Plaintiffs are former employees of Kodak’s Eastman Pharmaceutical Division and were participants in the Kodak Retirement Income Plan. In 1988, Kodak began to merge the Division with Sterling, which was acquired by Sanofi in 1994. As an incentive to change employment, human resources personnel allegedly advised plaintiffs that they would retain Kodak benefits moving from Kodak to Sterling, and that their retirement benefits would remain undiminished for a period of two years after changing employment to Sanofi, (continuing to accrue benefits based on the initial Kodak start date). The Kodak and Sanofi Plans appearently had some difficulty merging, and when a lump sum annuity election form was distributed in 2002, the plaintiffs discovered that the pension benefits did not cover employment with all three entities. The plaintiffs argued that, under In re Unisys Corp., 242 F.3d 497, 505-506 (3d Cir. 2001), “the date of the last action” under Section 413 can be the last date that a beneficiary makes “important financial and general life choices in reliance upon the representations” of the fiduciary. Rejecting that argument, the Court noted that it refrained, in Unisys, from choosing between the date of the misrepresentation and the date of the detrimental reliance as the date of the last action, because both were agreed by the parties to be the same. In the present case, “Kodak and Sanofi initiated the breach of fiduciary duty by purportedly misrepresenting the pension plan benefits in an attempt to persuade appellants to change employment in 1988 and 1994, respectively, and appellants relied on those activities at those times. Therefore, ‘the date of the last action’ was in 1988 for Kodak and in 1994 for Sanofi.” With respect to the discovery rule where fraud or concealment is involved, “the complaint does not contain any allegation of affirmative steps taken by either Kodak or Sanofi that prevented appellants from discovering the alleged breach of duty before the statute of limitations expired. Kodak and Sanofi’s failures to notify their beneficiaries of any change in the method of calculating retirement benefits or warn them of any misconception regarding their benefits are not ‘affirmative steps,’ and cannot on their own bring the ‘fraud or concealment’ exception into play.” Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197 (3d Cir. 2006).
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