CourtListener opinion 9993775

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IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF ALASKA 

MONTE MABRY, 
 Plaintiff, 
 v. 
CONOCOPHILLIPS COMPANY, Case No. 3:20-cv-00039-SLG 
et al., 

 Defendants. 

 ORDER RE DEFENDANTS' MOTIONS TO DISMISS 
 On January 29, 2020, Plaintiff Monte Mabry commenced this action against 
ConocoPhillips Company and the Benefits Committee of the ConocoPhillips 
Retirement Plan (together, the "ConocoPhillips Defendants"), and Alight Solutions, 
LLC in state court. On February 19, 2020, the ConocoPhillips Defendants filed a 
notice of removal.1 On June 5, 2020, Mr. Mabry filed an amended complaint 
alleging violations of the Employee Retirement Income Security Act of 1974 
("ERISA") against all Defendants and state tort claims against Alight.2 
 Before the Court at Docket 33 is the ConocoPhillips Defendants' Motion to 
Dismiss Plaintiff's Amended Complaint. Plaintiff responded in opposition at Docket 
39, to which the ConocoPhillips Defendants replied at Docket 43. Also before the 

1 Docket 1. 
2 Docket 16; 29 U.S.C. § 1001 et seq. 
Court at Docket 37 is Alight's Motion to Dismiss Plaintiff's Amended Complaint. 
Plaintiff responded in opposition at Docket 41, to which Alight replied at Docket 44. 
Oral argument was not requested and was not necessary to the Court's 

determination.3 
 BACKGROUND AND FACTUAL ALLEGATIONS 
 In his Amended Complaint, Mr. Mabry states that he began working for 
Atlantic Richfield Company ("ARCO") in 1980 and began accruing pension benefits 
under the Atlantic Richfield Retirement Plan ("ARRP").4 In 1985, Mr. Mabry 

transferred to ARCO Alaska and continued accruing ARRP pension benefits.5 By 
2001, Phillips Petroleum Company ("Phillips") acquired ARCO Alaska.6 Mr. Mabry 
began working for Phillips at that time and became a participant in the Phillips 
Retirement Income Plan.7 In 2003, Phillips and Conoco, Inc. merged to become 
ConocoPhillips.8 The Phillips Retirement Income Plan and the Conoco Retirement 

3 Plaintiff and Defendant Alight each filed Notices of Supplemental Authority addressing the 
Supreme Court's recent decision in Rutledge v. Pharmaceutical Care Management Ass'n, 141 
S.Ct. 474 (2020); Dockets 45, 46. Plaintiff and Alight also each filed notices addressing two 
recent district court decisions; Dockets 47, 48. 
4 Docket 16 at 5, ¶ 14–15. 
5 Docket 16 at 5, ¶ 14–15. 
6 Docket 16 at 5, ¶ 16. 
7 Docket 16 at 5, ¶ 16. 
8 Docket 16 at 5, ¶ 17. 
Plan also merged, forming the ConocoPhillips Retirement Plan (the "Plan").9 Mr. 
Mabry was laid off by ConocoPhillips on April 9, 2009; he was then age 50.10 
 According to the Amended Complaint, Mr. Mabry is a Plan participant.11 

Under the terms of the Plan, each participant receives a fixed periodic payment 
during retirement based on a formula that is defined in the Plan.12 Employees such 
as Mr. Mabry who were acquired from ARCO are credited for service under the 
ARRP plus service under the Plan.13 The Plan provides that an employee such as 
Mr. Mabry who was laid off can receive an unreduced early retirement benefit 

beginning at age 60.14 A participant whose benefits commence before age 62 will 
receive a Social Security make-up benefit each month from when his benefit 
commences until he turns 62.15 
 ConocoPhillips exercises the authority to appoint and monitor members to 
the Benefits Committee.16 The Benefits Committee is the Plan Administrator of the 

9 Docket 16 at 5, ¶ 17. 
10 Docket 16 at 5, ¶ 18. 
11 Docket 16 at 2, ¶ 5. 
12 Docket 16 at 6, ¶ 20. 
13 Docket 16 at 6, ¶ 25. 
14 Docket 16 at 6–7, ¶ 28. 
15 Docket 16 at 7, ¶ 31. 
16 Docket 16 at 3, ¶ 7. 
Plan as defined by ERISA § 3(16)(a)(i).17 The Benefits Committee's 
responsibilities include selecting and overseeing third-party advisors to the Plan, 
arranging for compliance with participant disclosure requirements, and overseeing 

maintenance of participant records and administration of the Plan.18 
 The Amended Complaint alleges that the ConocoPhillips Defendants 
contracted with Alight beginning in January 2008 for Alight to carry out several of 
the Benefits Committee's responsibilities, including the committee's pension 
benefit statement responsibilities pursuant to ERISA § 105(a), its responsibility for 

processing pension applications, and its responsibility for deciding first-level 
benefits appeals.19 Alight was also responsible for performing and auditing 
pension calculations, complying with qualified domestic relations orders 
("QDROs") of state courts for the division of pension benefits, and providing 
retirement counseling to Plan participants.20 Alight laid out the steps for performing 

pension calculations for the Plan in a "requirements document."21 Alight used a 
proprietary recordkeeping system called Total Benefits Administration ("TBA") to 
automatically calculate most pension benefits, consistent with the requirements 

17 Docket 16 at 3, ¶ 8; 29 U.S.C. § 1002(16)(a)(i). 
18 Docket 16 at 3–4, ¶ 10. 
19 Docket 16 at 4, ¶ 12; 29 U.S.C. § 1025. 
20 Docket 16 at 7–8, ¶ 33. 
21 Docket 16 at 8, ¶ 34. 
document.22 However, there were some pensions that TBA could not calculate 
automatically, including certain pensions that were subject to QDROs.23 In those 
cases, Alight staff performed the calculations manually using the steps provided in 

the requirements document.24 
 According to the Amended Complaint, Alight also operated a website in 
connection with the Plan that provided Plan participants with access to pension 
benefit information.25 A participant could use the website to view an accrued 
benefit statement that was calculated based on the benefit commencement date 

the participant chose.26 
 In October 2008, the Alaska Superior Court issued a QDRO that awarded 
72.5% of Mr. Mabry's pension benefits accrued as of March 31, 2008 to his former 
spouse as an alternate payee. The QDRO was submitted to ConocoPhillips and/or 
Alight.27 On December 8, 2008, ConocoPhillips wrote Mr. Mabry and the alternate 

payee to inform them that consistent with the QDRO's terms, the alternate payee's 
benefit would be segregated as a separate defined benefit solely under her 

22 Docket 16 at 8, ¶¶ 36, 40. 
23 Docket 16 at 9, ¶ 43. 
24 Docket 16 at 9, ¶ 42. 
25 Docket 16 at 8, ¶ 38. 
26 Docket 16 at 8, ¶ 39. 
27 Docket 16 at 9, ¶ 45. 
name.28 On December 16, 2008, ConocoPhillips wrote to Mr. Mabry and the 
alternate payee again and repeated that the alternate payee's benefit would be 
segregated, and included a calculation of the alternate payee's benefit.29 Alight 

calculated the alternate payee's benefit to be $2,181.68 per month.30 
 The Amended Complaint alleges that after leaving ConocoPhillips on April 
9, 2009, Mr. Mabry regularly used Alight's website to view his pension benefit 
based on various hypothetical commencement dates.31 Alight's website provided 
him with multiple statements over the course of several years that indicated he 

could receive a $3,916.07 monthly annuity for life beginning at age 60.32 These 
automatically generated statements overstated Mr. Mabry's annuity by $2,181.68 
per month because they did not deduct the alternate payee's benefit. The 
statements also estimated an alternative lump sum payment for Mr. Mabry of more 
than $600,000, which likewise did not account for the QDRO. Mr. Mabry was 

unaware of this mistake.33 

28 Docket 16 at 9–10, ¶ 47. 
29 Docket 16 at 10, ¶ 48. 
30 Docket 16 at 10, ¶ 49. 
31 Docket 16 at 11, ¶ 59. 
32 Docket 16 at 2, ¶ 4; Docket 16 at 11–12, ¶¶ 59–60; Docket 16-1, Exhibit A. 
33 Docket 16 at 12, ¶ 62. 
 The Amended Complaint alleges that in early 2018, Mr. Mabry requested a 
pension application packet from the ConocoPhillips Benefits Center. He told the 
benefits center that he wished to commence his benefits on May 1, 2018, which 

was the earliest date he was entitled to receive an unreduced benefit.34 The 
benefits center sent Mr. Mabry a packet that stated he could choose a single-life 
annuity of $1,734.39 per month or a lump sum payment of $344,693.01 based on 
a May 1, 2018 commencement date.35 Mr. Mabry called the benefits center 
several times seeking an explanation for why these amounts were so much lower 

than the information he had received on Alight's website. Various Alight 
employees told Mr. Mabry that because his pension calculation was subject to a 
QDRO, the calculation must be done manually and that he should not have been 
able to access an automatically generated statement through the website.36 But 
in a Participant Statement dated April 30, 2018, on ConocoPhillips letterhead, Mr. 

Mabry was informed that he could receive a lump-sum benefit of over $780,000 
effective June 1, 2018.37 And in July 2018, Mr. Mabry received an informational 
notice on ConocoPhillips letterhead that informed him that he could receive a 

34 Docket 16 at 13, ¶ 65. 
35 Docket 16 at 13, ¶ 66. 
36 Docket 16 at 13, ¶ 67. 
37 Docket 16-2, Exhibit B at 2. 
monthly annuity of $3,916.07 or a lump-sum payment of $767,035.27, effective 
May 1, 2018.38 
 While Mr. Mabry was seeking clarification of his benefits, changing interest 

rates caused his lump-sum amount to decrease; the number of months for which 
he could receive the Social Security make-up benefit also decreased.39 On 
February 16, 2019, Mr. Mabry received his pension in a lump-sum payment of 
$323,015.25 plus $12,033.52 in Social Security make-up benefits.40 He alleges 
that the pension's value had declined by more than $20,000 from May 1, 2018 to 

February 1, 2019 and that he lost over $6,000 in Social Security make-up 
benefits.41 
 Mr. Mabry alleges that he relied upon the information he received from 
Alight's website beginning in 2011 to plan his retirement. This included making 
employment choices as well as spending and savings decisions.42 

 The Amended Complaint alleges that ConocoPhillips is liable for breach of 
fiduciary duty in violation § 404(a) of ERISA.43 It asserts that the Benefits 

38 Docket 16 at 14, ¶¶ 72–73; Docket 16-3, Exhibit C at 5. 
39 Docket 16 at 15, ¶¶ 77–78. 
40 Docket 16 at 15, ¶ 79. 
41 Docket 16 at 16–17, ¶ 88. 
42 Docket 16 at 15–16, ¶ 81. 
43 Docket 16 at 16–17, ¶¶ 83–88; 29 U.S.C. § 1104(a). 
Committee is also liable for breach of fiduciary duty in violation § 404(a) and 
violated the disclosure requirements of § 105.44 The Amended Complaint also 
asserts that Alight is liable for breach of fiduciary duty in violation of § 404(a), or in 

the alternative, is liable for professional negligence and negligent 
misrepresentation under Alaska state law.45 Mr. Mabry seeks equitable relief 
pursuant to § 502(a)(3), statutory damages pursuant to § 502(c), and 
compensatory damages for the state law claims.46 
 DISCUSSION 

I. Jurisdiction 
 The Court has jurisdiction of Plaintiff's ERISA claims pursuant to 28 U.S.C. 
§ 1331. The Court has jurisdiction over Plaintiff's state-law claims pursuant to 28 
U.S.C. §§ 1367(a) and 1332. 
II. Forum Selection Clause 

A. Legal Standard 
 "When the parties have agreed to a valid forum-selection clause, a district 
court should ordinarily transfer the case to the forum specified in that clause."47 

44 Docket 16 at 16–17, ¶¶ 83–88; Docket 16 at 18–19, ¶¶ 96–102; 29 U.S.C. § 1025. 
45 Docket 16 at 19–21, ¶¶ 103–115. 
46 29 U.S.C. § 1132(a)(3), (c). 
47 Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 62 (2013). 
"Although a forum-selection clause does not render venue in a court ‘wrong' or ‘improper' within 
the meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to 
transfer under § 1404(a)." Id. at 59. 
B. Analysis 
 The 2019 Plan contains the following forum selection clause: "The venue for 
any action related to the Plan shall be in the federal courts in Harris County, 

Texas."48 The preamble to the 2019 Plan provides that "except as otherwise 
expressly set forth herein," a participant's "rights and benefits, if any, . . . shall be 
determined under the provisions of the Plan as in effect on the date his service 
terminated."49 Mr. Mabry asserts that because his service was terminated in 2009, 
the 2019 Plan's forum selection clause "does not control his right to litigate his 

claims in this District."50 The ConocoPhillips Defendants respond that the "rights 
and benefits" refer only to "the substantive amount of benefits and any rights 
related thereto, not to any procedural or administrative aspect of the Plan . . . ."51 
Thus, they maintain that "[b]ecause the Plan's inclusion of a forum selection clause 
does not have any impact on the amount of benefits Mr. Mabry is entitled to under 

48 Docket 33-1, Exhibit A at 32. 
49 Docket 33-1, Exhibit A at 4. 
50 Docket 39 at 45–46. 
51 Docket 43 at 15. The ConocoPhillips Defendants assert that although "changes to a plan 
cannot reduce or diminish benefits that have vested, . . . plan amendments that are procedural 
in nature, as opposed to amendments regarding a claimant's substantive eligibility for, or 
entitlement to, benefits, are valid and applicable." Id. at 15–16 (collecting cases permitting 
amendment of welfare benefit plans to specify discretionary review). 
the Plan, it applies even though the provisions of the Plan in effect when Mr. 
Mabry's employment ended determine his substantive, vested benefits."52 
 The Court agrees with Mr. Mabry that the forum selection clause in the 2019 

Plan does not apply to participants who terminated employment prior to 2019, 
particularly as the forum selection clause in the 2019 Plan does not "expressly set 
forth" that it applies to previous versions of the Plan. Thus, Mr. Mabry is not bound 
by this forum selection clause because his employment ended in 2009. 
Accordingly, the request by the ConocoPhillips Defendants to transfer venue to the 

federal courts in Harris County, Texas will be denied. 
III. 12(b)(6) Motions to Dismiss 
A. Legal Standard 
 When reviewing a Rule 12(b)(6) motion, a court considers only the pleadings 
and documents incorporated into the pleadings by reference, as well as matters 

on which a court may take judicial notice.53 "To survive a motion to dismiss, a 
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 
to relief that is plausible on its face.'"54 A claim is plausible on its face "when the 
plaintiff pleads factual content that allows the court to draw the reasonable 

52 Docket 43 at 16. 
53 Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing 
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). 
54 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
570 (2007)). 
inference that the defendant is liable for the misconduct alleged."55 "Factual 
allegations must be enough to raise a right to relief above a speculative level."56 
However, "the tenet that a court accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions."57 As such, "[a] pleading that offers 
‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of 
action will not do.'"58 
 "Dismissal without leave to amend is improper unless it is clear . . . that the 
complaint could not be saved by any amendment."59 However, "a district court 

does not err in denying leave to amend where the amendment would be futile."60 
In determining whether amendment would be futile, a court examines whether the 
complaint could be amended to cure the defect requiring dismissal "without 
contradicting any of the allegations of [the] original complaint."61 

55 Id. (citing Twombly, 550 U.S. at 556). 
56 Twombly, 550 U.S. at 555. 
57 Iqbal, 556 U.S. at 678. 
58 Id. (quoting Twombly, 550 U.S. at 555). 
59 Missouri ex rel. Koster v. Harris, 847 F.3d 646, 655–56 (9th Cir. 2017) (quoting Thinket Ink 
Info Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)). 
60 Id. at 656 (quoting Thinket Ink Info Res., Inc., 368 F.3d at 1061). 
61 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 
B. ConocoPhillips's and Alight's Status as Fiduciaries 
 Mr. Mabry asserts breach of fiduciary duty claims against all defendants in 
violation of ERISA § 404(a).62 Alight and ConocoPhillips each moves to dismiss 

on the ground that it is not a fiduciary with respect to Mr. Mabry's claims. 
 "Liability for breach of fiduciary duty under ERISA may be imposed only 
against ERISA-defined fiduciaries."63 ERISA defines a person as a fiduciary "with 
respect to [an ERISA-covered] plan to the extent he exercises any discretionary 
authority or discretionary control respecting management of such plan or exercises 

any authority or control respecting management or disposition of its assets," or 
"has any discretionary authority or discretionary responsibility in the administration 
of such plan."64 Thus, "[f]iduciary liability depends not on how one's duties are 
formally characterized in an ERISA plan, but rather upon functional terms of control 
and authority over the plan."65 "The central question is ‘whether [the party] was 

62 29 U.S.C. § 1104(a). 
63 CSA 401(K) Plan v. Pension Professionals, Inc., 195 F.3d 1135, 1138 (9th Cir. 1999) (citing 
Gibson v. Prudential Ins. Co., 915 F.2d 414, 417 (9th Cir. 1990)). A party may be a "named 
fiduciary," or may perform certain duties that give rise to fiduciary status under 29 U.S.C. § 
1002(21)(A). Mr. Mabry does not contend that either Alight or ConocoPhillips is a named 
fiduciary; instead, he asserts that each is a fiduciary as defined in § 1002(21)(A). See Depot, 
Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 653–54 (9th Cir. 2019), cert. denied, 140 S. Ct. 
223 (2019) ("There are two types of fiduciaries under ERISA. First, a party that is designated ‘in 
the plan instrument' as a fiduciary is a ‘named fiduciary.' 29 U.S.C. § 1102(a)(2). Second, 
ERISA provides [a] definition of what is sometimes referred to as a ‘functional' fiduciary," which 
is defined at 29 U.S.C. § 1002(21)(A).). 
64 29 U.S.C. § 1002(21)(A). 
65 CSA 401(K) Plan, 195 F.3d at 1138 (citing IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 
1419 (9th Cir. 1997)). 
acting as a fiduciary (that is, was performing a fiduciary function) when taking the 
action subject to complaint.'"66 
 1. Alight's Fiduciary Status 

 Alight asserts it is not a fiduciary because it "merely provided non-fiduciary 
record-keeping and third-party administration services to the ConocoPhillips Plan" 
and "did not have discretionary responsibility over" the Plan.67 In support, Alight 
cites its contract with the ConocoPhillips Defendants, which states that Alight 
"shall not have any discretion with respect to the management or administration 

of any Plan . . . ."68 Alight also asserts "the conduct at issue in this Amended 
Complaint—providing an erroneous pension statement—is not a fiduciary act and 
cannot support an ERISA breach of fiduciary duty claim."69 Alight also cites the 
Department of Labor's regulatory guidance for the proposition that "performing a 
‘[c]alculation of benefits,' applying ‘rules determining eligibility for participation or 

66 Depot, Inc., 915 F.3d at 654 (quoting Pegram v. Herdrich, 530 U.S. 211, 226) (2000)). 
Accord Santamenno v. Transamerica Life Ins. Co., 883 F.3d 833, 838 (9th Cir. 2018) ("The 
Supreme Court has stressed that the central inquiry is whether the party was acting as an 
ERISA fiduciary ‘when taking the action subject to complaint.'") (quoting Pegram, 530 U.S. at 
226). 
67 Docket 37 at 18. 
68 Docket 37 at 18–19 (emphasis in original). 
69 Docket 37 at 20 (emphasis in original). 
benefit,' and ‘prepar[ing] employee communications material' are not fiduciary 
acts."70 
 Mr. Mabry responds that "Alight's services to the Plan were not merely 

‘ministerial.'"71 He maintains that the "‘framework [for calculating benefits] is 
strikingly elaborate for its application to be purely ministerial.'"72 Mr. Mabry also 
asserts Alight "had responsibility for ‘counseling' Plan participants about their 
benefits" and was responsible for "processing pension applications and deciding 
first-level claims," both of which constitute an exercise of discretion.73 Additionally, 

Mr. Mabry contends that Alight was a fiduciary with respect to the Plan because it 
was responsible for QDRO compliance. Mr. Mabry maintains that the Department 
of Labor's regulatory guidance is inapposite because "Alight's conduct "involve[d] 
interpretation and judgment going far beyond merely a mechanical application of 
a simple mathematical formula."74 Additionally, Mr. Mabry rebuts Alight's reliance 

70 Docket 44 at 15 (quoting 29 C.F.R. § 2509.75-8 at D-2). 
71 Docket 41 at 18 (citing King v. Blue Cross & Blue Shield of Ill., 871 F. 3d 730, 745 (9th Cir. 
2017)). 
72 Docket 41 at 19 (quoting IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1420 (9th Cir. 
1997)). 
73 Docket 41 at 19-21. 
74 Docket 41 at 23–24. 
on its contract with the ConocoPhillips Defendants, asserting that the contract 
provision is an impermissible exculpatory provision.75 
 As an initial matter, Mr. Mabry is correct that Alight cannot contractually 

insulate itself from liability for a breach of fiduciary duty. Exculpatory provisions 
that purport to exonerate ERISA fiduciaries of fiduciary responsibility are void as a 
matter of law.76 Moreover, "[t]he issue is not just how the duties are characterized, 
but what they are."77 Thus, the Court must look to Alight's actions toward Mr. 
Mabry to determine whether it was acting as an ERISA fiduciary. 

 "[T]hird-party administrators are not fiduciaries if they merely perform 
ministerial functions . . . ."78 The Amended Complaint alleges that the Benefits 
Committee delegated responsibility to Alight for "providing and auditing automated 
and manual benefits calculations" with respect to the Plan.79 Mr. Mabry asserts 
that the calculation of his pension benefits was not purely ministerial; he references 

75 Docket 41 at 17–18. 
76 29 U.S.C. § 1110(a) provides that "any provision in an agreement or instrument which 
purports to relieve a fiduciary from responsibility or liability for any responsibility, obligation, or 
duty under [the section governing ERISA fiduciaries] shall be void as against public policy," with 
a few exceptions that are not relevant here. See also IT Corp., 107 F.3d at 1418 ("[A] contract 
exonerating an ERISA fiduciary from fiduciary responsibilities is void as a matter of law."). 
77 IT Corp., 107 F.3d at 1419. 
78 CSA 401(K) Plan, 195 F.3d at 1138 (citing Pacificare v. Martin, 34 F.3d 834, 837 (9th Cir. 
1994)). 
79 Docket 16 at 7–8, ¶ 33. 
IT Corporation v. General American Life Insurance Company.80 In IT Corp., an 
employer and a plan participant brought an action for breach of fiduciary duty 
against a third-party plan administrator, claiming it had incorrectly paid benefits for 

an ineligible claim. The administrator moved to dismiss, asserting that it was not 
an ERISA fiduciary. The Ninth Circuit determined that the claim could proceed in 
part because the administrator's "discretionary authority and control may exceed 
what could properly be characterized as ‘purely ministerial' activities."81 The Court 
stressed that the ERISA health "benefits in this case cannot be calculated from a 

mathematical formula."82 Acknowledging the limited record before it, the Circuit 
reasoned that the administrator could have paid an ineligible claim "not through 
clerical error, but because it had considerable discretion and made a misjudgment 
about plan interpretation."83 
 Mr. Mabry has not alleged facts demonstrating that Alight undertook Plan 

interpretation or made judgment calls to determine his benefit amounts. The Ninth 
Circuit in IT Corp. specifically distinguished the health benefits before it from 
"retirement benefits [where] the plan made them depend solely on date of birth, 
date of entry into service, gross pay for last three years of service, and date of 

80 Docket 41 at 19; 107 F.3d at 1420. 
81 IT Corp., 107 F.3d at 1420. 
82 Id. 
83 Id. at 1421. 
retirement."84 That Mr. Mabry has identified additional variables and steps that 
may be necessary to calculate his benefits under the Plan does not transform 
Alight's benefit calculations into plan interpretations or judgment calls.85 

 Mr. Mabry also cites King v. Blue Cross & Blue Shield of Illinois.86 In King, 
the plaintiff alleged a third-party claims administrator breached its fiduciary duty 
when it denied her claims for health care benefits. The Ninth Circuit held that the 
third-party administrator was an ERISA fiduciary as to the plaintiff. The Court 
observed that not only did the administrator process and pay certain of the 

plaintiff's claims, it also conducted the first-level appeal of the claims it had denied, 
all of which required it to interpret the plan in order to determine whether to pay the 
claims and whether to uphold benefit denials on appeal. The Court explained that 
"[a]ny one of these abilities would be sufficient to confer fiduciary status under 
ERISA."87 King is inapposite, because unlike the plaintiff in King, Mr. Mabry is not 

84 Id. at 1420. 
85 Mr. Mabry also asserts that Alight is a fiduciary because it was responsible for "‘counseling' 
Plan participants about their benefits," which he asserts "involves the exercise of discretion." 
Docket 41 at 19; see also Docket 16 at 7–8, ¶ 33. However, Mr. Mabry does not allege that 
Alight improperly counseled him apart from providing inaccurate benefit statements. Thus, the 
Court agrees with Alight that there are no factual allegations that it acted as an ERISA fiduciary 
to Mr. Mabry in this regard. 
86 Docket 41 at 18, 20; 871 F.3d 730 (9th Cir. 2017). 
87 Id. at 746 (citing Kyle Railways, Inc. v. Pacific Administration Services, Inc., 990 F. 2d 513, 
518 (9th Cir. 1993). 
alleging that Alight erred in processing his pension application or in deciding a first-
level appeal against him. 
 The Department of Labor explains that "a person who performs purely 

ministerial functions . . . for an employee benefit plan within a framework of policies, 
interpretations, rules, practices and procedures made by other persons is not a 
fiduciary . . . ."88 Mr. Mabry contends that Alight does not fit this description 
because "the amended complaint alleges that Alight made its own framework" 
when it "prepared its own ‘requirements document' to use as a guide in 

programming automated calculations and performing manual calculations; used its 
own proprietary software to house data and perform calculations; operated the 
ConocoPhillips Benefits Center and the associated website; and established its 
own procedures for manual pension calculations."89 However, none of these 
allegations, if proven, would establish that Alight had the power to make judgment 

calls about the Plan. 
 Mr. Mabry also contends that Alight's actions regarding implementation of 
the QDRO were more than ministerial. He lists the failure to segregate the 
alternate payee's benefit as directed by the QDRO; the failure to provide Mr. Mabry 
with manual pension calculations to make up for the software defect; the failure to 

reflect the QDRO in Alight's automated calculations; and the failure to detect the 

88 29 C.F.R. § 2509.75-8. 
89 Docket 41 at 22-23 (emphasis added) (citing Docket 16, ¶¶ 34–36, 39–44). 
problem in Alight's self-audits.90 But each of these alleged errors constitutes a 
mistake in calculating Plan benefits over which Alight did not have discretionary 
authority. "The power to err, as when a clerical employee types an erroneous code 

onto a computer screen, is not the kind of discretionary authority which turns an 
administrator into a fiduciary."91 
 The conclusion that the Amended Complaint does not plausibly allege facts 
that if proven would demonstrate that Alight was acting as a fiduciary to Mr. Mabry 
is also supported by three recent district court cases cited by Alight. In Wilson v. 

Bank of America Pension Plan for Legacy Companies, the plaintiff sued a third-
party administrator for breach of fiduciary duty.92 In dismissing the claim, the 
district court held that the "alleged breach of fiduciary duty consisted of providing 
inaccurate pension estimates, but providing those estimates is not a fiduciary 
duty."93 In Hawkes v. Wells Fargo & Co., the District Court for the Northern District 

of California determined that providing benefit projections through an online 
pension calculator was not a fiduciary duty "where Defendants merely provided an 

90 Docket 41 at 24 (citing Docket 16, ¶¶ 33, 45–57). 
91 IT Corp., 107 F.3d at 1421. Plaintiff also contends that "when circumstances suit it, Alight 
hastens to describe itself as having and exercising discretion in plan management and 
administration," Docket 41 at 24, but this is unpersuasive for the same reason that Alight's 
contract language does not control; the question is what duties Alight exercised toward Plaintiff, 
not how those duties were described. Cf. IT Corp., 107 F.3d at 1419 ("The issue is not just how 
the duties are characterized, but what they are."). 
92 Case No. 18-cv-07755-TSH, 2019 WL 4479677 (N.D. Cal. Sept. 18, 2019). 
93 Id., at *7 (citing Livick v. The Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008)). 
estimate of benefits, bound by a set formula articulated in the [Retirement] Plan . . 
. ."94 Even though the "Defendants made an unfortunate, and major, error in 
applying this formula," such a mistake did "not, without more, transform the 

pension projection into a fiduciary act."95 In Bafford v. Northrop Grumman 
Corporation, the Central District of California held that where the defendants 
"simply miscalculated Plaintiffs' pension benefits and provided those 
miscalculations to Plaintiffs," this mistake "cannot be the basis for the [defendant]'s 
breach of fiduciary duty because ‘with no fiduciary function involved, there can be 

no breach of fiduciary duty.'"96 
 For the foregoing reasons, the Court finds that the Amended Complaint does 
not plausibly allege that Alight was acting as a fiduciary when it provided Mr. Mabry 
with pension estimates and statements.97 Accordingly, Alight's motion to dismiss 
Mr. Mabry's claim for breach of fiduciary duty against Alight (Claim 2) will be 

granted. 

94 Case No. 17-cv-00632-JSW, 2018 WL 11182068, at *4–6 (N.D. Cal. Jan. 30, 2018) (citing 29 
C.F.R. § 2509.75-8(D)(2) and IT Corp., 107 F.3d at 1421). 
95 Id., at *5. 
96 Case No. 2:18-cv-10219-ODW (Ex), 2020 WL 70834, at *6 (C.D. Cal. Jan. 7, 2020) (quoting 
Livick, 524 F.3d at 30). 
97 Plaintiff's second supplemental authority notice at Docket 47 cites to Wallace v. International 
Paper Co., __ F. Supp. 3d __, 2020 WL 7643134 (W.D. Tenn. Dec. 23, 2020). The district 
court there denied Alight's motion to dismiss, reasoning that the plaintiff had established the 
plausibility of Alight's fiduciary status by alleging that "Alight did more than just plug numbers 
into a pre-set formula—instead, Plaintiff alleges that Alight takes the complicated history of [the 
employer] and its acquisitions into account and exercises discretion in creating an appropriate 
formula for calculating benefits." Id., at *4. 
 2. ConocoPhillips's Fiduciary Status 
 ConocoPhillips maintains that the Amended Complaint does not plausibly 
allege facts that if proven would establish that it was a fiduciary with respect to Mr. 

Mabry's claims. It also contends that "the Plan document makes clear that 
ConocoPhillips is not a fiduciary and that no duty to monitor Plan operations is 
allocated to it."98 
 Mr. Mabry responds that "[a]s the entity with the power of appointment over 
the Benefits Committee, ConocoPhillips had a fiduciary duty to monitor the 

performance of the Benefits Committee with respect to selecting and overseeing 
Plan service providers, complying with participant disclosure requirements, and 
overseeing Plan record-keeping and administration."99 He also contends that the 
Plan does not "purport[] to relieve ConocoPhillips of any fiduciary responsibility, 
including its duty to monitor the Benefits Committee."100 Mr. Mabry asserts that 

even if it did, such a provision "would be void as a matter of law."101 Additionally, 
Mr. Mabry asserts that ConocoPhillips acted as a fiduciary when it told him in the 

98 Docket 33 at 5 (citing Docket 33-1, Exhibit A at 23–26). 
99 Docket 39 at 20. 
100 Docket 39 at 21–22. 
101 Docket 39 at 22 (citing 29 U.S.C. § 1110(a) and IT Corp., 107 F.3d at 1418). 
two letters it sent him in 2008 that "his former spouse's benefit would ‘be 
segregated as a separate defined benefit.'"102 
 Like Alight's contractual provision, the Plan's provisions cannot exonerate 

ConocoPhillips of fiduciary responsibilities.103 Rather, the Court must consider 
what ConocoPhillips's duties actually were with respect to Mr. Mabry's claims, 
regardless of how those duties are described in the Plan.104 
 First, the Court considers ConocoPhillips's authority to appoint members of 
the Benefits Committee. The Ninth Circuit has "recognized that where members 

of an employer's board of directors have responsibility for the appointment and 
removal of ERISA trustees, those directors are themselves subject to ERISA 
fiduciary duties, albeit only with respect to trustee selection and retention."105 
Given that ConocoPhillips is tasked with appointing the members of the Benefits 
Committee, it has a fiduciary duty to monitor that committee.106 This duty requires 

ConocoPhillips to periodically review the Benefits Committee's performance to 

102 Docket 39 at 23; Docket 39-1. 
103 See IT Corp. 107 F.3d at 1418 ("[A] contract exonerating an ERISA fiduciary from fiduciary 
responsibilities is void as a matter of law."). 
104 See CSA 401(K) Plan, 195 F.3d at 1138 (citing IT Corp., 107 F.3d at 1419). 
105 Johnson v. Coutier, 572 F.3d 1067, 1076 (9th Cir. 2009) (citing Batchelor v. Oak Hill Med. 
Grp., 870 F.2d 1446, 1448–49 (9th Cir. 1989)). 
106 See Solis v. Webb, 931 F. Supp. 2d 936, 953 (N.D. Cal. 2012) ("Implicit within the duty to 
select and retain fiduciaries is a duty to monitor their performance.") (citing In re Calpine Corp., 
Case No. 03-1685, 2005 WL 1431506, at *3 (N.D. Cal. Mar. 31, 2005)). 
ensure it is in compliance with ERISA and the terms of the Plan.107 However, the 
Amended Complaint's First Claim for Relief does not clearly allege such a fiduciary 
duty and breach. Rather, it simply alleges that both "ConocoPhillips and the 

Benefits Committee breached their fiduciary duties" to Mr. Mabry, without 
delineating the duties ConocoPhillips is alleged to have breached.108 Accordingly, 
the motion to dismiss Claim 1 as to ConocoPhillips with respect to its appointment 
and monitoring of the Benefits Committee will be granted. 
 Second, the Court considers Mr. Mabry's argument that ConocoPhillips 

acted as a fiduciary when it sent him two letters in 2008 stating that the alternate 
payee's benefit would "be segregated as a separate defined benefit solely under 
her name, for her benefit and as her separate property."109 Mr. Mabry is not 
asserting a claim for QDRO noncompliance. Instead, Mr. Mabry's claims arise 
from the provision of inaccurate benefit statements to him. Thus, even assuming 

107 See 29 C.F.R. § 2509.75-8 at FR-17 ("At reasonable intervals the performance of trustees 
and other fiduciaries should be reviewed by the appointing fiduciary in such manner as may be 
reasonably expected to ensure that their performance has been in compliance with the terms of 
the plan and statutory standards, and satisfies the needs of the plan. No single procedure will 
be appropriate in all cases; the procedure adopted may vary in accordance with the nature of 
the plan and other facts and circumstances relevant to the choice of the procedure."); see also 
Bafford, 2020 WL 70834, at *4 (citing Marshall v. Northrop Grumman Corp., Case No. 16-cv-
06794-AB (JCx), 2017 WL 2930839, at *11 (C.D. Cal. Jan. 30, 2017) ("[T]o plausibly allege that 
a defendant has breached its duty to monitor, plaintiff must at the very least allege facts 
demonstrating that defendant: (1) failed to evaluate their appointees' performance, or to have a 
system in place for doing so; (2) failed to ensure that the monitored fiduciaries had a prudent 
process in place for evaluating the Plan's administrative fees and ensuring that the fees were 
competitive; and (3) failed to remove appointees whose performance was inadequate."). 
108 Docket 16 at 16, ¶¶ 85-88. 
109 Docket 39 at 23 (quoting Docket 16, ¶¶ 47–48). 
ConocoPhillips was acting as a fiduciary when it sent Mr. Mabry the two letters in 
2008, Mr. Mabry has failed to plausibly plead a breach of fiduciary duty by 
ConocoPhillips in relation to the letters.110 Accordingly, this aspect of 

ConocoPhillips's motion to dismiss Claim 1 will also be granted. 
C. Equitable Relief Pursuant to § 502(a)(3) for Breach of Fiduciary Duty 
 The ConocoPhillips Defendants maintain that Mr. Mabry is not entitled to 
equitable relief under ERISA § 502(a)(3), because the relief he requests must be 
sought pursuant to § 502(a)(1)(B).111 They assert that the surcharge Mr. Mabry 

seeks, which the Amended Complaint describes as "the amount necessary to 
place Mr. Mabry in the position he would have occupied but for Defendants' 
breaches," constitutes a "kind of ‘make-whole relief' [that] would necessarily be an 
award of compensatory damages which is impermissible."112 The ConocoPhillips 
Defendants also maintain that Mr. Mabry is not entitled to equitable estoppel 

110 Mr. Mabry also appears to briefly suggest that ConocoPhillips has a fiduciary responsibility 
for the allegedly inaccurate benefit statements Alight provided him because the statements were 
provided on ConocoPhillips letterhead. Docket 39 at 23 (citing Sullivan-Mestecky v. Verizon 
Commc'ns Inc., 961 F.3d 91, 104 (2nd Cir. 2020). In Sullivan-Mestecky, the plan administrator 
was held liable for the acts of its ministerial agent. Sullivan-Mestecky, 961 F.3d at 104. But 
ConocoPhillips is the Plan sponsor, not the Plan administrator. Thus, Sullivan-Mestecky may 
support a finding that the Benefits Committee is liable for ministerial acts performed by Alight, 
but it does not support that ConocoPhillips would also be liable. 
111 Docket 33 at 5. 
112 Docket 16 at 21, ¶ C; Docket 33 at 10 (quoting Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 
945, 957 (9th Cir. 2014)). 
because such relief would impermissibly "result in a payment of benefits that would 
be inconsistent with the written plan . . . ."113 
 Mr. Mabry responds that he is not seeking or entitled to relief under 

§ 502(a)(1)(B) because he is not alleging that the terms of the Plan entitle him to 
the higher benefit amounts provided to him in the inaccurate statements. Instead, 
he explains his "alleged injury is that he reasonably relied on information about the 
amount of those benefits in planning for his retirement" and in making other 
personal financial decisions, for which the equitable remedies in § 502(a)(3) are 

available.114 
 1. The Varity Rule 
 The Supreme Court in Varity Corp. v. Howe described § 502(a)(3) as a 
"catchall provision[ ] [that] act[s] as a safety net, offering appropriate equitable relief 
for injuries caused by violations that § 502 does not elsewhere adequately 

remedy."115 The ConocoPhillips Defendants maintain that Mr. Mabry cannot 
pursue a claim under § 502(a)(3) because his claim is remediable under 
§ 502(a)(1)(B). However, "Varity did not explicitly prohibit a plaintiff from pursuing 
simultaneous claims under § [502](a)(1)(B) and § [502](a)(3)."116 In any event, Mr. 

113 Docket 33 at 11 (quoting Gabriel, 773 F.3d at 956). 
114 Docket 39 at 25–30. 
115 Varity Corp. v. Howe, 516 U.S. 489, 512 (1996). 
116 Moyle v. Liberty Mut. Life Retirement Ben. Plan, 823 F.3d 948, 961 (9th Cir. 2016). 
Mabry acknowledges that he is not entitled under the terms of the Plan to receive 
pension benefits in the amounts indicated in the estimates provided to him. Thus, 
if a breach of fiduciary duty occurred, § 502(a)(1)(B) would not provide an 

adequate remedy.117 Mr. Mabry is therefore not barred from pursuing equitable 
relief under § 502(a)(3). 
 2. Surcharge 
 Surcharge is an equitable remedy, even though relief takes the form of 
monetary compensation.118 Claim 1 alleges a breach of fiduciary duty by the 

ConocoPhillips Defendants and hence is equitable in nature. Mr. Mabry has also 
plausibly pleaded that he was financially injured by this fiduciary breach by relying 
on the statements in making financial and employment decisions. Accordingly, Mr. 
Mabry may seek "the remedy that will put [him] in the position he . . . would have 
attained but for the trustee's breach."119 However, Mr. Mabry does not plausibly 

allege any facts that show that but for the alleged breach, he would have received 

117 Even if Mr. Mabry had brought a § 502(a)(1)(B) claim, a plaintiff may "present 
§ [502](a)(1)(B) and § [502](a)(3) as alternative—rather than duplicative—theories of liability." 
Moyle, 823 F.3d at 961 ("Some of our pre-Amara cases held that litigants may not seek 
equitable remedies under § [502](a)(3) if § [502](a)(1)(B) provides adequate relief . . . . 
However, those cases are now ‘clearly irreconcilable' with Amara and are no longer binding."). 
118 CIGNA Corp. v. Amara, 563 U.S. 421, 442 (2011); see also Moyle, 823 F.3d at 960 ("Amara 
makes it very clear that remedies such as reformation, surcharge, estoppel, and restitution are 
traditionally equitable remedies, and the fact that they take a monetary form does not alter this 
classification."). 
119 Gabriel, 773 F.3d at 958 (quoting Skinner v. Northrop Grumman Retirement Plan B, 673 F.3d 
1162, 1167 (9th Cir. 2012)). . 
the higher amount provided in his pension statements; to the contrary, he 
expressly disclaims that he is entitled to the higher amount under the terms of the 
Plan. Regardless, this Court need not determine the scope of any surcharge 

remedy at this preliminary stage of the proceedings.120 
 3. Equitable Estoppel 
 "Appropriate equitable relief" pursuant to § 502(a)(3) may also include 
equitable estoppel.121 Mr. Mabry seeks an order that estops the ConocoPhillips 
Defendants from denying that he "is entitled to benefits under the ConocoPhillips 

Plan consistent with the statements provided to him prior to 2018."122 However, in 
the Ninth Circuit, an ERISA plaintiff "may not bring an equitable estoppel claim that 
‘would result in a payment of benefits that would be inconsistent with the written 
plan . . . ."123 Requiring the ConocoPhillips Defendants to pay to Mr. Mabry the 
amount of benefits set forth in the erroneous statements would plainly require that 

120 In Sullivan-Mestecky v. Verizon, 961 F. 3d 91 (2d Cir. 2020), the plaintiff was repeatedly 
informed that she was entitled to over $679,000 in death benefits, despite her repeated 
questions to the ERISA fiduciary about the coverage. At her death, the ERISA fiduciary realized 
it had miscalculated the death benefits and paid only $11,400 in benefits. During her life, the 
plaintiff, in reliance on the generous life insurance policy, "allowed her aging mother to live rent-
free in her home, covered her mother's living expenses, and paid off her mother's debts." Id. at 
97. In that case, the Second Circuit held "it appropriate for a plaintiff to seek relief in the amount 
of the promised policy, not just in the amount of wrongly-accepted premium or wrongly-paid 
taxes." Id. at 103, n.44 (citing Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 881–82 (7th 
Cir. 2013) and McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 181 (4th Cir. 2012)). 
121 Gabriel, 773 F.3d at 955 (citing Amara, 563 U.S. at 442). 
122 Docket 16 at 21, ¶ B. 
123 Gabriel, 773 F.3d at 956 (quoting Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812, 822 
(9th Cir. 1992)). 
he be paid considerably more in benefits that the terms of the Plan permit. Mr. 
Mabry asserts "[e]stoppel here would merely operate to place Mr. Mabry in the 
position that he would have occupied had the pension statements he received 

been accurate."124 But as Mr. Mabry acknowledges, he had no right under the 
Plan to be put in that position.125 Accordingly, Mr. Mabry has not plausibly pleaded 
that he is entitled to equitable estoppel, and this portion of the remedy sought 
against the ConocoPhillips Defendants will be dismissed.126 
D. Claim for Violation of ERISA § 105 

 ERISA § 105(a) provides that "[t]he administrator of a defined benefit plan 
. . . shall furnish a pension benefit statement . . . to a participant or beneficiary of 
the plan upon written request."127 Section 502(c) provides statutory damages for 
violations of § 105(a).128 

124 Docket 39 at 38. 
125 Docket 39 at 26. 
126 Plaintiff's second notice of supplemental authority at Docket 47 cites to Jones v. IBM, 2020 
WL 6729088 (W.D. Tex. Nov. 15, 2020) (report and recommendation adopted Dec. 29, 2020), 
which denied the defendant's motion to dismiss an ERISA plaintiff's request for equitable 
estoppel. The district court held that an ERISA-estoppel claim could proceed against the 
fiduciary plan administrator, finding persuasive Third Circuit authority that would permit such a 
claim "where a plaintiff repeatedly and diligently inquired about benefits and was repeatedly 
misled" (citing Kurz v. Phila. Elec. Co., 96 F. 3d 1544, 1553 (3rd Cir. 1996)). But an ERISA-
estoppel claim in these circumstances does not appear to be consistent with Ninth Circuit 
authority because it would "result in a payment of benefits that would be inconsistent with the 
written plan . . . ." Gabriel, 773 F.3d at 956 (quoting Greany v. W. Farm Bureau Life Ins. Co., 
973 F.2d 812, 822 (9th Cir. 1992)). 
127 29 U.S.C. § 1025(a)(1)(B). 
128 29 U.S.C. § 1132(c). 
 The ConocoPhillips Defendants maintain that Mr. Mabry's § 105 claim 
against the Benefits Committee should be dismissed because he does not allege 
that he ever made a written request for benefits. They assert that the Amended 

Complaint "merely recites that he accessed information about his benefits and 
estimates related thereto through Alight's website and communicated with Alight 
orally."129 They also assert that Mr. Mabry fails to allege that he requested a benefit 
statement directly from the Benefits Committee and thus the Benefits Committee 
could not have violated § 105.130 

 Mr. Mabry responds that he made a written request for a benefit statement 
when he used the online platform to view benefit information.131 And he maintains 
that the Benefits Committee cannot escape liability by delegating its 
responsibilities to Alight.132 
 The Ninth Circuit has not addressed whether a plan participant's access to 

benefit information through an internet platform provided by a plan administrator 
constitutes a written request under § 105. However, the Court is persuaded by the 
reasoning of the Northern District of California in Wilson v. Bank of America 
Pension Plan for Legacy Companies, which determined that such action does not 

129 Docket 43 at 13. 
130 Docket 33 at 13–15. 
131 Docket 39 at 41. 
132 Docket 39 at 43. 
constitute a written request.133 The district court noted that when Congress 
amended ERISA in 2006 to allow benefit statements to be delivered to participants 
in "written, electronic, or other appropriate form," it did not amend Section 105's 

requirement that a participant's request for a benefit statement must be in writing. 
The district court reasoned that Congress must have intended to allow plan 
administrators to provide benefit information over the internet while not allowing 
plan participants to make Section 105(a) requests over the internet.134 
 Here, Mr. Mabry alleges only that he accessed an online calculator that 

allowed him to calculate benefit projections on Alight's website and that he called 
the benefits center. Neither action constitutes a written request for a benefit 
statement under ERISA § 105; therefore, Claim 3 will be dismissed. 
 E. State Law Claims Against Alight 
 Alight moves to dismiss Mr. Mabry's state law claims on the grounds that (1) 

they are preempted by ERISA and (2) he has failed to state claims for professional 
negligence and negligent misrepresentation. 
 1. Preemption 
 ERISA provides that it "shall supersede any and all State laws insofar as 
they may now or hereafter relate to any employee benefit plan described in section 

133 Case No. 18-cv-07755-TSH, 2019 WL 2549044 (N.D. Cal. June 20, 2019); see also Bafford, 
2020 WL 70834, at *6. 
134 Id., at *3 (citing 29 U.S.C. § 1025(a)(2)(A)(iv)). 
1003(a) of this title . . . ."135 A state law claim "relates to" an ERISA plan "if it has 
a connection with or reference to such a plan.'"136 A state law has an impermissible 
"connection with" an ERISA plan "if the state law ‘governs a central matter of plan 

administration or interferes with nationally uniform plan administration.'"137 The 
Ninth Circuit uses a "relationship" test in analyzing "connection with" preemption, 
focusing on whether the "claim bears on an ERISA-regulated relationship, e.g., the 
relationship between the plan and plan members, between plan and employer, 
between employer and employee."138 A state law has an impermissible "reference 

to" an ERISA plan "[w]here [that] State's law acts immediately and exclusively upon 
ERISA plans . . . or where the existence of ERISA plans is essential to the law's 
operation . . . ."139 The Ninth Circuit has held that the term "reference to," means 
"[s]tated another way," that "where ‘the existence of [an ERISA] plan is a critical 

135 29 U.S.C. § 1144(a). 
136 Ore. Teamsters Emp'rs Tr. v. Hillsboro Garbage Disposal, Inc., 800 F.3d 1151, 1155 (9th Cir. 
2015) (quoting Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th Cir. 2004) and 
citing N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 
645, 656 (1995)). 
137 Rutledge, 141 S.Ct. at 480 (quoting Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 320 
(2016)). 
138 Ore. Teamsters Emp'rs Tr., 800 F.3d at 1156 (quoting Paulsen v. CNF Inc., 559 F.3d 1061, 
1082 (9th Cir. 2009)). 
139 Gobeille, 577 U.S. at 319 (quoting Cal. Div. of Labor Standards Enf't v. Dillingham Const., 
N.A., 519 U.S. 316, 325 (1997)). 
factor in establishing liability' under a state cause of action, the state law claim is 
preempted."140 
 Alight asserts that ERISA preempts Mr. Mabry's state claims because "those 

claims would not exist but for a disconnect between the erroneous pension 
estimates and the pension required under the terms of the ConocoPhillips Plan."141 
As such, Alight maintains that "the existence of the Plan is a critical factor in 
establishing liability under [] state law, and therefore the [] state law claims are 
preempted."142 Additionally, Alights asserts that "legions of cases within this Circuit 

have held that ERISA preempts state-law claims involving misstatements about 
the level of benefits an ERISA plan participant may receive."143 

140 Wise v. Verizon Comm'n, Inc., 600 F. 3d 1180, 1190 (9th Cir. 2010) (quoting Ingersoll-Rand 
Co. v. McClendon, 498 U.S. 133, 136 (1990)). The Court notes that the Supreme Court's recent 
decision in Rutledge does not approve or reject the additional components of the tests used by 
the Ninth Circuit. Although a district court "should consider the intervening authority's reasoning 
and analysis, as long as [it] can apply [] prior circuit precedent without ‘running afoul' of the 
intervening authority, [it] must do so." Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). "It is 
not enough . . . for the intervening higher authority to ‘cast doubt' on the prior circuit precedent"; 
rather, the "intervening higher precedent must be ‘clearly inconsistent' with the prior circuit 
precedent." Id. (citing United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) and 
United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012)). While Rutledge may cast 
some doubt on the Ninth Circuit's formulation of the "relation to" tests, the Circuit's approach is 
not clearly inconsistent with the Supreme Court's decision. Accordingly, this Court applies the 
Ninth Circuit's formulation. 
141 Docket 37 at 28 (citing Bernstein v. Health Net Life Ins. Co., Case No. 12-CV-00717 AJB 
JMA, 2012 WL 5989348, at *5 (S.D. Cal. Nov. 29, 2012)). 
142 Docket 37 at 28 (alterations in original) (quoting Bafford, 2020 WL 70834, at *6–7). 
143 Docket 37 at 29 (collecting cases). 
 Mr. Mabry concedes that his state law claims would be preempted if Alight 
acted as a fiduciary. However, he asserts that if Alight did not act as an ERISA 
fiduciary, then these claims are not preempted.144 Mr. Mabry maintains that his 

"state-law claims are founded on state laws of general application, not specific to 
ERISA plans," and thus do not meet the "reference to" prong.145 Mr. Mabry also 
contends his state law claims against Alight do not have an impermissible 
"connection with" an ERISA plan, "because the claims do not encroach on an 
ERSIA-regulated relationship."146 Rather, Mr. Mabry maintains he is an intended 

third-party beneficiary of Alight's service contract with the ConocoPhillips 
Defendants and this "does not affect his relationship with the Plan."147 
 Here, in regard to the "reference to" prong, it is clear that Plaintiff's 
professional negligence and negligent misrepresentation causes of action do not 
act "immediately and exclusively upon ERISA plans," as they are common law torts 

that are applied across various factual contexts.148 Nonetheless, the Court finds 

144 Docket 41 at 34 (citing Paulsen v. CNF Inc., 559 F.3d 1061, 1082–83 (9th Cir. 2009)). Mr. 
Mabry pleads his state claims in the alternative for this reason. Docket 41 at 34. 
145 Docket 41 at 37 (citing Ariz. State Carpenters' Pension Tr. Fund v. Citibank (Ariz.), 125 F.3d 
715, 724 (9th Cir. 1997)). 
146 Docket 41 at 39 (citing Paulsen, 559 F.3d at 1082). 
147 Docket 41 at 40 (citing Paulsen, 559 F.3d at 1083). 
148 See Paulsen, 559 F.3d at 1082 (holding California's "negligence principles and [statutes] . . . 
do not act ‘immediately and exclusively' on ERISA plans, and the existence of an ERISA plan is 
not essential to these laws' operation" in action against plan's actuary). 
that Plaintiff's state law claims are preempted because the existence of the 
ConocoPhillips Plan is essential to those claims.149 These claims arise from the 
allegation that Mr. Mabry was provided statements that did not reflect the proper 

benefits he was entitled to under the Plan; if not for the terms of the Plan, Mr. 
Mabry could not prove that the benefit statements were incorrect.150 Thus, Mr. 
Mabry "must allege the existence of an ERISA plan to state" his claims under 
Alaska law.151 Resolving whether Mr. Mabry's reliance on the benefit statements 
was justified would also require analyzing the terms of the Plan.152 Particularly 

where, as here, the Court has determined that Plaintiff may be able to state a claim 
for breach of fiduciary duty against the ConocoPhillips Defendants, and Alaska tort 
law allows for the allocation of fault to any other responsible party,153 the Court 
finds that permitting Plaintiff's state law claims against Alight to proceed at the 

149 See McDowell, 385 F.3d at 1172 (citing Dillingham Constr., N.A., 519 U.S. at 324–25) ("In 
evaluating whether a common law claim has ‘reference to' a plan governed by ERISA, the focus 
is whether the claim is premised on the existence of an ERISA plan, and whether the existence 
of the plan is essential to the claim's survival."). 
150 See Groves v. Kaiser Foundation Health Plan Inc., 32 F. Supp. 3d 1074, 1087 (N.D. Cal. 2014) 
(dismissing state claims as preempted "where a beneficiary sue[d] a plan's third-party service 
provider for failures related to its calculation of benefits"). 
151 Wise, 600 F.3d at 1191 ("The state law theories of fraud, misrepresentation, and negligence 
all depend on the existence of an ERISA-covered plan to demonstrate that Wise suffered 
damages: the loss of insurance benefits. Because Wise must allege the existence of an ERISA 
plan to state her claims under Washington law, the claims are preempted."). 
152 See Hawkes v. Wells Fargo & Co., Case No. 17-cv-00632-JSW, 2018 WL 11182068, at *7 
(N.D. Cal. Jan. 30, 2018) (citing Brenner v. Metro. Life Ins. Co., Case No. 11-cv-12096-GAO, 
2013 WL 1337367, at *6 (D. Mass. Mar. 20, 2013)). 
153 See AS 09.17.080(d) ("The court shall enter judgment against each party liable on the basis 
of several liability in accordance with that party's percentage of fault."). 
same time as breach of fiduciary duty claims against the ConocoPhillips 
Defendants would necessarily require analysis not only of any contract Alight had 
with the Plan sponsor and administrator, but also Mr. Mabry's relationship with 

each of the ConocoPhillips Defendants.154 Accordingly, Mr. Mabry's state law 
claims against Alight (Claims 4 and 5) will be dismissed as preempted by ERISA 
because they have "reference to" an ERISA plan.155 
 Because the Court finds that Mr. Mabry's state law claims against Alight are 
preempted by ERISA under the "reference to" prong, the Court does not address 

the "connection with" prong. 
 2. Failure to State a Claim 
 In light of the Court's determination that the state law claims against Alight 
are preempted, the Court does not reach Alight's additional arguments that Plaintiff 
failed to state a claim under Alaska law. 

154 See Hawkes, 2018 WL 11182068, at *7 (citing Reichert v. Time Inc., Case No. 11-cv-03592-
WHA, 2011 WL 5294844, at *5 (N.D. Cal. Nov. 3, 2011)) ("Plaintiff's tort claims have a clear 
reference to, and depend upon, the [pension plan]. The very crux of Plaintiff's claims is that [the 
third-party administrator] made errors in calculating pension benefits under the [pension plan] 
and relayed this misinformation to Plaintiff."). 
155 The Court is not persuaded by Wallace v. International Paper Co., ___ F. Supp. 3d ___, 
2020 WL 7643134 (W.D. Tenn. Dec. 23, 2020), which declined to dismiss the plaintiff's state 
law claims against a service provider as preempted at the motion to dismiss stage. That court 
cites to Bafford, 2020 WL 70834, at *7, in support of its ruling, but Bafford held that the plaintiff's 
state law claims were preempted by ERISA under the "connection with" prong, because "unlike 
Paulsen, ‘a relationship between plan and plan member' is directly at issue." 
 CONCLUSION 
 In light of the foregoing, ConocoPhillips and the Benefits Committee's 
motion to transfer venue is DENIED. ConocoPhillips and the Benefits Committee's 

motion to dismiss at Docket 33 is DENIED IN PART and GRANTED IN PART as 
follows: 
 ◼ The ConocoPhillips Defendants' motion to dismiss Mr. Mabry's First 
 Claim for Relief for breach of fiduciary duty against ConocoPhillips is 
 GRANTED. 

 ◼ The ConocoPhillips Defendants' motion to dismiss Mr. Mabry's Prayer 
 for Relief requesting equitable estoppel as it relates to his First Claim for 
 Relief is GRANTED. 
 ◼ The ConocoPhillips Defendants' motion to dismiss Mr. Mabry's Prayer 
 for Relief requesting surcharge as it relates to his First Claim for Relief is 

 DENIED. 
 ◼ The ConocoPhillips' motion to dismiss Mr. Mabry's Third Claim for Relief 
 against the Benefits Committee for violation of ERISA § 105 is 
 GRANTED. 
 Alight's motion to dismiss Mr. Mabry's Second, Fourth, and Fifth Claims for 

Relief at Docket 37 is GRANTED. 
 The dismissal of all these claims is without prejudice at this time. If Plaintiff 
can amend the complaint consistent with Rule 11 and within the confines of Ninth 
Circuit authority, Plaintiff may file a motion seeking leave to file such an amended 
complaint in accordance with Local Civil Rule 15.1. Such motion shall be filed no 
later than 28 days from the date of this order. If Plaintiff does not file the motion 

by that date, then all claims dismissed by this order shall be with prejudice. 
 DATED this 19th day of January, 2021, at Anchorage, Alaska. 
 /s/ Sharon L. Gleason 
 UNITED STATES DISTRICT JUDGE