The U.S. Sixth Circuit Court of Appeals noted that the goals of ERISA “would be significantly frustrated if a breaching fiduciary could escape liability merely by terminating a plan before a lawsuit is commenced or during its pendency.” Defendants argued that the participants suing under 502(a)(2) on behalf of a defunct plan because there is no “plan” to receive benefits if the plaintiffs are successful, making any relief granted personal, rather than derivative. “The remedy proposed by plaintiffs and supported by the Secretary of Labor, however – the appointment of an independent fiduciary to hold any amounts recovered from defendants in trust – would ensure that all recovery went to the Plan and not to plaintiffs.” The court further found that genuine issues of material fact regarding the materiality of the misrepresentations, the fiduciary status of the defendants, and the characterization of the contributions precluded summary judgment. See Pfahler v. National Latex Products Company, 517 F.3d 816 (6th Cir. 2007).