In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-1109

S HARON M ONDRY,
                                              Plaintiff-Appellant,
                               v.

A MERICAN F AMILY M UTUAL
INSURANCE C OMPANY, et al.,
                                           Defendants-Appellees.


           Appeal from the United States District Court
             for the Western District of Wisconsin.
             No. 06 C 320—John C. Shabaz, Judge.



    A RGUED N OVEMBER 6, 2007—D ECIDED M ARCH 5, 2009




 Before F LAUM, K ANNE, and R OVNER, Circuit Judges.
  R OVNER, Circuit Judge. When Sharon Mondry sought
reimbursement from her workplace insurance plan for
the speech therapy her son was receiving, she was
advised that the therapy was not covered by the plan
because it was “educational or training” and “not restor-
ative.” For the next sixteen months, Mondry repeatedly
asked both the plan and claims administrators to
supply her with the plan documents containing the
2                                              No. 07-1109

language on which the claims administrator had relied in
denying her claim. When the relevant documents were
finally produced, it became patently clear that the provi-
sions of these documents were inconsistent with the
governing language of the insurance plan and that the
claims administrator had inappropriately denied Mondry’s
claim for reimbursement. Once the error was exposed,
Mondry prevailed. Mondry then filed suit against both
the plan and claims administrators under the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001,
et seq. (“ERISA”), contending as relevant here that they
had violated a statutory obligation to produce plan docu-
ments to her and misrepresented the terms of the plan
to her in violation of their fiduciary duties. The district
court dismissed these claims as against the claims ad-
ministrator and entered summary judgment in favor of
the plan administrator. We affirm in part and reverse
in part.


                            II.
  Mondry worked for defendant American Family
Mutual Insurance Company (“American Family”) until
September 2003. During her tenure with the company,
Mondry participated in the AmeriPreferred PPO Plan (the
“Plan”), a self-funded group health insurance plan that
American Family offered to its employees. Mondry also
enrolled her son Zev, who was born in 1999, as a benefi-
ciary of the Plan. The governance and terms of the plan
were set forth in a Summary Plan Description (“SPD”). The
SPD identified American Family as the Plan admin-
No. 07-1109                                             3

istrator but indicated that American Family had con-
tracted with defendant Connecticut General Life
Insurance Company, a subsidiary of CIGNA Corporation
and an affiliate of the CIGNA HealthCare (collectively,
“CIGNA”), to handle the administration of claims for
services pursuant to the Plan.
  On the recommendation of his pediatrician, Zev began
to receive speech therapy in July 2001. Initially, that
therapy was provided to Zev through Wisconsin’s Birth
to Three program, a partially government-funded, early-
intervention program for infants and toddlers with devel-
opmental delays and disabilities. As Zev approached
his third birthday (at which time he would no longer be
eligible to participate in the Birth to Three program),
Mondry arranged for his therapy to continue at the Com-
munication Development Center (“CDC”). When Mondry
contacted American Family’s Human Resources Depart-
ment to ascertain the extent to which Zev’s therapy
would be covered by the Plan, she was directed to the
company’s internal website, where a copy of the SPD was
posted. After reviewing the SPD, Mondry took Zev to
his first speech therapy session at CDC on January 21,
2003 and to regular sessions thereafter. CDC submitted
invoices to CIGNA seeking payment for the therapy.
  On June 13, 2003, CIGNA’s representative, Dr. Marsh
Silberstein, wrote a letter to CDC, with a copy to Mondry,
denying coverage for the speech therapy that Zev was
receiving. In relevant part, the letter stated:
   Your [i.e. Mondry’s] plan provides coverage for speci-
   fied Covered Services which are medically necessary.
4                                                No. 07-1109

    After a review of the information submitted, we
    have determined that the requested services are not
    covered under the terms of your plan. This coverage
    decision was made based on the following:
    The information provided does not meet plan lan-
    guage for speech therapy per CIGNA guidelines.
    Patient has expressive language skills delay and
    auditory comprehension skills impairment. Speech
    therapy to address this delay is educational or training.
    Speech therapy is not restorative.
    Based on CIGNA’s Benefit Resource Tools Guidelines-
    Speech Therapy.
R. 3 Ex. 1 (emphasis supplied).
  Notably, one of the terms CIGNA used in its letter to
characterize Zev’s speech therapy—“not restorative”—is
not found in the provisions of the Plan’s SPD, and the
terms “educational” and “training” are not used in the
portion of the SPD dealing specifically with speech ther-
apy. The SPD indicates that speech therapy will be
covered so long as it is performed by a licensed or
certified therapist and is referred by a doctor, subject to
a maximum of thirty-five visits per injury or illness
unless more are deemed necessary by physician. R. 13
Ex. B at 17.1 Moreover, as CIGNA’s letter acknowledges,



1
  The words “education” and “training” are found elsewhere
in the SPD. Included among the SPD’s list of expenses that are
not covered are “[c]harges for custodial services, education,
                                                (continued...)
No. 07-1109                                                       5

all claims against the Plan are subject to a general require-
ment, found in the SPD, that the treatment or services
provided to a Plan participant be “medically necessary.”
By the terms of the SPD, treatment qualifies as “medically
necessary” when
    services and supplies are provided by a hospital,
    doctor, or other licensed medical provider to treat a
    covered illness or injury. The treatment must be
    appropriate for the symptoms or diagnosis, within the
    standards of acceptable medical practice, the most
    appropriate supply or level safe for the patient, and not
    solely for the convenience of the patient, doctor,
    hospital, or other licensed professional.
R. 13 Ex. B at 6. CIGNA’s Benefit Interpretation Resource
Tool for Speech Therapy (“BIRT”), which was cited in its
letter to CDC and Mondry as the basis for CIGNA’s


1
   (...continued)
training, or rest cures.” R. 13 Ex. B at 33. It is not clear whether
the modifier “custodial” applies only to the term “services” or
to all of the terms that follow. The scope of this exclusion has not
been addressed by the parties on appeal. What is clear is that
this exclusion does not address speech therapy in particular. As
noted above, the SPD elsewhere specifically provides that
speech therapy is covered so long as it is recommended by a
physician and provided by an appropriate professional; no
exclusion is set forth for speech therapy that may be considered
“education” or “training.” R. 13 Ex. B at 17. It appears that
CIGNA drew the terms “educational or training” and “non-
restorative” not from the SPD but from the Benefit Interpreta-
tion Resource Tool referenced below.
6                                              No. 07-1109

conclusion that Zev’s speech therapy was not covered
by the Plan, is not part of the SPD and was not posted
on American Family’s internal website as a Plan document.
   In response to CIGNA’s letter, Mondry on June 30, 2003,
wrote to both CIGNA and to American Family’s benefits
coordinator, Ken Dvorak, expressing her wish to appeal
the adverse determination. She also requested a com-
plete copy of the governing Plan documents, explaining,
“The document I was told to pull off the American
Family Intranet site is a Summary Plan Description, and
is incomplete.” R. 3 Ex. 3.
  Mondry’s first request for additional documentation of
the Plan terms went unanswered. CIGNA treated her
letter solely as a notice of appeal, and a CIGNA appeals
processor wrote to Mondry on July 11, 2003, acknowledg-
ing her letter as such. The letter explained that CIGNA had
a two-level appeals process and that her request was
considered a “first level appeal,” and that a physician
reviewer or designee who was not involved in the
original benefits determination would review that deter-
mination and resolve her appeal within thirty days. R. 3
Ex. 3. The letter said nothing about Mondry’s request for
a complete copy of the Plan documents. American
Family did not respond to the letter.
  Dr. Patricia J. Loudis reviewed the case on CIGNA’s
behalf and upheld the denial of coverage for Zev’s speech
in a letter to Mondry dated July 23, 2003. Dr. Loudis set
forth the following reasons for CIGNA’s conclusion that
Zev’s speech therapy was not medically necessary:
No. 07-1109                                               7

    • The information provided does not justify the neces-
    sity of speech therapy.
    • The patient has Expressive Language delays.
    • Notes show that the goals of therapy are to improve
    speech skills not fully developed.
    • Speech therapy is not restorative.
    • Speech therapy, which is not restorative, is not a
    covered expense per the patient’s specific plan provi-
    sions.
    • Reference CIGNA Clinical Resource tool for Speech
    Therapy.
R. 3 Ex. 4 (emphasis supplied). Notwithstanding
Dr. Loudis’s reference to “specific plan provisions” exclud-
ing speech therapy from expenses covered by American
Family’s Plan, the SPD in fact reflects that speech therapy
generally is covered, and it contains no provision specifi-
cally conditioning coverage for speech therapy on the
treatment being “restorative.” And as with the BIRT
mentioned in the June 13 letter denying Mondry’s claim,
the CIGNA Clinical Resource Tool for Speech Therapy
(“CRT”) mentioned by Loudis is not part of the SPD and
was not posted on American Family’s website as a
Plan document.
  On July 28, 2003, Mondry sent both CIGNA and Ameri-
can Family a second letter requesting “the total and
complete copy of my Plan Documents.” R. 3 Ex. 5. She
noted that her first request for such documents had
met with no response. By this time, Mondry had
8                                               No. 07-1109

engaged a public interest law firm, Advocacy and Benefits
Counseling for Health, Inc. (“ABC”), to represent her. She
indicated in her July 28 letter that CIGNA and American
Family should copy that firm on subsequent correspon-
dence.
  Mondry subsequently accepted a voluntary lay-off
from American Family pursuant to a severance agree-
ment effective September 19, 2003. R. 51 Ex. 209. Mondry
elected not to exercise her right under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to
purchase continued coverage under the Plan. Mondry’s
counsel has represented that she instead obtained insur-
ance coverage for herself and her son Zev through Wis-
consin’s Badger Care, a state-sponsored program
offering insurance to families with children. However,
Mondry and her counsel continued their efforts to obtain
reimbursement from the Plan for the speech therapy Zev
had received prior to her departure from American
Family and the cessation of her coverage under the
AmeriPreferred Plan.
  ABC attorney Jonathan Cope wrote to both CIGNA and
American Family on Mondry’s behalf on September 23,
2003. Cope noted that Mondry had yet to receive a com-
plete set of the Plan documents underlying CIGNA’s
adverse determination in response to her previous re-
quests, but instead had been referred to a website. Pointing
out that the failure to provide Mondry with the Plan
documents could result in statutory penalties, Cope
requested that the documents Mondry had requested
be provided to her within thirty days. He also asked that
No. 07-1109                                               9

if neither of the addressees was the Plan Administrator,
that they forward his letter to the appropriate individ-
ual. R. 3 Ex. 6.
  American Family responded to Cope’s request in a letter
dated October 16, 2003. Benefits Specialist Stacy McDaniel
enclosed a copy of the SPD, and her letter stated that “This
Summary Plan Description is the Plan document; we do
not have a separate plan document.” R. 3 Ex. 7. McDaniel
added that the SPD had been available to Mondry in both
paper and electronic form while she was an active em-
ployee of American Family.
  Based on American Family’s response, ABC attorney
Bobby Peterson wrote to CIGNA’s National Appeal
Unit on October 30, 2003. Peterson noted that the only
Plan document made available to Mondry was the SPD and
that American Family had stated in its October 16 letter
that there was no additional Plan document. Peterson
asked CIGNA to confirm that the SPD was the legally
binding Plan document. He also pointed out that
Loudis’s letter of July 23 referred to the CRT, which was
not part of the SPD. “We are also requesting this Clinical
Resource Tool, as well as any other information used to
make your decision to deny these services, be sent to the
undersigned.” R. 3 Ex. 8.
  CIGNA responded to Peterson’s inquiry with a letter
it faxed to Mondry’s counsel on December 10, 2003.
That letter enclosed a form for Mondry to sign to au-
thorize the release of a copy of the Level One appeal file
to her counsel. The letter also stated, “In regards to the
request for the Summary Plan Description (SPD)[,] you
10                                            No. 07-1109

have to request this from your [previous] employer[;]
per HIPAA guidelines and company policy we can[not]
supply this item.” R. 3 Ex. 9. The letter was silent as to
Mondry’s demand for a copy of the CRT.
  On January 7, 2004, ABC attorney Peterson wrote
another letter, this time to both CIGNA’s National
Appeals Unit and American Family. Peterson noted that
Mondry’s claim had been denied because it did not “ ‘meet
the plan language for speech therapy per CIGNA guide-
lines.’ ” R. 3 Ex. 11 (quoting June 13, 2003 Silberstein
letter). Yet, neither CIGNA nor the Plan Administrator
had provided to Mondry any Plan document with the
language CIGNA had relied on to deny her claim; the sole
document provided to Mondry, the SPD, contained no
such language. “CIGNA also ignored several requests
for the CIGNA Clinical Resource Tool for Speech Therapy
and copies of all documents, records, and other informa-
tion relevant to Ms. Mondry’s appeal for benefits.” 

Mondry’s demand for “a copy of the
legally binding plan document in effect at the time the
coverage was denied for this claim, a copy of the above-
mentioned Clinical Resource Tool, as well as any other
information used to make the decision to deny these
services.” 

thereafter provided a packet of materials
to ABC, it did not include either the CRT or any other
document containing the specific Plan language that
CIGNA had relied upon in denying Mondry’s claim, which
prompted ABC’s Peterson to direct another letter to
CIGNA on January 28, 2004. Peterson noted that without
No. 07-1109                                               11

a copy of the specific provisions on which CIGNA’s
decision was based, Mondry could not prepare for a
second-level appeal of that decision. Peterson argued
that CIGNA’s refusal to supply the specific Plan
language underlying its decision was contrary to ERISA
regulations, which entitle a plan participant to a copy
of any internal rule, guideline, protocol, or other criterion
relied upon in making an adverse benefit determination.
R. 3 Ex. 12 (citing 29 C.F.R. § 2560.503-1(g)(v)(A) & (B)).
He argued further that it was contrary to the SPD, which
indicated that a Plan participant whose claim was
denied had a right to know why it was denied and to
obtain copies of any documents relating to that decision.
“For the fourth time,” the letter stated, “we are requesting
the plan language and documents used as the premise
for the denial of coverage for Zev Mondry’s speech
therapy.” 

original). Peterson concluded:
    To remind you of the specific information requested,
    we are enclosing our prior three requests for this
    language, as well as CIGNA’s denial letter dated
    July 23, 2003 and two CIGNA printable reports dated
    June 10 and July 23, 2003. These documents refer to a
    CIGNA Clinical resource tool for Speech Therapy and
    to CIGNA’s specific plan provisions. The words
    “Expressive Language Delays” are not found in the
    Summary Plan Document, and so they must exist
    somewhere in plan documents that have been with-
    held from Sharon Mondry and from ABC for Health,
    Inc., Sharon Mondry’s authorized representative. We
    expect your prompt response.

of the letter was sent to American Family.
12                                               No. 07-1109

  CIGNA sent ABC a fax on February 20, 2004, denying
Mondry’s request for a copy of the CRT. “[T]he CIGNA
tool used is only available to internal CIGNA agencies,”
wrote Appeals Processor Kimberly Schmitz. R. 3 Ex. 13.
Schmitz suggested that Mondry’s counsel contact
CIGNA’s Intracorp Medical Review unit by telephone
to discuss the matter. But subsequent efforts by ABC
staff to resolve the matter by phone proved fruitless.
  ABC turned to American Family for help in securing a
copy of the CRT from CIGNA, but American Family fared
no better. After ABC’s Kathryn Kehoe contacted her,
Rosalie Detmer, American Family’s Assistant General
Counsel, agreed to contact CIGNA and see if it would
release a copy of the CRT. Detmer spoke with Carl Peter-
son at CIGNA on April 23, 2004. Peterson informed her
that CIGNA considered the CRT “propriety,” that it was
“too big to send anyway,” and that CIGNA therefore
would not produce the document to either Mondry
or American Family. R. 33 ¶ 7; R. 40 Ex. B; R. 65 at 23.
Peterson also advised Detmer that a “summary” had
already been sent to Mondry and “that is all that is
legally required.” R. 40 Ex. B; R. 65 at 23.2 So far as the
record reveals, Detmer and American Family accepted
Peterson’s response and made no further efforts to obtain
the CRT or to clarify what CIGNA had relied upon in


2
  It is not clear whether Peterson was referring to a summary
of the CRT—in which case he was incorrect in representing that
Mondry had already been provided with such a summary—or
to the SPD.
No. 07-1109                                             13

denying Mondry’s claim. Nor did Detmer contact Kehoe
at ABC to report the result of her inquiry. Not until Kehoe
telephoned her nearly one month later to follow up did
Detmer advise her that CIGNA had refused to turn over a
copy of the CRT. “I did what I agreed to do,” Detmer
would later testify. “I don’t believe that I indicated to
[Kehoe] that I would respond, simply that I would do
what I said I had agreed to do.” R. 65 at 28. Thereafter,
ABC re-focused its attention on CIGNA.
  ABC itself finally obtained a copy of the CRT in July
2004. CIGNA produced the CRT after John Pendergast,
who was employed with CIGNA’s National Appeals
Unit, spoke by telephone with ABC legal intern Anne
Berglund. According to Berglund, Pendergast told her
that the CRT’s provisions would be applied to Mondry’s
forthcoming Level Two appeal, and he agreed that dis-
closure of the CRT was required under ERISA. R. 3 Ex. 15.
A copy of the CRT for Speech Therapy was faxed to
ABC on July 2.
  A review of the CRT revealed that it did not contain
any of the key language that CIGNA had cited in denying
Mondry’s claim and sustaining the denial in her Level
One appeal. The CRT did list the types of conditions for
which CIGNA considered outpatient speech therapy to
be “medically necessary,” and it also identified the
kinds of medical documentation that it would consider
sufficient to support a finding of medical necessity. But
the CRT did not employ any of the terminology that
CIGNA had used in denying compensation to Mondry
for Zev’s speech therapy, including “expressive language
delays,” “educational or training,” or “not restorative.”
14                                           No. 07-1109

  ABC’s Berglund contacted CIGNA’s Pendergast by
letter on July 9, 2004, noting that the CRT lacked the
language on which CIGNA had premised its denial of
compensation to Mondry. ABC renewed its demand
for any and all documents containing that language. R. 3
Ex. 16.
  Pendergast declined ABC’s request for additional
documentation. On July 21, 2004, he left a voicemail for
Berglund informing her that he had filed a Level Two
on Mondry’s behalf but that CIGNA would not be
turning over any additional materials. Pendergast indi-
cated that the Level Two review would be based “on the
SPD, the plan contract, general service agreement, and
[CIGNA’s] criteria.” R. 3 Ex. 17.
  In the ensuing weeks, ABC continued to press CIGNA
to produce additional information. By telephone and
by mail, ABC again asked for any and all documents on
which CIGNA had relied in disposing of Mondry’s
claims; based on Pendergast’s July 21 voice message,
ABC also demanded copies of the plan contract and the
general service agreement. Initially, CIGNA produced to
ABC a document entitled “CIGNA Healthcare Coverage
Position” which related to speech therapy. But the
effective date of that document was September 15,
2004—more than a year after Mondry’s claim had been
denied.
  At last, ABC received by fax on October 5, 2004, a copy
of the elusive BIRT—specifically, the “CIGNA Healthcare
Benefit Interpretation Resource Tool for GSA 2001, Re-
quested Service: Speech Therapy”—to which CIGNA had
No. 07-1109                                                    15

alluded in its June 13, 2003 letter to Mondry denying her
claim for Zev’s speech therapy. The BIRT was revelatory
in several respects. First, the BIRT contained a definition
of “medically necessary” that was significantly different
from that found in the SPD. R. 40 Ex. D at 1.3 Second, the
BIRT cited as the governing Plan document not the
AmeriPreferred SPD, but rather the CIGNA Healthcare
Group Service Agreement 2001. 

Third, the BIRT
listed fourteen types of outpatient speech therapy that
would not be covered, including the following:
(1) “[s]peech therapy that is not restorative in nature”;
(2) [s]peech therapy that is considered custodial or educa-
tional”; (3) “[s]peech therapy that is intended to main-
tain speech communication”; (4) [s]peech therapy that is
being used to improve speech skills that have not fully



3
   Whereas the SPD defines treatment and services as “medically
necessary” when they are appropriate for the symptom or
diagnosis, within the standards of acceptable medical practice,
the most appropriate supply or level safe for the patient, and not
solely for the convenience of the patient or provider, see supra
at 5, the BIRT required that the provided services be “[n]o more
than required to meet your basic health needs; and [c]onsistent
with the diagnosis of the condition for which they are required;
and [c]onsistent in type, frequency and duration of treatment
with scientifically based guidelines as determined by medical
research; and [r]equired for purposes other than [the] comfort
and convenience of the patient or his Physicians; and [r]endered
in the least intensive setting that is appropriate for the
delivery of health care; and [o]f demonstrated medical value.”
R. 40 Ex. D at 1.
16                                               No. 07-1109

developed”; and (5) “[s]ervices, training, or educational
therapy for learning disabilities, developmental delays,
autism or mental retardation.” 

(emphasis ours).
  After further correspondence and telephone communi-
cation between ABC and CIGNA, ABC concluded that
CIGNA had relied upon the wrong criteria in denying
Mondry’s claim. ABC law clerk Molly Bushman set forth
that view in a lengthy letter to Pendergast dated
December 21, 2004. After summarizing much of the back
and forth between ABC and CIGNA over the relevant
Plan documents, Bushman noted that the BIRT’s definition
of medical necessity departed from the standard articu-
lated in the SPD:
     The provisions of the BIRT are much more detailed
     and potentially restrictive than the provisions of the
     contract [i.e., the SPD]. There is absolutely no basis in
     the contract for the exclusion of “Expressive Language
     Delays” or for the requirement that the treatment be
     “restorative.” According to your statement above [that
     the SPD is the controlling Plan document] and to the
     law, the definition of “medically necessary” in the
     Plan should apply to this claim, not the extraneous
     provisions of the BIRT. In addition, as Sharon
     Mondry has maintained, there is strong evidence in
     the medical documentation that the claim at issue
     was for services that were, in fact, restorative.
No. 07-1109                                                  

Ex. 23 at 6.4 Looking forward to Mondry’s Level Two
appeal, Bushman registered ABC’s frustration with
CIGNA’s insistence that Mondry should frame her argu-
ments based solely on the SPD rather than the BIRT or
any of the additional documents that Mondry had sought
from CIGNA, with or without success.
    While we agree that the BIRT is not contractually
    binding, it seems obvious that it was used to deny our
    client’s claim. . . . [O]ur problem is that we do not
    know which standards will be applied to the
    medical facts. A voice mail you addressed to my
    colleague Anne Berglund on July 21, 2004 stated that
    we should argue our case based on the SPD, plan
    contract, general service agreement, and [CIGNA’s]
    criteria. You recently stated to me that the SPD is the
    plan contract, we do not need the general service
    agreement, and that CIGNA’s criteria (which I take
    to mean the [CRT] and the BIRT) are not con-
    tractually binding. Your inconsistencies do not end
    there. According to our phone conversation, you
    now want us to send our medical documents as soon
    as possible and schedule the hearing within two or



4
   This four-page letter appears to be mis-paginated. The
second, third, and fourth pages of this letter are labeled pages
five, six, and seven. There do not appear to be any pages
missing from the copy in the record; and there is no apparent
break in the text of the letter from pages one to five. To
avoid confusion, however, we have cited the relevant pages
of the letter as they are labeled in the record.
18                                              No. 07-1109

     three weeks. You also expressed that you would
     make every accommodation to our client’s schedule. In
     contrast, CIGNA has refused to send us the relevant
     documents, neglected to answer our phone calls and
     letters in a timely fashion, and basically protracted
     this process in a manner that could in no way be
     characterized as accommodating.

Apparently, there was no further document
production from CIGNA following this correspondence.
  When CIGNA’s appeals committee heard Mondry’s
Level Two Appeal several months later, it agreed that her
claim had been denied improperly. The hearing took place
by telephone conference call on April 13, 2005; Peterson
and Bushman of ABC represented Mondry at that hear-
ing. Two days later, CIGNA sent Mondry a letter informing
her that she had prevailed in her appeal:
     We are pleased to inform you that we have authorized
     coverage of the speech therapy services provided to
     Zev from January 21, 2003 through December 29,
     2003. Your request has been authorized for the
     above listed services if you are enrolled and eligible
     for plan benefits on the date(s) of service. The re-
     quested services will be covered subject to Plan cover-
     age and provisions at the time the service is ren-
     dered. We made our decision after reviewing your
     appeal and supporting documentation. We have made
     the necessary arrangements with the claims depart-
     ment to process the claims for payment by April 30,
     2005.
No. 07-1109                                                 

Ex. 25. The letter provided no further explanation
for CIGNA’s change in position.5
  Ten months after the decision in Mondry’s favor at the
Level Two Appeal hearing, CIGNA reimbursed her for
most but, according to Mondry, not all of the expenses
she had incurred for Zev’s speech therapy in 2003, before
she left American Family’s employ and opted not to
accept continued COBRA coverage under American
Family’s Plan. Mondry asserts that she has yet to be
reimbursed for $303.89 of the money she is out-of-pocket
for the speech therapy Zev received in 2003.
  Mondry subsequently filed suit against both American
Family and CIGNA pursuant to ERISA’s civil enforce-
ment provision, 29 U.S.C. § 1132. In Count One of her
complaint, Mondry alleged that in failing to timely
respond to her multiple written requests for plan docu-


5
   Although the record contains a copy of CIGNA’s internal
notes regarding Mondry’s appeal, those notes shed no light on
CIGNA’s rationale for deciding the appeal in Mondry’s favor.
The appeal notes reflect Mondry’s argument that previous
denials of her claim had indicated that speech therapy must
be restorative in nature, which is a condition not found in the
Plan language. The notes reflect Mondry’s additional conten-
tion that the previous denials relied on the BIRT, a set of
guidelines intended for managed care plans, which the
AmeriPreferred Plan was not. But the notes contain no explana-
tion for the appeals committee’s decision, beyond noting that
the decision was “[b]ased on all of the submitted information,
benefit booklet and information provided during conference
call.” R. 51 Ex. 210.
20                                             No. 07-1109

ments, American Family and CIGNA had violated the
obligation set forth in 29 U.S.C. § 1024(b)(4) to produce
such documents and were liable for fines pursuant to
29 U.S.C. § 1132(c)(1)(B). In Count Two, Mondry alleged
that American Family and CIGNA breached the fiduciary
obligations they both owed to her under 29 U.S.C.
§ 1104(a)(1) to administer the AmeriPreferred Plan solely
in the interest of Plan participants and beneficiaries, by
misrepresenting the terms of the Plan and withholding
from her information that she needed to pursue her
Level Two appeal. Although Mondry asserted other, non-
ERISA claims against the defendants, only the ERISA
claims set forth in Counts One and Two of her com-
plaint are at issue here. Mondry has not challenged the
disposition of the other claims, which were dismissed for
failure to state a claim on which relief could be granted.
  The district court dismissed Counts One and Two as to
CIGNA and later entered summary judgment in favor of
American Family as to both claims. With respect to Count
One, the court held that only American Family, as the
plan administrator, bore the statutory obligation to pro-
duce plan documents under section 1024(b)(4), and so
CIGNA could not be held liable for any violation of that
statutory provision. Mondry v. Am. Family Mut. Ins. Co.,

, at *3 (W.D. Wis. Sep. 26, 2006). The court
initially denied in part American Family’s request for
summary judgment as to Count One and instead granted
partial summary judgment to Mondry on that count. The
court did agree with American Family that one of the
documents that Mondry had demanded, the claims
administration agreement between American Family and
No. 07-1109                                              21

CIGNA, did not constitute a governing plan document
that American Family was statutorily obligated to pro-
duce. 

, at *8 (W.D. Wis. Nov. 21, 2006).
But as to the other two documents Mondry had sought, the
BIRT and CRT, the court, although it believed the ques-
tion to be close, concluded that those documents
qualified as plan documents whose production was
required under section 1024(b)(4). 

The court
did not consider it to be a defense to liability that these
documents were not in American Family’s possession.

However, the court later reversed itself on
reconsideration, relying on the letter that ABC had
written to CIGNA on Mondry’s behalf on December 21,
2004, in which ABC acknowledged that the BIRT was not
contractually binding on CIGNA in its handling of
Plan claims. The Court viewed that letter as an ad-
mission by Mondry that both the BIRT and CRT were
merely advisory, internal guidelines that CIGNA was not
obligated to use in evaluating benefit claims and conse-
quently were not documents that established or governed
the Plan. Consequently, American Family had no obliga-
tion to produce those documents to Mondry under
section 1024(b)(4). 

, at *3 (W.D. Wis. Dec.
12, 2006). As for the breach of fiduciary duty claim set
forth in Count Two, the court dismissed that claim against
CIGNA because Mondry was only seeking legal relief, in
the court’s view, and for causes of action brought under
section 1104(a)(1), section 1132(a)(3) only provides for
equitable relief. 

, at *4. American Family
did not seek dismissal of Count Two, but it later sought
and obtained summary judgment on this claim. The court
22                                               No. 07-1109

saw no proof that American Family had breached its
fiduciary duty by withholding material information from
Mondry: rather, American Family had done what it
could to help Mondry obtain the documents she sought
from CIGNA. As for material misrepresentations, assum-
ing that American Family had incorrectly represented to
Mondry that the SPD was the only document that con-
trolled the evaluation of her claim for benefits, there
was no evidence that Mondry had relied on this rep-
resentation to her detriment, because she continued to
pursue her document requests. Finally, the record was
devoid of proof that American Family had subjugated
Mondry’s interests to its own by minimizing the efforts of
its staff to help Mondry locate copies of the documents
that CIGNA had relied on in denying her claim. 

, at *12-*13.


                             II.
A. Count One: Failure to Produce Plan Documents
  Pursuant to 29 U.S.C. § 1024(b)(4), the administrator of a
plan has an obligation to produce to a plan participant
certain documents upon her request:
     The administrator shall, upon written request of any
     participant or beneficiary, furnish a copy of the latest
     updated summary[ ] plan description, and the latest
     annual report, any terminal report, the bargaining
     agreement, trust agreement, contract, or other instru-
     ments under which the plan is established or operated.
     The administrator may make a reasonable charge to
No. 07-1109                                                23

    cover the cost of furnishing such complete copies. The
    Secretary [of Labor] may by regulation prescribe the
    maximum amount which will constitute a reasonable
    charge under the preceding sentence.
The purpose of this disclosure provision is to “ensure[ ]
that ‘the individual participant knows exactly where he
stands with respect to the plan[.]’ ” Firestone Tire & Rubber
Co. v. Bruch, 

, 118, 

, 958 (1989)
(quoting H.R. Rep. 93-533, p.11 (1973), U.S. Code Cong. &
Admin. News 1978, p. 4649). Knowing where one stands
with respect to a plan includes having the information
necessary to determine one’s eligibility for benefits
under the plan, see Davis v. Featherstone, 

, 737
(4th Cir. 1996), to understand one’s rights under the
plan, Bartling v. Fruehauf Corp., 

, 1070 (6th Cir.
1994), to identify the persons to whom management of
plan funds has been entrusted, Hughes Salaried Retirees
Action Comm. v. Admin. of Hughes Non-Bargaining Retire-
ment Plan, 

, 690 (9th Cir. 1995) (en banc) (quot-
ing S. Rep. No. 93-127, 93d Cong., 2d Sess. (1974), reprinted
in 1974 U.S. Code Cong. & Admin. News 4838, 4863), and
to ascertain the procedures one must follow in order to
obtain benefits, 

given to this obligation by 29 U.S.C.
§ 1132(c)(1)(B), which renders a non-compliant admin-
istrator liable for fines in the event he fails to timely
produce requested plan documents.
    Any administrator . . . who fails or refuses to comply
    with a request for any information which such admin-
    istrator is required by this subchapter to furnish to a
24                                                 No. 07-1109

     participant or beneficiary (unless such failure or
     refusal results from matters reasonably beyond the
     control of the administrator) by mailing the material
     requested to the last known address of the requesting
     participant or beneficiary within 30 days after such
     request may in the court’s discretion be personally
     liable to such participant or beneficiary in the amount
     of up to $100 a day from the date of such failure or
     refusal, and the court may in its discretion order
     such other relief as it deems proper. For purposes of
     this paragraph, . . . each violation described in sub-
     paragraph (B) with respect to any single participant
     or beneficiary[ ] shall be treated as a separate violation.
By regulation, the maximum permissible penalty under
section 1132(c)(1) has been increased to $110 per day.
29 C.F.R. § 2575.502c-3.
  Both the duty to produce and liability for the failure or
refusal to produce plan documents are placed on the
“administrator,” and as that term is defined, it includes
only American Family, not CIGNA. The term “administra-
tor” is defined in 29 U.S.C. § 1002(16)(A) to mean:
     (i)     the person specifically so designated by the
             terms of the instrument under which the plan is
             operated;
     (ii)    if an administrator is not so designated, the plan
             sponsor; or
     (iii)   in the case of a plan for which an administrator
             is not designated and a plan sponsor cannot be
             identified, such other person as the Secretary
             may by regulation prescribe.
No. 07-1109                                                25

It is undisputed in this case that the SPD expressly desig-
nated American Family as the Plan administrator, R. 13
Ex. B at 44, thus rendering American Family the one and
only “administrator,” pursuant to section 1002(16)(A)(i),
with the duty to produce plan documents. Jones v. UOP,

, 144 (7th Cir. 1994).
   CIGNA’s role as the claims administrator did not bring
it within the reach of sections 1024(b)(4) and 1132(c)(1).
Consistent with the terms of these statutory provisions,
this court and others have held that liability under
section 1132(c)(1) is confined to the plan administrator
and have rejected the contention that other parties, in-
cluding claims administrators, can be held liable for the
failure to supply participants with the plan documents
they seek. Hightshue v. AIG Life Ins. Co., 

, 1149
(7th Cir. 1998); 

; Gore v. El Paso Energy
Corp. Long Term Disability Plan, 

, 843-44 (6th
Cir. 2007); Ross v. Rail Car Am. Group Disability Income
Plan, 

, 743-44 (8th Cir. 2002); Lee v. Burkhart,

, 1010 (2d Cir. 1993); McKinsey v. Sentry Ins.,

, 403-05 (10th Cir. 1993). See also Klosterman v.
Western Gen. Mgmt., Inc., 

, 1122 (7th Cir. 1994)
(holding that liability for failing to comply with require-
ments of 29 U.S.C. § 1022(b) as to contents of SPD falls
solely on plan administrator) (coll. cases dealing with
section 1024(b)).
  Mondry nonetheless suggests, incorrectly, that our
decisions in Jones and Rud v. Liberty Life Assurance Co. of
Boston, 

, 774-75 (7th Cir. 2006), leave the door
open to treating another party, including the claims
26                                                  No. 07-1109

administrator, as a de facto plan administrator for pur-
poses of section 1024(b)(4). In fact, as our decision in
Jones points out, only a minority of the circuits have
shown a willingness to recognize de facto plan admin-

(citing Law v. Ernst & Young, 

, 373-74 (1st Cir. 1992); Fisher v. Metro. Life Ins. Co.,

, 1077 (5th Cir. 1990); and Rosen v. TRW, Inc.,

(11th Cir. 1992)). Most courts have rejected
that theory. See 

Our own decisions on the
subject have never embraced the concept of a de facto
plan administrator, and Mondry presents us with nothing
more than a cursory argument in favor of doing so here.
  What we have left the door open to is the possibility that
a non-administrator may be equitably estopped to deny
that it is the plan administrator. In Jones, we held that a
retiree (Jones) was not entitled to statutory penalties
from his former employer, UOP, for its delays in respond-
ing to his requests for copies of pension plan documents.
UOP was not the plan administrator but rather the plan
sponsor; the plan instrument specifically designated the
Signal Plan Administrative Committee as the plan adminis-
trator. We rejected the notion that UOP had assumed the
statutory obligation to respond to Jones’s document
requests by failing to direct him and his attorneys to
the Administrative Committee: “The statute is plain: if a
plan administrator is designated in the plan instrument,
that is who has the statutory duty to respond to requests
for information in a timely fashion under threat of mone-
tary penalty if he fails to do 

. We went on
to acknowledge the possibility that, in the right circum-
stances, the doctrine of equitable estoppel might be used
No. 07-1109                                               27

to impose the duty of production on someone other than
the plan administrator, including a plan sponsor like UOP:
    We can imagine a case in which the plan sponsor
    would be estopped to deny that it was the administra-
    tor . . . . If UOP’s legal department had told Jones’s
    lawyer to forget about the Committee and direct all
    his document requests to the legal department, and if
    in reliance on this advice the lawyer had forgone an
    opportunity to obtain the documents from the plan
    administrator and Jones had suffered a harm as a
    result, the elements of equitable estoppel would be
    present. Thomason v. Aetna Life Ins. Co., 

, 648
    (7th Cir. 1993). We have no reason to doubt the ap-
    plicability of that venerable doctrine, as a matter
    of federal common law, to suits for the statutory
    penalty . . . 

. However, we saw no need to definitively
resolve the issue, for Jones had not established the ele-
ments of equitable estoppel: Although UOP had
responded to Jones’s document requests, there was no
proof that it had misled Jones about the identity of the plan
administrator by instructing him to deal only with UOP.

See also 

(again recog-
nizing the possibility of using equitable estoppel to treat
someone other than the official plan administrator as the
plan administrator).
  Here, as in Jones, the facts do not support CIGNA being
deemed a plan administrator via equitable estoppel. There
is no proof that CIGNA ever held itself out to Mondry
and her counsel as the plan administrator or instructed
28                                             No. 07-1109

Mondry to deal only with CIGNA to the exclusion of
American Family, the actual plan administrator. Mondry’s
equitable estoppel theory is misfocused. She points first
to CIGNA’s initial decision that Zev’s speech therapy
was not covered under the terms of the Plan, characterizing
that as a misrepresentation about the scope of plan cover-
age that led her not to elect continued COBRA coverage
under the Plan when she left American Family’s employ.
But that has nothing to do with the identity of the plan
administrator and the obligation to produce plan docu-
ments. More pertinently, Mondry points to CIGNA’s
statements, conveyed in at least one instance through
American Family, describing the CRT as a proprietary
document and denying any obligation to produce either
the BIRT or CRT to Mondry. Purportedly as a result of
such statements, “Ms. Mondry came to believe and acted
on the belief that American Family lacked either the
authority or the intent to provide her with the plan docu-
ments she requested. . . . Ms. Mondry ceased communica-
tion with the designated Plan Administrator, and began
directing her communications exclusively to CIGNA.”
Mondry Br. at 35. But the statements Mondry cites fall
short of misrepresenting CIGNA’s status. These state-
ments certainly manifest CIGNA’s refusal to produce
the documents that Mondry wanted, and American Fam-
ily’s apparent acquiescence reflect its own unwillingness
to do anything about CIGNA’s refusal; but none of this
was evidence that CIGNA was in any sense portraying
itself as the plan administrator or steering Mondry
away from American Family. The SPD left no doubt that
American Family was the plan administrator with the
No. 07-1109                                                29

statutory obligation to produce plan documents, and there
is nothing in the record before us suggesting that anything
CIGNA did or said led Mondry or her counsel astray
on that point.
  So it is American Family and American Family alone
that bore the responsibility to honor Mondry’s requests.
The next question is whether the documents that Mondry
requested are the types of documents that section
1024(b)(4) required American Family to produce. We
conclude that they are. We begin with the most straight-
forward of the documents that Mondry requested, the
1996 claims administration agreement between American
Family and CIGNA.6
  Section 1024(b)(4) requires the plan administrator to
produce (on request) copies of “the latest updated sum-


6
   It appears that Mondry first explicitly requested a copy of
this agreement after John Pendergast, of CIGNA’s National
Appeals Unit, advised Mondry’s representative that CIGNA’s
review of her Level Two appeal would be predicated upon,
among other documents, the “general service agreement.” See
supra at 14; R. 3 Ex. 17. Thereafter, Mondry began to include
that agreement in her ongoing document requests. E.g., R. 3
Ex. 18. No issue is raised as to whether the “general service
agreement” that Pendergast reference and the “claims adminis-
tration agreement” that the parties refer to on appeal are the
same or different documents, nor does either American Family
or CIGNA contend that they were confused as to which agree-
ment Mondry was seeking. It is not clear to us when Mondry
finally obtained a copy of the claims administration agree-
ment. A copy of that agreement is in the record. R. 40 Ex. A.
30                                              No. 07-1109

mary[ ] plan description, and the latest annual report, any
terminal report, the bargaining agreement, trust agree-
ment, contract, or other instruments under which the
plan is established or operated.” Needless to say, the
claims administration agreement is a contract, but the
relevant question is whether it is a contract “under which
the plan is established or operated,” such that it falls
within the scope of section 1024(b)(4).
  The claims administration agreement qualifies as such
an agreement. That contract both established CIGNA as
the claims administrator and identified the respective
authority and obligations of American Family and CIGNA
with respect to the plan: American Family bore responsi-
bility for determining the eligibility of its employees to
participate in the plan, enrolling eligible individuals in
the plan, and communicating that information to CIGNA;
whereas CIGNA bore responsibility for receiving benefit
claims, determining whether claimants were eligible for
benefits and the amount of money they were owed,
disbursing payments, and providing appellate review of
any adverse claims determinations. R. 40 Ex. A. The district
court believed that the agreement did not qualify for
production under section 1024(b)(4) because it did not
“define what rights or benefits [were] available to the
Plan’s participants and beneficiaries.” R. 45 at 19. That is
true enough. See Fritcher v. Health Care Serv. Corp., 

, 817 (7th Cir. 2002) (administrative services
agreement between employer and plan administrator is
not a plan document in sense that its terms may be held
against plan participants and beneficiaries). But the
agreement nonetheless governs the operation of the Plan
No. 07-1109                                                         31

in the sense that it defines the respective roles of
American Family and CIGNA as the plan and claims
administrators, respectively. See Bd. of Trustees of the
CWA/ITU Negotiated Pension Plan v. Weinstein, 

, 143 (2d Cir. 1997) (“[a]greements and contracts
plainly set out rights and duties”). Where the admin-
istration of a plan is divided, as is often the case, see, e.g.,

, the extent of each administrator’s
authority is basic information that a plan participant
needs to know. In that respect, we believe it qualifies as
a contract under which the plan was operated, and
Mondry was entitled to its production under section
1024(b)(4). See Heffner v. Blue Cross & Blue Shield of Ala., Inc.,

, 1343 (11th Cir. 2006); Michael v. Am. Int’l
Group, Inc., 

, at *6 (E.D. Mo. Sep. 15,
2008).7
   The other documents that Mondry requested, the BIRT
and CRT, present a closer question. The obligation, if
any, to produce these documents arises from section
1024(b)(4)’s catch-all reference to “other instruments
under which the plan is established or operated.” In Ames
v. Am. Nat’l Can Co., 

, 758-59 (7th Cir. 1999), we


7
  American Family points out that “a contract of insurance
sold to a plan is not itself ‘the plan.’ ” Wallace v. Reliance Standard
Life Ins. Co., 

, 724 (7th Cir. 2003) (emphasis in
original) (citing Pegram v. Herdrich, 

, 

(2000)). But that is not the type of contract that is at issue here.
Connecticut General did not agree to provide insurance to
American Family, but rather agreed to administer claims
against the Plan on American Family’s behalf.
32                                               No. 07-1109

rejected a broad construction of the catch-all language
that would sweep within its reach all documents
relevant to a plan and instead agreed with those courts
which have construed the catch-all language narrowly to
reach only those documents that formally govern the
establishment or operation of a plan:
     Other courts of appeals have found that the use of the
     term “instruments” implies that the statute reaches
     only formal legal documents governing a plan. See
     Faircloth v. Lundy Packing Co., 

, 652-54 (4th
     Cir. 1996); Board of Trustees of the CWA/ITU Negotiated
     Pension Plan v. Weinstein, 

, 142-45 (2d Cir.
     1997). Plaintiffs argue that this interpretation of the
     requirement is too narrow, and that they should have
     a right to all documents that provide information
     about a plan and its benefits. We agree with our sister
     circuits that the latter interpretation would make
     hash of the statutory language, which on its face refers
     to a specific set of documents: those under which a
     plan is established or operated. If it had meant to
     require production of all documents relevant to a
     plan, Congress could have said so. This is not to say, of
     course, that companies have a permanent privilege
     against disclosing other documents. It means only
     that the affirmative obligation to disclose materials
     under ERISA, punishable by penalties, extends only
     to a defined set of documents. If litigation comes
     along, then ordinary discovery rules under the man-
     agement of the district court provide the limits on
     what must be produced. It is possible, of course, that
     this narrow reading of § 1024(b)(4) may create an
No. 07-1109                                                  33

    incentive at the margins for plaintiffs to litigate
    rather than to rest satisfied with the internal remedies
    offered by a plan, so that they can find out what else is
    influencing the administrator’s interpretation of a plan.
    Companies with a more generous view of their own
    obligations and self-interest may seek to counteract
    that incentive by disclosing more rather than less in
    response to employee requests.
See also Shaver v. Operating Eng’rs Local 428 Pension Trust
Fund, 

, 1202 (9th Cir. 2003); Brown v. Am. Life
Holdings, Inc., 

, 861 (8th Cir. 1999); Doe v.
Travelers Ins. Co., 

, 60 (1st Cir. 1999); Allinder v.
Inter-City Prods. Corp. (USA), 

, 549-50 (6th Cir.
1998). Consistent with this limited construction of
section 1024(b)(4), a number of courts have concluded that
internal guidelines or memoranda that a claims admin-
istrator uses in deciding whether or not a claim for
benefits falls within the coverage of a plan do not consti-
tute “other instruments under which the plan is estab-
lished or operated.” See 

; Giertz-Richard-
son v. Hartford Life & Accident Ins. Co., 

, at
*2 (M.D. Fla. Apr. 10, 2007); Morley v. Avaya Inc. Long Term
Disability Plan for Salaried Employees, 

, at
*19 (D. N.J. Aug. 3, 2006); Brucks v. Coca-Cola Co., 

, 1209-12 (N.D. Ga. 2005); Cohen v. Metro.
Life Ins. Co., 

, at *2-*3 (S.D.N.Y. Mar. 26,
2003); Tutolo v. Independence Blue Cross, 

, at
*2 (E.D. Pa. May 5, 1999); contra Hernandez ex rel. Hernandez
v. Prudential Ins. Co. of Am., 

, at *4-*6 (D.
Utah Mar. 28, 2001); Teen Help, Inc. v. Operating Eng’rs
Health & Welfare Trust Fund, 

, at *2-*3
34                                                No. 07-1109

(N.D. Cal. Aug. 24, 1999); Lee v. Dayton Power & Light Co.,

, 1002 (S.D. Ohio 1985); see also Dep’t of
Labor Adv. Op. Letter 96-14a (July 31, 1996) (“it is the
view of the Department of Labor that for purposes of
section 104(b)(2) and 104(b)(4), any document or instru-
ment that specifies procedures, formulas, methodologies,
or schedules to be applied in determining or calculating
a participant’s or beneficiary’s benefit entitlement under
an employee benefit plan would constitute an instru-
ment under which the plan is established or operated,
regardless of whether such information is contained in a
document designated as the ‘plan document’ ”). The courts
holding that internal guidelines and memoranda do not
constitute plan documents within the scope of section
1024(b)(4) have reasoned that however relevant such
guidelines and memoranda may be to a plan beneficiary’s
entitlement to benefits, as internal interpretative tools
they are not binding on the claims administrator and
therefore do not formally govern the operation of the plan.
E.g., 

. It is, instead, the language of the
plan itself that remains dispositive of a beneficiary’s rights,
and of course section 1024(b)(4) expressly identifies both
a plan and a summary plan description as documents to
which the beneficiary is entitled.
  There is also a separate statutory provision that may, in
conjunction with regulations that the Secretary of Labor
has promulgated, entitle a plan beneficiary to copies of
the internal guidelines and other documents on which a
claims administrator has relied in denying her claim for
benefits. 29 U.S.C. § 1133 provides that “[i]n accordance
with regulations of the Secretary, every employee benefit
No. 07-1109                                              35

plan shall— . . . (2) afford a reasonable opportunity to
any participant whose claim for benefits has been denied
for a full and fair review by the appropriate named fidu-
ciary of the decision denying the claim.” The Secretary’s
regulations in turn state that a plan will not be deemed to
have afforded a claimant “full and fair review” unless,
among other things, the claimant was provided “reason-
able access to, and copies of, all documents, records, and
other information relevant to the claimant’s claim for bene-
fits.” 29 C.F.R. § 2560.503-1(h)(2)(iii) (emphasis ours). A
document is deemed “relevant” if it “[w]as relied upon
in making the benefit determination” or, in the case of a
group health plan, the document “constitutes a statement
of policy or guidance with respect to the plan con-
cerning the denied treatment option or benefit for the
claimant’s diagnosis, without regard to whether such
advice or statement was relied upon in making the
benefit determination.” § 2560.503-1(m)(8)(i) and (iv).
Many items that do not qualify as documents that govern
the establishment or operation of a plan for purposes
of section 1024(b)(4) may qualify as documents that are
relevant to a plan participant’s claim for benefits for
purposes of section 1133(2) and the Secretary’s regula-
tions. 

-61. Thus, a participant who is
denied access to internal guidelines that relate to her
unsuccessful claim for benefits may be able to show that
she was denied full and fair review of the denial by the
claims administrator. Id.; 

n.18. Cf. Wilczynski v. Lumbermens Mut. Cas. Co., 

, 402-03, 406-07 (7th Cir. 1996) (although plaintiff’s
contention that she was denied a copy of her disability
36                                              No. 07-1109

claim file failed to state a claim for statutory penalties
under section 1132(c), her allegation that without the claim
file she could not identify “pertinent documents” and
formulate a meaningful appeal was sufficient to state
viable claim that insurance company denied her mean-
ingful access to final administrative review).
  Mondry did not seek relief under section 1133(2), but
it is no mystery why she did not. Mondry ultimately
obtained copies of the BIRT and CRT, and it was in
large part the production of those documents that
enabled her to show that CIGNA had improperly denied
her claim for the speech therapy Zev had received.
Mondry, in fact, prevailed at her Level Two appeal,
convincing CIGNA to reverse its position and grant her
claim. Having succeeded in her appeal, Mondry was in
no position to argue that CIGNA denied her the full
and fair review to which she was entitled under section
1133(2). The harm that she suffered was not the denial of
full and fair review, but rather the lengthy delay in the
production of documents that were key to her success
in that review. That is why she contends that she was
entitled to the timely production of the BIRT and CRT
pursuant to section 1024(b)(4) and is now entitled to
penalties pursuant to section 1132(c)(1)(B) for the defen-
dants’ failure to produce these documents within thirty
days of her written demand for these documents.
  We may assume, without deciding, that had CIGNA
privately relied on the CRT and BIRT as reference
materials to guide its interpretation and application of the
plan language, these documents would not have come
No. 07-1109                                                37

within the scope of section 1024(b)(4). In that circum-
stance, it would not be possible to characterize the CRT
and BIRT as documents that formally established or
governed the operation of the plan. See 

. The language of the plan itself would have re-
mained dispositive of one’s entitlement to benefits, and
that language would be all that a plan participant would
require in order to know her rights and to effectively
appeal any adverse benefits determination. Had Mondry
been denied copies of the BIRT and CRT and had she
lost her Level Two appeal, she might have had an argu-
ment that her inability to see the interpretative tools
that CIGNA had relied on in applying the plan language
denied her the right to full and fair review accorded to
her by section 1133(2). See 29 C.F.R. § 2560.503-1(h)(2)(iii);
cf. 

. She might also be
entitled to the production of the BIRT and CRT in discov-
ery in a lawsuit, as we suggested in 

.
   But CIGNA did not treat the BIRT and CRT as private
guidelines that merely illuminated plan language—
anything but. CIGNA expressly cited both documents as
the basis for its decision to deny Mondry’s claim for
benefits and invited Mondry’s reference to them. In its
first letter to Mondry (dated June 13, 2003) denying her
claim, CIGNA spelled out its reasons for concluding
that Zev’s speech therapy was not medically neces-
sary—noting that his therapy was “not restorative” but
rather “educational or training”—and concluded the
rationale with the following notation: “Based on CIGNA’s
Benefit Resources Tools Guidelines—Speech Therapy.” R.
3 Ex. 1. The following month, in CIGNA’s July 23, 2003
38                                              No. 07-1109

letter denying Mondry’s first-level appeal, Dr. Loudis
reiterated CIGNA’s conclusion that “[s]peech therapy,
which is not restorative, is not a covered expense per
the patient’s specific plan provisions.” R. 3 Ex. 4. Rather
than directing Mondry to the provisions of the SPD,
Loudis’s letter advised Mondry to “[r]eference CIGNA[* s]
Clinical Resource tool for Speech Therapy.” 

its
correspondence with Mondry denying her claim for
benefits and then affirming that denial, CIGNA treated the
BIRT and CRT as authoritative sources, citing them
expressly as the bases for its decisions and overtly
inviting Mondry to consult them. Moreover, as the
letters themselves suggested and a review of the BIRT
later confirmed, CIGNA was citing language from the
BIRT that was nowhere to be found in the SPD’s definition
of what is “medically necessary” and which, in fact,
constituted a substantive departure from the Plan lan-
guage. In particular, nothing in the SPD suggests that
therapy must be “restorative” in order to qualify as
“medically necessary.” In short, CIGNA had been relying
on the BIRT and CRT as the equivalent of plan language,
treating the former documents as if they were dispositive
and citing them to Mondry as such. Having expressly
relied on the BIRT and CRT as the bases for its decision
to deny Mondry’s claim for benefits, CIGNA gave those
guidelines the status of documents that govern the opera-
tion of a plan, and their production to Mondry thus
became mandatory under section 1024(b)(4).
  The fact that neither document was actually binding on
CIGNA—indeed, that CIGNA had relied upon them
improperly—is beside the point. What is relevant is
No. 07-1109                                                39

that CIGNA expressly relied on them, and language
from one of them, as dispositive in denying her claim.
That is what entitled Mondry to the production of these
documents as plan documents. It would be no different
if CIGNA had instead cited an old version of the plan
in denying Mondry’s claim. Normally, a plan participant
would not be entitled to outdated plan documents
under section 1024(b)(4). See Shields v. Local 705, Int’l Bhd.
of Teamsters Pension Plan, 

, 903 (7th Cir. 1999).
But were a claims administrator to expressly rely on a
superseded version of the plan, it would be treating that
version (albeit in error) as the document that governs
the operation of the plan; and for that reason the partici-
pant would be entitled to its production. As we noted at
the outset of our discussion, the purpose of section
1024(b)(4)’s disclosure provision is to enable a plan partici-
pant to understand his rights under the plan, including
his eligibility for benefits. Supra at 23. When a claims
administrator mistakenly relies on an expired version of
the plan document, a set of internal guidelines, or any
other extraneous document in lieu of the governing plan
language and, indeed, cites the language of that document
as controlling to the participant, then the participant must
have access to that document in order to understand
what the claims administrator is doing and to effectively
assert his rights under the plan. It does not strike us as
a coincidence that CIGNA’s decision to reverse itself
and grant Mondry’s claim for benefits came after CIGNA
finally produced the BIRT and CRT to her counsel. One
may plausibly infer from the record that it was the produc-
tion of those documents that enabled Mondry and her
40                                             No. 07-1109

counsel to expose CIGNA’s error and convince CIGNA
that she was entitled to benefits under the governing plan
language.
  For the same reason, the fact that Mondry’s representa-
tive agreed, in her December 21, 2004 letter to CIGNA,
that the BIRT was not contractually binding on CIGNA, is
a red herring. Recall that this is what the district court
ultimately relied on to reject Mondry’s claim. 

, at *3. We may set aside without comment any
question as to whether Mondry may be bound in this
suit by a letter written prior to the litigation by a law
clerk. Having by that time seen the BIRT and CRT,
Mondry’s representative was merely correctly arguing
that the BIRT contained language that was not found in
the Plan—i.e., the SPD—itself and that, in fact, was incon-
sistent with the SPD, and yet CIGNA appeared to have
relied on the BIRT rather than the governing Plan
language in denying her claim. R. 3 Ex. 23 at 6-7. Indeed,
in the same sentence that she agreed with the proposi-
tion that the BIRT was not binding, Mondry’s representa-
tive also remarked that “it seems obvious that [the BIRT]
was used to deny our client’s claim . . . .” 

This
was wholly consistent with the legal theory that Mondry
has espoused in this suit: that although neither the CRT
nor the BIRT was a binding plan document, because
CIGNA treated them as such, Mondry was entitled to
their production under section 1024(b)(4).
  Our holding is a narrow one. We are not saying that
simply because a claims administrator relies on a set of
internal guidelines, rightly or wrongly, in denying a
No. 07-1109                                               41

claim for benefits, those documents become subject to
mandatory production under section 1024(b)(4); that is
an issue we need not and do not reach. But when a claims
administrator expressly cites an internal document and
treats that document as the equivalent of plan language
in ruling on a participant’s entitlement to benefits, the
administrator renders that document one that in effect
governs the operation of the plan for purposes of section
1024(b)(4), and production of that document is required.
To hold otherwise would, in our view, allow a claims
administrator to “hide the ball” from the participant,
depriving her of access to the very documents that the
claims administrator is saying are dispositive of her claim.
  A final wrinkle here is that CIGNA rather than
American Family had possession of the BIRT and CRT,
and yet CIGNA was not the plan administrator with
the statutory obligation to produce plan documents.
American Family argues that this is a reason to relieve it
of liability, particularly in view of the fact that at
Mondry’s urging, one of its attorneys contacted CIGNA in
April 2004 in an effort to obtain a copy of the CRT but
was told by CIGNA that the CRT was a proprietary
document that CIGNA was unwilling to produce. At
that point, American Family argues, it had done all that
it could do for Mondry and bore no culpability for
CIGNA’s continued delays in producing the CRT and
other documents to her. Section 1132(c)(1)(B) itself indi-
cates that a plan administrator will not be liable for penal-
ties where its failure or refusal to produce plan docu-
ments “results from matters reasonably beyond the
control of the administrator.”
42                                              No. 07-1109

   In the normal course of events, the plan administrator
will possess all of the documents whose production is
required by section 1024(b)(4) even where responsibility
for administration of the plan is divided, as it was here.
As we discussed earlier, the universe of documents that
qualify as ones “under which the plan is established or
operated” for purposes of this statutory provision is
small and is limited to those documents that formally,
i.e., legally, govern the establishment or operation of the
plan. The plan administrator will necessarily have those
documents even when responsibility for handling
claims for benefits has been assigned to a different party.
  A problem will arise, as it has here, when the claims
administrator mistakenly treats its own internal guide-
lines and checklists as binding, placing them on par
with (or even displacing) the plan itself. When the
claims administrator cites such internal documents as
controlling, those documents will become subject to
production pursuant to section 1024(b)(4), for the
reasons we have discussed. And the duty to produce
these documents will still belong to the plan admin-
istrator, just as it does with respect to other plan docu-
ments. That may pose a bit of a challenge for the plan
administrator when the documents in question are
within the exclusive possession of the claims administrator.
  Any dilemma this may have posed for American Family
did not excuse its statutory obligation to Mondry, how-
ever. It was American Family, of course, that decided to
engage someone else as claims administrator, that chose
CIGNA, and that gave CIGNA the authority to handle
No. 07-1109                                             43

claims on its behalf. Section 2 of the contract between the
two parties expressly identified CIGNA as American
Family’s agent for purposes of claims administration.
R.40 Ex. A at 1. Moreover, once American Family was
placed on notice that CIGNA was expressly relying on
language not found in the plan itself to deny Mondry’s
claim and that Mondry was demanding copies of the
documents containing that language, American Family
had an obligation to obtain those documents from
CIGNA and to produce them to Mondry in compliance
with its duty as the plan administrator. True, on the
one occasion that American Family’s attorney discussed
Mondry’s request for a copy of the CRT with CIGNA’s
Carl Peterson, Peterson claimed that the CRT was propri-
etary and, in any event, too voluminous to produce.
Obviously, however, CIGNA did not stick to its position:
CIGNA ultimately produced both the CRT, which
turned out not to be voluminous at all, and later the
BIRT to Mondry voluntarily. The production likely
would have occurred much sooner had American
Family itself insisted that CIGNA turn over the docu-
ments. But even if CIGNA had not changed its mind, we
are not persuaded that its refusal to produce these docu-
ments would have relieved American Family of its statu-
tory duty to Mondry.
  If the contract between American Family and CIGNA
did not give American Family the right to insist on the
production of internal documents such as the BIRT and
CRT, this was certainly a right that American Family
could have bargained for. A review of the 1996 service
agreement between American Family and CIGNA
44                                            No. 07-1109

suggests that American Family indeed may have had the
contractual right to insist on being given copies of docu-
ments such as the CRT and BIRT, whether pursuant to
section 6(a) of the agreement, which assigned to American
Family the ownership of “[a]ll documents relating to the
payment of claims,” or section 6(d), which obliged
CIGNA to make available by audit its “files, books, proce-
dures and records pertaining to the Plan or the services
provided by [CIGNA] under this Agreement.” R. 40 Ex. A
at 4-5. We say that American Family may have had such a
right because the parties have not briefed the issue,
and it is not, in our view, one that we need to re-
solve—although for what it is worth, we note that
CIGNA’s counsel at oral argument represented that
American Family did have the right under the agree-
ment to demand these documents from CIGNA. What
matters, in our view, is that American Family contracted
with CIGNA to handle claims administration as its
agent, and if American Family did not include in the
contract a provision entitling it to copies of any docu-
ments that might be covered by section 1024(b)(4), it
certainly could have done so. Access to such documents
thus was not a matter “reasonably beyond the control”
of American Family as the plan administrator. See
§ 1132(c)(1)(B).
  Mondry was entitled to copies of the service agree-
ment between American Family and CIGNA, the BIRT,
and the CRT, and American Family as the plan admin-
istrator is liable for its failure to produce these docu-
ments to Mondry within thirty days of her written
requests for them. We have no doubt that had these
No. 07-1109                                               45

documents (in particular, the BIRT and CRT) been pro-
duced to her in a timely fashion, CIGNA’s apparent
negligence in denying Mondry’s claim for reimburse-
ment for her son’s speech therapy would have been
rectified much sooner than it was. Mondry is entitled to
statutory penalties for the late production. Although we
affirm dismissal of Count One of Mondry’s complaint as
against CIGNA, because CIGNA was not the plan ad-
ministrator, we shall reverse the district court’s entry of
summary judgment in favor of American Family and
remand with directions to enter summary judgment in
favor of Mondry and against American Family on Count
One. The determination of the appropriate amount is a
matter within the district court’s discretion. § 1132(c)(1);
see 

. We shall remand the case
to the district court for a determination as to the appro-
priate amount of the penalty.


B. Count Two: Breach of Fiduciary Duty
  In Count Two of her complaint, Mondry alleges that
both CIGNA and American Family violated the duties
they owed to her as fiduciaries under 29 U.S.C. § 1104(a)(1).
See Kannapien v. Quaker Oats Co., 

, 639 (7th
Cir. 2007) (outlining elements of claim for breach of
fiduciary duty), cert. denied, 

(2008). Neither
defendant disputes that it qualifies as a fiduciary under
ERISA. See 29 U.S.C. § 1002(21)(A)(i) & (iii) (defining
fiduciary to include any person with discretionary author-
ity in management of plan or its assets or discretionary
responsibility in administration of plan); see also, e.g.,
46                                              No. 07-1109

Moore v. Lafayette Life Ins. Co., 

, 438 (6th Cir.
2006) (claims administrator is fiduciary when it has
authority to grant or deny benefit claims); Jenkins v. Yager,

, 924 (7th Cir. 2006) (deeming plan admin-
istrator a fiduciary). Mondry asserts that CIGNA
breached its fiduciary obligations by misrepresenting the
terms of the plan and failing to timely disclose material
information necessary for her to pursue her Level Two
appeal for benefits. Pursuant to 29 U.S.C. § 1132(a)(3), she
seeks to hold CIGNA liable for $303.89 in medical
expenses for which she alleges CIGNA has yet to reim-
burse her, additional medical expenses that she incurred
because she declined COBRA coverage based on CIGNA’s
alleged misrepresentations, and the lost time value of
funds that she spent on Zev’s speech therapy before
she was finally reimbursed following her successful
Level Two appeal. As to American Family, Mondry
alleges that her former employer failed to produce the
information that she needed to prosecute her appeal of the
original decision to deny her claim for benefits (again, the
BIRT and CRT), misrepresented to her that the one and
only Plan document was the SPD, and subjugated her
interests to its own by taking a hands-off role in clarifying
which documents governed her claim for benefits and
in helping her to obtain those documents from CIGNA.
Mondry contends that, like CIGNA, American Family
is liable for the lost time value of the funds she used to
pay for Zev’s speech therapy until she prevailed in her
Level Two appeal as well as the expenses Mondry
incurred as a result of her decision to decline COBRA
coverage. As we have noted, the district court dismissed
No. 07-1109                                                47

the breach of fiduciary duty claim as to CIGNA on the
ground that the complaint did not seek equitable relief.
The court later granted summary judgment in favor of
American Family on this claim because Mondry had not
established that American Family made a misleading
representation to her, that she had relied on such a misrep-
resentation to her detriment, or that American Family
had subjugated Mondry’s interests to its own.
  The statutory provision pursuant to which Mondry
seeks relief authorizes only a limited range of remedies,
raising a threshold question as to whether the relief she
demands is authorized. Section 1132(a)(3) provides:
    A civil action may be brought . . . by a participant,
    beneficiary or fiduciary (A) to enjoin any act or
    practice which violates any provision of this
    subchapter or the terms of the plan, (B) to obtain other
    appropriate equitable relief (i) to redress such viola-
    tions, or (ii) to enforce any provisions of this
    subchapter or the terms of this plan.
The Supreme Court’s decision in Varity Corp. v. Howe, 

, 507-15, 

, 1075-79 (1996), confirms
that section 1132(a)(3) is an appropriate vehicle for reme-
dying a breach of the fiduciary obligations owed to plan
participants. But Mondry is seeking monetary rather
than injunctive relief, and the former can be justified only
if it falls within the scope of the “other appropriate equita-
ble relief” authorized by the statute. The Court in Mertens
v. Hewitt Assocs., 

, 

(1993),
rejected an expansive construction of “equitable relief”
that might have included legal remedies, and instead
48                                                   No. 07-1109

construed the term to include only “those categories of
relief that were typically available in equity . . . .” 

113 S. Ct. at 2069 (emphasis in original). The Court’s
subsequent decision in Great-West Life & Annuity Ins. Co.
v. Knudson, 

, 210, 

, 712-13
(2002), reaffirmed that the “equitable relief” authorized
by section 1132(a)(3) will normally not include monetary
relief, even when the plaintiff asserts that an ERISA
plan entitles him to the money he seeks:
     Here, petitioners seek, in essence, to impose personal
     liability on respondents for a contractual obligation
     to pay money—relief that was not typically available
     in equity. “A claim for money due and owing under
     a contract is ‘quintessentially an action at law.’ ” Wal-
     Mart Stores, Inc. v. Wells, 

, 401 (C.A. 7 2000)
     (Posner, J.). “Almost invariably . . . suits seeking
     (whether by judgment, injunction or declaration) to
     compel the defendant to pay a sum of money to the
     plaintiff are suits for ‘money damages,’ as that phrase
     has traditionally been applied, since they seek no
     more than compensation for loss resulting from the
     defendant’s breach of legal duty.” Bowen v. Massachu-
     setts, 

, 918-919, 

, 

(1988) (SCALIA, J., dissenting). And “[m]oney
     damages are, of course, the classic form of legal relief.”
     

, 

.
(Emphasis in original.) Cf. Sereboff v. Mid Atlantic Med.
Servs., 

, 

(2006) (suit by insurer
seeking reimbursement pursuant to plan provision
from identifiable funds within defendants’ possession
No. 07-1109                                                 49

was a suit for “appropriate equitable relief” within scope
of section 1132(a)(3)).
  As Knudson makes clear, Mondry’s claim for the $303.89
that she claims CIGNA has yet to pay her as reimburse-
ment for Zev’s speech therapy is a form of legal relief
that section 1132(a)(3) does not authorize. It is a demand
for money to which Mondry believes the terms of the
Plan entitle her. As such it is relief that Mondry could
have sought under section 1132(a)(1)(B), which expressly
authorizes a suit by a plan participant “to recover
benefits due to him under the terms of the plan[.]” See, e.g.,
Magin v. Monsanto Co., 

, 687-88 (7th Cir.
2005) (suit for benefits due under plan is not suit for
equitable relief). But Mondry has never invoked that
provision as support for her claim. Varity observes that
section 1132(a)(3) authorizes only “appropriate” equitable

, 116 S. Ct. at 1079, and adds that
where relief is available to a plan participant under other
provisions of the statute, relief may not be warranted
under section 1132(a)(3):
    We should expect that courts, in fashioning “appropri-
    ate” equitable relief, will keep in mind the “special
    nature and purpose of employee benefit plans,” and
    will respect the “policy choices reflected in the inclu-
    sion of certain remedies and the exclusion of others.”
    Pilot Life Ins. Co. v. Dedeaux, 481 U.S. [41], at 54, 107
    S. Ct. [1549], at 1556 [(1987)]. See also [Massachusetts
    Mut. Life Ins. Co. v.] Russell, 473 U.S. [134], at 147, 105
    S. Ct. [3085], at 3092-3093 [(1985)]; 

, 113 S. Ct., at 2072. Thus, we should expect
50                                               No. 07-1109

     that where Congress elsewhere provided adequate
     relief for a beneficiary’s injury, there will likely be
     no need for further equitable relief, in which case
     such relief normally would not be “appropriate.” Cf.
     

, 105 S. Ct., at 3091.
516 U.S. at 

. Consistent with Varity’s
admonition, a majority of the circuits are of the view that
if relief is available to a plan participant under subsection
(a)(1)(B), then that relief is unavailable under subsection
(a)(3). See Korotynska v. Metro. Life Ins. Co., 

,
106 (4th Cir. 2006) (coll. cases). Although we have not
had occasion to consider that question, Mondry has given
us no reason to depart from the holdings of those circuits.
   Nor has Mondry shown that she is entitled to compensa-
tion for the additional medical expenses she was forced
to pay as a result of her decision not to continue partic-
ipating in the Plan under COBRA when she terminated
her employment with American Family. Mondry’s con-
tention is that when CIGNA initially denied her claim
for Zev’s speech therapy, it represented to her, falsely, that
the therapy was outside the scope of her coverage;
thus, when the time came for her to decide whether to elect
COBRA coverage, she concluded in reliance on that
misrepresentation that there was no point in remaining
with the Plan. She maintains that American Family
itself played a supporting role in the misrepresentation
by not taking meaningful steps to help her obtain from
CIGNA the documents that she needed to expose the
error in CIGNA’s denial of her claim. But what Mondry
relied upon in electing to forgo continued participation
No. 07-1109                                                  51

in the Plan under COBRA was CIGNA’s initial, erroneous
decision to deny her claim. Yet, Mondry herself realized
that CIGNA’s decision was not final: She had appeal
rights, she exercised those rights, and she ultimately
prevailed. It takes more than a mistaken decision by the
claims administrator to establish a breach of fiduciary
duty. Schoonmaker v. Employee Sav. Plan of Amoco Corp. &
Participating Cos., 

, 414-15 (7th Cir. 1993) (citing
Lister v. Stark, 11 Employee Benefits Cas. (BNA) 1611, 1617
(N.D. Ill. Aug. 1, 1989), rev’d in part on other grounds, 

(7th Cir. 1991)). Nothing that CIGNA or Ameri-
can Family allegedly did or said coerced or deceived
Mondry into waiving her COBRA rights and opting out
of the AmeriPreferred Plan during the period of time
when she was appealing CIGNA’s adverse benefit deter-
mination.
  However, we do think that Mondry has a viable claim
against American Family for the lost time value of the
money she was forced to expend on Zev’s speech therapy
until at last she obtained copies of the BIRT and CRT and
was able to prevail in her Level Two appeal. Mondry
could not have sought this form of relief under section
1132(a)(1)(B), for absent a provision in the plan that
grants her the right to interest on past-due benefits (and
the AmeriPreferred Plan contains no such provision),
restitution of this sort is considered an extra-contractual
remedy that is beyond the scope of that section. See
May Dep’t Stores Co. v. Fed. Ins. Co., 

, 603 (7th
Cir. 2002); Harsh v. Eisenberg, 

, 654-56 (7th
Cir. 1992); see also Harzewski v. Guidant Corp., 

,
804 (7th Cir. 2007). Of course, Mondry has already estab-
52                                                 No. 07-1109

lished American Family’s liability for statutory penalties
under section 1132(c)(1) for its failure to produce Plan
documents to her under section 1024(b)(4), but the
purpose of those penalties is to induce the plan admin-
istrator to comply with the statutory mandate rather than
to compensate the plan participant for any injury she
suffered as a result of non-compliance. See Winchester v.
Pension Comm. of Michael Reese Health Plan, Inc. Pension
Plan, 

, 1193 (7th Cir. 1991); Faircloth v. Lundy
Packing Co., 

, 659 (4th Cir. 1996) (coll. cases); see
also Bartling v. Fruehauf 

, 29 F.3d at 1068. This
is not to say that the harm Mondry suffered due to the
lengthy delay in obtaining the documents she sought is
irrelevant to the assessment of statutory penalties; on the
contrary, it is a material consideration, although not a
prerequisite. See 

; see also Romero
v. SmithKline Beecham, 

, 120 (3d Cir. 2002)
(Alito, J.) (“Other circuits have studied the role of prej-
udice or damages in the inquiry and have concluded
that although they are often factors, neither is a sine qua non
to a valid claim under section 502(c)(1).”) (coll. cases);
Moothart v. Bell, 

, 1506 (10th Cir. 1994) (same).
But it is to say that the penalties imposed will not neces-
sarily compensate her for her loss. Consequently, the
door remains open to Mondry’s request for relief under
section 1132(a)(3), so long as what she seeks may be
considered equitable relief.
  Restitution amounts to a legal remedy in some circum-
stances and an equitable remedy in others. See S.E.C. v.
Lipson, 

, 663 (7th Cir. 2002). “[I]t is a legal
remedy when sought in a case at law (for example, a suit
No. 07-1109                                                 53

for breach of contract) and an equitable remedy when
sought in an equity case. . . . [H]owever, restitution is
equitable when it is sought by a person complaining of a
breach of trust . . . .” Clair v. Harris Trust & Sav. Bank, 

, 498 (7th Cir. 1999) (citing Health Cost Controls of
Ill., Inc. v. Washington, 

, 710 (7th Cir. 1999));
see also Bowerman v. Wal-Mart Stores, Inc., 

,
592 (7th Cir. 2000); Parke v. First Reliance Standard Life
Ins. Co., 

, 1006-09 (8th Cir. 2004). Mondry,
like the plaintiffs in Clair, is complaining of a breach of
trust. American Family was a fiduciary, and Mondry
charges that it breached its fiduciary obligation to her
by failing to help her timely obtain the documents to
which she was entitled under ERISA and that she
needed to establish her right to Plan benefits. See gen-
erally Eddy v. Colonial Life Ins. Co. of Am., 

, 750
(D.C. Cir. 1990) (“The duty to disclose material informa-
tion is the core of a fiduciary’s responsibility, animating
the common law of trusts long before the enactment of
ERISA.”). Because the AmeriPreferred Plan was self-
funded, American Family arguably benefitted from the
delay that Mondry experienced in obtaining those docu-
ments and reversing CIGNA’s erroneous denial of her
claim for benefits: It had the interest-free use of money
that should have been paid to Mondry much sooner than
it was. Restitution would thus force American Family
to disgorge the gain it enjoyed from the delay that its
breach of trust helped to bring about. See May Dep’t 

; 

; 

.
54                                                  No. 07-1109

  This assumes that American Family in some way
breached its fiduciary obligations to Mondry. ERISA
requires a fiduciary to
     discharge his duties with respect to a plan solely in the
     interest of participants and beneficiaries and—
         (A) for the exclusive purpose of:
             (i) providing benefits to participants and their
                 beneficiaries; and
             (ii) defraying reasonable expenses of adminis-
                  tering the plan;
         (B) with the care, skill, prudence, and diligence
             then prevailing that a prudent man acting in a
             like capacity and familiar with such matters
             would use in the conduct of an enterprise of
             a like character and with like aims . . . .
29 U.S.C. § 1104(a)(1). Subsection (A) of this provision
imposes a duty of loyalty upon plan administrators,
Frahm v. Equitable Life Assurance Soc. of U.S., 

,
960 (7th Cir. 1998), akin to that of a trustee under com-
mon law, Jenkins v. 

, 444 F.3d at 924 (quoting
Ameritech Benefit Plan Comm. v. Commc'n Workers of Am.,

, 825 (7th Cir. 2000)); see also 

, 116 S. Ct. at 1074-75, and subsection (B) creates a duty
of care in executing that duty, 

.8


8
  A fiduciary who breaches his obligations to a plan participant
or beneficiary is “subject to such . . . equitable or remedial
                                                   (continued...)
No. 07-1109                                                  55

At common law, a trustee is obliged to provide beneficia-
ries, at their request, “ ‘complete and accurate infor-
mation as to the nature and amount of the trust property,’
and also ‘such information as is reasonably necessary to
enable [them] to enforce [their] rights under the trust or to
prevent or redress a breach of trust.’ ” Faircloth v. Lundy
Packing 

, 91 F.3d at 656 (quoting Restatement
(Second) of Trusts § 173 & cmt. c. (1959)); see also 

. In the ERISA context, our cases have
recognized the fiduciary’s duty not to “ ‘mislead plan
participants or misrepresent the terms or administration
of a plan,’ ” Vallone v. CNA Fin. Corp., 

, 640
(7th Cir. 2004) (quoting Anweiler v. Am. Elec. Power Serv.
Corp., 

, 991 (7th Cir. 1993)), although we
have also cautioned that not all mistakes or omissions
in conveying information about a plan amount to a
breach of fiduciary duty, 

. See
also Tegtmeier v. Midwest Operating Eng’rs Pension Trust
Fund, 

, 1047 (7th Cir. 2004); 

; cf. 

, 116 S. Ct. at 1074-
75 (reserving question as to whether ERISA fiduciaries
have duty to provide truthful information to plan partici-
pants, whether on own initiative or in response to partici-
pants’ inquiries, but agreeing that fiduciaries may not
deliberately deceive plan participants and beneficiaries).
  Our colleagues in the Fourth Circuit have also looked
to the specific disclosure requirements that Congress set


8
  (...continued)
relief as the court may deem appropriate . . . .” 29 U.S.C.
§ 1109(a).
56                                              No. 07-1109

forth in 29 U.S.C. §§ 1022(a) and 1024(b) to inform the
scope of the fiduciary’s duty to communicate accurate
information about the plan to plan beneficiaries. See
Rodriguez v. MEBA Pension Trust, 

, 73-74 (4th
Cir. 1989) (Wilkinson, J.). Although that court has declined
to impose on a plan fiduciary a duty to disclose more
information than ERISA’s notice provisions require,

, it has concluded that when
a fiduciary fails to make the types of disclosures
expressly required by the statute, it has breached its
fiduciary obligation to the plan beneficiary, 

; see also 

(noting
that the fundamental common-law duty of trustee to
communicate material information to beneficiary informs
many of ERISA’s disclosure provisions, including those
found in §§ 1022(a) and 1024(b)(4)). We discern no
reason to part ways with our sister circuit on this point.
  Against this legal backdrop, Mondry has presented
evidence from which a factfinder could determine that
American Family breached its fiduciary duty to her.
Under the express terms of section 1024(b)(4), Mondry
was entitled to copies of plan documents, and as we
have held, those documents included the BIRT and CRT
that the Plan’s claims administrator had cited to Mondry
as dispositive of her claim for benefits. Mondry could not
effectively challenge CIGNA’s decision to deny her
claim based on these documents without knowing their
contents. American Family had notice of the documents
Mondry was seeking, her reasons for seeking these docu-
ments, and the apparent centrality of those documents
to CIGNA’s decisionmaking based on the correspondence
No. 07-1109                                            57

that was directed to American Family, the telephonic
contacts between American Family and Mondry’s repre-
sentatives, and the correspondence directed to CIGNA
on which American Family was copied. In one instance,
an in-house attorney for American Family contacted
CIGNA on Mondry’s behalf to request a copy of the CRT;
but American Family dropped its efforts after CIGNA’s
representative claimed that the CRT was proprietary
and “too big to send anyway.” Yet a factfinder might
conclude that American Family’s heart was not in the
effort, for its attorney not only accepted CIGNA’s refusal
without question, but did not even bother picking up
the telephone to advise Mondry’s counsel of CIGNA’s
refusal. Only weeks later, when Mondry’s representative
followed up with her, did American Family’s counsel
report the outcome of her inquiry. We know, of course,
that CIGNA ultimately was willing to and did produce
both the BIRT and CRT to Mondry. The factfinder might
conclude that by not taking additional steps on Mondry’s
behalf to obtain these documents from CIGNA, its agent,
American Family contributed to the delay and failed to
discharge its fiduciary duty as the plan administrator to
provide her with the plan documents to which she was
entitled by section 1024(b)(4) and which she needed in
order to enforce her rights under the AmeriPreferred Plan.
  As against CIGNA, however, we conclude that Mondry
does not have a viable claim for restitution based on the
delay in providing Plan documents to her. Although
CIGNA like American Family was a fiduciary, it did not
share American Family’s obligation under section
1024(b)(4) to produce Plan documents to Mondry. Mondry
58                                               No. 07-1109

has not made a case for imputing to CIGNA a fiduciary
duty of disclosure that ERISA itself imposes only on
American Family. Moreover, whatever culpability CIGNA
might bear for delaying Mondry’s appeal by failing to
produce the BIRT and CRT to her sooner than it did,
CIGNA did not profit from the delay. For as CIGNA
rightly points out, it is merely the Plan’s claims administra-
tor. It does not fund the benefit payments—American
Family does—and so CIGNA did not stand to gain finan-
cially from the delay in reversing its original decision
to deny Mondry’s claim for benefits.


                             III.
  The district court correctly dismissed Counts One and
Two of the complaint as to CIGNA. However, the court
erred in entering summary judgment in favor of American
Family on these counts. As to Count One, Mondry has
established that American Family failed in its statutory
obligation to produce plan documents to Mondry under
section 1024(b)(4) and therefore is liable for statutory
penalties under section 1132(c)(1). The material facts as
to that count are not in dispute, and Mondry is entitled
to summary judgment finding American Family liable
for violating section 1024(b)(4). As to Count Two, Mondry
has presented evidence from which the finder of fact
could conclude that American Family violated its
fiduciary obligation to her by failing to comply with its
obligation under section 1024(b)(4). She is entitled to a
trial on that count. We therefore reverse the district
court’s entry of summary judgment in favor of American
No. 07-1109                                            59

Family and against Mondry on Counts One and Two and
remand with directions to enter summary judgment in
favor of Mondry and against American Family on Count
One and to determine appropriate statutory penalties, and
to conduct such further proceedings as are appropriate
as to Count Two. Mondry shall recover her costs of
appeal from American Family.
                   A FFIRMED IN P ART, R EVERSED IN P ART,
                                          and R EMANDED.




                          3-5-09