
    159 F.3d 1376
    SYSTEMS COUNCIL EM-3, International Brotherhood of Electrical Workers, AFL-CIO, et al., Appellants, v. AT&T CORPORATION, et al., Appellees,
    No. 97-7155.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 24, 1998.
    Decided Nov. 24, 1998.
    
      Kent Cprek argued the cause for appellants With him on the briefs were Richard B. Sigmond and Thomas H. Kohn.
    Joseph R. Guerra argued the cause for appellees. With him on the brief were Paul J. Zidlicky, Laura A. Kaster, T. Jay Thompson, Robert N. Ecdes, Peter O. Shinevar and Karen M. Wahle.
    Michael S. Horne, John M. Vine and Caroline M. Brown were on the brief for amicus curiae E risa I ndustry Committee.
    Before: EDWARDS, Chief Judge, ROGERS and TATEL, Circuit Judges
   Opinion for the Court filed by Chief Judge EDWARDS.

EDWARDS, Chief Judge:

I n 1995, pursuant to a corporate reorganization, AT&T Corporation (“AT&T”) transferred its equipment business to Lucent Technologies, I no (“Lucent”). AT&T and Lucent subsequently entered into arrangements to separate their businesses; one such arrangement was embodied in an Employee Benefits Agreement (“EBA”). Under the EBA, AT&T amended its pension and welfare plans to divide the assets and liabilities of AT&T’s defined plans and to provide for the continuation of existing defined benefits for both AT&T and Lucent retirees and employees. The appellants in this case — beneficiaries of the plans and their unions — seek to overturn AT&T’s amendments of the pension and welfare plana In broad terms, appellants contend that AT&T rigged the allocation procedures so that by the time Lucent becomes responsible for the retirement benefits owed to its former AT&T employees, it might not have enough money to provide for than. Appellants claim that AT&T’s actions violated the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461, and also resulted in a breach of contract.

We agree with the District Court that AT&T is not subject to ERISA’s strict fiduciary standards, because it was not acting in a fiduciary capacity when it allocated pension and welfare plan assets and liabilities between AT&T and Lucent. We also agree that appellants have failed to state a claim under § 208 of ERISA, which protects the beneficiaries of spun-off plans. See 29 U.S.C. § 1058 (1994). Finally, it is dear that appellants? contract daims are not ripe for review. Accordingly, we affirm.

I. Background

The fads of this case have been comprehensively detailed in an excellent opinion by the Distrid Court, see Systems Council EM- 3 v. AT&T Corp., 972 F.Supp. 21, 24-26 (D.D.C.1997), and bear no repetition here. Therefore, this Background section is quite brief and will serve only to provide a context for our analysis

In 1995, AT&T decided to reorganize its corporate structure by spinning off operations into separate, publidy-traded businesses, one of which was Lucent. This case primarily concerns the EBA between AT&T and Lucent, which governs the allocation of employee pension and welfare plan assets and liabilities between AT&T and Lucent. See id. at 25-26. The EBA, which was signed on February 1, 1996, requires AT&T to calculate, for each AT&T and Lucent plan, an amount based on the funding policy historically used by AT&T to ensure adequate funding of employee benefit plans, employing the same actuarial assumptions used to determine minimum funding under ERISA and the I nternal Revenue Code. Once the calculation is made, appropriate amounts are allocated to each fund. The EBA then allocates any residual (surplus) plan assets equally between AT&T and Lucent. See id. at 26.

Appellants filed the instant lawsuit on May 17,1996, before AT&T had actually allocated any assets to Lucent. Although they had no data to support their claims^ appellants’ complaint in District Court was premised on the assumption that the EBA’s prescribed methodology for the asset distribution unjustly favored AT&T. Alleging that AT&T acted in a fiduciary capacity with respect to the plan assets, appellants claimed that AT&T unlawfully favored itself in the allocation of those assets, in violation of the ERISA provisions that govern fiduciary responsibilities See 29 U.S.C. §§ 1104, 1106(b) (1994 & Supp. II 1996). Appellants further alleged four separate violations of § 208, ERISA’s non-fiduciary provision for the transfer of pension plan assets in a spin-off situation. First, appellants asserted that § 208 requires that the EBA provide for the division of any residual pension plan assets on a pro rata basis, rather than equally between the two entities. Seoond, appellants contended that the EBA’s actuarial assumptions are not “reasonable,” as required by the applicable Treasury regulations. Third, appellants protested that the E BA does not guarantee appellants the benefit of any market earnings on the plan assets during the interim period between AT&T’s divestment of Lucent stock and the actual segregation of AT&T’s assets Finally, appellants alleged that the EBA does not aocount for possible future adverse business experiences that Lucent may suffer, rendering the company unable to meet its employee benefit obligations Appellants also claimed that AT&T’s signing of the EBA amounts to a breach of AT&T’s agreement to provide pension and welfare plan benefits to its employees, because the EBA assigns to Lucent the obligation to provide those benefits

The District Court granted AT&T’s motion to dismiss Emphasizing that “[rjhetorical or emotional arguments voicing fears about the future ... simply cannot substitute for rigorous analysis of the pertinent statutory provisions,” the District Court held that appellants had failed to state any claim upon which relief could be granted. See Systems Council, 972 F.Supp. at 27. This appeal followed.

II. Analysis

A. Standard ofRevieiv

We review de novo the District Court’s dismissal of appellants’ claims under Rule 12(b)(6). See Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997). “Dismissal under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted and construing them in plaintiffs’ favor, the court finds that the plaintiffs have failed to allege all the material elements of their cause of action.” Id. (citations omitted).

B. Union Standing

We need not decide whether the union appellants have standing to bring these ERISA claims See Systems Council, 972 F.Supp. at 27-28 (holding that unions do not have standing to bring civil actions under ERISA). It is undisputed that the named plan beneficiaries have standing, see 29 U.S.C. § 1132(a)(1) (1994), and we may therefore reach the merits of their claims regardless of whether the unions have standing. Cf. Craig v. Boren, 429 U.S. 190, 192-93, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (deciding case on merits where one appellant had standing but the other did not).

C. Fiduciary Claims

ERISA § 3(21)(A) defines fiduciary, in relevant part, as follows:

[A] person is a fiduciary with respect to a plan to the extent (i) 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 (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A) (1994). This definition applies to the entire subchapter, including the ERISA provisions on which appellants!' claims are based. See 29 U.S.C. § 1002.

It cannot be seriously disputed that, under ERISA, AT&T, as an employer and a plan administrator, is subject to ERISA’s fiduciary standards only when it acts in a fiduciary capacity. See, e.g., Maniace v. Commerce Bank, 40 F.3d 264, 267 (8th Cir.1994). The issue in this case is whether AT&T acted in a fiduciary capacity when it amended its pension and welfare plans and allocated the assets and liabilities of those plans between AT&T and Lucent. The District Court found, and we agree, that appellants have failed to state a legally cognizable claim under ERISA’s fiduciary provisions, because there has been no showing that AT&T acted in a fiduciary capacity in taking the actions at issue in this casa

I n Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995), the Court held that when employers “adopt, modify, or terminate welfare plans,” they are not acting in a fiduciary capacity. The Court subsequently expanded the rule of Curtiss-Wright in Lockheed Corp. v. Spink, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). in Lockheed, the employer, Lockheed, amended its pension plan to provide financial incentives for employees to retire early and release all employment-related claims against the company. These increased pension benefits were to be paid out of the plan’s surplus assets See id. at 885, 116 S.Ct. 1783. The employees brought suit, alleging that Lockheed had violated its fiduciary duties under ERISA because it was using plan assets — the surplus — to purchase a benefit for itself — early retirement and the release of claims See id. at 886, 116 S.Ct. 1783. The Court foreclosed the employees!’ fiduciary claims, however, holding that “the act of amending a pension plan does not trigger ERISA’s fiduciary provisions” Id. at 891, 116 S.Ct. 1783. The Court noted that when employers amend or modify any type of employee benefit plan, even pension plans, “they do not act as fiduciaries but [rather] are analogous to the settlors of a trust.” Id. at 890, 116 S.Ct. 1783 (citation omitted). In other words; changing the design of a trust does not involve the kind of discretionary administration that typically triggers fiduciary responsibilities See Sengpiel v. B.F. Goodrich Co., 156 F.3d 660, 666-67 (6th Cir.1998). This rule, according to the Court, “is rooted in the tad of [§ 3(21)(A)].” Lockheed, 517 U.S. at 890, 116 S.Ct. 1783. Although appellants urge us to consider the extensive common law of trusts in determining whether AT&T acted as a settlor or as a fiduciary when it amended its pension plans, the Lockheed Court’s interpretation of § 3(21)(A) is dispositive.

Appellants further argue that Lockheed stands only for the unremarkable proposition that the power to name the beneficiaries and define the benefits and liabilities of a trust is a settlor, not a fiduciary, power. We disagree. The plan design at issue in Lockheed involved far more than simply defining the trust; it involved the actual allocation of a portion of the trust corpus in a manner that presumably benefitted Lockheed. Indeed, it was the contention of the employees in Lockheed that the amendments to the pension plan “constituted a use of Plan assets to ‘purchase’ a significant benefit for Lockheed.” Id. at 886, 116 S.Ct. 1783 (quoting Spink v. Lockheed Corp., 60 F.3d 616, 624 (9th Cir.1995)) (emphasis added). Thus, contrary to appellants!’ narrow reading of Lockheed, the District Court was correct in stating that the case clarifies the “distinction between those actions creating, altering or terminating a trust, which are deemed settlor functions, and those actions managing and administering the investment and use of the trust assets, which are deemed fiduciary functions.” Systems Council, 972 F.Supp. at 30.

Under Lockheed, it is dear that AT&T was not ading as a fidudary when if amended its pension and welfare plans under the EBA. Appellants’ complaint in this case is quite similar to that of the employees in Lockheed: the employer has allocated the assets of its pension and welfare plans in a manner that allegedly benefits the employer to the employees' detriment. While such an allocation might in some drcumstances violate certain ERISA provisions — such as § 208, discussed belcw — under Lockheed, it does not implicate the statute’s fidudary provisions

D. Section 208 Claims

Congress provided for the protection of spun-off employees in § 208, which mandates that plan assets may not be transferred to another plan “unless each partidpant in the plan would (if the plan then terminated) receive a benefit immediately after the ... transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the ... transfer (if the plan had then terminated).” 29 U.S.C. § 1058. Appellants have alleged four dis find violations of § 208.

1. Residual Assets

Section 208 essentially requires the employer to contemplate a hypothetical plan termination, take a “snapshot” of the benefits each partidpant of the plan would receive in the event of a termination, and then provide the aggregate present value of these benefits to the spun-off plan. Section 4044 governs the allocation of any residual plan assets in the event of adual termination of a plan. See 29 U.S.C. § 1344(d)(3) (1994).

Appellants point out that, under § 4044 and applicable regulations, if the pen-don plans at issue had adually terminated immediately prior to the spin-off, appellants would have been entitled to a pro rata share d any residual assets See 29 C.F.R. § 2618.32(a) (1995). The EBA, on the other hand, provides for the equal division — between AT&T and Lucent — of any residual assets See Systems Council, 972 F.Supp. at 26. Appellants daim that, in giving Lucent “only” an equal share of any residual assets, the EBA vidates § 208 because the Lucent plans are entitled to a pro rata share of such assets under § 4044.

Appellants' position finds no support in the case law. Sedion 208 requires only that benefits payable upon hypothetical termination be no less after than before the spinoff, and creates no entitlement to residual assets that might be available upon actual termination of a plan. See, e.g., Brillinger v. General Elec. Co., 130 F.3d 61 (2d Cir.1997), petition for cert. filed, 66 U.S.L.W. 3758 (U.S. May 13, 1998) (No 97-1834); Malia v. General Elec. Co., 23 F.3d 828 (3d Cir.1994). The Distrid Court dted with approval the Third Circuit’s opinion in Malia, which, after examining § 4044 and the accompanying regulations, conduded that, because both explicitly distinguished “benefits” from “assets,” appellants were wrong to equate the two terms for the purposes of § 208. See Malia, 23 F.3d at 832 (“[The] language of [§ 4044] demonstrates dearly that ‘benefits’ are elements that are conceptualized and treated differently in a plan termination than are the ‘assets? of that plan.”); Brillinger, 130 F.3d at 63 (“Since [§ 208] deals with the level of benefits; the reasonable interpretation of that sedion is that it refers to those portions of [§ 4044] regarding the level of benefits, rather than the part about distributing residual assets.”). We join these courts in hdding that § 208, by its plain language, ensures only that plan benefidaries receive the same level of benefits after the spin-off that they would have received prior to the spin-off, and does not create an entitlement to the residual assets that might be available upon actual termination of the plan. See Brillinger, 130 F.3d at 63 (‘The fad that upon adual liquidation a partidpant may be entitled to receive some distribution of residual assets does nd change the amount to be received as a ‘benefit’ [under § 208].”).

We also nde that the plans at issue in this case are defined benefit plans, as opposed to defined contribution plana Under a defined contribution plan, each participant has an individual account; the level of benefits that he or she receives depends upon the performance of the assets retained in that individual account. See Von Aulock v. Smith, 720 F.2d 176, 177-78 (D.C.Cir.1983). I n contrast, under a defined benefit plan, the employee is entitled to a fixed period payment upon retirement regardless of the performance of the underlying assets See id. at 178. If the assets do not perform well, the employer must make up the difference. If they perform better than expected, however, the employees still may claim no more than the promised pension benefits under the plan. See Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1186 (7th Cir.1994). Thus, “[pjartidpants in a defined benefit plan are not entitled to increases in benefits because successful investment causes assets to grow to be greater than liabilities There is nothing in [ERISA] to the effect that such growth in assets will cause an increase in benefits payable to partidpants at the time of a [spin-off].” Brillinger, 130 F.3d at 64. In short, AT&T must transfer to Lucent only those assets that are necessary to fulfill the new plans’ defined benefit obligations

2. Aduarial Assumptions

In order to determine the level of funding necessary to provide for benefits pursuant to § 208, employers use aduarial assumptions The applicable Treasury regulation mandates that these assumptions be “reasonable,” and provides that “[t]he assumptions used by the Pension Benefit Guaranty Corporation [PBGC] ... are deemed reasonable for this purpose.” 26 C.F.R. § 1.414(J)-1(b)(5)(ii) (1998). As the Distrid Court cor redly observed, this regulation does nd mandate the use of the PBGC assumptions, but rather dtes them as a “safe harbor.” Systems Council, 972 F.Supp. at 35; cf. Securities Indus. Ass’n v. Board of Governors, 807 F.2d 1052, 1064 (D.C.Cir.1986) (noncompliance with optional “safe harbor” securities regulation does nd foredose compliance with the statute).

The EBA does nd employ the PBGC assumptions. Rather, it provides that AT&T must use the aduarial assumptions that it currently uses to determine the minimum funding requirements for its plans under ERISA. See Systems Council, 972 F.Supp. at 26. By law, these assumptions are required to be reasonable. See 26 U.S.C. § 412(c)(3)(A)(i) (1994). Before the Distrid Court, appellants complained that “|t]here is no indication” that the assumptions provided for in the EBA are reasonable. Complaint ¶ 43(d), reprinted in Jdnt Appendix (“J.A.”) 1041. On appeal, appellants argue that, in order to comply with the reasonableness requirement, an employer must either use the “standardized PBGC assumptions” or “obtain an adual commerdal annuity qude at the relevant calculation date” Brief d Appellants at 30; see also Complaint ¶ 40, reprinted in J.A. 1039.

The Distrid Court corredly dismissed appellants' daima See Systems Council, 972 F.Supp. at 35-36. For one thing, appellants dte no case or Treasury regulation supporting the propositions they advance. Moreover, considering the reasonableness d an aduarial assumption in a different context, the Supreme Court has nded that the “nature d the beast” is such that there may be several “equally corred approaches” to aduarial pradice. Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 635-36, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (citation and internal qudaticn marks omitted). Appellants’ complaint never explains why they think the EBA’s prescribed approach is unreasonable. See Complaint ¶¶ 40-43, reprinted, in J.A. 1039-41.

The salient pdnt here is that, because they filed their lawsuit before they had any idea how much d AT&T’s plan assets would be transferred to Lucent, appellants were in no position even to daim that the EBA’s aduarial assumptions were unreasonable. See Systems Council, 972 F.Supp. at 36 n. 24 (niting that without any knowledge d the spedfics d the proposed allocation, appellants could nd allege unreasonableness without risking Rule 11 sandions). Subsequent to the commencement d this litigation, AT&T adually allocated its assets to Lucent and the spedfic details d the allocation are now publidy available. AT&T and Lucent employees now know how much money was transferred to the Lucent plans, how many employees were transferred to Lucent, and the demographics of those employees Knowledge of each of these factors is crucial in determining whether the actuarial assumptions used in the allocation were reasonable. If plan beneficiaries now have a good faith basis for challenging AT&T’s actuarial assumptions, they may consider filing suit under § 208. However, prior to the actual allocation, when they knew only that the EBA did not provide for the use of the PBGC assumptions or a commercial annuity quote, appellants were in no position to state a viable claim under § 208.

3. Asset Valuation During the “Interim” Period

Under the EBA, Lucent was to remain under the control of AT&T until all of the common stock of Lucent owned by AT&T was distributed to individual AT&T stockholders. See Systems Council, 972 F.Supp. at 25-26. Because the actual segregation of AT&T’s assets did not occur on the exact date that the Lucent stock was distributed to the individual stockholders the E BA provided for an adjustment “as of the date of the actual segregation by AT&T to the extent necessary or appropriate to reasonably and appropriately reflect additional” gains made by the pension assets during the interim period between the stock distribution and the actual segregation. EBA § 3.2(b)(iii), reprinted in J.A. 2027. Appellants allege that this provision does not guarantee them the “benefit of actual market earnings” on the assets during the interim period. Brief of Appellants at 24.

Because the plans at issue are defined benefit plans, however, the participants are not entitled under ERISA to the benefit of any interim increase in the value of the assets As discussed above, participants in a defined benefit plan are entitled only to the level of benefits promised them under the plan. Thus, the District Court was correct in holding that appellants “have no ownership interest in the assets of the plan, and the amount transferred must only be sufficient to provide ‘benefit equivalence’ after the transfer.” Systems Council, 972 F.Supp. at 37 (quoting John Blair Communications, Inc. v. Telemundo Group, Inc., 26 F.3d 360, 367 (2d Cir.1994)). This conclusion is in accord with decisions from other circuits that have considered the issue. See, e.g., John Blair, 26 F.3d at 366-67; Bigger v. American Commercial Lines, Inc., 862 F.2d 1341, 1348 (8th Cir.1988). Indeed, under a defined benefit plan, it is virtually irrelevant whether the interim gains are transferred to Lucent; as the Second Circuit explained in John Blair, “it would matter little to the individual [participants] whether the plan lost out on [the interim gains] as long as those members were guaranteed their promised benefits at retirement.” John Blair, 26 F.3d at 366.

4. Future Benefits

Appellants’ final claim under § 208 merits little attention. Appellants contend that the EBA violates ERISA because future adverse business experiences may render Lucent unable to fund its plans as well as AT&T has been funding them. But by its plain language, § 208 mandates transfer of assets sufficient to provide, “immediately after” the spin-off, the level of benefits each participant would receive “immediately before” the spin-off. 29 U.S.C. § 1058. Nothing in ERISA compels the original employer to fund the non-vested, future benefits of spun-off employees. See Bigger, 862 F.2d at 1345 (“A sponsor of an original defined benefit plan ... has no duty to guarantee that the sponsor of a spunoff plan will pay spunoff employee benefits earned in the future”). Accordingly, the District Court properly dismissed this claim. See Systems Council, 972 F.Supp. at 38.

E. Contract Claims

Appellants also raised common law contract claims Specifically, they allege that they relied upon AT&T’s promises to provide them pension and welfare plan benefits, and that Lucent might not be able to make good on those promises The District Court properly dismissed these claims as unripe See Systems Council, 972 F.Supp. at 38-40.

First, appellants contend that the EBA absolves AT&T of liability “in the event that Lucent is unable to provide [the welfare] benefits now or in the future.” Complaint ¶ 58, reprinted in J.A. 1046. This claim is hardly fit for review, however, given that no participant in the welfare plan has alleged that Lucent has been unwilling or unable to provide the benefits it is obligated to provide. The District Court correctly determined that a declaratory judgment stating the extent of AT&T’s liability in the event of a Lucent breach would violate Article Ill’s requirement that a current case or controversy between the parties exist. See Systems Council, 972 F.Supp. at 39; Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194-96 (6th Cir.1988) (holding, in a virtually identical situation, that claims of pension plan participants were unripe).

Second, appellants rely on a misguided application of a fundamental contract law doctrine. They claim that their contract claims are ripe because AT&T, in assigning its welfare plan obligations to Lucent, “dearly has disdaimed and repudiated” those obligations Brief of Appellants at 38. 11 is true that, if a performing party unequivocally signifies its intent to breach a contrad, the other party may seek damages immediately under the dodrine of antidpatory repudiation. See Jankins v. TDC Management Corp., 21 F.3d 436, 443 (D.C.Cir.1994). However, AT&T has not repudiated anything; it has simply assigned its welfare plan obligations to Lucent. Absent a provision in the plans prohibiting such assignment, the adion does not constitute an antidpatory breach.

III. Conclusion

For the reasons stated above, we affirm the judgment of the Distrid Court.

So ordered.  