2 Plaintiff Edward Tocker (plaintiff or appellant) had been 3 employed as a tax attorney for defendant General Foods¹ for many 4 years. When he learned in 1989 he was suffering from a serious, 5 life-threatening illness, he discussed his circumstances with his 6 employer's benefits administration manager. As a result, the 7 benefits administration created a special package of benefits for 8 him in 1990, which plaintiff accepted. In January 2002, 13 years 9 later, Tocker, despite the doctor's prognosis, was still alive

10 and applied for a pension benefit based on 34 years and four 11 months of credit, from September 1967 until December 31, 2001, 12 when he turned 65 years old. General Foods' benefits 13 administration responded that under the 1990 special package and 14 agreement, Tocker was eligible for service credit only for the 22 15 years and six months from September 1967 until March 1, 1990, 16 because of a severance agreement he had signed as part of the 17 benefits package. Plaintiff claimed he had not been told in 1990 18 that he was being terminated and would therefore be ineligible 19 for pension benefits. He appealed the benefit administration's

1 determination, and requested a review of his pension computation. 2 The Kraft administrative committee upheld the denial of pension 3 credit. 4 Tocker then filed suit pro se in the United States District 5 Court for the Southern District of New York (Robinson, J.) 6 against Kraft's parent company (Philip Morris Companies, Inc. 7 a/k/a Altria Group, Inc.), Kraft Foods Inc., and General Foods 8 Corp. (collectively defendants), alleging violations of the 9 Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat.

10 829, as amended² , 29 U.S.C. § 1001 et seq. Although proceeding 11 pro se in the district court, Tocker is now represented by 12 counsel on this appeal. Giving deference to the administrative 13 committee's finding that Tocker was terminated in March 1990, and 14 to its interpretation of the General Foods Retirement Plan for 15 U.S. Salaried Employees (General Foods Plan or Plan), the trial 16 court granted defendants' motion for summary judgment. 17 Plaintiff appeals from the grant of summary judgment for 18 defendants and from the denial of his motion to amend his 19 complaint to add necessary parties dated September 30, 2004. The 20 law has put in place a procedure to filter claims under ERISA. 21 Where the administrators are given discretion under the terms of 22 a benefit plan, as they are in this case, the gate to success on

1 a claim is not the applicant's to open. Rather, the 2 administrator's decision on a claim will be upheld if reasonable, 3 and only overturned if found to be arbitrary. There lies the 4 test we apply here.

5 BACKGROUND

6 A. Tocker's History with General Foods and the 7 General Foods Plan 8 9 Plaintiff Tocker began his employment with General Foods as

10 a tax analyst on September 11, 1967. A tax attorney and 11 certified public accountant by training, he earned praise from 12 his supervisors for making substantial contributions to the 13 business, and eventually attained the position of assistant tax 14 director for General Foods.

15 As a salaried employee, plaintiff participated in the

16 General Foods Plan, a retirement and pension plan. The General

17 Foods benefits program also included plans for general

18 disability, long-term disability benefits, medical benefits,

19 dental benefits, life insurance, employee thrift investment,

20 vacation, and mortality payments. The General Foods Plan was a

21 separate legal entity from its sponsoring employer, General

22 Foods. Its successor, the Kraft Plan, continues to be a separate

23 entity from the employer corporations, Kraft Foods North America,

24 Inc., and Philip Morris Companies, Inc., now Altria Group, Inc.

25 The plan was administered by an appointed administrative

26 committee consisting of five to seven General Foods employees,

27 and by its terms reserved discretion to the administrative

1 committee to make conclusive determinations and interpretations 2 on all questions arising under the plan. 3 The employer distributed a summary plan description (SPD) to 4 all its employees as required by ERISA, 29 U.S.C. § 1021(a)(1). 5 The SPD included information with regard to each of the various 6 plans, including the retirement plan, that constituted the 7 General Foods benefits program. Although the SPD was silent with 8 respect to what discretion was granted the pension board and the 9 administrative committee, it did state

10 The governing documents in all cases will be 11 the insurance contracts, the official texts 12 of the plans and the trust agreements,

13 whichever are applicable. While it is the

14 intent of General Foods to continue the

15 benefits described in this book, the right to

16 change, modify or discontinue them, without

17 notice, is reserved to the extent permitted

18 by law.

19

20 B. Tocker's Diagnosis and Benefit Arrangement

21 In January 1989 Tocker was diagnosed with a malignant brain

22 tumor and underwent radiation and chemotherapy treatments. His

23 doctors told him he had six to 18 months to live. Tocker

24 disclosed his condition and discussed his benefits options with

25 his supervisor, Edward Bloom, and the General Foods benefits

26 administration manager, Robert D. Varone. In the normal course,

27 Tocker would have had two options: (1) continue his employment

28 with General Foods and be placed on long-term disability, which

29 would provide him with 60 percent of his base salary each month

30 while he remained disabled, or (2) terminate, through the

31 workforce reduction program, his employment with General Foods

1 and receive an immediate lump-sum payment totaling 22 months pay 2 plus payment for unused vacation time. Typically these two 3 options -- long-term disability and workforce reduction lump-sum 4 payments -- were mutually exclusive. Long-term disability 5 employees were not eligible for the kind of lump-sum payments 6 available under the workforce reduction program, and terminated 7 employees receiving lump-sum payments through the workforce 8 reduction program were not eligible for long-term disability. 9 Plaintiff's supervisor, Edward Bloom, wrote an unsolicited

10 letter to managers at General Foods on Tocker's behalf, praising 11 Tocker's contributions to the corporation over the years, 12 explaining that he was having a difficult time choosing between 13 the two options of either long-term disability or a lump-sum 14 payment, and urging the corporation and the administrative 15 committee to do something to help him. General Foods responded 16 by presenting Tocker with a new choice, the just referred to 17 special benefits package -- one not typically available -- by 18 which Tocker could receive a lump-sum bonus payment through the 19 workforce reduction program, effective March 1, 1990, and 20 thereafter receive long-term disability benefits as well. 21 Robert Varone outlined the terms of the benefits arrangement 22 for Tocker in a letter dated February 27, 1990 and in a revised 23 and finalized copy of the letter dated March 14, 1990. These 24 letters detailed the actions to be taken with respect to Tocker's 25 benefits. The letters stated: "You will be put on medical leave 26 effective 1/29/90 through 2/27/90. You will report to work

1 2/28/90 and be terminated with Workforce Reduction . . . 3/1/90." 2 Varone explained the benefits due to Tocker as follows:

3 BENEFITS

4 5 1. Retiree . . . Retiree medical will be in 6 effect beginning 3/1/90 at a monthly cost of 7 $13 . . . . 8 9 2. Active . . . All other active benefits

10 will terminate 3/1/90.

11

12 3. Life Insurance - Conversion . . . You have

13 completed a preliminary term insurance

14 application requesting conversion of $232,000

15 life insurance cancelling as a result of your

16 termination.

17

18 4. Retirement . . . You have elected a 10-

19 year certain option to begin at age 55

20 (1/1/92). The amounts you will receive from

21 the qualified and APA (non-qualified) plan

22 each month are indicated below.

23

24 Tocker agreed to this arrangement, signing a number of

25 documents in early 1990 in which he elected benefits consistent

26 with those outlined in Varone's March 14 letter. These documents

27 indicated that plaintiff was being terminated effective March 1,

28 1990. He signed a workforce reduction program election of

29 separation options form, in which he elected "lump sum in full"

30 and agreed "that this election of separation option is

31 irrevocable." He signed also a retirement/termination election

32 form that stated: "My employment having been terminated, I

33 hereby make the following election." When filling out a

34 conversion of group term life insurance form that asked the date

35 his employment ended, Tocker responded: "Month 3 Day 1 Year 90."

36 Tocker never worked after that date. According to plaintiff,

1 even though he signed the forms indicating he was terminated, he 2 did not believe he was actually being terminated. Tocker had not 3 been previously identified as a candidate for workforce 4 termination and his supervisor in the tax department was not 5 notified that he was terminated on March 1, 1990. 6 After receiving an immediate lump-sum payment of 7 $212,666.74, Tocker continued to receive long-term disability 8 benefits (a benefit ordinarily available only to employees) until 9 he turned 65 years old on December 31, 2001. He then contacted

10 the Kraft (as General Foods was then known) benefits department 11 to request a calculation of his pension benefits. The department 12 sent Tocker a letter dated May 2, 2002, informing him that he 13 would receive pension credit only for the years from September 14 1967 until March 1990, and not for the years after March 1990. 15 Plaintiff appealed the benefit department's determination and 16 requested review of his pension computation, arguing that he was 17 entitled to additional service credit from March 1990 to January 18 2002. By letter dated September 17, 2002, the administrative 19 committee upheld the denial of pension credit for the years after 20 March 1990.

21 C. Procedural History

22 Bringing suit under 29 U.S.C. § 1132, Tocker filed his pro

23 se complaint in the Southern District against defendants Philip

24 Morris Companies, Inc., Kraft Foods Inc., and General Foods

25 Corp., alleging that the administrative committee's denial of

26 pension credit for the 12 years from 1990 until 2002 violated

1 ERISA, 29 U.S.C. § 1001, et seq. Defendants moved for summary 2 judgment, and Tocker moved to amend his complaint to add as 3 defendants the General Foods Plan and the administrative 4 committee. 5 Tocker maintained that the administrative committee had 6 miscalculated his years of credited service because according to 7 the SPA an employee would continue to receive credit toward his 8 pension while receiving long-term disability benefits. 9 Defendants countered that Tocker's receipt of long-term

10 disability benefits had been exceptional, that the special 11 benefits had been provided for humanitarian reasons, and that the 12 administrative committee had acted reasonably in denying Tocker 13 pension credits for the years after March 1990 because Tocker had 14 been terminated with a lump-sum payment effective March 1, 1990. 15 The district court determined that the Kraft plan had 16 reserved discretion to the administrative committee to make 17 benefit decisions, and so the court utilized an arbitrary and 18 capricious standard to review the administrative committee's 19 denial of benefits. It noted that Tocker was not without 20 evidence supporting his claim for pension benefits. The court 21 also found that the administrative committee's determination was 22 reasonable. Given a district court's limited scope of review of 23 the committee's decision, the trial court found that summary 24 judgment for the defendants was proper and therefore granted that 25 relief to them. In addition, the district court denied 26 plaintiff's motion to amend the complaint, reasoning that the

1 amended complaint would not survive summary judgment and that 2 such an amendment would be futile. It is from this judgment that 3 plaintiff appeals. 4 The principal question before us is whether the district 5 court properly applied an arbitrary and capricious standard 6 instead of a de novo standard in reviewing the administrative 7 committee's denial determination. Tocker contends that the wrong 8 standard was utilized because even though the General Foods Plan 9 reserved discretionary review to the administrative committee,

10 the SPD distributed to General Foods employees did not mention 11 the administration's discretion afforded to the committee, and 12 ERISA requires that an SPD be sufficiently comprehensive to 13 apprise participants of their rights under the plan, see 29 14 U.S.C. § 1022(a).

15 Because we think the district court applied the correct

16 standard of review, we affirm its decision with respect to

17 Tocker's benefits claim. But, we vacate and remand with respect

18 to plaintiff's fiduciary duty claim and the denial of his motion

19 to amend the complaint.

20 DISCUSSION

21 We review de novo the district court's grant of summary

22 judgment, construing the facts in the light most favorable to the

23 non-moving party, in this case, Tocker. Cioffi v. Averill Park

24 Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006).

25 Summary judgment is appropriate only where "there is no genuine

26 issue as to any material fact and . . . the moving party is

1 entitled to a judgment as a matter of law." Fed. R. Civ. P. 3 I Standard for Reviewing 4 Administrative Committee Determination 5 6 Tocker claims that he is entitled to additional years of 7 credited service for his pension benefits. In adjudicating this 8 claim, we must first determine whether the district court used 9 the correct standard in reviewing the administrative committee's

10 decision that appellant was not entitled to additional years of 11 pension credit. "[A] denial of benefits challenged under [29 12 U.S.C.] § 1132(a)(1)(B) is to be reviewed [by a district court] 13 under a de novo standard unless the benefit plan gives the 14 administrator or fiduciary discretionary authority to determine 15 eligibility for benefits or to construe the terms of the plan." 16 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 17 Where the plan does grant discretion to the administrator, a 18 court "will not disturb the administrator's ultimate conclusion 19 unless it is arbitrary and capricious." Pagan v. NYNEX Pension 20 Plan, 52 F.3d 438, 441 (2d Cir. 1995).

21 We have in the past described discretion as a "multi-faceted

22 concept" whose contours are not clearly defined. Morse v.

23 Stanley, 732 F.2d 1139, 1141 (2d Cir. 1984). In recent years,

24 the amount and type of discretion afforded a plan administrator

25 under ERISA has received more judicial attention, and it is now

26 settled that if a plan administrator clearly has been granted

27 discretionary authority in the plan documents, a court will defer

1 to the administrator's decision. See Pagan, 52 F.3d at 441. The 2 grant of discretionary authority thus narrows the range of 3 judicial oversight and shields a plan administrator's decision 4 from a more searching and broader de novo review. 5 Appellant argues that we must look to the SPD in determining 6 the proper standard. The SPD in the instant case is silent with 7 respect to any discretion reserved by the committee. Yet 8 appellant does not dispute the fact that the General Foods Plan 9 itself gives discretionary authority to the administrative

10 committee. It states that the General Foods administrative 11 committee "shall have all powers reasonably necessary to 12 administer the Plan and is authorized, in accordance with its 13 provisions, to determine eligibility, to compute and determine 14 benefits, and to determine individual rights and privileges under 15 the Plan." The Plan further explains: "The acts, decisions, 16 determinations, and interpretations of the [administrative 17 committee] pursuant to the provisions of the Plan and/or the 18 trust agreement(s) shall be conclusive." This language satisfies 19 the concern expressed by the Supreme Court in Firestone that the 20 fiduciary in that case was not one "who exercises entirely 21 discretionary authority or control." 489 U.S. at 113 (emphasis 22 removed).

23 Plaintiff contends that because the SPD is intended to be an

24 employee's foremost resource on the terms of the Plan, see

25 Heidgerd v. Olin Corp., 906 F.2d 903, 907 (2d Cir. 1990), to

26 avoid de novo review by courts, the plan administrator must make

1 plain in the SPD that the administrative committee retains 2 discretionary authority to which courts will likely defer. This 3 issue is one we have left unresolved. See Mario v. P & C Food 4 Markets, Inc., 313 F.3d 758, 765 (2d Cir. 2002) ("Although this 5 question is open to debate, we need not resolve it now because, 6 in the instant case, the plan administrator's determination 7 survives even the broader de novo review."). 8 We have also held that where the plan documents and the 9 summary plan description conflict, the SPD controls. Heidgerd,

10 906 F.2d at 908. Where the SPD is silent on a provision that the 11 plan documents include, and plaintiff contends therefore the term 12 cannot apply to him, we utilize a two-step approach to analyze 13 plaintiff's argument. See, e.g., Wilkins v. Mason Tenders Dist. 14 Council Pension Fund, 445 F.3d 572, 584-85 (2d Cir. 2006); cf. 15 Mario, 313 F.3d at 764. First, relying on the statutory language 16 of ERISA and its implementing regulations, we look to see whether 17 ERISA requires the term to be stated in the SPD. Wilkins, 445 18 F.3d at 584-85. Second, we consider whether plaintiff was likely 19 prejudiced by the SPD's silence on the term or information at 20 issue. Id. at 585.

21 ERISA requires plan administrators to furnish participants

22 and beneficiaries with a summary plan description "written in a

23 manner calculated to be understood by the average plan

24 participant" and "sufficiently accurate and comprehensive to

25 reasonably apprise such participants and beneficiaries of their

26 rights and obligations under the plan." 29 U.S.C. § 1022(a).

1 The summary plan description is "an employee's primary source of 2 information regarding employment benefits, and employees are 3 entitled to rely on the descriptions contained in the summary." 4 Heidgerd, 906 F.2d at 907. Nonetheless, the summary plan 5 description is intended to be a summary, not a full recitation of 6 the terms of the plan, and we do not expect that SPDs will 7 "anticipate every possible idiosyncratic contingency that might 8 affect a particular participant's" eligibility for benefits. 9 Estate of Becker v. Eastman Kodak Co., 120 F.3d 5, 9 (2d Cir.

10 1997).

11 The ERISA statute and associated regulations require plan

12 administrators to include certain information in the summary plan

13 descriptions. See 29 U.S.C. § 1022(b); 29 C.F.R. § 2520.102-3.

14 One such requirement under the statute is that a summary plan

15 description describe all "circumstances which may result in

16 disqualification, ineligibility, or denial or loss of benefits."

17 29 U.S.C. § 1022(b). The regulations require, for employee

18 pension benefit plans, a statement describing all "conditions

19 which must be met before a participant will be eligible to

20 receive benefits," 29 C.F.R. § 2520.102-3(j)(1), and a statement

21 "clearly identifying circumstances which may result in

22 disqualification, ineligibility, or denial . . . of any benefits

23 that a participant . . . might otherwise reasonably expect the

24 plan to provide on the basis of the description of benefits," id.

25 at § 2520.102-3(l).

1 Tocker does not raise, nor do we reach, whether a plan 2 administrator's discretionary authority is a material aspect of 3 "the remedies available under the plan for the redress of claims 4 which are denied in whole or in part (including procedures 5 required under section 1133 of [Title 29])," 29 U.S.C. § 1022(b), 6 and thereby or otherwise is required to be included in the 7 summary plan description. 8 Although we have recently rejected an argument that the 9 grant of discretion to a plan administrator alters only a

10 procedural provision and does not affect the substance of an 11 ERISA benefits claim, Gibbs v. Cigna Corporation, 440 F.3d 571, 12 577 (2d Cir. 2006), it is just as obvious that the level of 13 discretion reserved to a plan administrator is not a 14 "condition[ ] which must be met before a participant will be 15 eligible to receive benefits," 29 C.F.R. § 2520.102-3(j)(1) 16 (emphasis added). Nor is it a circumstance which may result in 17 denial of benefits within the meaning of 29 U.S.C. § 1022(b). 18 Our cases make clear that the circumstances referred to in § 1022 19 are conditions or facts that may be used by a plan administrator 20 to deny benefits. See, e.g., Wilkins, 445 F.3d at 584 21 (explaining that "mandatory prerequisite[s]" must be explained in 22 summary plan descriptions).

23 In any event, even were we to find that the SPD was

24 deficient because it did not explain the plan administrator's

25 discretionary authority to determine benefit eligibility, we

26 would also need to find that plaintiff was likely prejudiced by

1 the SPD's silence. See Burke v. Kodak Ret. Income Plan, 336 F.3d 2 103, 111-13 (2d Cir. 2003) (adopting a "likely prejudice" 3 standard). Plainly, appellant was not likely to have been harmed 4 by the SPD's failure to describe the plan administrator's 5 discretionary authority for coverage decisions. See Mario, 313 6 F.3d at 764 ("[T]he standard of judicial review . . . simply 7 fixes the procedure to be followed after a denial has occurred, 8 and therefore a plan participant cannot be prejudiced by a lack 9 of knowledge about that procedure."); Martin v. Blue Cross & Blue

10 Shield, 115 F.3d 1201, 1205 n.4 (4th Cir. 1997). Further, Tocker 11 knew that General Foods reserved the right to "change, modify, or 12 discontinue . . . without notice" the benefits explained in the 13 booklet, and he cannot claim to have been prejudiced by the SPD's 14 omission of the clearer grant of discretionary authority which 15 was contained in the General Foods Plan.

16 In sum, we need not rely on the SPD in determining our

17 standard of review. The arbitrary and capricious standard of

18 review is warranted where the plan documents provide for

19 discretionary authority, the summary plan description does not

20 contain any conflicting language, and the applicable statutes and

21 regulations do not require that the SPD contain provisions

22 addressing the issue. It is noteworthy that those of our sister

23 circuits to have considered this issue have reached the same

24 conclusion as we do here. See Martin, 115 F.3d at 1205; Cagle v.

25 Bruner, 112 F.3d 1510, 1517, reh'g en banc denied, 124 F.3d 223

26 (11th Cir. 1997); Wald v. Southwestern Bell Corp., 83 F.3d 1002,

1 1006 (8th Cir. 1996); Atwood v. Newmont Gold Co., 45 F.3d 1317, 2 1321-22 (9th Cir. 1995), overruled on other grounds by Abatie v. 3 Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006). 4 II Review of the Administrative Committee's Decision 5 Having concluded that the proper standard for reviewing the 6 administrative committee's determination is the arbitrary and 7 capricious standard, we turn now to the committee's decision. 8 Under the arbitrary and capricious standard, we will uphold the 9 administrator's determination unless it is without reason or

10 erroneous as a matter of law. Pagan, 52 F.3d at 442. Where the 11 plan participant and the plan administrator offer "two competing 12 yet reasonable interpretations of [the plan]," then "[we] must 13 accept that offered by the administrators." Id. at 443. 14 Appellant's claim is one for benefits due him under the 15 terms of his pension plan, pursuant to 29 U.S.C. § 1132(a)(1)(B). 16 Tocker asserts he was entitled to pension credits for the 12 17 years that he received long-term disability benefits, from March 18 1990 until he attained age 65 in 2002, because the General Foods 19 summary plan description advised that when employees became 20 eligible for long-term disability benefits, they also would 21 "continue to accrue Non-contributory Benefits" toward their 22 pensions.

23 The administrative committee considered Tocker's appeal

24 letter and documentation regarding his appeal. It determined

25 that appellant had been terminated as part of the work force

26 reduction program arrangement that he accepted effective March 1,

1 1990 and that termination of employment had been communicated to 2 him in the 1990 letters from Robert Varone. The committee 3 reasoned that the disability provision relied upon by plaintiff 4 in declaring that he was eligible for additional years of 5 credited service actually provided for "continued accrual of 6 credited service only to participating employees as defined by 7 the pension plan." Because Tocker's long-term disability 8 benefits began after his termination date of March 1, 1990, with 9 a gap of a few days between the time his employment ended and the

10 time his long-term disability benefits began, Tocker was not able 11 to continue to accrue credited service toward his pension. He 12 had ceased accruing credited service when he ceased being an 13 employee. Further, because Tocker was no longer a participating 14 employee, he was no longer eligible for service credits for his 15 pension. The committee was aware of plaintiff's assertion that 16 one cannot be terminated and placed on long-term disability, and 17 agreed with him that typically such was the case. However, the 18 committee reasoned that a special exception had been made to 19 allow appellant to receive these benefits.

20 We cannot say that the administrative committee's decision

21 was arbitrary or capricious. According to the Plan, an employee

22 "remains a Participating Employee . . . until his Retirement Date

23 or the date of termination of his employment, whichever is

24 . . . [earlier]." There is ample evidence to show that plaintiff

25 was in fact terminated as of March 1, 1990. Tocker signed

26 numerous documents stating that he was terminated. And he made

1 various elections of benefits, including the conversion of his 2 life insurance, which were consistent with ending his employment. 3 Although, as the district court pointed out, there is also 4 evidence that Tocker was not terminated -- including the 5 declaration from his supervisor that the supervisor did not 6 think, nor was he ever informed that Tocker was terminated -- 7 this is insufficient to show that the administrative committee's 8 decision was arbitrary and capricious. See Pagan, 52 F.3d at 9 443.

10 Consequently, the administrative committee's decision that 11 Tocker was only entitled to pension credit for the years from 12 September 1967 until March 1990 was not arbitrary and capricious. 13 The district court correctly affirmed this administrative 14 determination.

15 III Tocker's Fiduciary Duty Claim

16 We turn next to plaintiff's claim that Robert Varone, acting

17 on behalf of the General Foods Plan, breached a fiduciary duty to

18 plaintiff by failing to inform him that he would not continue to

19 accrue pension credits after March 1, 1990. Under ERISA

20 § 502(a)(2) a plan beneficiary like Tocker may bring a claim for

21 breach of fiduciary duty. See Pilot Life Ins. Co. v. Dedeaux,

22 481 U.S. 41, 53 (1987). Defendants declare that this is a new

23 claim that Tocker failed to raise before the district court.

24 Yet, appellant insisted at oral argument before the district

25 court that defendants breached their fiduciary duty to him.

1 Accordingly, we cannot agree with defendants that Tocker's claim 2 is a new one not raised in the trial court. 3 In its memorandum decision and order granting summary 4 judgment for defendants, the district court did not address 5 Tocker's fiduciary duty claim. It is appropriate for the 6 district court to address this claim in the first instance. See 7 Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 66 (2d 8 Cir. 2006). As a consequence, we must remand the fiduciary duty 9 claim so that the district court may consider it.

10 We note, however, that our conclusion that the district 11 court should hear this issue in the first instance has no bearing 12 on the merits of appellant's contentions. We thus do not mean to 13 suggest that Tocker necessarily has a viable claim for breach of 14 fiduciary duty, especially in light of Varone's March 14, 1990 15 letter to Tocker detailing his benefits upon termination, which 16 indicated Tocker would begin to receive pension benefits in 1992 17 and specified what those payments would be. But that, we think, 18 raises questions that ought to be resolved first by the district 19 court.

20 IV Motion to Amend Complaint to Add Necessary Parties

21 Plaintiff filed his complaint against Philip Morris

22 Companies, Inc., a/k/a Altria Group, Inc., Kraft Foods Inc., and

23 General Foods Corp. In so doing he failed to name as defendants

24 either the General Foods Plan or the administrative committee.

25 After defendants moved for summary judgment, plaintiff moved to

26 amend his complaint to add these necessary parties.

1 Federal Rule of Civil Procedure 15(a) provides that leave to 2 amend a complaint should be "freely given when justice so 3 requires." Fed. R. Civ. P. 15(a). However, a motion for leave 4 to amend a complaint may be denied when amendment would be 5 futile. Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). In 6 light of our disposition remanding Tocker's fiduciary duty claim, 7 we also must vacate and remand the district court's denial of 8 Tocker's motion to amend his complaint to add necessary parties. 9 On remand, the district court should again consider whether it

10 would be futile to amend Tocker's complaint as it proceeds with 11 plaintiff's fiduciary duty claim.

12 CONCLUSION

13 For the reasons stated, we affirm that part of the judgment

14 of the district court which properly determined that the

15 administrative committee's benefits decision was not arbitrary

16 and capricious. However, we vacate and remand that part of the

17 judgment that dismissed plaintiff's fiduciary duty claim.

¹ We briefly note the recent corporate name changes of General Foods Corp., which in March 1989 merged with Kraft Inc. and became Kraft General Foods, Inc. The company name was later simplified to Kraft Foods Inc. in 1995, and to Kraft Foods North America, Inc. in 2001. Meanwhile, in 1991 the General Foods Plan merged into the Kraft Retirement Plan. The plan is now administered by Kraft Foods North America, Inc. Administrative Committee. The merger and the name changes are irrelevant to the issues in this case. We refer throughout this opinion to the company as General Foods and to the plan as the General Foods Plan. We refer to the administrative committee as the Kraft Administrative Committee or simply the administrative committee.

² Congress recently passed the Pension Protection Act of 2006, Pub. L. No. 109-280 (2006), which significantly amends the ERISA statute. The new provisions appear to be inapplicable to the issues we address today and, in any case, we need not reach them. We refer throughout the opinion to the statute as codified prior to the enactment of the Pension Protection Act.