Opinion
Case No. 1:17-cv-02309
08-04-2020
Arthur STANTON, on behalf of himself and others similarly situated, Plaintiff, v. The NCR PENSION PLAN, et al., Defendants.
Paul Joseph Sharman, The Sharman Law Firm, LLC, Alpharetta, GA, for Plaintiff. Jeffrey D. Mokotoff, Tiffany D. Downs, Ford & Harrison LLP, Atlanta, GA, for Defendants.
Paul Joseph Sharman, The Sharman Law Firm, LLC, Alpharetta, GA, for Plaintiff.
Jeffrey D. Mokotoff, Tiffany D. Downs, Ford & Harrison LLP, Atlanta, GA, for Defendants.
ORDER
MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE
Plaintiff Arthur Stanton previously worked for NCR Corporation and claims to be a participant in its Pension Plan. He alleges (among other things) that Defendants NCR and members of the NCR pension committee violated their fiduciary duties to him and others similarly situated. Defendants move to dismiss those claims and to strike subclasses of similarly situated plaintiffs added in the amended complaint. (Dkt. 29.) The Court grants in part and denies in part Defendants’ motion.
The Court ruled once on a motion to dismiss and included a fuller recitation of the relevant facts. (Dkt. 26.) It adopts those facts here.
Plaintiff worked for NCR from 1961 to 1970, when he took a leave of absence for about a year. (Dkt. 28 ¶ 11.) He returned in 1971 and worked until 1980, when he left for other employment. (Id. ) While there, Plaintiff was part of a retirement benefits plan (the "Plan"). (Id. ¶ 58.) To receive benefits under the Plan, Plaintiff was required to have worked for NCR for ten continuous years. (Id. ¶¶ 19, 20.) Plaintiff retired from the workforce in 2015 and sought benefits under the Plan. (Id. ¶ 58.) NCR denied his claim after determining he had not worked for ten continuous years. (Id. ¶ 59.) Plaintiff disputes that saying his year-long absence was authorized and did not break his continued service. (Id. ¶¶ 11, 19, 47.)
After exhausting his remedies, Plaintiff filed an initial complaint against the Plan and its administrators and asserted four counts under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(1)(B), (a)(3), (c)(1)(B). (Dkt. 1.) Count I was a claim for benefits under the Plan. (Id. ¶¶ 67–71.) Count II alleged Defendants (other than the Plan) breached certain fiduciary duties. (Id. ¶¶ 72–97.) Count III alleged Defendants (other than the Plan) failed to disclose information required by ERISA. (Id. ¶¶ 98–102.) Finally, Count IV claimed Defendants (other than the Plan) breached other fiduciary duties by taking financial actions that improperly benefitted individual Defendants and caused the Plan financial harm. (Id. ¶¶ 103–15.) Plaintiff asserted these claims on behalf of himself and others similarly situated.
Defendants moved to dismiss on several grounds, including lack of standing. (Dkt. 16.) The Court found Plaintiff had standing for Counts I and III, but lacked standing for Counts II and IV, the fiduciary duty claims. (Dkt. 26 at 16–20.) The Court permitted Plaintiff to amend the complaint if Plaintiff believed there was standing. (Id. at 20.) Plaintiff amended the complaint, again asserting four counts. (Dkt. 28.) Counts I and III are identical to his allegations in the original complaint. In Count II, Plaintiff clarified how Plan administrators breached their fiduciary duties. In Count IV, Plaintiff added allegations on the impact of the financial actions upon the Plan. Defendants now move to dismiss the fiduciary duty claims in Counts II and IV of the amended complaint as well as new class allegations. (Dkt. 29.)
II. Standard of Review
A court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).
A court may also dismiss a pleading for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). If a defendant challenges the court's subject matter jurisdiction, then the plaintiff bears the burden of showing the court has subject matter jurisdiction, which entails showing the plaintiff has standing. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There are three elements of standing: an injury-in-fact, "a causal connection between the injury and the conduct complained of," and a likelihood "the injury will be redressed by a favorable decision." Fla. Family Policy Council v. Freeman , 561 F.3d 1246, 1253 (11th Cir. 2009). An injury-in-fact is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130.
III. Discussion
A. Standing as to Count IV
1. Direct Harm to Participants in Count IV
In Count IV, Plaintiff claims Defendants (except the Plan) twice offered Plan participants lump sum distributions of benefits as part of its efforts to remove risk from the Plan. Plaintiff further claims that, when Defendants instituted these "derisking" actions, they "did not ensure that the Plan remained sufficiently funded to cover benefits payable to Plaintiff." (Dkt. 28 ¶ 106.) He also claims Defendants loaned and transferred money to a party-in-interest for its benefit. (Id. ¶ 111.) He claims Defendants’ actions violated their fiduciary duties to the Plan participants.
As the Court stated in its previous order, because participants in a defined benefits plan are entitled to a fixed amount of money, losses to a plan do not necessarily result in injury to the plan's participants. See LaRue v. DeWolff, Boberg & Assocs., Inc. , 552 U.S. 248, 255, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008) ; Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 439, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Provided money is available, participants can recover their same benefits even if the plan takes a loss, thus preventing any injury. See Lee v. Verizon Commc'ns, Inc. , 837 F.3d 523, 545 (5th Cir. 2016).
Plaintiff essentially claims that Defendants’ "derisking" actions hurt the plan, making a full payment of his benefits unavailable. The Fifth Circuit addressed this argument in Lee v. Verizon Communications, Inc. In that case, Verizon, the plan provider, split its pension plan into two groups to remove risk from the plan. A plaintiff claimed the derisking actions caused financial harm to the plan, thus increasing the risk that he would not receive the benefits to which he was entitled. Id. at 531–32. The Lee court found the plaintiff had not alleged an injury. Id. at 545–46. Citing sister circuits, the court held that, when claiming an injury based on damage to a defined benefits plan, a plaintiff must allege an "imminent risk" of default to the plan. Id. at 546.
Plaintiff here claims there is a "significant risk" and a "substantial risk" that the Plan will be unable to provide full benefits. (Dkt. 28 ¶¶ 108, 110.) Reasoning from Lee , this Court finds Plaintiff's allegations insufficient. The Lee court analyzed a plan that was only sixty-six percent funded. Id. And yet that was not enough to establish sufficient risk of default so as to establish standing. Plaintiff here makes no allegations that the Plan is underfunded. He says there is a "risk" it will be unable to provide benefits and tries to elevate that risk to "significant" and "substantial." But, he does not allege the Plan is underfunded, let alone that he faces an imminent risk of not receiving benefits.
The Lee court also identified a safeguard from injury that participants in a defined benefits plan enjoy — the requirement that an employer cover any financial shortfall in its plan. Lee , 837 F.3d at 545 (quoting Hughes Aircraft Co. , 525 U.S. at 439, 119 S.Ct. 755 ) ("[T]he employer typically bears the entire investment risk and—short of the consequences of plan termination—must cover any underfunding as the result of a shortfall that may occur from the plan's investments."). And so, claiming that a plan is underfunded "merely increases the relative likelihood that [a defendant] will have to cover a shortfall." Id. It does not establish an injury to a plan participant.
NCR appears to have an obligation to cover any shortfall in the Plan. The 1963 Plan booklet included with the Amended Complaint states "[t]he Non-Contributory Annuity is paid for entirely by the Company. " (Dkt. 28-1 at 3.) Plaintiff has not alleged otherwise. He also has not alleged that NCR would be financially unable to cover a shortfall in the Plan.
The 1963 Plan also states "[n]o retroactive amendment shall be made unless required to qualify or retain the qualification of the Plan under the Internal Revenue Code or any other law." (Dkt. 28-1 at 27.)
The Court acknowledges Lee is not binding. The Eleventh Circuit has not ruled on this issue — what constitutes an injury-in-fact when there is financial harm to a defined benefits plan — but other courts that have considered the issue have made the same findings as the Fifth Circuit. See David v. Alphin , 704 F.3d 327, 338 (4th Cir. 2013) ; Harley v. Minn. Min & Mfg. Co. , 284 F.3d 901, 906 (8th Cir. 2002) ; Perelman v. Perelman , 919 F. Supp. 2d 512, 517 (E.D. Pa. 2013), aff'd , 793 F.3d 368 (3d Cir. 2015). This Court, in fact, applied that reasoning in its previous order. (See Dkt. 26 at 17–18.) Plaintiff argues the Supreme Court overruled Lee in Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 194 L.Ed.2d 635 (2016). It is true the Fifth Circuit originally ruled in Lee before Spokeo. See 623 F. App'x 132 (5th Cir. 2015). But the Fifth Circuit reconsidered and then reaffirmed the opinion after Spokeo . See 837 F.3d 523 (5th Cir. 2016). This Court agrees with the Fifth Circuit's reconsideration of the case: rather than overrule it, Spokeo confirmed Lee ’s reasoning. Lee , 837 F.3d at 529 (" Spokeo maps surprisingly well onto the present case."). The Court finds Plaintiff lacks standing to assert Count IV.
In the Order on Defendants’ previous motion to dismiss, the Court rejected the argument that ERISA gave Plaintiff standing, finding Plaintiff had an independent duty to show constitutional standing. (See Dkt. 26 at 19–20.)
2. Harm to Plan as Injury-in-Fact in Count IV
Plaintiff alternatively argues Count IV should not be dismissed for lack of standing because 29 U.S.C. § 1132(a)(2) authorizes plan participants to sue on behalf of the plan. That section states, "[a] civil action may be brought by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title." Section 1109 creates liability for fiduciaries for the breach of their duties. Plaintiff argues § 1132(a)(2) is a partial assignment of the Plan's claims against the other defendants. He cites Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U.S. 765, 773–74, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), in which the Supreme Court held a relator had Article III standing to bring a qui tam action because the government had conferred its injury to the relator through its partial assignment of the damages claim. The Supreme Court made a similar finding in Sprint Communications Co., L.P. v. APCC Services, Inc. , 554 U.S. 269, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). The Sprint Court held that assignees for collection had Article III standing even when they did not originally suffer an injury and the recovered proceeds of the claim were promised to the assignor. Id. at 280–81, 128 S.Ct. 2531.
The Lee Court distinguished Vermont Agency and Sprint in two ways. First, both Vermont Agency and Sprint "involved assignment between the parties, while [in Lee ] the Plan and Plan participants have no such relationship." Lee , 623 F. App'x at 150. Since the Court in both Vermont Agency and Sprint based its reasoning on the history and tradition of assignment relationships, "applying that reasoning to a circumstance in which no such relationship existed [was] speculative." Id. Second, in Vermont Agency and Sprint , the assignor was the injured party. If the Court, Lee reasoned, extended Vermont Agency ’s and Sprint ’s reasoning to two private parties, "then what principled reason would preclude Congress from assigning the claim to any stranger?" Id. (quoting McCullough v. AEGON USA Inc. , 585 F.3d 1082, 1086 (8th Cir. 2009) ). The Lee court found the United States could not authorize standing through the assignment of a claim from one private party to another: "Congress [can permit] the injury-in-fact [requirement] by statutory assignment, yet only when the government is the injured party." Id.
This Court adopts Lee ’s reasoning: a plaintiff cannot show an injury-in-fact through an assignment of defined benefits plan's injury. The Court rejects Plaintiff's argument that 29 U.S.C. § 1132(a)(2) confers standing.
B. Standing as to Count II
Defendants also say Plaintiff lacks standing to assert the fiduciary duty claims in Count II. In that count, Plaintiff makes two central allegations. First, he claims Defendants promised him he would be eligible for benefits as part of the Plan and then denied those benefits. (Dkt. 28 ¶ 78(a)–(f).) Second, he claims Defendants did not inform him of the chance to take a lump-sum payment of his benefits. (Id. ¶ 78(g)–(i).) Neither alleges an injury to the Plan. For the first set of allegations, the injury is a failure to receive benefits. For the second set of allegations, the injury is a failure to receive accurate information. Both sets of allegations assert injuries-in-fact. See McFarlane v. First Unum Life Ins. Co. , 274 F. Supp. 3d 150, 161 (S.D.N.Y. 2017) ("[Plaintiff's] alleged failure to obtain copies of benefit plan documents that, under her view of the law, ERISA required [the defendant] to provide constitutes an injury in fact."); see also Jones v. Am. Gen. Life & Accident Ins. Co. , 370 F.3d 1065, 1072 (11th Cir. 2004) ("[A]n ERISA participant has a right to accurate information, and that an ERISA plan administrator's withholding of information may give rise to a cause of action for breach of fiduciary duty."). As those claims are redressable and Plaintiff has alleged causation, the Court denies Defendants’ motion to dismiss Count II for lack of standing.
C. Motion to Dismiss Count II as Duplicative
Defendants also argue Count II should be dismissed as duplicative of Count I. In the first count, Plaintiff makes a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). That section states, "[a] civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." As already explained, Count II is a breach of fiduciary duty claim under § 1132(a)(3). That section states, "[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, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan."
Defendants argue Count IV is duplicative of Counts I and III. The Court does not address that argument as the Court found Plaintiff lacks standing to bring this claim.
In Varity Corp. v. Howe , 516 U.S. 489, 508, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court described § 1132(a)(3) as a "catchall" remedial provision that allows individuals to sue for breaches of fiduciary duty. A plaintiff's ability to sue under this catchall, however, has a limitation: "where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief." Id. at 515, 116 S.Ct. 1065. The Eleventh Circuit applied that limitation in Katz v. Comprehensive Plan of Group Insurance , 197 F.3d 1084 (11th Cir. 1999). In that case, a plaintiff sought life insurance benefits under § 1132(a)(1)(B). The plaintiff also sued under § 1132(a)(3), claiming the plan administrator breached its fiduciary duties by not paying those benefits. Id. at 1086–87. Applying Varity , the Court found an ERISA plaintiff with an adequate remedy under § 1132(a)(1)(B) cannot alternatively plead and proceed under § 1132(a)(3). Id. at 1088–89.
In Jones v. American General Life & Accident Insurance Co. , 370 F.3d at 1071–72, the Eleventh Circuit warned courts against dismissing fiduciary duty claims by mistakenly equating "remedy" — as that term was used in Katz — with the "relief" a plaintiff might seek. In Jones , the district court dismissed plaintiffs’ fiduciary duty claims because it determined "plaintiff's injury [could] be relieved with an award of benefits." Id. at 1073. In doing so, the court misread Katz to suggest that "[i]f the remedy for [the plaintiffs’] injuries is an award of benefits under [ § 1132(a)(1)(B) ], they cannot also bring claims under [ § 1132(a)(3) ]," even if the defendant breached its fiduciary duties. Id. The Eleventh Circuit reversed, making it clear that § 1132(a)(3) is intended to provide a remedy when other provisions do not. The proper analysis is whether "the allegations supporting the [ § 1132(a)(3) ] claim [are] also sufficient to state a cause of action under [ § 1132(a)(1)(B) ], regardless of the relief sought, and irrespective of the [plaintiffs’] allegations supporting their other claims." Id. at 1073–74. If they are, there can be no § 1132(a)(3) fiduciary duty claim. If they are not, the fiduciary claim may proceed.
As noted above, Plaintiff makes two sets of allegations in Count II. Plaintiff first claims Defendants made several "promises" to him (and other members of the alleged class) and then breached those promises. All but one of those alleged promises echo the Plan's contractual provisions. Allegations 78(b) through 78(f) quote provisions of the Plan identified in other portions of the first amended complaint. (See Dkt. 28 ¶ 78(b)–(f).) Those claims merely seek enforcement of the Plan. Plaintiff's allegations that Defendants made the promises (in the Plan) and then breached the promises are sufficient to state a cause of action under § 1132(a)(1)(B), thus precluding a fiduciary duty claim based upon the same allegations. See Harrison v. Digital Health Plan , 1:98-cv-348, 1998 WL 1157098, at *3 (N.D. Ga. June 24, 1998), aff'd in part, rev'd in part on other grounds , 183 F.3d 1235 (11th Cir. 1999) ("Plaintiff's claim for breach of fiduciary duty essentially restates her claim that defendants wrongfully refused to pay her medical benefits, a claim for which ERISA elsewhere provides an adequate remedy."). The Court dismisses that portion of Count II.
The plaintiff in Harrison appealed the district court's ruling. See Harrison v. Digital Health Plan , 183 F.3d 1235 (11th Cir. 1999). The Eleventh Circuit affirmed the district court's dismissal of the fiduciary duty claim as duplicative of the claim for benefits. See id. at 1237 n.1 ("We find no error in the district court's ... dismissal of plaintiff's claim for breach of fiduciary duty as duplicative of Count I for recovery of medical benefits under 29 U.S.C. § 1132(a)(1)(B)."); see also Lefler v. United Healthcare of Utah, Inc. , 72 F. App'x 818, 826 (10th Cir. 2003) ("The Class sought equitable relief under 29 U.S.C. § 1132(a)(3), claiming United, as a 29 U.S.C. § 1002(21)(A) fiduciary, breached its fiduciary by failing to inform the class of its discounting practice and improperly denying, de facto, benefits under the plan.... We agree with the district court that consideration of a claim under 29 U.S.C. § 1132(a)(3) is improper when the Class, as here, states a cognizable claim under 29 U.S.C. § 1132(a)(1)(B), a provision which provides adequate relief for alleged class injury.").
Allegation 78(a), however, does not quote from the Plan. It simply alleges Defendants "[p]romis[ed] that [Plaintiffs] were eligible to participate in the Plan" and then breached that promise. (Dkt. 28 ¶ 78(a).) He further alleges that by making this promise, Defendants misled him (and others) into believing "they would be financially secure in their retirement," thus causing them not to seek other forms of "retirement security." (Id. ¶ 81.) While not entirely clear, Plaintiff seems to be referencing a representation allegedly made to him in 1971 when he returned to NCR from his year-long absence. He alleges that, at the time, Defendant NCR and the Plan administrators assured him that all his benefits had been "reinstated, including full participation in the pension plan as if he had not left the company." (Id. ¶ 61.) Plaintiff brings this claim — not under the terms of the Plan — but as an allegation that Defendants (except the Plan) gave him false information which caused him to take action to his detriment. These allegations would not state a claim under § 1132(a)(1)(B), thus supporting a fiduciary duty claim under § 1132(a)(3). Indeed, this appears to be the exact claim the Eleventh Circuit allowed to proceed in Jones — a claim that a fiduciary misled a plan participant about the continuity of plan benefits, thus causing the beneficiaries to forgo other options. See Jones , 370 F.3d at 1072 (finding an allegation of "systematic pattern of misrepresentation" to state a § 1132(a)(3) breach of fiduciary duty claim). The Court notes that, for the purposes of their fiduciary duty claim, the plaintiffs in Jones conceded they were not entitled to the contested benefits under the plan, thus making their § 1132(a)(3) fiduciary claim truly an alternative to their § 1132(a)(1)(B) claim. Plaintiff does not do that here. In addition, § 1132(a)(3) only permits claims by plan participants, beneficiaries, or fiduciaries. Plaintiff claims he was a participant; Defendants say he was not. At this point, the Court accepts Plaintiff's allegations. Perhaps discovery will shed additional light on Plaintiff's allegations and the Court will consider these issues again at summary judgment. Plaintiff's fiduciary duty claim can only proceed if he is a participant (beneficiary or fiduciary) and asserts claims that are not sufficient to state a claim under § 1132(a)(1)(B). For now, the Court merely rules that the allegation in paragraph 78(a) states a claim for fiduciary relief.
Plaintiff phrases this claim as a plural because he seeks to represent a class.
Section 1132(a)(1)(B) also does not provide a remedy for Count II's second set of allegations, the claim for relevant information and an opportunity to act. In these assertions, Plaintiff claims Defendants failed to notify him (and other class members) of the opportunity to take an early distribution of benefits in a lump sum. (Dkt. 28 ¶¶ 78(g)–(i).) That claim implicates the right to accurate information that the Eleventh Circuit recognized may support a fiduciary duty claim. See Jones , 370 F.3d at 1072. It is also not duplicated in Count I. The Court denies the motion to dismiss Count II for the claims seeking relief on withholding information.
Defendants also suggest Count III provides the relief requested in Count II. The heading of the duplicative claims section states, "Counts II and IV Must Be Dismissed as Duplicative of Counts I and III." (Dkt. 29-1 at 13.) In Count III, Plaintiff brings a claim for information under § 1132(c)(1)(B), which provides for statutory damages for a plan provider's failure to provide certain information. The Court also notes that Plaintiff relied on two cases to show that the failure to share information establishes an injury. See Chiron Recovery Ctr., LLC v. United Healthcare Servs. , 2019 WL 9104170, at *8-9, 2019 U.S. Dist. LEXIS 157777, at *24 (S.D. Fla. Sep. 13, 2019) ; McFarlane , 274 F. Supp. 3d at 161 ; Limbach v. Weil Pump Co. , No. 1:15-cv-1531, 2017 WL 1379360, *3, 2017 U.S. Dist. LEXIS 57526, *9 (E.D. Wis. Apr. 14, 2017). The plaintiffs in those cases brought claims under § 1132(c)(1)(B). Defendants, however, do not explicitly argue § 1132(c)(1)(B) creates a remedy for the relief Plaintiff seeks in Count II. As Defendants did not make that argument, the Court does not address it here.
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D. New Subclasses
In the amended complaint, Plaintiff added three subclasses of prospective class members. Plaintiff seeks to bring claims on behalf of individuals that (1) were not given a summary plan description for the Plan, (2) not given notice of their eligibility for benefits under the Plan, and (3) not given the chance to elect and receive a lump-sum distribution of their benefits in 2012 or 2014. In permitting Plaintiff to amend the complaint, the Court stated, "[t]he Court will allow Plaintiff to file an amended complaint if he believes he has standing under the terms set forth above." (Dkt. 26 at 20.) Plaintiff's proposed subclasses fall outside that instruction. Plaintiff should have moved to amend the complaint. The Court expects Plaintiff to file motions properly throughout the rest of this case.
Even so, discovery has not begun in this case and it does not appear Defendants will suffer any prejudice as a result of Plaintiff's amendment. The Court will permit Plaintiff to add the three additional subclasses of potential plaintiffs. See Hoover v. Blue Cross & Blue Shield , 855 F.2d 1538, 1544 (11th Cir. 1988) ("[A]n untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought and when it does not appear that any of the parties will be prejudiced by allowing the change.").
IV. Conclusion
The Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss and Strike Plaintiff's Amended Complaint (Dkt. 29). The Court DISMISSES Count IV for lack of standing and DISMISSES Plaintiff's claims in Count II based on the failure to receive benefits. The Court does not dismiss Plaintiff's claims in Count II based on the failure to receive information. The Court DENIES the request to strike the amended complaint.
SO ORDERED this 4th day of August, 2020.