Sharon Laskin v. Veronica Siegel , Individually

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12‐3041 & 12‐3153
SHARON LASKIN, et al.,
Plaintiffs‐Appellants,
Cross‐Appellees,
v.
VERONICA SIEGEL , INDIVIDUALLY , AND
AS TRUSTEE OF THE P HILLIP SIEGEL
R EVOCABLE T RUST D ATED A UGUST 28,
1998, AND AS EXECUTOR OF THE
ESTATE OF P HILLIP P. SIEGEL ,
Defendant‐Appellee,
Cross‐Appellant,
and
SMS SERVICES, LLC, et al.,
Defendants‐Appellees.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 03749 — Edmond E. Chang, Judge.
A RGUED J UNE 5, 2013 — D ECIDED A UGUST 29, 2013

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2 Nos. 12‐3041 & 12‐3153
Before EASTERBROOK, Chief Judge, and BAUER and
Hamilton, Circuit Judges.
BAUER , Circuit Judge. In 1991, Jefco Laboratories terminated
its Profit Sharing Plan. More than seventeen years later, Susan
Laskin and Susan Isaacson filed suit under the Employee
Retirement Income Security Act, 29 U.S.C. § 1001, alleging that
their rights were violated when the Jefco Laboratories’ Profit
Sharing Plan was terminated without distributing benefits to
them. The district court granted summary judgment to the
Defendants. We affirm.
I. BACKGROUND
In 1966, Sharon Laskin began working for Jefco Laborato‐
ries. As a Jefco employee, Laskin participated in the company
pension plan. Laskin worked for Jefco until 1974, and by then,
had accumulated a fully vested retirement account balance of
$5,976.09. After Laskin parted ways with the company, her
account stopped growing at the “market rate” and started
accruing at the “passbook rate”—the amount of interest earned
on money deposited for one year in an ordinary savings
account.
Shortly after Laskin left the company she contacted Philip
Siegel, a trustee of the company pension plan, and asked if she
could withdraw the funds in order to buy real estate. In April
1976, Philip Siegel sent Laskin a letter explaining that her
account would accrue interest at the passbook rate and also
notified her that the plan had been amended in 1975, and the
retirement eligibility age had increased from fifty‐five to sixty‐
five.

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Nos. 12‐3041 & 12‐3153 3
Over the next ten years, Laskin received account statements
of her assets in the pension plan. The statements indicated that
she was receiving anywhere from 5% to 5.5% interest on her
balance. In 1988, Laskin contacted the controller of Jefco to
update her contact information and ask for an updated account
statement. The updated statement Laskin received indicated
that as of March 31, 1988, her account balance was $12,602.86.
The pension plan dissolved on December 31, 1991. In
September 2008, seventeen years after the pension plan
dissolved, Laskin contacted Jeffrey Siegel, Philip Siegel’s son,
to discuss her retirement account. (Jeffrey purchased Philip’s
interest in Jefco in 1994.) Laskin faxed Jeffrey documentation
of her pension account and requested an updated account
balance. Jeffrey informed Laskin that the pension plan had
been dissolved, and its funds had been completely disbursed,
and that she did not receive a payout because she could not be
located.
In December 2008, Laskin contacted the Department of
Labor, which advised Laskin to send a letter to Philip that
sought to “officially appeal” the denial of her claim. In Febru‐
ary 2009, Philip sent Laskin a letter that explained he was no
longer in charge of Jefco because he had sold his interest to his
son Jeffrey. In June 2009, Laskin filed suit against Philip, Jefco,
the pension plan, and an unnamed pension plan administrator
alleging breach of fiduciary duty under ERISA. One year later,
Laskin amended the complaint to include Jeffrey and his
company, SMS Services, and add an additional plaintiff, Susan

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4 Nos. 12‐3041 & 12‐3153
Isaacson. Isaacson is the widow of another pension plan
beneficiary who also never received a payout. 1
Philip Siegel died in November 2010. In June 2011, Laskin
amended the complaint a second time, and replaced Philip
with Veronica Siegel—the trustee of Philip’s estate. SMS
Technology and Vanguard Individual Retirement Account
29847011 (where Philip allegedly deposited the pension plan’s
assets) were also added as defendants.
On January 13, 2012, Laskin moved for summary judgment
on all counts of the Second Amended Complaint. The Defen‐
dants also moved for summary judgment, claiming Laskin and
Isaacson’s claims were barred by ERISA’s statute of limitations
contained in 29 U.S.C. § 1113. On August 6, 2012, the district
court denied Laskin’s motion for summary judgment and
granted the Defendants’ motion for summary judgment,
finding that all of Laskin and Isaacson’s claims were time
barred. Laskin and Isaacson appeal the district court’s order
granting summary judgment in favor of the Defendants, and
the Defendants cross‐appeal challenging the denial of their
motion for attorneys’ fees and costs.
II. DISCUSSION
Since this appeal comes to us from cross‐motions for
summary judgment, we review the district court’s findings de
novo. Wis.Cent.,Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008)
(internal citations omitted). As with any summary judgment
motion, we review cross‐motions for summary judgment
1 Although we only address Laskin’s claims specifically, the same
reasoning and statute of limitations apply to Isaacson’s claims.

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Nos. 12‐3041 & 12‐3153 5
“construing all facts, and drawing all reasonable inferences
from those facts, in favor of the non‐moving party.” Id.
One of the few undisputed facts in this case is that Jefco’s
pension plan dissolved in 1991. The Defendants argue that
because the plan dissolved over seventeen years ago, Laskin’s
claims are time barred by ERISA’s statute of limitations.
Laskin, on the other hand, argues that even if the statute of
limitations has run, we should grant an exception due to the
Defendants’ fraudulent concealment.
The statute of limitations for a claim of breach of fiduciary
duty under ERISA is controlled by 29 U.S.C. § 1113:
No action may be commenced under this subchapter
with respect to a fiduciary’s breach of any responsi‐
bility, duty, or obligation under this part, or with
respect to a violation of this part, after the earlier of:
(1) six years after (A) the date of the last action
which constituted a part of the breach or viola‐
tion, or (B) in the case of an omission the latest
date on which the fiduciary could have cured
the breach or violation, or
(2) three years after the earliest date on which
the plaintiff had actual knowledge of the breach
or violation;
except that in the case of fraud or concealment,
such action may be commenced not later than
six years after the date of discovery of such
breach or violation.

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6 Nos. 12‐3041 & 12‐3153
We first consider whether Laskin’s lawsuit was filed within
the limitations period set forth in 29 U.S.C. § 1113(1) and(2).
The last act or omission in this case occurred in 1991 when the
pension plan was terminated—six years after that would be
1997. Laskin learned that she would not be receiving a payout
under her plan—the breach in this case—in September 2008,
three years after that would be September 2011. Section 1113
requires that the earlier of those two dates (September 2011
and 1997) be used, therefore, the limitations period expired in
1997. As Laskin points out, however, the statute does allow an
exception under the limitations period in instances of fraud or
concealment. See Martin v. Consultants & Administrators, Inc.,
966 F.2d 1078, 1093 (7th Cir. 1992). Under those circumstances,
the statute of limitations period allows an action to be com‐
menced six years after the plaintiff actually learned of the
breach. According to Laskin, as a result of Philip’s fraudulent
concealment, she did not discover that her pension plan would
not pay her any benefits until September 2008; therefore, she
argues her suit was filed well within the prescribed statute
of limitations period under § 1113—discovery of the breach
(September 2008) plus six years (September 2014).
In order to extend the statute of limitations period, how‐
ever, Laskin must first show that fraud or concealment actually
occurred. An ERISA fiduciary commits fraud or concealment
by delaying a wronged beneficiary’s discovery of his claim
either by misrepresenting the significance of facts the benefi‐
ciary is aware of (fraud) or by hiding facts so that the benefi‐
ciary does not becomes aware of them (concealment). Radiology
Ctr., S.C. v. Stifel, Nicolaus & Co., 919 F.2d 1216, 1220 (7th Cir.
1990). Here, Laskin contends that Philip Siegel engaged in such

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Nos. 12‐3041 & 12‐3153 7
concealment when he told her the eligibility age under the
fund increased from 55 to 65. However, the record reflects that
the retirement eligibility age of the pension fund was increased
in 1975 by an amendment to the pension plan and Philip sent
Laskin a letter informing her of that fact in 1976. We see no
concealment there. Next, Laskin argues that Phillip concealed
the fact that the pension plan was dissolved, and also failed to
send Laskin Summary Plan Descriptions as required under 29
U.S.C. § 1022, but a finding of concealment requires evidence
that a defendant took affirmative steps to hide the violation
itself. Radiology Ctr., 919 F.2d at 1220, and Laskin has not
offered any evidence—circumstantial or otherwise—that Philip
concealed pension plan information from her. Rather, Laskin
is asking us to infer that Philip engaged in concealment based
upon the sole fact that she claims that she never received any
updates on her plan.
Laskin also offers no evidence of fraud. There are two types
of fraud: (1) overt acts that misrepresent the significance of
facts of which the beneficiary is aware; and (2) underlying
ERISA violations that are self‐concealing. Maring, 966 F.2d
1094. Laskin has produced no evidence that the ERISA viola‐
tion involved some “trick or contrivance intended to exclude
suspicion and prevent injury.” Id at 1095.
Simply put, Laskin has failed to meet her burden to show
fraud or concealment occurred in this case and the district
court correctly found that the limitations period in § 1113
applies. Since 1997 was the last time Laskin could have
brought this action, her claims against the Defendants are time
barred and we need not address the merits.

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8 Nos. 12‐3041 & 12‐3153
However, we must address the Defendant’s cross‐appeal of
the district court’s denial with prejudice of their motion for
attorneys’ fees and costs, filed by Veronica Siegel pursuant to
29 U.S.C. § 1132(g)(1) as well as Federal Rule of Civil Proce‐
dure 54(d). We will reverse a district court’s denial of a motion
for fees and/or costs, under either provision, only in the case of
an abuse of discretion. See Holmstrom v. Metropolitan Life Ins.
Co., 615 F.3d 758, 779 (7th Cir. 2010). The district court ac‐
knowledged that the Defendants were entitled to a “modest
presumption” that they would recover fees and costs under
ERISA, see, e.g., Herman v. Central States, Se. & Sw. Areas Pension
Fund, 423 F.3d 684, 695–96 (7th Cir. 2005), however, the district
court declined to do so because it concluded that Laskin’s suit
was justified—but untimely. The district court also noted that
the Defendants only offered “the barest of arguments” in
support of their motion for attorneys’ fees and costs and
concluded that it would be unfair to require Laskin to even
respond to the motion as drafted. The district court’s decision
falls well within the bounds of its discretion.
III. CONCLUSION
We AFFIRM.

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