CourtListener opinion 9993904

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IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF ALASKA 

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

 ORDER RE MOTION FOR RECONSIDERATION 
 Before the Court at Docket 57 is Plaintiff Monte Mabry's Motion for 
Reconsideration of the Court's order at Docket 49. Defendant Alight Solutions LLC 

("Alight") responded at Docket 60, to which Plaintiff replied at Docket 63. 
Defendants ConocoPhillips Co. ("ConocoPhillips") and the Benefits Committee of 
the ConocoPhillips Retirement Plan ("Benefits Committee") (collectively, 
"ConocoPhillips Defendants") responded at Docket 62, to which Plaintiff replied at 
Docket 64. 

 BACKGROUND 
 The factual allegations in this case are set forth in detail in the Court's 
January 19, 2021 order at Docket 49, and the Court assumes familiarity here. In 
brief, Mr. Mabry's allegations arise from a dispute regarding his pension benefits. 
Specifically, Mr. Mabry alleges that Alight provided him with vastly overstated 

pension benefit estimates through its website while serving as a third-party 
administrator for the Benefits Committee, which Mr. Mabry relied on to his 
detriment. Mr. Mabry commenced this action against the ConocoPhillips 
Defendants and Alight, alleging violations of the Employee Retirement Income 

Security Act of 1974 ("ERISA") against all defendants as well as state law tort 
claims against Alight.1 
 In its January 19, 2021 order, the Court dismissed Mr. Mabry's breach of 
fiduciary duty claims against Alight after determining 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."2 The Court also dismissed Mr. 
Mabry's state law claims against Alight as preempted by ERISA.3 Additionally, the 
Court dismissed Mr. Mabry's fiduciary claim against ConocoPhillips because he 
did not plead facts showing that ConocoPhillips had violated any fiduciary duty in 
appointing and monitoring members of the Benefits Committee or when it sent him 

letters regarding the segregation of his benefits and those of an alternate payee.4 
The Court also dismissed Mr. Mabry's ERISA § 105 claim against the Benefits 
Committee after determining that accessing an online calculator on Alight's 
website to calculate benefit projections did not constitute a written request for a 

1 Docket 16 (Am. Compl.); 29 U.S.C. § 1001 et seq. 
2 Docket 49 at 21 (Order). 
3 Docket 49 at 31–36 (Order). 
4 Docket 49 at 23–25 (Order). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
benefit statement under ERISA.5 On February 22, 2021, the Court ordered those 
claims dismissed with prejudice, as Mr. Mabry had not amended his complaint 
within 28 days in accordance with the January 19, 2021 order.6 On April 19, 2021, 

Mr. Mabry filed the instant motion for reconsideration of the Court's January 19, 
2021 order on the basis of new Ninth Circuit authority.7 
 DISCUSSION 
I. Legal Standards 
 A. Motion for Reconsideration 

 Federal Rule of Civil Procedure 54(b) provides that: 
 any order or other decision, however designated, that adjudicates 
 fewer than all the claims or the rights and liabilities of fewer than all 
 the parties does not end the action as to any of the claims or parties 
 and may be revised at any time before the entry of a judgment 
 adjudicating all the claims and all the parties' rights and liabilities. 

When reconsideration of such an order is sought, a court has "inherent jurisdiction 
to modify, alter or revoke it."8 "The authority of district courts to reconsider their 
own orders before they become final, absent some applicable rule or statute to the 
contrary, allows them to correct not only simple mistakes, but also decisions based 

5 Docket 49 at 29–31 (Order). 
6 Docket 52 (Text Order). 
7 Docket 57 (Mot. for Reconsideration). 
8 United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (affirming district court's recission 
of order certifying interlocutory appeal where district court rescinded order before appellate 
court order had entered order permitting interlocutory appeal). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
on shifting precedent, rather than waiting for the time-consuming, costly process 
of appeal."9 A "court may reconsider previously decided questions in cases in 
which there has been an intervening change of controlling authority . . . ."10 

 B. Motion to Dismiss 
 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.11 "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.'"12 A claim is plausible on its face "when the 
plaintiff pleads factual content that allows the court to draw the reasonable 
inference that the defendant is liable for the misconduct alleged."13 "Dismissal 
without leave to amend is improper, unless it is clear . . . that the complaint could 
not be saved by any amendment."14 

9 Id. 
10 Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1094 n.2 (9th Cir. 2005) (quoting Leslie Salt Co. 
v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995)). 
11 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)). 
12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
570 (2007)). 
13 Id. (citing Twombly, 550 U.S. at 556). 
14 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)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
II. Bafford v. Northrop Grumman Corp. 
 On April 15, 2021, subsequent to the Court's January 19, 2021 order, the 
Ninth Circuit issued its opinion in Bafford v. Northrop Grumman Corp., which 

concerned similar allegations and claims to this case.15 In Bafford, the plaintiffs 
were provided grossly exaggerated benefit estimates through a third-party 
administrator's website based on a calculation error.16 The plaintiffs retired and 
initially received retirement benefits in line with the erroneous calculation.17 When 
the calculation error was eventually discovered, the plaintiffs' pension payments 

were reduced, and one plaintiff was told she must repay more than $35,000 of the 
benefits she had already received.18 The plaintiffs filed suit, alleging: (1) breaches 
of fiduciary duties under ERISA against the third-party administrator, the plan 
administrator, and the plan sponsor; (2) violations of ERISA § 105 against the plan 
administrator, and (3) professional negligence and negligent misrepresentation 

claims against the third-party administrator.19 The district court dismissed all of the 
plaintiffs' claims. 

15 994 F.3d 1020 (9th Cir. 2021). 
16 Id. at 1025. 
17 Id. 
18 Id. 
19 Id. The Bafford plaintiffs also alleged a violation of ERISA § 406, which is not relevant here. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 The Ninth Circuit affirmed the district court's dismissal of the fiduciary claims 
against all defendants. The Ninth Circuit held that the plaintiffs' fiduciary claim 
against the third-party administrator failed because "calculation of pension benefits 

is a ministerial function that does not have a fiduciary duty attached to it."20 
Therefore, the plan administrator and the plan sponsor likewise "did not breach a 
fiduciary duty by failing to ensure that [the third-party administrator] correctly 
calculated Plaintiffs' benefits."21 
 The Ninth Circuit also upheld the district court's dismissal of the ERISA 

§ 105 claim against the plan administrator because the plaintiffs' "complaint does 
not allege that the online platform request was ‘written.'"22 But the Ninth Circuit 
held that the "use of an online platform to request a pension benefit statement can 
satisfy the writing requirement" of ERISA § 105(a)(1)(B)(ii).23 The Ninth Circuit 
stressed that "[i]f Plaintiffs' complaint alleged facts which, if true, would show 

Plaintiffs' ‘intentional recording of words in a visual form' that conveyed a request 
for a pension benefit statement, their [§ 105(a)(1)(B)(ii)] claim could survive."24 As 

20 Id. at 1028. 
21 Id. 
22 Id. at 1029. 
23 Id. (emphasis in original). 
24 Id. at 1030 (quoting Black's Law Dictionary, "Writing" (11th ed. 2019)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
such, the Ninth Circuit held that on remand, the district court should permit the 
plaintiffs to file an amended complaint as to this claim. 
 The Ninth Circuit also reversed the district court's dismissal of the state law 

claims against the third-party administrator. The Ninth Circuit first noted that a 
state law is preempted "if it has a connection with or reference to [an ERISA-
regulated] plan."25 The circuit court then held that negligence claims based on 
common law negligence principles are not preempted by the "reference to" prong 
because "[t]hese laws do not act immediately and exclusively on ERISA plans, and 

the existence of an ERISA plan is not essential to these laws' operation."26 The 
Ninth Circuit then turned to the "connection with" prong, "under which a state law 
claim is preempted when the claim bears on an ERISA-regulated relationship, e.g., 
the relationship between plan and plan member, between plan and employer, 
between employer and employee."27 The circuit court held that the plaintiffs' state 

law claims were not preempted by the "connection with" prong because those 
claims "d[id] not bear on the relationship between Plaintiffs and the Plan; between 
[the plan sponsor], [the plan administrator], and the Plan; or between Plaintiffs, [the 
plan sponsor], and [the plan administrator]."28 

25 Id. at 1031 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47(1987)). 
26 Id. (internal quotation marks omitted) (quoting Paulsen v. CNF, Inc., 559 F.3d 1061, 1082 (9th 
Cir. 2009)). 
27 Id. (quoting Paulsen, 559 F.3d at 1082). 
28 Id. at 1031–32 (footnote omitted). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
III. Analysis 
 A. State Law Claims 
 1. Preemption 

 The threshold issue the Court must decide is the applicable standard for 
reconsideration of the January 19, 2021 and February 22, 2021 orders. Mr. Mabry 
styled his motion as one for reconsideration pursuant to Rule 60(b)(6).29 This may 
well be due to the fact that Local Civil Rule 7.3(h) requires that a "motion for 
reconsideration of an order granting a dispositive motion must be filed pursuant to 

Federal Rule of Civil Procedure 59 or 60." Alight urges that Rule 60(b)(6) motions 
require a "case-by-case inquiry . . . captur[ing] all of the relevant circumstances" 
and a showing of "extraordinary circumstances."30 Mr. Mabry asserts that he 
"seeks reconsideration of an interlocutory order" and that "the Court should 
exercise its inherent power to reconsider its ruling and should reinstate Mr. Mabry's 

state-law claims."31 
 Here, the Court's January 19, 2021 and February 22, 2021 orders did not 
resolve "the rights and liabilities" of all the parties and therefore "may be revised at 
any time before the entry of a judgment adjudicating all the claims and all the 

29 Docket 57 at 2 (Mot. for Reconsideration). The Court interpreted it as such for the purposes 
of determining the briefing schedule. Docket 58 (Request for Response). 
30 Docket 60 at 2 (Alight Opp.) (quoting Stafford v. Eli Lilly & Co., 801 Fed. App'x 467, 469–70 
(9th Cir. 2020). 
31 Docket 63 at 2 (Reply). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
parties' rights and liabilities."32 No final judgment has been entered; nor has the 
Court certified the January 19, 2021 order as appealable pursuant to Rule 54(b). 
Thus, Rule 60(b) does not apply.33 Nor does Rule 60(b) cabin the Court's 

discretion to reconsider its own non-appealable orders over which it retains 
jurisdiction.34 Thus, the Court may reconsider its prior order where there has been 
an "intervening change in the law" without the need to identify the "extraordinary 
circumstances" required for Rule 60(b) relief.35 
 Turning to the merits of Mr. Mabry's motion, Mr. Mabry asserts that "[t]he 

facts of this case are not meaningfully different from those in . . . Bafford" because 
"Mr. Mabry's state-law claims against Alight – that Alight acted negligently in 
misinforming him about the amount of his pension – relate only to the relationship 
between him and Alight, not to his relationship with the Plan, ConocoPhillips, or 

32 Fed. R. Civ. P. 54(b). 
33 Martin, 226 F.3d at 1048 n.8 ("Rule 60(b), like Rule 59(e), applies only to motions attacking 
final, appealable orders . . . ."). 
34 City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 887 (9th Cir. 2001) (rejecting 
argument that Rule 60 is the "only specific authority" supporting a district court's ability to 
rescind interlocutory order and explaining that "a district court's authority to rescind an 
interlocutory order over which it has jurisdiction is an inherent power rooted firmly in the 
common law and is not abridged by the Federal Rules of Civil Procedure," specifically Rule 
60(b)). 
35 L. Civ. R. 7.3(h)(1)(C); Henson v. Fidelity v. National Financial, Inc., 943 F.3d 434, 443–44 
(9th Cir. 2019); see also Jenkins, 398 F.3d at 1094 n.2 (A "court may reconsider previously 
decided questions in cases in which there has been an intervening change of controlling 
authority . . . ."). The Court has referred this issue to the District of Alaska's Rules Attorney to 
amend Local Civil Rule 7.3(h)(5) to apply only to appealable orders. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
the Committee."36 Alight contends that Bafford is not controlling law because it 
conflicts with Gibson v. Prudential Insurance Co. of America.37 According to Alight, 
"resolution of an intra-circuit split defaults to the earlier decision" until the "en banc 

court can resolve the intra-circuit split."38 
 In Gibson, the Ninth Circuit concluded that "Congress did intend ERISA to 
preempt claims that relate to an employee benefit plan even if the defendant is a 
nonfiduciary."39 But this proposition was rendered overbroad by the Supreme 
Court's subsequent decision in New York State Conference of Blue Cross & Blue 

Shield Plans v. Travelers Insurance Co.40 There, the Supreme Court "narrowed 
the applicability of [the preemption provision]," which "ha[d] been construed quite 
broadly in the past."41 Subsequently, the Ninth Circuit has issued several opinions 
regarding ERISA preemption of state law claims in a variety of factual situations.42 

36 Docket 57 at 5 (Mot. for Reconsideration). 
37 Docket 60 at 3 (Alight Opp.) (citing Gibson v. Prudential Ins. Co., 915 F.2d 414, 418 (9th Cir. 
1990)). 
38 Docket 60 at 3 (Alight Opp.) (citing McMellon v. United States, 387 F.3d 329, 332–33 (4th Cir. 
2004 (en banc); and Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987). 
39 Gibson, 915 F.2d at 418. 
40 514 U.S. 645 (1995). 
41 Abraham v. Norcal Waste Systems, Inc., 265 F.3d 811, 820 (9th Cir. 2001) (citing Travelers, 
514 U.S. 645, and Toumajian v. Frailey, 135 F.3d 648, 654 n.3 (9th Cir. 1998) (acknowledging 
that after Travelers, "the scope of this broad ‘relate to' preemption was markedly narrowed")). 
42 See Paulsen, 559 F.3d at 1081–83 (holding state law professional negligence claims against 
third-party actuary hired to spin off plan assets not preempted); Dishman v. UNUM Life Ins. Co. 
of Am., 269 F.3d 974, 979–84 (9th Cir. 2001) (holding tortious invasion of privacy claim arising 
from investigator retained to investigate disability claim by insurance company administering 

Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
It is difficult to identify a clear path of Ninth Circuit authority through the "relate to" 
preemption jurisprudence.43 Nonetheless, the Court declines Alight's invitation to 
disregard published on point Ninth Circuit precedent that contradicts the reasoning 

relied on by this Court in issuing its January 19, 2021 order finding Mr. Mabry's 
state law claims preempted.44 Bafford also involved state law claims against Alight 
in which plan participants alleged that Alight overestimated the participants' 

ERISA plan not preempted); Ore. Teamsters Emp'rs Trust v. Hillsboro Garbage Disposal, 800 
F.3d 1151, 1155 (9th Cir. 2015) (holding breach of contract claim by ERISA plan against 
employees of separate but commonly owned company preempted because analysis of terms of 
ERISA plan would be required); Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th 
Cir. 2004) (holding breach of contract by health insurer against two plan participants not 
preempted because parties were "not disputing the correctness of the benefits paid," but rather 
insurer was "simply attempting, through contract law, to enforce the reimbursement provision" in 
the plan and subsequent agreements and thus "adjudication of its claim does not require 
interpreting the plan or dictate any sort of distribution of benefits"); Wise v. Verizon Comm'n, 
Inc., 600 F. 3d 1180, 1190–91 (9th Cir. 2010) (holding state law claims of fraud, 
misrepresentation, and negligence arising from employer's false assurance regarding benefits 
to induce rehire preempted because the claims "all depend on the existence of an ERISA-
covered plan to demonstrate that [plaintiff] suffered damages: the loss of insurance benefits"). 
43 See Paulsen, 559 F.3d at 1081 ("[W]e have . . . remarked that the ‘relate to' language has 
been the source of great confusion and multiple and slightly differing analyses."); Dishman, 269 
F.3d at 980 (noting that "[i]t is with great trepidation that we tread into the field of ERISA 
preemption" and recognizing the "amorphous contours of the preemption doctrine"); Travelers, 
514 U.S. at 656 (referring to the text of the ERISA preemption provision as "unhelpful"); Cal. 
Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997) 
(Scalia, J., concurring) ("Our earlier [ERISA preemption] cases sought to apply faithfully the 
statutory prescription that state laws are pre-empted ‘insofar as they . . . relate to any employee 
benefit plan.' . . . But applying the ‘relate to' provision according to its terms was a project 
doomed to failure, since, as many a curbstone philosopher has observed, everything is related 
to everything else." (citations omitted)). 
44 Alight also suggests that the Court should not yet apply Bafford because no mandate has 
issued. Docket 60 at 2–3. However, published opinions by the Ninth Circuit constitute binding 
authority regardless of whether a mandate has issued. See In re Zermeno-Gomez, 868 F.3d 
1048, 1051–53 (9th Cir. 2017) (holding district courts committed clear error by treating 
published opinion as non-binding on the basis of a stayed mandate). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
benefits while acting as a third-party administrator for the plan.45 The Ninth Circuit 
in Bafford determined those state law claims did not share an impermissible 
reference to or connection with an ERISA-governed plan and thus were not 

preempted. This Court therefore reconsiders its earlier ruling and finds that Mr. 
Mabry's state law claims against Alight are not preempted by ERISA. 
 2. Failure to State a Claim 
 Having determined that Mr. Mabry's state law claims are not preempted, the 
Court next turns to the merits of Alight's motion to dismiss Mr. Mabry's claims for 

professional negligence and negligent misrepresentation.46 Alight maintains that 
Mr. Mabry cannot allege that Alight owed him any duty of care because Alight is 
"merely the record-keeper and service provider under contract with other 
defendants."47 Mr. Mabry responds that the Amended Complaint "plausibly alleges 
that plan participants were intended third-party beneficiaries of Alight's contract to 

provide professional services to the Plan," which he maintains gives rise to a duty 
under Alaska and Ninth Circuit law.48 

45 At that time, Alight was Hewitt Associates LLC. Bafford, 994 F.3d at 1024. 
46 Mr. Mabry requests additional briefing on the merits. Docket 63 at 5. However, this issue 
was fully briefed before the Court's January 19, 2021 order and the Court finds this issue 
appropriate to consider at this time. 
47 Docket 37 at 31. 
48 Docket 41 at 49; see also Docket 41 at 49–53 (citing Glenn K. Jackson Inc. v. Roe, 273 F.3d 
1192, 1197–98 (9th Cir. 2001); Perotti v. Corr. Corp. of Am., 290 P.3d 403, 408 (Alaska 2012); 
Howell v. Ketchikan Pulp Co., 943 P.2d 1205, 1207 (Alaska 1997); Rathke v. Corr. Corp. of 
Am., Inc., 153 P.3d 303, 310–11 (Alaska 2007)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 Because Mr. Mabry's common law claims arise under Alaska state law and 
are before the Court in diversity, Alaska state law controls.49 Under Alaska law, 
"[a] professional malpractice action involves a professional's alleged breach of a 

duty of due care which was implied by law as a result of a contractual 
undertaking."50 The intended third-party beneficiaries of a contract may sue under 
the contract.51 The Alaska Supreme Court refers to the Restatement (Second) of 
Contracts to determine whether a third party is an intended beneficiary of a 
contract.52 The Restatement (Second) of Contracts provides that: 

 (1) Unless otherwise agreed between promisor and 
 promisee, a beneficiary of a promise is an intended 
 beneficiary if recognition of a right to performance in the 
 beneficiary is appropriate to effectuate the intention of the 
 parties and either 
 (a) the performance of the promise will satisfy an 
 obligation of the promisee to pay money to the 
 beneficiary; or 

49 "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be 
applied in any case is the law of the state." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 
See, e.g., Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Illinois, 421 F.3d 835, 841 (9th Cir. 
2005), amended, 433 F.3d 1089 (9th Cir. 2006) ("Under Erie Railroad Co. v. Tompkins, federal 
courts sitting in diversity jurisdiction apply state substantive law and federal procedural law.") 
(internal citation and quotation marks omitted). 
50 Cornelison v. TIG Insurance, 376 P.3d 1255, 1271 (Alaska 2016) (internal quotation marks 
omitted). 
51 See Rathke, 153 P.3d at 310–11 (holding that inmates were third-party beneficiaries of state's 
contract with private prison and thus could sue the prison under the contract despite not being 
parties to the contract). 
52 Id. at 310. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
 (b) the circumstances indicate that the promisee 
 intends to give the beneficiary the benefit of the 
 promised performance. 
 (2) An incidental beneficiary is a beneficiary who is not 
 an intended beneficiary.53 
In applying these provisions, the objective motivations of the parties, in particular 
the promisee, "are determinative."54 "As a general rule, if the promised 
performance is rendered directly to the beneficiary, the intent to benefit the third 
party will be clearly manifested . . . This general rule [] applies in [] contexts where 
the promisor has promised to perform a duty which the promisee owes to the 
beneficiary."55 
 In his Amended Complaint, Mr. Mabry alleges that the ConocoPhillips 
Defendants "contracted with Alight to carry out certain of the Benefits Committee's 
responsibilities for the ConocoPhillips Plan, including its pension benefit statement 

responsibilities under ERISA § 105(a) and its responsibility for processing pension 
applications and for deciding first-level benefit appeals."56 According to these 
allegations, the Benefits Committee owed legal duties under ERISA to Mr. Mabry 
and other plan participants, and Alight promised to render performance of those 
duties directly to the plan participants. The general rule under Alaska law instructs 

53 Restatement 2d. Contracts § 302 (1979). 
54 Rathke, 153 P.3d at 310. 
55 Id. (quotation marks omitted). 
56 Docket 16 at 4, ¶ 12 (Am. Compl.). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
that this clearly manifests the intent to benefit plan participants.57 As such, Mr. 
Mabry has plausibly pleaded that he was owed a duty of care as a third-party 
beneficiary under the contract pursuant to Alaska state law. 

 Alight cites Cornelison v. Tig Insurance, in which professional negligence 
claims were dismissed because there was no contractual relationship between the 
plaintiff and the defendants.58 However, Cornelison involved a claim by an 
employee against the physician who conducted a medical examination regarding 
his workers' compensation claim on behalf of his employer.59 Under Alaska law, 

"an employer's doctor in a workers' compensation case generally does not enter 
into a physician-patient relationship with the injured worker," and thus the physician 
did not owe a duty of care to the employee.60 Cornelison is inapposite because 
the physician was hired to provide an evaluation to the employer rather than to 
provide medical services to the employee. Alight also asserts that Paulsen v. CNF, 

Inc. "holds against Plaintiff on this issue" where it states that "[w]e hold that [the 
third party administrator] does not generally owe a duty of ordinary care to the 

57 See Rathke, 153 P.3d at 310 ("This general rule also applies in other contexts where the 
promisor has promised to perform a duty which the promisee owes to the beneficiary. The 
Restatement provides the following illustration for § 302: ‘B promises A to furnish support for A's 
minor child C, whom A is bound by law to support. C is an intended beneficiary under 
Subsection (1)(a).'"). 
58 376 P.3d 1255, 1270–71 (Alaska 2016). 
59 Id. at 1262. 
60 Id. at 1271. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
Employees, who are not [the third party administrator's] clients."61 Setting aside 
that the Ninth Circuit was not applying Alaska state law, the Ninth Circuit held in 
Paulsen that the third-party administrator "may owe a duty to the Employees if they 

can be considered intended third party beneficiaries" of the service agreement and 
remanded so that the district court could consider a "more complete factual 
record."62 
 In its response to Mr. Mabry's Motion for Reconsideration, Alight attaches a 
new portion of its contract with the ConocoPhillips Defendants that purports to 

disclaim any third-party beneficiary status.63 Because the Court does not have the 
benefit of the entire contract and because this issue has not been appropriately 
briefed, the Court declines to consider this argument at this time.64 With still only 

61 Docket 44 at 25–26 (quoting Paulsen v. CNF, Inc., 559 F.3d 1061, 1080 (9th Cir. 2009)) 
(alterations in Docket 44). 
62 See Paulsen, 559 F.3d at 1080. On remand, the district court denied the third-party actuary's 
motion to dismiss and found that, under California law, "Plaintiffs have sufficiently alleged that 
the Plan intended to discharge its statutory duty to the Plan participants when it contracted with 
Towers Perrin for actuary services, and that Towers Perrin was aware of this intention when it 
performed the contract, to state a claim for professional negligence on the theory that Plaintiffs 
were creditor beneficiaries of the service contract." Paulsen v. CNF, Inc., Case No. C 03-03960 
JW, 2010 WL 11614257, at *4 (N.D. Cal. Jan 13, 2010). 
63 Docket 60-1 at 2, ¶ 25.5. 
64 See also Local Civil Rule 7.3(h)(1) ("A court will ordinary deny a motion for reconsideration 
absent a showing of one of the following: (A) manifest error of the law or fact; (B) discovery of 
new material facts not previously available; or (C) intervening change in the law.") (emphasis 
added). Under Alaska law, in contracts, "where one section deals with a subject in general 
terms and another deals with a part of the same subject in a more detailed way, the two should 
be harmonized if possible; but if there is a conflict, the specific section will control over the 
general." Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (quoting Estate 
of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)). Without having reviewed the entire 
contract, it is not clear to the Court whether such a disclaimer would be dispositive. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
a fraction of Alight's contract provided, the Court finds that Mr. Mabry has 
sufficiently pleaded that Alight owed him a duty as a third-party beneficiary with 
respect to his professional negligence claim.65 

 Alight also contends that Mr. Mabry cannot state a claim for negligent 
misrepresentation because Mr. Mabry "cannot allege justifiable reliance as a 
matter of law."66 Alight asserts that Mr. Mabry's reliance was not justifiable 
because he knew that a large portion of his pension would go to the alternate 
payee under the qualified domestic relations order ("QDRO"), and because the 

pension benefit estimates contained express disclaimers.67 
 Mr. Mabry maintains that he has plausibly pleaded that his reliance on 
Alight's alleged misrepresentations was reasonable for two reasons: first, because 
ConocoPhillips sent him two letters telling him that "the alternate payee's share 
would be segregated as a separate defined benefit solely under her name";68 and 

second, because the benefit statements "were ‘estimates' only inasmuch as they 
were based upon assumptions regarding Mr. Mabry's future benefit 

65 See Paulsen, 559 F.3d at 1079–80 ("The Employees might be unable to ultimately prevail on 
a third party beneficiary theory, but we cannot conclude that they have not brought themselves 
within the third party beneficiary exception insofar as a motion to dismiss is concerned."). 
66 Docket 37 at 32 (citing Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Motors Corp., 129 
P.3d 905, 915 (Alaska 2006)). 
67 Docket 37 at 32. 
68 Docket 41 at 54. 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
commencement date and the applicable interest rate," where every other variable 
after his termination was fixed.69 
 Under Alaska law, "[i]n a common law tort action for misrepresentation there 

must be justifiable reliance on the false information supplied."70 Thus, Mr. Mabry 
must plausibly plead facts that, if proven, would establish that he justifiably relied 
on Alight's benefit statements. Alight's contention that Mr. Mabry knew a large 
portion of his pension would go to the alternate payee is undercut by the fact that 
Mr. Mabry allegedly received two letters stating that "the alternate payee's benefit 

will be segregated as a separate defined benefit solely under her name, for her 
benefit and as her sole and separate property."71 Mr. Mabry alleges that he was 
not informed until 2018 that the benefit estimates on Alight's website did not, in 
fact, factor in the QDRO.72 The Court find that Mr. Mabry has plausibly alleged 
that he reasonably relied on the benefit statements in making personal financial 

decisions and in planning for retirement. 
 Alight's second argument regarding the disclaimers displayed on the benefit 
statements is more availing. Mr. Mabry asserts that the statements were 
"estimates" only because they were based on hypothetical benefit commencement 

69 Docket 41 at 55 (emphasis in original). 
70 Diblik v. Marcy, 166 P.3d 23, 28 (Alaska 2007). 
71 Docket 16 at 9–10, ¶¶ 47–48 (Am. Compl.) (internal quotation marks omitted). 
72 Docket 16 at 13, ¶¶ 65–67 (Am. Compl.). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
dates; however, that does not address that the disclaimers specifically 
contemplated that the estimates might not be in accordance with the terms of the 
Plan.73 Nonetheless, pension estimates are provided so that plan participants can 

use them to plan their future retirement. It would therefore appear arguably 
reasonable for pension plan beneficiaries to rely on the benefit statements to help 
plan for their retirement, particularly when they are unaware of major flaws in the 
calculation process. Mr. Mabry alleges that he did just that by using the benefit 
estimates "in making employment choices and savings and spending decisions, 

including decisions about funding his children's college educations."74 Alight has 
not identified precedent establishing as a matter of Alaska law that it was 
unreasonable for Mr. Mabry to rely on these estimates for planning his retirement.75 
Accordingly, the Court finds that Mr. Mabry has plausibly pleaded justifiable 

73 See Docket 16-1 at 2 ("ConocoPhillips reserves the right to correct any errors. Specifically, if 
the estimate conflicts with the benefit defined by the [Plan], the [Plan] will prevail. Under the law 
a plan must be operated in accordance with its terms."). 
74 Docket 16 at 15–16, ¶ 81 (Am. Compl.). 
75 For example, Alight cites Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp., in which the 
Alaska Supreme Court upheld the lower court's finding after a bench trial that the plaintiff had 
not actually relied on the defendant's statements and in the alternative that the statements were 
so "hedged" that any reliance would be unreasonable. Docket 37 at 32 (citing 129 P.3d 905, 
914 (Alaska 2006)). But this case does not support Alight's position at the motion to dismiss 
stage because it merely held that justifiable reliance is a question of fact on which the trial 
court's determination is reviewed for clear error. Anchorage Chrysler Ctr., Inc., 129 P.3d at 
914–15 ("Although some courts appear to hold that determinations as to whether reliance was 
justified can be a question of law reviewed de novo, our own precedents suggest that it is a 
question of fact, and it seems that most jurisdictions that have addressed the issue say it is 
either a purely factual issue or a mixed question of law and fact, to be reviewed for clear error in 
either event. We will therefore extend deference to the superior court's determination and 
reverse only if reasonable minds could not disagree that reliance was justified.") (citations 
omitted)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
reliance as an element of his negligent misrepresentation claim and will reconsider 
its January 19, 2021 order and deny Alight's motion to dismiss Mr. Mabry's state 
law claims. 

 B. ERISA § 105 
 Mr. Mabry asserts that in Bafford, "the Ninth Circuit . . . rejected the 
reasoning of Wilson and this Court" that an online request for a pension benefit 
statement cannot be a "written request" within the meaning of ERISA § 105.76 
Thus, Mr. Mabry contends, "this Court should likewise now permit Mr. Mabry to 

amend his third claim for relief."77 
 The ConocoPhillips Defendants respond that Mr. Mabry has provided only 
a bare allegation regarding the use of an online platform and has "not attach[ed] a 
copy of any proposed amended pleading" or "state[d] what additional facts he 
might plead if given the opportunity" and thus "any amendment would be futile and 

should be denied."78 The ConocoPhillips Defendants also argue in the alternative 
that "the Court should . . . dismiss Plaintiff's claim because it is premised on the 
retroactive application of Bafford" and that "it would be inequitable to penalize 
Benefits Committee based on its alleged failure to respond to" an electronic 

76 Docket 57 at 4 (Mot. for Reconsideration). 
77 Docket 57 at 4 (Mot. for Reconsideration).. 
78 Docket 62 at 6 (citing Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010)) 
(footnote omitted). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
request where "no court had held that liability may attach to electronic requests at 
the time that Plaintiff claims to have made them."79 
 In reply, Mr. Mabry asserts that "he had to do more than click a single button 

to obtain a pension benefit statement from Alight's website" and thus "should be 
permitted to amend his complaint to include specific allegations regarding the 
process for obtaining an online pension benefit statement from the ConocoPhillips 
benefits website."80 Mr. Mabry also argues that "remedies for a violation of Section 
105 are not limited to statutory penalties, but can include equitable remedies," and 

that in any event, "arguments about the appropriateness of statutory penalties are 
addressed to the Court's exercise of discretion under Section 502(c), not to 
whether the Court should reconsider its dismissal order in light of Bafford."81 
 The holding in Bafford that an online request may suffice as a "written 
request" under § 105 plainly controls. And, given the similarity between the 

allegations in Mr. Mabry's Amended Complaint and those in the complaint in 
Bafford, the Court finds that while Mr. Mabry's bare allegations do not suffice to 
state a § 105 claim, he will be afforded leave to amend his complaint to allege 
those facts. Moreover, "[t]he default principle is that a court's decisions apply 
retroactively to all cases still pending before the courts. Federal courts may depart 

79 Docket 62 at 9–10. 
80 Docket 64 at 3. 
81 Docket 64 at 4–5 (citing ERISA § 502(c) and Romero v. SmithKline Beecham, 309 F.3d 113, 
120 (3d Cir. 2002)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
from that default principle only in certain circumstances . . . ."82 Because the court 
in Bafford issued an opinion in a civil case that announced a new rule of law that 
did not concern jurisdiction, the Court applies the Chevron Oil factors to determine 

whether the law should be applied retroactively.83 The three Chevron Oil factors 
are: "(1) whether the decision establish[es] a new principle of law; (2) whether 
retrospective operation will further or retard [the rule's] operation in light of its 
history, purpose, and effect; and (3) whether our decision could produce 
substantial inequitable results if applied retroactively."84 The ConocoPhillips 

Defendants have argued only that application of Bafford would be inequitable 
because it concerned an issue of first impression; they did not adequately address 
the remaining factors. Therefore, the Court finds that the presumption of 
retroactivity has not been overcome and Mr. Mabry may file an amended complaint 
that includes a § 105 claim against the Benefits Committee. 

 C. Breach of Fiduciary Duty Claim Against the Benefits Committee 
 The ConocoPhillips Defendants assert that after Bafford, Mr. Mabry "cannot 
state a claim for breach of fiduciary duty as a matter of law against either a named 

82 Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc). 
83 See id. at 691 ("We apply the three-pronged test outlined in Chevron Oil (1) in a civil case; (2) 
when we announce a new rule of law, as distinct from applying a new rule that we or the 
Supreme Court previously announced; (3) and when the new rule does not concern our 
jurisdiction."). 
84 Id. at 691–92 (internal quotation marks omitted) (alteration in original) (quoting Chevron Oil 
Co. v. Huson, 404 U.S. 97, 106–07 (1971)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
fiduciary or an alleged functional one because the function—the calculation of 
benefits according to a predetermined formula—is not fiduciary in nature."85 The 
ConocoPhillips Defendants also add that the Ninth Circuit in Bafford held that there 

can be no "imputed liability where, as here, the delegated function at issue is not 
fiduciary in nature."86 
 Mr. Mabry replies that this "request is improper" because "[a] request for a 
court order must be made by motion—not by a response to a motion" and that it 
"is also untimely, because a motion for reconsideration based on a change in law 

must be made within 14 days after the change in law."87 
 The Court agrees with Mr. Mabry that the ConocoPhillips Defendants' 
request is improper in this context and at this time. The ConocoPhillips Defendants 
did not move to dismiss Mr. Mabry's breach of fiduciary duty claim against the 
Benefits Committee in its motion to dismiss. Thus, there is no motion as to this 

claim for the Court to reconsider. 
 CONCLUSION 
 In light of the foregoing, the order at Docket 49 and the order at Docket 52 
are VACATED in part. as to Claims 3, 4, and 5 only. IT IS FURTHER ORDERED 
that on reconsideration, Alight's Motion to Dismiss at Docket 37 as to Claims 4 

85 Docket 62 at 4 (citing Bafford, 994 F.3d at 1028). 
86 Docket 62 at 4 (citing Bafford, 994 F.3d at 1028). 
87 Docket 64 at 5 (citing Fed. R. Civ. P. 7(b) and Local Civ. R. 5.1(f), 7.1(f), 7.3(h)(3)(B)). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al. 
and 5 is DENIED. Alight shall file its answer to the Amended Complaint within 14 
days of this order.88 
 IT IS FURTHER ORDERED that on reconsideration, ConocoPhillips' and 

the Benefits Committee's Motion to Dismiss at Docket 33 as to Claim 3 is 
GRANTED. If Plaintiff can file an amended 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 14 days from the date of this order. If 

Plaintiff does not file the motion by that date, then the Third Claim of Relief shall 
be dismissed with prejudice. 
 DATED this 6th day of July, 2021, at Anchorage, Alaska. 
 /s/ Sharon L. Gleason 
 UNITED STATES DISTRICT JUDGE 

88 See Fed. R. Civ. P. 12(a)(4)(A). 
Case No. 3:20-cv-00039-SLG, Mabry v. ConocoPhillips Co., et al.