Lloyd Marks v. Newcourt Credit Group, Inc.

*The Honorab le Curtis L. Collier, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0318P (6th Cir.)
File Name: 03a0318p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LLOYD MARKS,
Plaintiff-Appellant,
v.
NEWCOURT CREDIT GROUP,
INC. et al.,
Defendants-Appellees.
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No. 01-1921
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 99-60792—Marianne O. Battani, District Judge.
Argued: December 10, 2002
Decided and Filed: September 4, 2003
Before: BATCHELDER and MOORE, Circuit Judges;
COLLIER, District Judge.*
2 Marks v. Newcourt Credit Group et al. No. 01-1921
_________________
COUNSEL
ARGUED: Stephen F. Wasinger, WASINGER KICKHAM
AND HANLEY, Royal Oak, Michigan, for Appellant.
Patrick F. Hickey, DYKEMA GOSSETT, Detroit, Michigan,
for Appellees. ON BRIEF: Stephen F. Wasinger, Timothy
O. McMahon, WASINGER KICKHAM AND HANLEY,
Royal Oak, Michigan, for Appellant. Patrick F. Hickey,
Jeffrey S. Kopp, DYKEMA GOSSETT, Detroit, Michigan,
for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
Appellant Lloyd Marks appeals the district court’s dismissal
of his state law equitable estoppel claim and his claims that
Defendant-Appellee Newcourt Credit Group, Inc., CIT
Group, Inc., and Newcourt Financial USA, Inc. (collectively
“Newcourt”), violated state law and the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. He
also appeals the district court’s entry of judgment against him
with respect to his claims that Newcourt arbitrarily and
capriciously denied him benefits, failed to comply with
ERISA § 503, and fraudulently induced him to purchase stock
options.
Marks participated in the “AT&T Capital Leadership
Severance Plan” (“plan”), under which Marks would be
entitled to substantial benefits if he experienced a qualifying
termination by October 1, 1998. Marks filed a claim for these
benefits in June 1999, arguing that he had been constructively
terminated before the October deadline due to reductions in
his duties and compensation unknown to him at the time.
Newcourt denied Marks’s claims for benefits both initially

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No. 01-1921 Marks v. Newcourt Credit Group et al. 3
and on appeal, concluding that he had not experienced a
qualifying termination before October 1, 1998.
Marks filed a claim in state court alleging breach of
contract, fraudulent misrepresentation, innocent
misrepresentation, fraudulent inducement to purchase stock
options, and breach of the plan. Newcourt removed the case
to federal district court, where the district judge liberally
construed Marks’s complaint to state ERISA claims and
therefore dismissed the state-law claims as preempted. The
district judge also dismissed Marks’s equitable estoppel claim
and his claims under ERISA §§ 404, 502, and 510, and
entered judgment against Marks with respect to the denial of
benefits and Newcourt’s alleged procedural violations of
ERISA § 503. Finally, the district court entered summary
judgment for Newcourt as to Marks’s claim that Newcourt
fraudulently induced him to purchase stock options. Marks
timely filed this appeal.
We REVERSE the district court’s dismissal of Marks’s
state-law claims to the extent that they are not related to the
plan, and REMAND for further proceedings on these
grounds. We AFFIRM the district court on all other grounds.
I. FACTS AND PROCEDURAL HISTORY
Marks was employed by AT&T Capital Corporation
(“AT&T Capital”) in a senior management position. In this
capacity, Marks participated in a severance plan that entitled
him to a substantial cash payment if he was terminated
without just cause. In the event of a change of control, Marks
would also be entitled to benefits if he suffered a “Qualifying
Termination” of employment during the following two years:
(i) A termination of a Participant’s employment by the
Company and its Subsidiaries . . . other than a
termination for Cause; or
(ii) A termination of employment by a Participant prior
to the second anniversary of the Closing Date for
4 Marks v. Newcourt Credit Group et al. No. 01-1921
one or more of the following reasons: (a) a
reduction in base salary; (b) a significant reduction
in annual cash target bonus; (c) an elimination or
reduction of the Participant’s eligibility to
participate in the Company’s benefit plans or
programs that is inconsistent with the eligibility of
similarly situated employees . . . to participate
therein; (d) a significant reduction in the
Participant’s duties as they exist immediately after
the Closing Date; or (e) an obligation to relocate
. . . .
Joint Appendix (“J.A.”) at 116-17 (Plan).
Newcourt purchased all outstanding shares of AT&T
Capital on January 12, 1998. Prior to the acquisition,
Newcourt offered Marks continued employment, with duties,
responsibilities, authority, and compensation that were
substantially identical to his duties and compensation with
AT&T Capital. Marks accepted Newcourt’s offer, and agreed
to purchase 14,665 shares of the company’s stock as part of
his employment contract. He borrowed $453,258 to finance
the stock purchase. Marks continued to be employed in a
senior management position that was substantially similar to
the position he held with AT&T. He was still covered by the
plan, but he would have to make a claim by October 1, 1998
to be entitled to benefits for suffering a qualifying
termination.
During 1998, Newcourt allegedly began making changes to
Marks’s business unit. Marks sought and received assurances
through and after October 1, 1998, that these modifications
were not intended to reduce his duties or his compensation.
He continued to be actively employed by Newcourt until
February 1999, when he suffered a heart attack and took
disability leave.
Marks did not assert any rights under the plan before
October 1, 1998. In March 1999, Marks learned that

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No. 01-1921 Marks v. Newcourt Credit Group et al. 5
1The plan requires written notification of the d enial of benefits. The
notice must include a specific reason for the denial, refer to pertinent plan
provisions on which the denial was based, describe any additional
material necessary to p erfect a participant’s claim, and explain why the
requirements are necessary.
Newcourt had awarded him a bonus that was significantly
lower than bonuses he typically received from AT&T.
According to Marks, Newcourt changed its methods for
calculating performance goals before October 1, 1998, but did
not make clear that these changes were intended to and did
materially reduce Marks’s job responsibilities until May
1999.
Marks first sought to exercise his rights under the plan on
June 1, 1999, when his attorney informed Newcourt that
Marks was entitled to plan benefits because he had been
constructively terminated. Marks’s claim alleged that his job
responsibilities had changed in 1998 and that Newcourt had
misrepresented the nature of these changes. The plan
administrators, who are responsible for reviewing all claims
for benefits, sent Marks written notification that his claim had
been denied.1 According to the administrators, Marks was
not entitled to benefits because the plan required an actual
termination before October 1, 1998.
Marks protested the denial of his claim, arguing that the
administrators had imposed a condition — termination before
October 1, 1998 — on the receipt of benefits that was not
contained in the plan. The administrators referred Marks’s
protest to the benefits committee, which has “sole and
complete discretionary authority to determine conclusively
for all parties . . . all questions relating to participation of
eligible members and eligibility for benefits, determination of
all relevant facts, the amount and type of benefits payable to
any participant, and construction of all terms of the Plan.”
J.A. at 437 (Plan Summ.). The committee denied Marks’s
appeal, reasoning that he had no claim because Newcourt had
not terminated his employment and because he had not
6 Marks v. Newcourt Credit Group et al. No. 01-1921
resigned prior to October 1, 1998. Furthermore, the
committee reasoned, Marks had accepted compensation and
benefits for several months after October 1998.
Marks filed an action in state court, claiming that Newcourt
had fraudulently induced him to become employed by
Newcourt, breached his employment agreement, and
wrongfully deprived him of benefits under the plan. Marks
also alleged that Newcourt engaged in fraudulent conduct that
reduced his duties and compensation, while continually
assuring him that neither was being reduced. Marks did not
raise any claims under ERISA.
Newcourt removed the action to federal district court on
grounds that ERISA preempted Marks’s state law claims and
that there was diversity of citizenship. Marks then filed an
amended complaint stating claims for (1) breach of contract
and constructive discharge, (2) fraud and silent fraud,
(3) innocent misrepresentation, (4) fraudulent inducement of
stock purchase and loan agreement; and (5) breach of the
AT&T Leadership Plan, breach of contract, and breach of
fiduciary duties.
Newcourt moved for an order upholding the administrators’
denial of Marks’s claim for plan benefits pursuant to Federal
Rule of Civil Procedure 52. Newcourt also moved to dismiss
three of Marks’s common-law claims pursuant to Rule
12(b)(6).
Marks filed a motion to amend his complaint a second time.
He wanted to add an estoppel claim and claims under ERISA,
alleging violations of §§ 502, 29 U.S.C. § 1132; 503, 29
U.S.C. § 1133; 504, 29 U.S.C. § 1134; 510, 29 U.S.C.
§ 1140; and 404, 29 U.S.C. § 1104. The magistrate judge
denied Marks’s motion to amend, but granted his motion to
add CIT Group, Inc., as a defendant. The magistrate judge’s
order said that the first amended complaint should be broadly
construed to state claims for the denial of benefits under

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No. 01-1921 Marks v. Newcourt Credit Group et al. 7
ERISA. The district court later construed Marks’s first
amended complaint to include ERISA claims.
Marks filed his opposition to Newcourt’s Rule 52 motion
for judgment and, in doing so, referred to several alleged
ERISA violations that had not been addressed in the
complaint or any earlier briefs. At this point, the parties
stipulated that Newcourt could voluntarily withdraw its initial
Rule 52 motion and file a renewed motion that would address
Marks’s newly asserted claims and issues.
Marks filed a motion for summary judgment as to his
ERISA claims. Newcourt filed a response, and then a
renewed motion for entry of judgment. Newcourt sought an
affirmance of the denial of benefits under the various
provisions of ERISA and moved that all but one of Marks’s
common-law claims be dismissed as preempted by ERISA.
“[F]or the purposes of Defendant’s Revised Rule 52 and
12(b)(6) motions only,” J.A. at 888 (Order), Newcourt
stipulated to the following:
[E]ach of the following alternate factual statements are
possibly true and could possibly be proven if complete
discovery on these issues is allowed to proceed:
(1) The Plan Administrators and the Benefits
Committee did not consider Plaintiff’s claim that
Newcourt “lulled” him into not filing a claim by
October 1, 1998;
(2) the Plan Administrators and the Benefits Committee
considered the “fraudulent lulling” claim based on
the administrative record but disregarded it as not
being material even if true (e.g., “fraudulent lulling”
does not matter) or not being within the scope of
their jurisdiction (e.g., “fraudulent lulling” is wrong
but no relief is available under the benefit plan); or
(3) The Plan Administrators and the Benefits
Committee considered the “fraudulent lulling” claim
based on the administrative record but did not
8 Marks v. Newcourt Credit Group et al. No. 01-1921
consider it true and thus it did not affect the merits
of their decisions.
J.A. at 888-89 (Order).
Before ruling on the motions, however, the district judge
accepted Newcourt’s designation of the administrative record.
Newcourt’s former Director of Employee Relations, Kenneth
Auletta (“Auletta”), set forth an affidavit swearing to the
materials that were available to the benefits committee for
review. Over Marks’s objection, the district judge concluded
that Auletta’s affidavit was not hearsay, and was “sufficient
to identify the administrative record.” J.A. at 1031 (Op.).
The district court granted Newcourt’s renewed motion for
judgment and denied Marks’s motion for summary judgment.
The district court also denied Marks’s motion for
reconsideration or leave to amend his complaint. Finally, the
district court granted Newcourt’s motion for summary
judgment as to Marks’s final claim — fraudulent inducement
to purchase Newcourt stock — and entered final judgment for
Newcourt. Marks filed a timely notice of appeal.
II. CLAIMS DISMISSED PURSUANT TO RULE
12(b)(6)
A. Standard of Review
We review de novo a district court’s dismissal of claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). Weiner
v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). In deciding
whether to grant a Rule 12(b)(6) motion, we “must construe
the complaint in the light most favorable to the plaintiff,
accept all factual allegations [of the plaintiff] as true, and
determine whether the plaintiff undoubtedly can prove no set
of facts in support of his claims that would entitle him to
relief.” Allard v. Weitzman (In re DeLorean Motor Co.), 991
F.2d 1236, 1240 (6th Cir. 1993). Our function is not to weigh
the evidence or assess the credibility of witnesses, Weiner,

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No. 01-1921 Marks v. Newcourt Credit Group et al. 9
108 F.3d at 88, but rather to examine the complaint and
determine whether the plaintiff has pleaded a cognizable
claim, Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988). The motion should not be granted
“unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.” Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir. 1994)
(quotation omitted).
B. Preemption of State Law Claims
The district court concluded that Marks’s common-law
claims for breach of contract, fraud, and innocent
misrepresentation were preempted by ERISA, and dismissed
them pursuant to Rule 12(b)(6). According to the district
court, each cause of action relies “on plaintiff’s allegations
that defendants deceived him about his job responsibilities
and duties, thus inducing him to accept employment with
defendants, further inducing him to purchase Newcourt stock,
and ultimately lulling him into not exercising his rights under
the AT&T plan.” J.A. at 1018 (Op.). However, as Marks
argues, there is a distinction between alleged lies inducing
Marks to accept employment with Newcourt and alleged lies
inducing Marks not to file a claim for benefits.
ERISA preempts “any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan.”
ERISA § 514(a), 29 U.S.C. § 1144(a). In the context of
ERISA, “the term ‘State law’ includes all laws, decisions,
rules, regulations, or other State action having the effect of
law.” Id. § 514(c)(1). To relate to a benefit plan, a law only
need have “a connection with or reference to such a plan.”
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983).
ERISA’s preemption provisions “are deliberately expansive.”
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46 (1987); see
Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739
(1985) (“The pre-emption provision was intended to displace
all state laws that fall within its sphere, even including state
laws that are consistent with ERISA’s substantive
10 Marks v. Newcourt Credit Group et al. No. 01-1921
requirements.”). But see Ky. Ass’n of Health Plans, Inc. v.
Miller, --- U.S. ----, 123 S. Ct. 1471, 1474 (2003) (noting that
state laws regulating insurance, banking, and securities are
“saved from pre-emption” by ERISA).
In keeping with the Supreme Court’s recognition of the
broad scope of ERISA preemption, the Sixth Circuit “has
repeatedly recognized that virtually all state law claims
relating to an employee benefit plan are preempted by
ERISA.” Cromwell v. Equicor-Equitable HCA Corp., 944
F.2d 1272, 1276 (6th Cir. 1991), cert. dismissed, 505 U.S.
1233 (1992). However, we will not conclude that state-law
claims are preempted where their “effect on employee
benefits plans is merely tenuous, remote or peripheral.” Id.
For example, a state-law action only peripherally affects a
plan where a plaintiff refers to a clause in the benefit plan
summary to support his employment discrimination claim, or
where a plaintiff simply makes “reference to specific,
ascertainable damages” by citing a life insurance contract.
Wright v. Gen. Motors Corp., 262 F.3d 610, 615 (6th Cir.
2001). In deciding whether state-law claims are preempted
by ERISA, we have focused on the remedy sought by
plaintiffs. See Lion’s Volunteer Blind Indus., Inc. v.
Automated Group Admin., Inc., 195 F.3d 803, 806 (6th Cir.
1999).
Marks’s amended complaint alleges that “Newcourt has
wrongfully, arbitrarily and capriciously rejected Mark[s]’s
notice of termination; and Newcourt has done so solely for
selfish reasons, namely, to avoid paying Marks more than
$1.5 million that he would otherwise be entitled to under the
AT&T Plan.” J.A. at 48 (Am. Compl. ¶ 38). For each of his
state-law causes of action, Marks seeks in damages “an
amount presently undetermined but believed to exceed
$1,500,000.” J.A. at 49, 50 (Am. Compl. ¶¶ 45, 48, 51).
Because he seeks damages equaling the benefits he would
have received under the plan, it seems at first glance that his
claims relate to an ERISA benefit plan. However, a close
reading of Marks’s complaint reveals that the reference to

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No. 01-1921 Marks v. Newcourt Credit Group et al. 11
plan benefits was only a way to articulate “specific,
ascertainable damages.” Wright, 262 F.3d at 615.
We conclude that the district court erred in finding that
Marks’s state-law claims were preempted to the extent that
the claims alleged would have a “tenuous, remote or
peripheral” effect on the plan. Cromwell, 944 F.2d at 1276.
Marks alleges that, without cause, Newcourt significantly
altered his duties and reduced his compensation. Because this
conduct may constitute a breach of Marks’s employment
contract irrespective of the plan, the breach of contract claim
is not preempted.
Moreover, Marks’s fraud and misrepresentation claims are
not entirely preempted, even though they clearly relate to
ERISA insofar as they allege that Newcourt’s conduct
induced Marks “not [to] exercise his rights under the AT&T
Plan until May, 1999.” J.A. at 49 (Am. Compl. ¶ 47(d)). To
the extent that Marks alleges that fraud or misrepresentation
induced him to accept employment as an initial matter, he can
state a state-law claim for fraud and/or innocent
misrepresentation. Marks alleges that Newcourt’s conduct
induced him to become employed by Newcourt, to purchase
14,665 shares of Newcourt stock, and to borrow $453,258 to
finance that purchase. These allegations clearly do not relate
to an ERISA plan. Therefore, we remand to the district court
for adjudication of those aspects of Marks’s fraud and
misrepresentation claims not relating to the plan, as well as
for adjudication of Marks’s breach of contract claim.
C. Dismissal of ERISA Claims
1. Section 404: Breach of Fiduciary Duty
The district court dismissed Marks’s claim for breach of
fiduciary duty, brought pursuant to ERISA § 404, as
duplicative of his § 502 claim. Section 404(a)(1) states:
12 Marks v. Newcourt Credit Group et al. No. 01-1921
[A] fiduciary shall discharge his duties with respect to a
plan solely in the interest of the participants and
beneficiaries and —
(A) for the exclusive purpose of:
(i) providing benefits to participants and their
beneficiaries; and
(ii) defraying reasonable expenses of
administering the plan;
(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 a like character and with like aims
. . . .
29 U.S.C. § 1104(a). Section 409 further explains that a
fiduciary who breaches his duty is “personally liable to make
good to such plan any losses to the plan resulting from each
such breach, and to restore to such plan any profits of such
fiduciary which have been made through use of assets of the
plan by the fiduciary.” 29 U.S.C. § 1109(a).
An ERISA plan participant can seek equitable relief against
his plan administrator under § 502(a), 29 U.S.C. § 1132(a), if
he has been harmed by the administrator’s breach of a
fiduciary duty. Varity Corp. v. Howe, 516 U.S. 489, 512
(1996). However, a participant cannot seek equitable relief
for a breach of fiduciary duty under the catchall provision of
§ 502(a)(3) if the alleged violations are adequately remedied
under other provisions of § 502. Id.; see Wilkins v. Baptist
Healthcare Sys., Inc., 150 F.3d 609, 615 (6th Cir. 1998)
(noting the Supreme Court’s clear limitation of § 502(a)(3)
relief to beneficiaries who “may not avail themselves of
§ 1132’s other remedies”).
In Wilkins, we concluded that the plaintiff could not bring
a cause of action for breach of fiduciary duty pursuant to
§ 502(a)(3) where § 502(a)(1)(B) provided a remedy for his
alleged injury. Section § 502(a)(1)(B) permitted Wilkins to

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No. 01-1921 Marks v. Newcourt Credit Group et al. 13
2Even if Marks could bring a breach-of-fiduciary-duty claim, we
have recognized such claims only where the misrepresentation in question
involves the availability or exte nt of plan benefits. See Jam es v. Pirelli
Armstrong Tire Corp., 305 F.3d 439 , 455 (6th Cir. 2002) (considering
“materially misleading and inaccurate information about the plan
benefits”); Kroh n v. Hu ron M em’l H osp., 173 F.3d 542 , 547 (6th Cir.
1999) (describing breaches where administrator answers questions
inaccurately or incompletely, or where administrator negligently or
intentionally misleads plan p articipants abo ut plan eligibility or benefits);
Sprague v. Gen. Motors Corp., 133 F.3d 388, 405-06 (6th Cir.) (en banc)
(suggesting that breach can occur where employer provides misleading
information about the future of a plan or fails to provide such information
when required to do so), cert. denied, 524 U.S. 923 (1998). In this case,
Marks inquired about his duties and compensation, not about a matter of
plan administration. Although Marks argues that his duties and
compensation were a matter of plan administration because his
employment status determined his benefits, we have not recognized this
kind of misrepresentation in the context of § 404.
Furthermore, we have only recognized § 404 claims when a plan
administrator, or an employer “exercising ‘discre tionary authority’ in
connection with the plan’s ‘management’ or ‘administration’”
misrepresents a material fact. Sprague, 133 F.3d at 405 (citing Varity
Corp. v. Howe, 516 U.S. 489, 502-04 (1996)). Marks’s employer
alleged ly misled him about reductions in his duties and compensation. In
doing so, Newcourt did not exercise discretion in connection with plan
management or administration; Newcourt was discussing Marks’s duties
as an employee.
Therefore, even if Marks could bring a § 404 claim, he would not
prevail. Marks do es not allege the necessary kind of misrepresentation or
source of that misrepresentation.
bring a lawsuit to challenge the administrator’s denial of
benefits. In this case, Marks is permitted to file and has filed
a suit pursuant to the same provision, challenging the
Newcourt’s administrative decision to deny him benefits.
Therefore, because the district court is correct that “ERISA
§ 502(a)(1)(B) provides plaintiff a remedy for the alleged
injury, the denial of benefits, and allows him to bring a
lawsuit to challenge the denial of benefits,” J.A. at 1022
(Op.), we affirm the dismissal of Marks’s claim for breach of
fiduciary duty.2
14 Marks v. Newcourt Credit Group et al. No. 01-1921
2. Section 510: Discrimination
The district court dismissed Marks’s claim that Newcourt
violated ERISA § 510, 29 U.S.C. § 1140, “by misleading him
about the reduction and change in his job duties thereby
lulling him into not exercising his rights under the plan.” J.A.
at 1023 (Op.). Marks argues that Newcourt discriminated
against him with the intention of interfering with his
attainment of a right to which he might become entitled under
the plan. The district court found that such deception did not
constitute interference or discrimination within the meaning
of § 510.
Pursuant to § 510, “[i]t shall be unlawful for any person to
discharge, fine, suspend, expel, discipline, or discriminate
against a participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee
benefit plan . . . or for the purpose of interfering with the
attainment of any right to which such participant may become
entitled under the plan . . . .” This provision of ERISA is
“aimed primarily at preventing unscrupulous employers from
discharging or harassing their employees in order to keep
them from obtaining vested pension rights.” West v. Butler,
621 F.2d 240, 245 (6th Cir. 1980). To violate § 510,
discrimination “must affect the individual’s employment
relationship in some substantial way.” Id. at 245-46.
To state a prima facie case under § 510, “an employee must
show that there was: (1) prohibited employer conduct
(2) taken for the purpose of interfering (3) with the attainment
of any right to which the employee may become entitled.”
Shahid v. Ford Motor Co., 76 F.3d 1404, 1411 (6th Cir. 1996)
(quotation omitted). Courts have concluded that false
statements affecting an employee’s pension rights do not rise
to the level of discrimination found in cases enforcing § 510.
See, e.g., Swanson v. U.A. Local 13 Pension Plan, 779 F.
Supp. 690, 702 (W.D.N.Y. 1991) (failing to advise employee
of the consequences of retirement was not the kind of direct
interference required to establish liability under § 510), aff’d,

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No. 01-1921 Marks v. Newcourt Credit Group et al. 15
953 F.2d 636 (2d Cir. Dec. 19, 1991); Goins v. Teamsters
Local 639, 598 F. Supp. 1151, 1154-55 (D.D.C. 1984)
(making false statements about pension rights does not rise to
the level of a § 510 violation where administrator’s remarks
at most “lulled” employee into erroneously believing that
certain requirements did not apply). Such “statements [stand]
in stark contrast to the sort of discrimination found in cases
enforcing § [510], which usually involve employers
discharging or taking reprisals against employees to prevent
them from receiving benefits.” Swanson, 779 F. Supp. at 703
(quotation omitted).
Marks alleges that Newcourt disguised the significance of
changes made to the terms and conditions of his employment
and fraudulently concealed its true reasons for making the
changes. The District Court for the Southern District of New
York has considered whether an employee can state a claim
under § 510 based on allegations that the employee was
misled about the nature of his duties and responsibilities: “On
the facts presented, the most [the employee] can allege is that
she was misled about her duties and responsibilities. This
allegation does not give rise to a claim for ‘interference’ or
‘discrimination’ under § 510.” Donnelly v. Bank of N.Y. Co.,
801 F. Supp. 1247, 1255 (S.D.N.Y. 1992), aff’d, 2 F.3d 403
(2d Cir. July 2, 1993). This is precisely what Marks alleges
in this case. Thus, construing Marks’s complaint in the light
most favorable to him, we conclude that Marks failed to state
a prima facie case under § 510. Because he fails to allege
conduct that would fall within the scope of § 510’s
prohibitions, we affirm the district court’s decision to dismiss
this claim.
3. Equitable Estoppel
Marks argues that because Newcourt fraudulently
represented to him that his job duties had not been reduced
throughout 1998, and therefore lulled him into not exercising
his rights under the plan, Newcourt should be estopped from
relying on the plan’s October 1, 1998, deadline. The district
16 Marks v. Newcourt Credit Group et al. No. 01-1921
court concluded that Marks could not prevail on an estoppel
theory as a matter of law, because estoppel would “contravene
the terms of the plan documents,” which “unambiguously
require that plaintiff have experienced a qualifying
termination prior to October 1, 1998.” J.A. at 1024 (Op.).
This court has recognized that “equitable estoppel may be
a viable theory in ERISA cases.” Sprague v. Gen. Motors
Corp., 133 F.3d 388, 403 (6th Cir.) (en banc), cert. denied,
524 U.S. 923 (1998). To set forth a claim for equitable
estoppel in the ERISA context, a plaintiff must plead five
elements:
(1) [T]here must be conduct or language amounting to
a representation of material fact; (2) the party to be
estopped must be aware of the true facts; (3) the
party to be estopped must intend that the
representation be acted on, or the party asserting the
estoppel must reasonably believe that the party to be
estopped so intends; (4) the party asserting the
estoppel must be unaware of the true facts; and
(5) the party asserting the estoppel must reasonably
or justifiably rely on the representation to his
detriment.
Id. Liberally construed, Marks’s complaint alleges each of
the five required elements.
A party cannot seek to estop the application of an
unambiguous written provision in an ERISA plan, however.
Id. at 404. When a party seeks to estop the application of an
unambiguous plan provision, he by necessity argues that he
reasonably and justifiably relied on a representation that was
inconsistent with the clear terms of the plan. Id. Moreover,
“to allow estoppel to override the clear terms of plan
documents would be to enforce something other than the plan
documents themselves.” Id. In this case, the plan provision
requiring that a participant assert his rights by October 1,
1998, is unambiguous. Therefore Marks cannot rely on an

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No. 01-1921 Marks v. Newcourt Credit Group et al. 17
estoppel theory, and the district court did not err in dismissing
the argument.
III. JUDGMENT AGAINST MARKS
A. ERISA § 502: Challenging the Denial of Plan Benefits
The district court concluded that Marks’s claim for breach
of the plan was actually a claim challenging the denial of
benefits brought pursuant to ERISA § 502. Section
502(a)(1)(B) gives a participant or beneficiary the right to
bring a civil action “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the terms
of the plan.” 29 U.S.C. § 1132(a)(1)(B).
1. Standard of Review
We review de novo a denial of benefits challenged under
§ 502(a)(1)(B), “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). If a plan affords such discretion to an administrator
or fiduciary, we review the denial of benefits only to
determine if it was “arbitrary and capricious,” Miller v.
Metropolitan Life Insurance Co., 925 F.2d 979, 983 (6th Cir.
1991), and will uphold his decision if it is “rational in light of
the plan’s provisions,” Borda v. Hardy, Lewis, Pollard &
Page, P.C., 138 F.3d 1062, 1066 (6th Cir. 1998) (quotation
omitted).
The plan at issue grants its administrators discretion over
determining eligibility for benefits. Section 19,
“Administration,” states that “[t]he Plan Administrator shall
make the rules and regulations necessary to administer the
Plan and shall have the responsibility and discretionary
authority to interpret the terms of the Plan, determine
eligibility for benefits and to determine the amounts of such
18 Marks v. Newcourt Credit Group et al. No. 01-1921
benefits.” J.A. at 131 (Plan § 19). Therefore, we apply the
deferential “arbitrary and capricious” standard in reviewing
the decisions of the administrators and the benefits committee
to deny Marks benefits. We should also take into account,
however, the fact that Newcourt is acting under a conflict of
interest because it both funds and administers the plan. See
Bruch, 489 U.S. at 115 (noting that courts should be attentive
to conflicts in this context); Univ. Hosps. of Cleveland v.
Emerson Elec. Co., 202 F.3d 839, 847 n.4. (6th Cir. 2000)
(recognizing a potential for self-interested decisionmaking
“where, as here, the plan sponsor bears all or most of the risk
of paying claims, and also appoints the body designated as the
final arbiter of such claims”).
2. Administrative Record Considered on Review
The scope of the district court’s and this court’s review of
the denial of benefits is limited to the administrative record
available to the plan administrators when the final decision
was made. Miller, 925 F.2d at 986. Although Newcourt did
not identify the administrative record before the magistrate
judge, it subsequently presented to the district court what it
“assert[s] is the complete administrative record containing all
documents reviewed by the benefits committee.” J.A. at 1031
(Op.). Marks argues that the district court erred by relying on
Auletta’s affidavit to identify the administrative record
because Auletta was not a member of the benefits committee.
Pursuant to Federal Rule of Civil Procedure 56, affidavits
submitted in support of a motion for summary judgment
“shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed. R. Civ. P. 56(e). We review for
an abuse of discretion “all evidentiary rulings of the district
court, including its determination of whether testimony is
inadmissible hearsay.” United States v. Khalil, 279 F.3d 358,
363 (6th Cir. 2002). Auletta’s affidavit claims his “personal
knowledge of the facts contained in this affidavit” and

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No. 01-1921 Marks v. Newcourt Credit Group et al. 19
3Marks also argues that the district court should have included
Marks’s own affidavit, created in March 2 000, as part of the
administrative record. Appellant’s Br. at 18 n.7. Because Newco urt can
identify the administrative record, however, this argument is without
force. A district court can only consider new non-record evidence “when
consideration of that evidence is necessary to resolve an ERISA
claimant’s procedural challenge to the administrator’s decision, such as
an alleged lack of due process afforded by the administrator or alleged
explains that the documents attached “were the materials
reviewed by the Benefits Committee in reviewing Plaintiff’s
appeal of the Plan Administrators’ denial of Plaintiff’s
claim.” J.A. at 213, 214 (Auletta Aff.). Auletta was not a
plan administrator or a member of the benefits committee, so
he did not have personal knowledge of the documents
actually considered by the committee. However, Auletta
could have personal knowledge of what materials were
available to the committee when it decided to deny benefits.
Marks does not contest that Auletta, as the then-Director of
Employee Relations, was responsible for assembling
materials presented to the administrators and the committee
for review. Therefore, because Auletta would have personal
knowledge of the administrative record available to the plan
administrators at the time of their final decision, we find that
the district court did not abuse its discretion by relying on
Auletta’s affidavit to determine the administrative record.
The district court did clearly err, however, in relying on
Auletta’s affidavit to designate a piece of electronic mail sent
from Rob McFarlane to Auletta on August 30, 1999, as part
of the administrative record. The benefits committee notified
Marks that it had denied his appeal on August 27, 1999.
Clearly McFarlane’s electronic mail could not have been
available to the administrators when they made their final
decision to deny Marks’s claim. Therefore, this document
should not be considered part of the administrative record. In
reviewing Marks’s § 502 claim, we will consider the
administrative record designated by the district court, with the
exception of this electronic mail.3
20 Marks v. Newcourt Credit Group et al. No. 01-1921
bias on its part.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609,
618 (6th Cir. 1998). M arks alleges no such procedural error.
3. Arbitrary and Capricious Denial of Benefits
Marks alleges that Newcourt’s denial of benefits was
arbitrary and capricious because the administrators
impermissibly added a new term to the plan by refusing to
treat Marks’s alleged constructive termination before
October 1, 1998, as a qualifying termination. According to
Marks, the plan was ambiguous as to whether constructive
termination before October 1, 1998, constitutes a qualifying
termination. Therefore, Marks argues that we should resolve
any ambiguity against the drafter of the provision —
Newcourt. See Univ. Hosps., 202 F.3d at 847.
In their initial denial of Marks’s claim for benefits, the plan
administrators explained that Marks’s actual termination was
a condition precedent to establishing a qualifying termination
under the plan. The plan recognizes two kinds of qualifying
terminations: (1) termination by the company without cause,
and (2) termination by the employee because, among other
reasons, the company significantly reduced the employee’s
duties. With respect to Marks’s claim of termination by the
company, the administrators interpreted the language of the
plan to require actual, not constructive, termination, and
found that “[t]o date, no such termination of [Marks’s]
employment by the Company has occurred and more than two
years have passed since the Closing Date.” J.A. at 144
(Admin. Decision). Then, the administrators determined that
they could not evaluate Marks’s claim that he terminated his
own employment because the company reduced his duties
until Marks provided written notice of his termination of
employment with the company.
The benefits committee offered a similar explanation for its
denial of Marks’s claims. After defining and establishing the
deadline for a “qualifying termination,” the committee

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No. 01-1921 Marks v. Newcourt Credit Group et al. 21
4At any rate, Marks co uld no t demonstrate that he was constructive ly
discharged: “In order to demonstrate constructive discharge, an employee
must show that working cond itions were so unpleasant and unreasonable
that a reaso nable person in the employee’s shoes would have felt
compelled to resign.” Welsch v. Empire Plastics, Inc., No. 99-3420, 2000
W L 687 678 , ** 4 (6th Cir. May 19, 2000) (citing Wilson v. F irestone Tire
& Rubber Co., 932 F.2d 510 , 515 (6th Cir. 199 1)). Marks neither claims
that he felt compelled to resign before October 1, 1998, nor alleges that
his working conditions were unpleasant.
concluded that Marks had not suffered a qualifying
termination because “the Company had not terminated [his]
employment ‘prior to the second anniversary of the Closing
Date,’ which is October 1, 1998.” J.A. at 211 (Benefits
Comm. Decision). Marks was employed by the company
until June 1999, and continued to accept compensation and
benefits from the company for months after October 1, 1998.
Like the administrators, the committee found that the plan
addresses only actual, not constructive, termination, and
concluded that Marks would have had to resign before
October 1, 1998, to establish a benefits claim on grounds that
he terminated his employment due to a reduction in duties.
The plan administrators’ and benefits committee’s
decisions to deny Marks benefits in light of their
interpretations of “qualifying termination” under the plan
provisions was not arbitrary or capricious. The administrators
made the reasonable determination that the provision in
question in fact was not ambiguous. They concluded that the
plan clearly required either resignation or actual termination
of employment prior to October 1, 1998.4 Because Marks
continued to be actually employed by the company until June
1999, we can only conclude that the administrators and
benefits committee offered a reasoned explanation for the
denial of benefits. Davis, 887 F.2d at 693. We affirm the
denial of benefits because the administrators’ decision is
rational in light of the plan provisions, and therefore was not
arbitrary and capricious. Borda, 138 F.3d at 1066.
22 Marks v. Newcourt Credit Group et al. No. 01-1921
B. ERISA § 503: Procedural Requirements
Appellant argues that he did not receive the procedural
protections established by ERISA § 503. Pursuant to § 503,
[E]very employee benefit plan shall —
(1) provide adequate notice in writing to any
participant or beneficiary whose claim for benefits
under the plan has been denied, setting forth the
specific reasons for such denial, written in a
manner calculated to be understood by the
participant, and
(2) afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full
and fair review by the appropriate named
fiduciary of the decision for denying the claim.
29 U.S.C. § 1133.
We review de novo “the question of whether the procedure
employed by the fiduciary in denying the claim meets the
requirements of Section [503].” Kent v. United of Omaha
Life Ins. Co., 96 F.3d 803, 806 (6th Cir. 1996). For this court
to consider a plan’s claims procedure reasonable, the plan
must:
(1) establish a procedure for the filing of claims by
participants and beneficiaries, provide for a written
notification procedure for denial or partial denial of
claims, and provide for an appeal procedure for
denied or partially denied claims, see 29 C.F.R.
§ 2560.503-1(b)(1)(i); (2) be described in the
Summary Plan Description, see id. § 2560.503-
1(b)(1)(ii); (3) not contain any provision and not be
administered in a way that “unduly inhibits or
hampers the initiation or processing of plan claims,”
id. § 2560.503-1(b)(1)(iii); and (4) provide for a
procedure for informing participants in a timely
fashion of the time periods for decisions on claims

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No. 01-1921 Marks v. Newcourt Credit Group et al. 23
made and the time periods for making appeals and
receiving decisions thereon, see id. § 2560.503-
1(b)(1)(iv).
Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 413-14 n.2
(6th Cir. 1998).
Because Newcourt’s plan ostensibly complies with these
procedural requirements, we must consider whether Newcourt
complied with these procedures when evaluating Marks’s
claim. We have adopted the rule that plan administrators
need only substantially comply with ERISA notice
requirements. Kent, 96 F.3d at 807-08. To decide whether
there is substantial compliance, courts consider all
communications between an administrator and plan
participant to determine whether the information provided
was sufficient under the circumstances. See, e.g., White v.
Aetna Life Ins. Co., 210 F.3d 412, 414 (D.C. Cir. 2000);
Brehmer v. Inland Steel Indus. Pension Plan, 114 F.3d 656,
662 (7th Cir. 1997) (“[T]he question is whether [plaintiff] was
supplied with a statement of reasons that under the
circumstances of the case permitted a sufficiently clear
understanding of the administrator’s decision to permit
effective review.”). In this analysis, it is crucial for us to
determine whether the plan administrators fulfilled the
essential purpose of § 503 — notifying Marks of their reasons
for denying his claims and affording him a fair opportunity
for review. Kent, 96 F.3d at 807.
1. Explaining the Denial of a Claim
The plan administrators and benefits committee both sent
Marks letters clearly explaining the denial of benefits, but
neither expressly provided reasons for denying each of
Marks’s two claims for benefits: (1) his termination claim;
and (2) his estoppel claim. Marks alleges that the
administrators failed to comply with § 503(1) because they
did not explain the denial of Marks's “lulling claim.” As the
district court noted, the administrators and the benefits
24 Marks v. Newcourt Credit Group et al. No. 01-1921
committee did effectively reject the lulling claim in that “the
determination that plaintiff did not suffer a termination
necessarily encompasses a rejection of plaintiff’s lulling
claim, the gravamen of which was that plaintiff did suffer a
termination.” J.A. at 1036 (Op.). However, the plain
language of § 503(1) suggests that “effectively rejecting” a
claim for benefits is not sufficient. Rather, administrators
must provide written notice “setting forth the specific reasons
for such denial, written in a manner calculated to be
understood by the participant.” 29 U.S.C. § 1133(1). Neither
the administrators nor the benefits committee set forth
specific reasons for rejecting Marks’s estoppel, or “lulling,”
theory.
We conclude that, in light of the purpose of § 503,
Newcourt substantially complied with ERISA’s procedural
requirements. Neither Marks’s initial demand for benefits nor
his appeal to the benefits committee clearly expressed that his
claims of termination and estoppel were distinct and required
independent analysis. Marks alleged that Newcourt lulled
him into a false sense of security, and suggested that
Newcourt should be estopped from asserting the October
deadline. However, the strongest indication of an estoppel
argument appears in a footnote to his statement that he is
providing notice of a qualifying termination and demanding
benefits. Given that the administrators and benefits
committee both found that no qualifying termination
occurred, they did not deny Marks full and fair review by
failing specifically to address Marks’s estoppel theory. Even
if Marks had received an explanation for the denial of his
estoppel theory and successfully appealed that determination,
the estoppel theory alone would not entitle him to relief
absent a finding of qualifying termination. Because neither
the administrators nor the benefits committee found a
qualifying termination, we conclude that their failure to
explain the rejection of the estoppel theory did not deprive
Marks of his opportunity for fair review before the benefits
committee or the district court.

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No. 01-1921 Marks v. Newcourt Credit Group et al. 25
Where administrators have failed to comply with the
procedural requirements of § 503, it is ordinarily appropriate
to reverse the denial of benefits and to remand the case to the
plan administrators or the district court. See VanderKlok v.
Provident Life & Acc. Ins. Co., 956 F.2d 610, 619 (6th Cir.
1992). However, because we conclude that Newcourt
substantially complied with § 503, we affirm the district
court’s entry of judgment for Newcourt on this claim.
2. Additional Evidence
Marks also claims the procedural requirements were not
met because the plan administrators failed to advise him of
any additional evidence that would be required to make a
reasoned decision. It is true that the administrators only
informed Marks generally that he could submit additional
evidence and did not request specific additional evidence.
But this does not indicate any deficiency because, in light of
the administrators’ and committee’s explanations for denying
benefits, nothing short of evidence that Marks had been
actually terminated before October 1, 1998, would have
changed their decisions. Therefore, the district court did not
err in concluding that the administrators substantially
complied with the procedural requirements of § 503(1) in this
respect.
3. Full and Fair Review
Finally, Marks argues that the administrators did not afford
him an opportunity for full and fair review in accord with
§ 503(2). The Seventh Circuit has said that “the persistent
core requirements of review intended to be full and fair
include knowing what evidence the decision-maker relied
upon, having an opportunity to address the accuracy and
reliability of that evidence, and having the decision-maker
consider the evidence presented by both parties prior to
reaching and rendering his decision.” Halpin v. W.W.
Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992) (quotation
omitted). Marks argues that, even if we know what evidence
26 Marks v. Newcourt Credit Group et al. No. 01-1921
was before the benefits committee, there is no evidence that
the plan administrators actually considered any of the
evidence submitted when making their decision.
It is true that neither the administrators’ nor the benefits
committee’s decision specifically lists every piece of evidence
considered, but no law requires them to do so. Marks cites as
support for his claim cases in which administrators failed to
offer any reason for their decisions to deny benefits. See, e.g.,
VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d
610, 616 (6th Cir. 1992). But, in this case, the administrators
and benefits committee did offer a reason for their denial,
citing plan provisions and the fact that Marks did not
experience a qualifying termination before the October 31,
1998, deadline. Because Marks neither points to evidence
indicating that the administrators did not consider the
evidence before them, nor has a claim on the basis of the
administrators’ failure to offer reasoned explanations for their
decisions, we affirm the district court’s dismissal of Marks’s
§ 503(2) claim.
IV. SUMMARY JUDGMENT AS TO FRAUDULENT
INDUCEMENT CLAIMS
We need not review the district court’s grant of summary
judgment on Marks’s claim that Newcourt fraudulently
induced him to buy stock options because Marks did not raise
it before this court. According to the Federal Rules of
Appellate Procedure, an “appellant’s brief must contain . . . a
statement of the issues presented for review” and an argument
on each issue presented. Fed. R. App. P. 28(a); see Bickel v.
Korean Airlines Co., 96 F.3d 151, 153 (6th Cir. 1996), cert.
denied, 519 U.S. 1093 (1997). An appellant waives an issue
when he fails to present it in his initial briefs before this court.
Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999)
(en banc); Bickel, 96 F.3d at 153-54. The only reference to
Marks’s fraudulent inducement claim is in the last sentence of
his brief addressed to this court, which requests that we
“reverse the dismissal of Counts I-V.” Appellant’s Br. at 42.

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No. 01-1921 Marks v. Newcourt Credit Group et al. 27
Marks does not acknowledge that judgment was entered for
Newcourt on the fraudulent inducement claim, mention the
claim in his statement of issues, or make any arguments
pertaining to the claim in his brief. Therefore, Marks waived
consideration of this issue on appeal, and we need not
consider the district court’s grant of summary judgment as to
Count IV.
V. CONCLUSION
For the reasons stated above, we REVERSE the district
court’s dismissal of Marks’s state-law claims to the extent
that they are not related to the plan, and we REMAND for
further proceedings in the district court Marks’s state-law
breach of contract claim and, insofar as Marks alleges that
Newcourt induced Marks to accept employment by deceiving
him about his duties, his state-law claim for fraud and
misrepresentation. Although the district court erred by
including McFarlane’s electronic mail in the administrative
record, we AFFIRM the district court’s judgment on all other
grounds.

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