FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      September 5, 2012

                                                                         Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                             Clerk of Court
                       _________________________________

WILLIAM FOSTER,

            Plaintiff - Appellant,

v.                                                         No. 10-5123

PPG INDUSTRIES, INC., a corporation;
PPG INDUSTRIES EMPLOYEE
SAVINGS PLAN, an ERISA plan,

            Defendants-Third-Party-
            Plaintiffs - Appellees,

and

PATRICIA FOSTER,

            Third-Party-Defendant.
                       _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. No. 4:06-CV-00423-GKF-TLW)
                   _________________________________

Steven R. Hickman, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, for Plaintiff-
Appellant.

John H. Tucker (Randall E. Long, with him on the brief), Rhodes, Hieronymus, Jones,
Tucker & Gable, Tulsa, Oklahoma, for Defendant-Third-Party-Plaintiff-Appellees.
                       _________________________________

Before HARTZ, EBEL, and HOLMES, Circuit Judges

                       _________________________________
EBEL, Circuit Judge.

       Plaintiff-Appellant William Foster (“Foster”) sued his former employer,

Defendant-Appellee PPG Industries, Inc. (“PPG”), and Defendant-Appellee the PPG

Industries Employee Savings Plan (the “Plan”) (collectively, “Defendants”) under the

Employee Retirement Income Security Act (“ERISA”) to recover Plan benefits allegedly

due him after Foster’s ex-wife fraudulently withdrew Foster’s entire Plan account

balance. The district court upheld the decision of the Plan Administrator, who had

determined that the Plan was not liable to reimburse Foster for the fraudulently

withdrawn benefits. Foster appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

                                I.     BACKGROUND

A.     Foster’s employment, marital, and residential history

       Foster was employed by PPG from October 1988 to October 20, 1999. While

employed by PPG, Foster participated in the Plan. The Plan is a 401(k) employee stock

ownership plan, governed by ERISA, consisting of employee contributions matched in

part by employer contributions. When Foster separated from PPG employment, his rights

in his Plan account balance were fully vested. Foster did not elect to withdraw his money

from his Plan account when his employment terminated, but rather deferred receipt of his

benefits, thereby remaining a Plan participant.




                                                  2
       Foster was married to Patricia Foster1 from 1993 until July 27, 2004, when the

couple divorced. During their marriage, the Fosters lived together at 12401 East 33rd

Place, in Tulsa (“the marital residence”). When Foster left his employment with PPG in

1999, he still resided at the marital residence, and this address remained on file with PPG

as Foster’s permanent address. In early July 2004, prior to the finalization of the divorce,

Foster moved out of the marital residence, but Foster did not change his permanent

address on file with PPG and the Plan until September 21, 2005. Ms. Foster continued to

live at the marital residence. At no time between July 2004 and September 2005 did

Foster file an official change of address form with the U.S. Postal Service or otherwise

notify PPG or the Plan of his change of address.

B.     Activity on Foster’s Plan account

       Even before Foster had moved out of the marital residence, PPG had implemented

automated systems for Plan participants to access their accounts, and notified Plan

participants of how to use these systems. These systems used a combination of Social

Security numbers and Personal Identification Numbers (“PINs”) to protect participants’

accounts. PPG had also notified participants that it would soon be introducing enhanced

security measures to “address the increasing concern around possible identity theft and

data privacy.” Aplt. App. at 314. These new measures included the use of unique User

IDs rather than Social Security numbers and more complex password requirements.



       1
         For clarity, this opinion will refer to William Foster as Foster. It will refer to
Patricia Foster as “Ms. Foster.”

                                                  3
       In March 2005, PPG mailed information on how to establish a new User ID and

password, marked “To Be Opened By Addressee Only,” to the marital residence. Id. at

288, 538. Ms. Foster received the document and used the information it contained, along

with Foster’s Social Security number, to attempt to gain access to Foster’s account

online. In accordance with its procedures, PPG processed the password reset request and

sent it to the “permanent address on file,” i.e., the marital residence. Id. at 32. On May

8, 2005, armed with the new password and Foster’s Social Security number, Ms. Foster

created a User ID, password, answers to security questions, and beneficiary designation

on Foster’s account, changed the mailing address on the account to her P.O. box, and

requested a withdrawal of $4,000, to be directly deposited to a numbered account at the

Bank of Oklahoma. PPG processed the request on May 9, 2005. By September 13,

2005, Ms. Foster had emptied the account, $42,126.38 in all.

C.     Foster’s Dealings with PPG

       In September 2005, Foster contacted the Plan service center by phone and updated

his mailing address. During the call, Foster apparently did not inquire as to the balance

of his account, nor was he told his account was empty. Foster first became aware of the

withdrawals from his account in January 2006, when he received at his new home

address a 2005 Form 1099-R from Fidelity Investments reporting a distribution of

$42,126.38. On January 30, 2006, Foster sent a letter to the “PPG Plan Administrator,”

reporting that he had received a 1099-R and “claiming potential fraud, as I did not request

withdrawal from my plan and I did not authorize any disbursement from this plan.” Id. at

24.

                                                 4
       The Plan Administrator’s designate, Adrianne Scott, responded on March 6, 2006.

She told Foster that PPG was reviewing his account activity and “seeking guidance from

PPG’s outside legal counsel as to what steps need to be taken next to investigate your

claims.” Id. at 25. She promised to keep Foster “abreast of the results of our review.”

Id. In subsequent communications between Foster and Scott, Foster “did admit that his

ex-wife had admitted to withdrawing the funds from his account.” Id. at 380.

Nevertheless, Foster wrote a second letter on May 30, 2006, stating “I did not request or

authorize the above referenced disbursement in 2005 and demand that the full amount of

$42,126.38 be put back into my plan, and the 1099R for same be rescinded.” Id. at 26.

       On May 31, 2006, Scott wrote to Foster to tell him that “outside legal counsel has

determined that the Plan is not liable for the events that took place, as proper security

measures were in place to ensure the safety of participants’ assets in the Plan.” Id. at 27.

Scott stated that the Plan would “make a reasonable attempt to recover the distributed

amount from your ex-wife,” and that if it could not recover the amount, it would re-issue

the 1099-R in Ms. Foster’s name. Id. The letter acknowledged Foster’s “very

unfortunate situation,” and advised him that he might pursue legal action against Ms.

Foster.2 Id. Finally, the letter encouraged Foster to write to the Plan Administrator if he


       2
         Foster did not pursue any legal action against Ms. Foster. In her deposition, Ms.
Foster stated that she believed that Foster had given her permission to use the money in
the account, both because he had not changed his address with PPG, and because he
wanted to reconcile. Foster told Ms. Foster in April 2006 that “he knew [she] had taken
[the money] and why [she] had taken it,” and that he would not go through with his suit
against PPG if she “came back to him.” Aplt. App. at 408. Ms. Foster also testified that
Foster told her that he was suing PPG, rather than her, because Foster “knew I didn’t
have any money and you guys [PPG] did.” Id. Foster, in his deposition, testified that he
                                                 5
wished to discuss the matter further, and in the meantime to call Scott with any questions.

Scott reiterated the Plan’s position in a letter of July 28, 2006.

       II.    Procedural Background

       Foster filed suit against PPG and the Plan in the Northern District of Oklahoma on

August 15, 2006. In his amended complaint he asserted two distinct ERISA violations,

albeit without reference to specific statutory provisions. First, Foster alleged that he had

demanded, but Defendants had refused to pay, “distribution of his share of the [P]lan,” id.

at 12, which we construe as a claim under 29 U.S.C. § 1132(a)(1)(B).3 Second, Foster

alleged that he had “sought information from Defendants regarding the plan, to which he

is entitled under ERISA, and which has not been furnished to him,” Aplt. App. at 12,

which we construe as a claim under 29 U.S.C. § 1132(a)(1)(A).4 Defendants impleaded

Ms. Foster as a third-party defendant on December 19, 2006. Following amendment of

Foster’s complaint, discovery, the parties’ joint submission of an Administrative Record,

and a hearing before a magistrate judge developing the Administrative Record, the

district court remanded the case to the Plan Administrator on Defendants’ motion.

did not sue Ms. Foster to recover the money because he “felt she had no money,” id. at
442, and indeed, Ms. Foster admitted that she had spent it all.
       3
        29 U.S.C. § 1132(a)(1)(B) provides for a civil action by a plan participant “to
recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”
       4
           29 U.S.C. § 1132(a)(1)(A), by reference to 29 U.S.C. § 1132(c), provides that a
Plan Administrator “may in the court’s discretion be personally liable to [a] participant
. . . in the amount of up to $100 a day” for failure or refusal to supply requested
information. Citing an absence of prejudice or bad faith, as well as the fact that Foster
ultimately received the requested information, the district court declined to impose any
such penalty. Foster does not appeal this determination.
                                                  6
       On May 9, 2008, Plan Administrator G. Thomas Welsh, PPG’s Director of HR

Services and Benefits, issued a formal determination to Foster, “in light of the Court’s

order [and] considering [Foster’s] claim as a request for payment of benefits for the full

amount in controversy.” Id. at 537. The Administrator denied Foster’s request for

“additional benefits” on the grounds that “[1] the Plan had in place all the necessary and

proper security measures, [2] the benefits were paid in accordance with all Plan terms and

requirements, and [3] [Foster’s] loss of benefits was due to [Foster’s] own failure to

comply with [the Plan’s address change requirements] and the fraudulent conduct of Ms.

Foster.” Id.

       Foster challenged this determination in the district court. As pertinent to this

appeal, Foster argued below (1) that the Plan Administrator’s decision should be

reviewed de novo, and (2) that because Foster had not personally requested or received

his money, and because the money had instead been paid to another, the money had been

“forfeited” in violation of 29 U.S.C. § 1053(a). The district court, applying a deferential

arbitrary-and-capricious standard of review, upheld the Administrator’s decision. It

further determined that “nonforfeitable” as defined in 29 U.S.C. § 1002(19) had no

application to a situation in which the loss of benefits was due to the wrongful action of

third parties. Foster now appeals.




                                                 7
                                   II.    DISCUSSION

A.     Standard of Review

       This Court reviews the “plan administrator’s decision to deny benefits to a

claimant, as opposed to reviewing the district court’s ruling.” Holcomb v. Unum Life

Ins. Co. of Am., 

, 1192 (10th Cir. 2009). In reviewing the administrator’s

actions, we are “limited to the administrative record—the materials compiled by the

administrator in the course of making his decision.” Id. (internal quotation marks

omitted).

       We will “review a denial of plan benefits ‘under a de novo standard’ unless the

plan provides to the contrary.” Metro. Life Ins. Co. v. Glenn, 

, 111 (2008)

(quoting Firestone Tire & Rubber Co. v. Bruch, 

, 115 (1989)). Where the

plan confers upon the administrator discretionary authority to determine eligibility for

benefits or to interpret plan terms, “a deferential standard of review is appropriate.” Id.

(internal quotation marks omitted). In such cases we review the administrator’s decision

for abuse of discretion. See id. This Court treats the abuse-of-discretion standard and the

arbitrary-and-capricious standard as “interchangeable in this context,” and “applies an

arbitrary and capricious standard to a plan administrator’s actions.” Fought v. Unum Life

Ins. Co. of Am., 

, 1003 & n.2 (10th Cir. 2004) (per curiam) (internal

quotation marks omitted), abrogated on other grounds by Glenn, 

 (2008).

       Where the plan administrator is “operat[ing] under a conflict of interest, . . . that

conflict” may be weighed “as a factor in determining whether the plan administrator’s

actions were arbitrary and capricious.” Charter Canyon Treatment Ctr. v. Pool Co., 153

                                                  

, 1135 (10th Cir. 1998). A plan administrator acting in a dual role, i.e., both

evaluating and paying claims, has such a conflict of interest. Glenn, 554 U.S. at 112. In

such cases, we apply “a combination-of-factors method of review that allows judges to

take account of several different, often case-specific, factors, reaching a result by

weighing all together.” Holcomb, 578 F.3d at 1193 (internal quotation marks and

alterations omitted) (citing Glenn, 554 U.S. at 117). “[W]e will weigh the conflict of

interest as a factor in our abuse of discretion analysis, and we will weigh it more or less

heavily depending on the seriousness of the conflict.” Murphy v. Deloitte & Touche Grp.

Ins. Plan, 

, 1157 n.1 (10th Cir. 2010).

       Here, the parties do not dispute that Section 15.2(A) of the Plan grants the Plan

Administrator “complete authority,” inter alia, to “determine eligibility for benefits,”

“make factual findings,” “construe the terms of the Plan,” and “control and manage the

operation of the Plan.” Aplt. App. at 132. We therefore evaluate the Plan

Administrator’s decision—i.e., that the Plan should not reimburse Foster’s Plan account

for the amount Ms. Foster withdrew—under the deferential arbitrary-and-capricious

standard. We weigh, as a factor in that analysis, the Plan Administrator’s inherent

conflict of interest, and ask only whether the Plan Administrator abused his discretion.

       “[C]onflict of interest . . . should prove more important (perhaps of great

importance) where circumstances suggest a higher likelihood that it affected the benefits

decision . . . . It should prove less important (perhaps to the vanishing point) where the

administrator has taken active steps to reduce potential bias and to promote accuracy.”

Glenn, 554 U.S. at 117. Following this guidance, we give the Plan Administrator’s

                                                  9
inherent conflict of interest minimal weight in this analysis. See Murphy, 619 F.3d at

1157 n.1. The circumstances do not suggest a “higher likelihood” that the inherent

conflict “affected the benefits decision.” As an initial matter, we note that the initial

“benefits decision” was the decision to process account withdrawals upon receipt of a

procedurally sound request. The record shows that the disbursements were made

promptly and without difficulty. In other words, to the extent that the Plan’s self-interest

would have dictated keeping the money at the time the initial benefits decision was made,

the Plan did not keep the money, but rather paid the money when requested in accordance

with its procedures.

       To the extent that the “benefits decision” we evaluate here was the ultimate

decision not to reimburse Foster’s Plan account, the record shows that the Plan

Administrator took “active steps to reduce potential bias and promote accuracy.” Glenn,

554 U.S. at 117. The Plan sought outside counsel in the matter, and conducted an

investigation. The Plan Administrator permitted Foster to appeal its initial determination.

For all these reasons, the Plan Administrator’s inherent conflict of interest is of minimal

importance to our analysis, and does not alter our conclusion that there was no abuse of

discretion. See id.; Murphy, 619 F.3d at 1157 n.1.



B.     Nonforfeitability

       Before evaluating the Plan Administrator’s decision, we first address Foster’s

legal contention that because he personally never received his money, the Plan

Administrator’s decision violated ERISA’s nonforfeitability provision, 29 U.S.C. §

                                                 10
1053(a). The district court concluded that ERISA’s nonforfeitability provisions could not

be interpreted to mean that the plan must act as “insurer against any and all wrongful

actions by third parties.” Aplt. App. at 608 (Order at 6). The district court’s

interpretation of ERISA is a question of law that this Court reviews de novo. See

Kellogg v. Energy Safety Servs. Inc., 

, 1125 (10th Cir. 2008). We

conclude there was no prohibited forfeiture.

       1.     Forfeiture generally

       A “forfeiture” is the “divestiture of property without compensation.” Black’s Law

Dictionary (9th ed. 2009). In the benefits context, we generally think of a benefit as

“forfeited” where it disappears, to the employer’s or promisor’s gain, usually because of

some prohibited action on the part of the employee/promisee. See, e.g., 38 U.S.C.

§ 6103(a) (providing that a person who commits fraud in connection with a claim to

veteran’s benefits “shall forfeit all rights, claims, and benefits under all laws administered

by the Secretary”); id. § 6104(a) (same for a person who commits treason); Hobbie v.

Unemployment Appeals Comm’n of Fla., 

, 144 (1987) (describing loss of

right to state unemployment benefits because of for-cause termination as a “forfeiture of

unemployment benefits”); Estate of Cowart v. Nicklos Drilling Co., 

, 481

(1992) (describing loss of right to compensation and medical benefits under the

Longshore and Harbor Workers’ Compensation Act for failure to comply with statutory

provisions regarding third-party settlements as a “forfeiture of future benefits”); cf.

Thompson v. Clifford, 

, 169 & n.10 (D.C. Cir. 1968) (denoting federal



                                                 11
statutes that use the “deprivation of civil privileges as a method for regulating conduct”

as “forfeiture” statutes).

       The situation presented here is nothing like a conventional forfeiture. Unlike, for

example, the Secretary of Veterans Affairs stripping a servicemember convicted of

treason of his veteran’s benefits, the Plan did not refuse to pay benefits to Foster because

he had engaged in some form of prohibited action. Rather, the Plan paid Foster’s benefits

as contemplated under the Plan terms. Here, the Plan simply determined that it should

not pay Foster’s benefits twice because of Foster’s failure to comply with his obligations

to ensure that the initial payment was not made to an imposter. Foster’s discontent with

the form, manner, and recipient of the initial benefits payment might implicate the

specific terms of his contract with PPG and the Plan, but it does not implicate the concept

of forfeiture, as we discuss below.

       2.      ERISA’s nonforfeitability provision

       Section 203(a) of ERISA (“Minimum vesting standards”) provides that “[e]ach

pension plan shall provide that an employee’s right to his normal retirement benefit is

nonforfeitable upon the attainment of normal retirement age.” 29 U.S.C. § 1053(a). It

requires that an employee’s own contributions to a plan are immediately nonforfeitable,

and that an employer’s contributions to the employee’s account are nonforfeitable after a

minimum vesting period. See id. § 1053(a)(1), (2). “Nonforfeitable” is statutorily

defined:

       The term “nonforfeitable” when used with respect to a pension benefit or
       right means a claim obtained by a participant or his beneficiary to that part
       of an immediate or deferred benefit under a pension plan which arises from

                                                12
       the participant’s service, which is unconditional, and which is legally
       enforceable against the plan.

29 U.S.C. § 1002(19). The pertinent regulations equate “nonforfeitable” with “vested.”

See 29 C.F.R. § 2530.203-1(a) (“[A] pension plan subject to [ERISA] must meet certain

requirements relating to an employee’s nonforfeitable (‘vested’) right to his or her normal

retirement benefit.”).

       In evaluating this nonforfeitability provision, the Supreme Court has stated that the

underlying purpose of these provisions was to address Congress’s explicit concerns

regarding the risks of plans with no vesting provisions, or plans that were underfunded,

unstable, or terminated. See Alessi v. Raybestos-Manhattan, Inc., 

, 510 n.5

(1981); Nachman Corp. v. Pension Benefits Guar. Corp., 

, 374 (1980) (“One

of Congress’ central purposes in enacting this complex legislation was to prevent the

great personal tragedy suffered by employees whose vested benefits are not paid when

pension plans are terminated.”) (emphasis added; internal quotation marks, footnote

omitted). Consistent with this underlying purpose are the specific means undertaken by

Congress “[t]o ensure that employee pension expectations are not defeated,” namely, the

establishment of minimum rules for participation, funding standards to increase plan

solvency, fiduciary duties on the part of plan managers, and an “insurance program in

case of plan termination.” Alessi, 451 U.S. at 510 n.5.

       3.     “Nonforfeitable” does not mean “guaranteed”

       ERISA also expressly provides that certain situations in which pension benefits

are reduced or eliminated do not render the rights to those benefits “forfeitable.” See 29


                                                13
U.S.C. § 1053(a)(3). These include a plan that provides that benefits shall not be payable

if the participant dies; a plan that suspends pension payments if the participant is re-hired;

and a plan amendment that is made applicable retroactively. See id. In light of this, the

Supreme Court has observed “[i]t is therefore surely consistent with the statutory

definition of ‘nonforfeitable’ to view it as describing the quality of the participant’s right

to a pension rather than a limit on the amount he may collect.” Nachman, 446 U.S. at

373 (emphasis added); see Alessi, 451 U.S. at 512 (explaining that “nonforfeitable”

means “that an employee’s claim to the protected benefit is legally enforceable, but it

does not guarantee a particular amount or a method for calculating the benefit”).

       By the plain language of § 1002(19), “it is the claim to the benefit, rather than the

benefit itself, that must be ‘unconditional’ and ‘legally enforceable against the plan.’”

Nachman, 446 U.S. at 371. We read “unconditional” in § 1002(19) to mean that any and

all conditions precedent to the participant’s asserting a claim to his benefits have been

met. We do not read it to mean that a participant is entitled to a fixed amount of benefits

regardless of any and all later-occurring conditions, such as the theft of savings plan

funds by a participant’s ex-spouse in possession of a participant’s Social Security

number. Conditions that occur after one’s rights have vested do not necessarily violate

ERISA’s nonforfeitability provision. See Modzelewski v. Resolution Trust Corp., 

, 1378 (9th Cir. 1994) (“[N]onforfeitable does not mean that the payments must

be absolutely unconditional.”) (emphasis added). Foster points us to no authority that

suggests otherwise.



                                                 14
       Foster’s claim to his benefits was “unconditional,” 29 U.S.C. § 1002(19), insofar

as it was not conditioned upon any further employment or action on his part. PPG and

the Plan do not dispute that Foster’s interest in his Plan account was fully vested, and

they did not attempt to impose any impermissible conditions on Foster’s right to claim

benefits. That his claim was also “legally enforceable against the plan,” id., is evidenced

by the fact that the Plan paid out full benefits in his name in accordance with its

established procedures, and by the fact that the Plan Administrator afforded Foster the

opportunity for a full and fair review of his subsequent claim against the Plan. That his

claim ultimately was denied does not mean that it was forfeited.

       For all these reasons, we agree with the district court that the mere “fact that

Foster has not received his benefits is insufficient in itself to allow him recovery against

the Plan.” Aplt. App. at 608 (Order at 6). The circumstances of this case entailed no

forfeiture and do not violate ERISA’s nonforfeitability provision. Foster was not

deprived of his benefits due to the insolvency or termination of the Plan, but rather due to

Ms. Foster’s wrongful actions, which were facilitated by Foster’s failure to maintain a

current address with Defendants.



C.     The Plan Administrator did not abuse his discretion

       We find no abuse of discretion in the Plan Administrator’s decision that the Plan

should not reimburse Foster’s Plan account for the amount Ms. Foster withdrew.

       1.     The withdrawals from Foster’s Plan account were paid to “the
              Participant,” “in accordance with procedures established by the
              Administrator”

                                                 15
       Foster does not deny that he received the Plan Document and the Summary Plan

Description (“SPD”) while he was employed by PPG. Nor does he deny that the only

address to which Defendants could have sent him required Plan Newsletters was the

address they had on file, and that he did not advise them of his change of address until

some fourteen months after he had moved out. Under the Plan terms, as contained in the

Plan Document, when Foster elected not to take his retirement funds in a lump sum

distribution when he left PPG’s employ, Foster was “deemed to have elected to defer

receipt of his Account.” Aplt. App. at 112. A participant who “elect[ed] to defer receipt

of part or all of his Account balance” was allowed to make withdrawals from his account

“at any time and from time to time by calling the SPSC [Savings Plan Service Center].”

Id. at 113. Those withdrawals were required to be “made in accordance with procedures

established by the Administrator.” Id.

       Under the procedures established by the Plan Administrator, and laid out in the

SPD,5 a participant could use the SPSC to access his account electronically, through the


       5
          After oral argument, pursuant to Fed. R. App. P. 28(j), Foster drew this Court’s
attention to the Supreme Court’s recent decision in Cigna Corp. v. Amara, 

 (2011), in which the Court held that summary plan descriptions do not constitute
“terms” of an ERISA plan. Id. at 1878 (“[S]ummary documents, important as they are,
provide communication with beneficiaries about the plan, but . . . their statements do not
themselves constitute the terms of the plan . . . .”). Implicitly, Foster suggests in his Rule
28(j) letter that this language in Amara means that the PIN and address change
requirements of the SPD cannot be enforced against him.
        Amara does not alter our conclusion in this case. The Supreme Court was
rejecting the Solicitor General’s argument that because Plan terms include the terms of
the SPD, a district court had power under 29 U.S.C. § 1132(a)(1)(B) to reform an ERISA
plan to conform to the SPD. Instead, the Amara Court concluded that Plan terms do not
include the SPD, and thus the terms of the SPD may not “necessarily . . . be enforced . . .
                                                 16
use of personal identifying information. The SPD notified participants that “[y]our

[SSN] and [PIN] are your keys to access personal account information or to request

transactions. Your PIN is your legal signature for all Savings Plan transactions.” Id. at

176. Participants were told to keep their address current with the SPSC as a general

matter, because “all Plan correspondence is mailed to your address on file at the [SPSC],”

id. at 184, and specifically in the wake of a divorce. Participants were also specifically

told “[b]efore requesting a new PIN, verify that your address on file is correct. PIN

changes and resets are always mailed to the permanent address on file at the [SPSC].” Id.

at 177. Participants were further warned “[u]sing your PIN the first time constitutes a

legal signature for all future Savings Plan transactions, and it should be regarded as

confidential.” Id.

       In other words, Foster was fully informed of how the Plan would allow him access

to his money, and that someone with the correct User ID and PIN would be treated as the

legal participant for purposes of processing withdrawals. Defendants followed their

established procedures in making disbursements in Foster’s name, including sending a

new password to Foster’s permanent address on file, rather than issuing it over the phone


as the terms of the plan itself.” Amara, 131 S. Ct. at 1877 (emphasis added). Nothing in
Amara suggests that where, as here, the terms of the SPD do not contradict the terms of
the Plan document, the terms of the SPD will nevertheless be insufficient to “reasonably
apprise [plan] participants and beneficiaries of their rights and obligations under the
plan.” 29 U.S.C. § 1022(a) (outlining purpose and requirements of summary plan
descriptions). Even if the SPD did not constitute “terms” of the Plan, the procedures laid
out in the SPD were explicitly referenced in the Plan Document and do not in any way
contradict the Plan Document. A participant who elected to defer withdrawal was
required to make those withdrawals “in accordance with procedures established by the
Administrator.” Aplt. App. at 113.
                                                17
or online. Had Foster maintained a current address with Defendants, we may assume that

he, rather than Ms. Foster, would have received that new password and he would have

been alerted that someone was trying to gain access to his account.

       Having followed their established procedures, Defendants were entitled to rely on

the legitimacy of the electronic request and to treat it as a request from Foster, as the

participant. Cf. 15 U.S.C. § 7001(a)(1) (“[W]ith respect to any transaction in or affecting

interstate or foreign commerce[,] a signature . . . relating to such transaction may not be

denied legal effect, validity, or enforceability solely because it is in electronic form.”).

Consistent with well-established procedures for commercial transactions, they were not

obligated to inquire further as to the actual identity of the requester. Cf. U.C.C. §§ 3-

103(a)(9) (“In the case of a bank that takes an instrument for processing for collection or

payment by automated means, reasonable commercial standards do not require the bank

to examine the instrument if the failure to examine does not violate the bank’s prescribed

procedures and the bank’s procedures do not vary unreasonably from general banking

usage . . . .”), 3-406(a) (“A person whose failure to exercise ordinary care substantially

contributes to an alteration of an instrument or to the making of a forged signature on an

instrument is precluded from asserting the alteration or the forgery against a person who,

in good faith, pays the instrument or takes it for value or for collection.”).

       Defendants had no reason to suspect that anything was amiss when Ms. Foster,

masquerading as Foster, obtained access to his Plan account and began requesting

withdrawals. As far as Defendants were aware, it was Foster who requested the



                                                  18
withdrawals, and it was Foster to whom those withdrawals were issued.6 Absent any

showing of fault on the part of Defendants, it was neither arbitrary nor capricious for the

Plan Administrator to determine that Foster’s “benefits were paid in accordance with all

Plan terms and requirements,” Aplt. App. at 537, and that the Plan was not liable to

reimburse Foster for his loss. Cf. Gatlin v. Nat’l Healthcare Corp., 16 F. App’x 283, 288-

89 (6th Cir. 2001) (unpublished) (plan administrator’s decision not to issue a second

check was arbitrary and capricious where plan violated its own policy by permitting

unauthorized address change and then sent benefits check to wrong address, plaintiff’s

estranged spouse fraudulently cashed the check, and plan “refused to provide the plaintiff

with any remedy for a turn of events that was entirely [the plan’s] own fault”).

       2.     There is no ambiguity in the Plan that requires interpretation in
              Foster’s favor

       Foster argues that the Plan is obligated to administer benefits solely for his, as

opposed to its own, benefit. He argues further that an ambiguous plan should be

interpreted in favor of the plan beneficiary. Implicit in this argument is the contention


       6
        Mr. Welsh, the Plan Administrator, was deposed by Foster’s counsel as follows:
       Q:    But you agree that it is your position that in terms of the process by which
             [the funds] were distributed to [Ms. Foster], PPG procedures were
             followed; correct?
       [Welsh’s counsel objected to form.]
       A:    Yes.
       Q.    It wasn’t an employee of PPG that made a mistake and gave the money to
             the wrong person.
       A.    True.
       [Welsh’s counsel objected to form.]

Aplt. App. at 398-99.

                                                 19
that where the Plan is silent on risk of loss from identity theft, the Plan is ambiguous, and

therefore the Plan, as fiduciary, bears the risk of loss. Foster’s reliance on the Plan

Administrator’s fiduciary obligation to administer the plan and interpret its ambiguities in

his favor is misplaced.

       This Court has held that “‘federal common law, governed by principles of trust

law,’” governs the interpretation of an ERISA plan. Miller v. Monumental Life Ins. Co.,

, 1249 (10th Cir. 2007) (quoting Blair v. Metro Life Ins. Co., 

, 1222 (10th Cir. 1992), in parenthetical). In interpreting an ERISA plan, “we

examine the plan documents as a whole and, if unambiguous, construe them as a matter

of law.” Id. at 1250 (internal quotation marks, alterations omitted). Whether an ERISA

plan term is ambiguous depends on the “common and ordinary meaning as a reasonable

person in the position of the plan participant would have understood the words to mean.”

Id. at 1249 (internal quotation marks, alterations omitted).

       This interpretive standard is consistent with the central purposes of ERISA: “to

promote the interests of employees and their beneficiaries in employee benefit plans, and

to protect contractually defined benefits.” Bruch, 489 U.S. at 113 (internal quotation

marks and citations omitted). It is also consistent with the language of ERISA, which

mandates that the summary plan description shall be “written in a manner calculated to be

understood by the average plan participant, and shall be sufficiently accurate and

comprehensive to reasonably apprise such participants and beneficiaries of their rights

and obligations.” 29 U.S.C. § 1022(a). Similarly, ERISA mandates that summaries of

material modifications in the terms of the plan (such as the Newsletters supplied in this

                                                 20
case) “shall be written in a manner calculated to be understood by the average plan

participant.” Id.

       Applying this standard here, we conclude that the Plan is not ambiguous based on

its silence on the question of reimbursing a participant for the fraudulent withdrawal of

plan monies where (1) the Plan specifically references “procedures established by the

Administrator,” Aplt. App. at 113; (2) those procedures contain a basic requirement of

maintaining a current address; and (3) the Plan processed the withdrawals in accordance

with those procedures. Accordingly, there is no need to resort to the general trust

principle that a fiduciary must interpret ambiguities in favor of the beneficiary. The

common and ordinary meaning of the relevant Plan terms in the Plan Document provided

that a participant who deferred receipt of his benefits had to request withdrawals in

accordance with the “procedures established by the Administrator.” Id. at 113. The

Administrator’s procedures, laid out in the SPD and Plan Newsletters, unambiguously

provided for a system of online access to Plan accounts, in which PINs, created and

protected by the safeguards detailed above, would constitute legal signatures authorizing

transactions. A reasonable person in Foster’s position would have understood that under

these procedures, it was his responsibility to keep his address current and to safeguard

information that might be used to gain access to his account. He would further have

understood that the reason for these safeguards was precisely because the Plan would

treat a person in possession of a participant’s personal identifying information as the

participant.



                                                21
       That the Plan did not explicitly spell out that the Plan would not be liable for

losses incurred as a result of a participant’s failure to comply with Plan security measures

does not create an ambiguity that must be resolved in Foster’s favor. See Harris v.

Harvard Pilgrim Health Care, Inc., 

, 278 (1st Cir. 2000) (“[U]nqualified

[ERISA] plan provisions need not explicitly rule out every possible contingency in order

to be deemed unambiguous.”); Sunbeam-Oster Co., Inc. Grp. Benefits Plan for Salaried

and Non-Bargaining Hourly Emps. v. Whitehurst, 

, 1376 (5th Cir. 1996)

(“That judges and lawyers, who by education and experience are primed to discover

ambiguity in contract language, might find gaps or contradictions in a summary plan

description’s ordinary, conversational language does not mean that the language is

necessarily ambiguous or silent to the point of default for ERISA purposes.”). ERISA

mandates that Plan information be written in terms comprehensible to the average

participant. 29 U.S.C. § 1022(a). It need not be exhaustive; it need only be “sufficiently

accurate and comprehensive to reasonably apprise such participants and beneficiaries of

their rights and obligations.” Id. (emphasis added); see Kress v. Food Emp’rs Labor

Relations Ass’n, 

, 568 (4th Cir. 2004) (“We will not create a Catch-22,

under which a plan is either hopelessly complicated and legalistic—in violation of

§ 1022(a)—or ‘ambiguous’ and subject to unwarranted judicial scrutiny.”). The Plan

information here was sufficient to “reasonably apprise” Foster of his rights and

obligations.

       We also note that the Plan Administrator’s decision was consistent with its

fiduciary obligation to safeguard Plan assets for the benefit of all participants, not just

                                                  22
Foster. The Plan had paid out benefits in full in Foster’s name once; to do so again

would have depleted Plan assets to the detriment of other participants. See Varity Corp.

v. Howe, 

, 514 (1996) (“[A] fiduciary obligation, enforceable by

beneficiaries seeking relief for themselves, does not necessarily favor payment over

nonpayment. The common law of trusts recognizes the need to preserve assets to satisfy

future, as well as present, claims and requires a trustee to take impartial account of the

interests of all beneficiaries.”); Phelan v. Wyo. Associated Builders, 574 F.3d. 1250,

1258 (10th Cir. 2009).



                                   III.   CONCLUSION

       We conclude that Foster’s claim to his Plan benefits was not forfeited in violation

of ERISA. Weighing all factors together, we conclude further that the Plan

Administrator did not abuse his discretion in deciding that the Plan should not reimburse

Foster’s Plan account for the amount Ms. Foster withdrew. Accordingly, we AFFIRM

the order of the district court.




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