plan within the previous three years.11 In short, if this 1987 statute had been in effect in 1984, Payonk undoubtedly would have shared in the HMW distribution. But such was not the case, and as the 1987 amendment implies, no such distribution to former plan participants was available under ERISA as it existed in 1984. F. Payonk also argues that the distribution of surplus assets from the fund constituted self-dealing under 29 U.S.C. § 1106, see text of statute, supra, note 9, which among other things, proscribes a fiduciary from dealing with the assets of the plan in his own account.12 We have — 231 — earlier discussed the difference between the fiduciary obligations of an employer and that of a plan administrator, even when they are one and the same party and the principles set forth in that discussion, pertaining to disclosure of information, are equally applicable here. That analysis requires that Payonk’s argument be rejected here as well. Moreover, because HMW had the authority to terminate the plan and to distribute the remaining assets pursuant to 29 U.S.C. § 1344 — the statute which provides for distribution of a plan’s assets on termination — it could do so without regard to violating the fiduciary standards established in § 1106 inasmuch as 29 U.S.C. § 1108(b)(9)13 expressly exempts the lawful distribution of a terminated plan from the provisions of § 1106. VII. We will affirm the district court’s order of June 27, 1988 which granted HMW’s motion for summary judgment. Footnotes [1] The PBGC is a government body created by 29 U.S.C. § 1302 to administer the Mandatory Pension Plan Termination Program. See Pension Benefits Guarantee Corporation v. Greene, 570 F.Supp. 1483, 1485 (W.D.Pa.1983), aff'd, 727 F.2d 1100, cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38. [2] The issue on this appeal arose prior to the amendment to 29 U.S.C. § 1341(a)(2) (1986). That statutory amendment extended the time for notice to plan participants from 10 to 60 days. In addition, in 1987, 29 U.S.C. § 1344 was amended so that surplus funds would be shared, not only by current participants, but by any former participants who cashed out of the plan within three years. As we discuss, infra, these actions taken by Congress bolster our analysis and holding that it is ERISA that provides the statutory parameters controlling the notification and rights owed to plan participants when pension plans are terminated. [3] For ease in reference we will refer to all defendants as “HMW”. [4] Section 404 states in pertinent part: (1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title [not relevant here], a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— ****** (B) 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 like character and with like aims.... 29 U.S.C. § 1104. Section 406 states in pertinent part that: Except as provided in section 1108 of this title [not relevant here]: A fiduciary with respect to a plan shall not— (1) deal with the assets of the plan in his own account, or (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants.... 29 U.S.C. § 1106. [5] The cases on which the district court relied were Chait v. Bernstein, 645 F.Supp. 1092 (D.N.J.1986) aff'd, 835 F.2d 1017 (3d Cir.1987); District 65 UA W v. Harper & Row Publishers, Inc., 576 F.Supp. 1468 (S.D.N.Y.1983) and Ogden v. Michigan Bell Telephone Co., 657 F.Supp. 328 (E.D.Mich.1987) (App. at 96). Ogden as we discuss, infra, was subsequently reversed in Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154 (6th Cir.1988). As we point out in text, that reversal has no effect on our disposition of this appeal. [6] As an example of an affirmative misrepresentation that Berlin and his class plaintiffs alleged, the court of appeals recited the following: Berlin alleges that he initially notified MBT that he would retire effective June 7, 1982, which would have enabled him to elect MIPP severance benefits. However, he was urged by a district manager for MBT to change his effective retirement date to May 31, 1982, for administrative accounting convenience. Berlin agreed and retired effective May 31, 1982, which placed him one day outside the MIPP offering in question. Id. at 1156. [7] PBGC regulations published in 29 C.F.R. 2616 et seq. regarding "notice of intent to terminate non-multi-employer pension plans” provide as follows: § 2616.3 Requirement of Notice ... (c) When to file. The Notice of Intent to Terminate shall be filed with the PBGC at least 10 days prior to the proposed date of termination of the plan. ****** § 2616.4 Notice to participants and retirees. (a) General. The plan administrator shall, in accordance with this section, notify participants and retirees covered by the Plan of the proposed termination no later than the date the Notice of Intent to Terminate is filed pursuant to this part. [8] As the record discloses and as stated in the facts, supra, the December 19, 1983 letter sent by Schell, Clabir's Vice-President to Owen, the Human Resources Supervisor at HamTech, did no more than authorize the beginning of termination of the HMW plan, and specified a termination date that could not be effected. [9] We observe that even had the preliminary termination discussions been made known to the beneficiaries who opted-out, they would still have been faced with a decision as to whether to accept an assured 12.75% return guaranteed by the Wallace-Metals plans or to gamble on a final termination of their existing plan, a decision over which they had no control. We are also aware that the legislative intent of ERISA was not to assure the sanctity of early retirement expectations, but to safeguard accrued retirement benefits. Bencivenga v. Western Pa. Teamsters, 763 F.2d 574 (3d Cir.1985). Here, all accrued benefits were preserved for those enrolled in the Wallace-Metals plans. [10] 29 U.S.C. § 1341 (1986). Termination of single-employer plans, provides in pertinent part: (a) General rules governing single-employer plan termination ****** (2) 60-day notice of intent to terminate Not less than 60 days before the proposed termination date of a standard termination under subsection (b) of this section or a distress termination under subsection (c) of this section, the plan administrator shall provide to each affected party (other than the corporation in the case of a standard termination) a written notice of intent to terminate stating that such termination is intended and the proposed termination date. The written notice shall include any related additional information required in regulations of the corporation. [11] 29 U.S.C. § 1344(d)(3)(C) (1987) reads in relevant part as follows: For purposes of this paragraph, each person who is, as of the termination date (i) a participant under the plan, or (ii) an individual who has received, during the 3-year period ending with the termination date, a distribution from the plan of such individual’s entire nonforfeitable benefit in the form of a single sum distribution in accordance with section 1053(e) of this title or in the form of irrevocable commitments purchased by the plan from an insurer to provide such nonforfeitable benefit, shall be treated as a participant with respect to the termination, if all or part of the nonforfeitable benefit with respect to such person is or was attributable to participants’ mandatory contributions (referred to in subsection (a)(2) of this section). [12] We observe that the affidavit of Richard H. Van Hoesen (Clabir’s Director of Administration) and Gloria G. Strantz (Manager of Employee Benefits at HamTech) both claim that it was not until 1985 that each understood that Wallace and Metals participants who withdrew from the HMW plan would not share in the reversion of surplus. Hoesen stated: I learned in 1985 for the first time that the Wallace and Metals participants who withdrew their contributions prior to the effective date of termination would not share in the reversion of surplus by reason of the withdrawals. App. 111. Strantz stated: The first time I learned that the withdrawal of employee contributions by Wallace and Metals participants affected their ability to share in the Plan surplus was in March of 1985, in a discussion with a representative of Connecticut General. App. 146. — 231 — Neither statement is contradicted by Payonk. [13] 29 U.S.C. § 1108(b)(9) reads in relevant part: ****** (b) Enumeration of transactions exempted from section 1106 prohibitions. ****** (9) The making by a fiduciary of a distribution of the assets of the plan in accordance with the terms of the plan if such assets are distributed in the same manner as provided under section 1344 of this title (relating to allocation of assets).