Neuma, Inc. v. Wells Fargo & Co. (515 F. Supp. 2d 825, 2006)

United States District Court for the Northern District of Illinois 2006-10-19

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

Plaintiff Neuma, Inc. (“Neuma”) entered into a viatical settlement with Rudy Ock-huysen (“Ockhuysen”), an employee on disability leave from Defendant Wells Fargo & Company (“Wells Fargo”), in which Ockhuysen assigned his rights as a beneficiary under his employer-sponsored group life insurance policy to Neuma in exchange for a lump sum payment. Shortly thereafter, Wells Fargo terminated Ockhuysen’s employment pursuant to a company policy of limiting disability leaves to 30 months. As neither Neuma nor Ockhuysen subsequently converted the group policy to an individual policy, the policy lapsed.

Neuma brings claims under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., for recovery of benefits, breach of fiduciary duty, and failure to provide requested documents. Neuma asserts that Wells Fargo breached its fiduciary duty to Neuma as an assignee-beneficiary by neglecting to advise Neuma, when Neuma contacted Wells Fargo to verify Ockhuysen’s employment status, that Ockhuysen’s employment was scheduled to terminate 30 days later in accordance with Wells Fargo’s leave policy. Neuma further asserts that Wells Fargo inadequately responded to Neuma’s request for documents related to Ockhu-ysen’s group life policy. Neuma seeks damages, an order reinstating Ockhuysen’s coverage, a declaratory judgment that Wells Fargo pay the face amount of the policy upon Ockhuysen’s death, and a statutory per-diem penalty for Wells Fargo’s alleged failure to produce documents.

The parties have filed cross-motions for summary judgment on the breach of fiduciary duty and document request claims. Wells Fargo further moves for summary judgment on Neuma’s claims for recovery of benefits and declaratory relief, moves to strike an affidavit submitted by one of Neuma’s attorneys, and moves for sanctions. For the reasons presented here, Wells Fargo’s motions are granted and Neuma’s motion for summary judgment is denied.

BACKGROUND

A. The Parties

Plaintiff Neuma, an Illinois corporation, (Pl.’s 56.1 ¶ 1), purchases life settlements and viatical settlements from individuals. (Def.’s 56.1 ¶ 1.) A viatical settlement is accomplished when a person, typically an individual with a terminal illness, assigns his or her rights under a life insurance policy to Neuma and, in exchange, receives a discounted lump sum payment from Neuma of the face value of the insurance policy. (Pl.’s 56.1 ¶ 14.) After the assignment is made, Neuma continues to pay any applicable premiums and, upon the insured’s death, receives payment under the policy as the designated beneficiary. (Id. ¶ 15.) Viatical settlements may involve individual or group insurance policies. (Def.’s 56.1 ¶ 1.)

Wells Fargo, a Delaware corporation with its principal place of business in California, (Pl.’s 56.1 ¶ 2), is an integrated financial services company with approximately 150,000 employees. (Def.’s 56.1 ¶ 2.) Ockhuysen, who is not a party to this lawsuit, worked at Wells Fargo’s San Francisco office from 1978 until December 16, 1998, beginning as a bank teller and eventually becoming an operations analyst in Well’s Fargo’s courier network. {Id. ¶¶ 17, 21; Pl.’s 56.1 ¶ 4.) In 1995, Ockhu-ysen fell ill and reduced his work schedule to four days a week from five. (Ockhu-ysen Dep., at 51:10-25.) On June 17,1996, he went on disability leave from Wells Fargo. (Def.’s 56.1 ¶ 18.) Prior to his going on leave, in May 1996, Wells Fargo implemented a policy under which the company would terminate the employment of any employee on leave in excess of 30 months. (Id. ¶ 19.) Ockhuysen was informed of this policy and that his employment would terminate on December 16, 1998. (Id. ¶ 20.) Ockhuysen did not return to work, and in accordance with Wells Fargo’s policy, Wells Fargo terminated his employment on December 16, 1998, after 30 months of leave. (Id. ¶ 21.)

B. Ockhuysen’s Life Insurance with Wells Fargo

As of October 1998, Ockhuysen was a participant in Wells Fargo’s group life insurance plan (the “Plan”). (Def.’s 56.1 ¶ 3.) Wells Fargo was the plan sponsor, plan administrator, and fiduciary of the Plan. (Pl.’s 56.1 ¶6.) From 1992 to July 1999, Wells Fargo Senior Counsel Cara Sheean was responsible for all in-house employee benefit plans. (PL’s 56.1 Resp. Addnl. ¶ 3.) The insurance coverage under the Plan was provided by Metropolitan Life Insurance Company (“MetLife”) pursuant to policy number 4839-G1. (PL’s 56.1 ¶ 7; Def.’s 56.1 ¶ 4.) Ockhuysen’s life insurance policy had a face amount of $252,000. (PL’s 56.1 ¶ 8.) In or around September 1997, however, Ockhuysen received a 50% accelerated benefit option in the amount of $139,000 against the face amount of the policy. (Def.’s 56.1 ¶ 52; Def.’s 56.1 Resp. Addnl. ¶ 7.) Under the terms of the Plan, a participating employee’s group life insurance benefits would end on the last day of the calendar month in which the participant’s employment with Wells Fargo ended. (Def.’s 56.1 ¶ 24.) An employee could, however, convert the policy to an individual life insurance policy by completing an application during a “conversion period” of 31 days after termination of group life benefits. (Id. ¶¶ 25-26.)

Wells Fargo distributed information about the Plan to its employees in several ways. First, Wells Fargo issued “Benefits Books” to all employees, including those on leave, that described key terms and conditions of the Plan. (Id. ¶¶ 27-28.) Wells Fargo’s 1998 Benefits Book provided that employees on approved leaves of absence could maintain their life insurance coverage by paying the premiums for the duration of the leave (to a maximum of 30 months). (Id. ¶¶ 29-30.) Both the 1996 and 1998 Benefits Books explained that employees could convert their group life policies to individual policies by submitting a completed conversion application form to the appropriate insurance carrier and by paying the first premium within 31 days after coverage ended. (Id. ¶ 32.) The 1996 and 1998 books also stated that Wells Fargo, as plan administrator, had “full discretionary authority to administer and interpret” the Plan. (Id. ¶ 31.) Second, Wells Fargo provided copies of the Plan upon request. (Id. ¶ 33.) Third, Wells Fargo provided its employees, including those on leave, with an Employee Handbook that described policies and procedures applicable to its employees. (Id. ¶¶ 34-35.) The 1997 Employee Handbook informed employees that their “employment will end” if a leave reached 30 months. (Id. ¶ 36.) During Ockhuysen’s employment with Wells Fargo, he received copies of Benefits Books and Employee Handbooks annually, and received a copy of the actual insurance policy upon requesting it from Wells Fargo in 1998. (Id. ¶ 37.)

C. The Viatical Agreement with Neuma

On July 22, 1998, Ockhuysen completed a viatical broker application from Wilbanks & Associates (“Wilbanks”), a viatical settlements broker. (Def.’s 56.1 ¶ 51.) Ock-huysen had contacted Wilbanks to inquire about viatical settlements upon a referral from other Wells Fargo employees. (PL’s 56.1 ¶ 12.) Wilbanks forwarded the application to Neuma. (Def.’s 56.1 ¶ 51.) In the application, Ockhuysen stated that his policy had a face amount of $252,000 and that he had previously received a 50% accelerated benefit option. (Id. ¶ 52.) Ockhuysen also stated in the application that he was not working; that he had last worked on June 15, 1996 (roughly 25 months prior); and that he was no longer able to work. (Id. ¶ 53.)

On September 24, 1998, Ockhuysen executed a viatical settlement agreement with Neuma (the “Agreement”) whereby he agreed to sell to Neuma all his rights as a beneficiary under the Plan. (Id. ¶¶ 7, 55.) Under the terms of the Agreement, Neu-ma paid Ockhuysen $73,670 in exchange for his naming Neuma the “absolute as-signee” of his group life coverage under the Plan. (Id. ¶¶ 8, 58.) Ockhuysen thus assigned to Neuma his title interest in the Plan and Policy, including the right to convert it to an individual policy. (PL’s 56.1 ¶ 16.) Wells Fargo was not a party to the Agreement. (Def.’s 56.1 ¶ 57.)

Before Neuma enters into a viatical agreement, Neuma requires certain documents and information from the seller of the policy. (Id. ¶ 38.) Neuma requires, inter alia, contact information; medical history and records; and copies of a seller’s life insurance policy, summary plan description, and benefit books if the insurance is provided through an employer. (Id. ¶ 39.) Neuma calls the seller’s insurance company or employer to confirm that the policy is in effect, and to obtain information about the face value, premiums, and cash value of the policy. (Id. ¶ 42.) After executing a viatical agreement and paying the seller, Neuma takes various steps to confirm that the information provided remains accurate. (Id. ¶ 43.) Neu-ma may contact the seller, the seller’s doctor or counsel, or the seller’s designated estate representative. (Id. ¶¶ 43^14.) Neuma also provides a seller with 12 pre-addressed postcards annually, along with a “contact letter” asking the seller to provide Neuma with information about changes in address, telephone number, or physician. (Id. ¶ 45.) According to Neuma, the postcards “ask [the seller] one or two questions” (FRCP 30(b)(6) Dep., at 16:24, 17:1-2.) Although it is not clear what those questions are, the postcards do not appear to ask for the seller’s employment status; rather, the purpose of the monthly postcards is merely to let Neuma know that the insured is still alive. (Id. at 78:2-7.) To this end, Neuma may also check death indexes on the internet using the seller’s social security number. (Def.’s 56.1 ¶ 46.)

When Neuma purchases a policy under an employer-sponsored group life insurance plan, however, it appears that Neuma does not routinely contact the employer after execution of the viatical agreement, or impose the same kind of reporting requirements on the employer that it imposes on the employee-seller. In fact, when asked whether Neuma specifically tells employers that they have an affirmative responsibility to contact Neuma if the employee’s employment ceases, Neuma President David Irwin Binter responded, “I don’t know.... I don’t know if anybody at the office would know.” (Id. ¶ 47; FRCP 30(b)(6) Dep., at 32:2-11.) According to Neuma Account Executive Regina Miller, employers who contact Neuma to report changes in information about an employee who has assigned a group life policy to Neuma do so only to report changes in the insurance carrier. (Def.’s 56.1 Resp. Addnl. ¶ 3; Miller Dep., at 10:6-7, 23:3-14.)

Defendant asserts that Neuma, in entering into the Agreement, obtained from Ockhuysen “information about the terms of Ockhuysen’s life insurance policy, including a copy of the policy itself (i.e., a copy of the Plan), as well as a copy of the Wells Fargo Benefits Book regarding the Plan.” (Def.’s 56.1 ¶ 65.) Neuma does not deny receipt of a Benefits Book. Neuma does, however, deny having received a copy of the Policy, which it contends is not the equivalent of the Plan, and further denies having received a copy of the Plan prior to entering into the Agreement. (PL’s 56.1 Resp. ¶ 65.) In support of its denial, Neuma cites to portions of its own 56.1 statement that assert that Neuma never received Plan materials after it requested them from Wells Fargo in June or July 2000. (PL’s 56.1 ¶¶ 31-33.) That statement does not, however, support Neu-ma’s assertion that it did not receive Plan materials from Ockhuysen in the fall of 1998. Upon reviewing the record, the court concludes that Wells Fargo provides ample and uncontradicted evidence that Neuma did in fact receive copies of the Policy and the Plan upon entering into the agreement with Ockhuysen. In her deposition, Neuma Account Executive Miller was asked, “Did Neuma collect documents regarding Ockhuysen’s life insurance policy?” and “Did Neuma collect the policy itself for Ockhuysen?” She answered “yes” to both questions. (Miller Dep., at 39:18-23.) Although Miller could not recall precisely when Neuma collected those documents from Ockhuysen, she testified that policy documents were typically eol-lected before Neuma executed viatical agreements. (Id. at 41:2-9.) Moreover, Ockhuysen testified that he provided “the group life plan” to both Neuma and Wil-banks. (Ockhuysen Dep., at 17:14-23, 18:4-8.) He also testified that he gave Neuma “a copy of the Wells Fargo group life plan summary.” (Id. at 44:2-8.) The court thus concludes that Neuma received copies of the Plan, the Policy, and a Wells Fargo Benefits Book from Ockhuysen upon entering into the Agreement.

In keeping with Neuma’s policies, the Agreement required Ockhuysen to “keep in regular contact with Neuma, via monthly postcards provided by Neuma, or telephone calls.” (Def.’s 56.1 ¶ 59.) Ock-huysen also executed a form entitled “Representations and Warranties of Insured” in which Ockhuysen warranted that he would “immediately notify Neuma of any material change in any of the information provided herein.” (Id. ¶ 62.) Neuma acknowledges that a change in an employee’s employment status could be a “material change.” (Id. ¶ 63; FRCP 30(b)(6) Dep., at 44:4-14.)

On October 30, 1998, a Wells Fargo Personnel Specialist signed a form acknowledging Ockhuysen’s assignment of life insurance benefits to Neuma, and on November 9, 1998, a MetLife employee signed the form as well. (Def.’s 56.1 ¶¶ 70-71.) On November 10, 1998, Wells Fargo faxed a copy of this acknowledgment form to Neuma. (Id. ¶ 72.) Included in the fax were copies of postcards provided by MetLife entitled “Important Notice to Assignee.” (Id. ¶ 73.) The postcards stated that the assignee should contact MetLife “[i]f the privilege of obtaining an individual policy of life insurance becomes available and [the assignee] desire[s] to exercise such privilege.” (Id.) Presumably, the purpose of the MetLife postcards, which included a toll-free telephone number, was to assist the assignee in obtaining information about converting a group life policy to an individual policy once benefits terminated.

D. The November 16, 1998 Conversation

As noted, Ockhuysen’s employment was scheduled to terminate on December 16, 1998, upon conclusion of 30 months of disability leave. (Def.’s 56.1 ¶¶ 19-20.) On November 16, 1998, a month prior to the scheduled termination and before Neuma had tendered payment to Ockhuysen under the Agreement, Neuma Chief Financial Officer Matt Heidrich contacted Edna Fickett, a Wells Fargo Survivor Benefits Personnel Specialist, to verify that Ockhu-ysen was employed by Wells Fargo and covered under the Plan. (Pl.’s 56.1 ¶ 18; Heidrich Aff. ¶¶ 1, 4-5, Ex. 3 to Pl.’s 56.1.) Fickett confirmed that Ockhuysen was then currently employed by Wells Fargo. (Pl.’s 56.1 ¶ 19.) Heidrich proceeded to ask Fickett for the balance due on Ockhu-ysen’s policy premiums for the remainder of 1998 and for 1999, and whether Neuma could pay the entire 1998 and 1999 balance in one lump-sum payment. (Id.) Fickett responded that the balances for 1998 and 1999 were $52.98 and $635.76, respectively, and that Wells Fargo actually preferred a lump-sum payment. (Id. ¶¶ 20-21.) Fick-ett further informed Heidrich that if Ock-huysen passed away during 1999, Wells Fargo would submit to Neuma a pro-rata refund of any unused premiums. (Id. ¶ 22; Heidrich Aff. V8, Ex. 3 to Pl.’s 56.1.) On November 18, 1998, Fickett sent a fax to Neuma, confirming that Neuma would submit premium payments on Ockhuyseris life insurance policy, and that “in the event of Rudy’s demise, Wells Fargo will submit a refund to the beneficiary if there is a remaining credit balance due to payments made in advance.” (Fax from Fickett to Neuma of 11 /18/98, Ex. B to Heidrich Aff., Ex. 3 to Pl.’s 56.1.)

Fickett did not, in either the conversation of November 16, 2002 or the fax of November 18, 2002, inform Heidrich that Ockhuysen’s employment was scheduled to terminate on December 16, 1998 or that his life insurance benefits would thereby terminate as well on December 31, 1998. (Pl.’s 56.1 ¶ 24; Answer ¶ 22.) Plaintiff asserts that based on the conversation and fax from Fickett, Neuma determined that Ockhuysen would remain employed by Wells Fargo, and that his insurance coverage would remain intact, through at least 1999. (PL’s 56.1 ¶ 25.) Neuma cites Heid-rich’s affidavit for this assertion (Heidrich Aff. ¶ 11, Ex. 3 to PL’s 56.1); Wells Fargo disputes it, but fails to cite any evidence in support of its challenge. (Def.’s 56.1 Resp. ¶ 25.) Without commenting here on the reasonableness of this belief, the court accepts Plaintiffs assertion that Heidrich, and thus Neuma, believed after the November 1998 communications with Fickett that Ockhuysen would remain employed and his coverage intact through 1999. On November 30, 1998, Neuma sent Wells Fargo a check for $635.04, representing the total premiums due under the Policy for the period of December 1, 1998 through December 1, 1999. (PL’s 56.1 ¶ 25.) Wells Fargo negotiated the check and forwarded payment for the Policy to MetLife. (Id.)

E. Ockhuysen’s Termination and Neuma’s Failure to Convert the Policy

Wells Fargo, in accordance with its policy of limiting leaves to 30 months, terminated Ockhuysen on December 16, 1998 after he had exhausted his 30 months of leave. (Def.’s 56.1 ¶¶ 9, 81.) Despite his warranting to report “any material change” in his circumstances, (Id. ¶¶ 62-63), Ockhuysen did not inform Neuma of his termination. (Id. ¶ 81.) He explained: “I already received the funds from Neuma prior to that date. So, I never really paid attention anymore after I received the funds.... ” (Ockhuysen Dep., at 80:10-24.) Nonetheless, it is undisputed that Neuma, after execution of the Agreement, remained in regular contact with Ockhuysen via letters to and telephone calls with Oek-huysen, and that Ockhuysen on a monthly basis returned the postcards provided by Neuma, apparently without ever mentioning his termination. (Def.’s 56.1 ¶ 76.)

Neuma admits it has “no way of knowing” whether Wells Fargo was aware that Ockhuysen had not informed Neuma of his termination, and Neuma does not charge Wells Fargo with having actual knowledge that Ockhuysen failed to do so. (Def.’s 56.1 ¶ 82, quoting FRCP 30(b)(6) Dep., at 100:17-22.) Wells Fargo does not say whether it did have such knowledge, but it is undisputed that Wells Fargo did not notify Neuma of Ockhuysen’s termination until March 2, 2000.

Under the Plan, Ockhuysen’s group life insurance coverage ceased on December 31, 1998, the last day of the calendar month in which Ockhuysen’s employment ended. (Def.’s 56.1 ¶¶ 24, 83.) At that point, there was a 31-day conversion period during which either Ockhuysen or Neu-ma could convert Ockhuysen’s group life policy to an individual policy. (Id. ¶¶ 25-26.) It is undisputed that neither Ockhu-ysen nor Neuma took any steps to convert the policy during the 31-day conversion period. (Id. ¶ 85.)

F. Neuma Learns of Ockhuysen’s Termination and End of Insurance Coverage

On July 1, 1999, five months after the end of the conversion period in which Ock-huysen’s group life insurance policy could have been converted to an individual policy, Wells Fargo changed its group life insurance carrier from MetLife to Minnesota Life Insurance Company (“Minnesota Life”). (Def.’s 56.1 ¶ 86.) On December 17, 1999, Neuma sent Wells Fargo a check for $635.04 which purported to cover the premiums for life insurance coverage for Ockhuysen for 2000. (Id. ¶ 87; Pl.’s 56.1 ¶ 27.) Neuma sent the check to the post office box maintained by Wells Fargo for collecting insurance premiums for all employees for whom premium payments were not made through payroll deductions. (Def.’s 56.1 ¶¶ 75, 88.) In any given month, according to Wells Fargo, there may have been “hundreds of checks ... sent to this post office box.” (Id. ¶ 75.) Wells Fargo did not negotiate this check. (Id. ¶ 89.)

During the week of February 7, 2000, after learning that the check Neuma sent on December 17, 1999, had not cleared, Neuma Chief Financial Officer Heidrich contacted Wells Fargo to inquire about the check. (Id. ¶ 90.) On March 2, 2000, Wells Fargo Survivor Benefits Personnel Specialist Fickett spoke to Heidrich and informed him that Ockhuysen’s employment had ended in December 1998, and that his group life insurance coverage had terminated on December 31, 1998. (Id. ¶ 91; Pl.’s 56.1 ¶ 28; Heidrich Dep., at 28:8-16.) Fickett further advised Heidrich that because Neuma had not converted Ockhuysen’s group policy to an individual policy within the conversion period, Neu-ma had forfeited its coverage under the policy. (Pl.’s 56.1 ¶ 28.) It is undisputed that the March 2, 2000 conversation with Fickett marked the first time Heidrich learned that Ockhuysen’s Wells Fargo employment and insurance benefits had been terminated. (Def.’s 56.1 ¶ 92; Heidrich Dep., at 39:8-22.)

G. Neuma’s Request for Documents

In a letter dated July 31, 2000 and apparently faxed to Wells Fargo, Neuma’s attorney, Lisa J. Brodsky of the Aronberg law firm, requested documents and information regarding the Plan and asked Wells Fargo to respond by August 15, 2000. (Def.’s 56.1 ¶ 95; Letter from Brod-sky to Fickett of 7/31/2000 [hereinafter, “the July 31 Letter”], Ex. E to Sheean Aff., Ex. to Def.’s 56.1.) Enclosed with Ms. Brodsky’s Letter was a copy of an unsigned letter from Nathan H. Lichtenstein of the Aronberg firm, with no letterhead, dated June 28, 2000, in which Lichtenstein requested that Wells Fargo provide “a copy of the master insurance Policy, plan document and related amendments thereto, summary plan description and all other documents constituting the benefit plan and insurance policy under which the policy was maintained.” (Def.’s 56.1 ¶¶ 96-97; Letter from Lichtenstein to Fickett of 6/28/2000, Ex. E to Sheean Aff., Ex. to Def.’s 56. 1.) Wells Fargo asserts, and Neuma does not dispute, that prior to July 31, 2000, Wells Fargo had never received a copy of the June 28, 2000 letter. (Id. ¶ 97; PL’s 56.1 Resp. ¶ 97.) Although it is undisputed that Wells Fargo responded to Neuma’s request on August 16, 2000, (Def.’s 56.1 ¶ 101), the parties hotly contest the nature and sufficiency of the documents Wells Fargo provided with its response.

Wells Fargo asserts that it provided, on August 16, 2000, “a copy of the master Plan document, as well as relevant excerpts of the 1998 Benefits Book (which comprised the Plan’s ‘summary plan description’) that was in effect at the time of Ockhuysen’s termination of employment.” (Id.) In the letter accompanying the documents and addressed to Brodsky, Wells Fargo stated that it was “enclosing a copy of the master insurance Policy and plan documents, applicable to Mr. Ockhuysen’s coverage.” (Letter from Hernandez to Brodsky of 8/16/2000, Ex. F to Sheean Aff., Ex. to Def.’s 56. 1.) Neuma denies that Wells Fargo’s response included copies of the “master Plan document” or the 1998 Benefits Book, and asserts that none of the documents provided by Wells Fargo contained the Plan’s “summary plan description.” (PL’s 56.1 ¶ 31; PL’s 56.1 Resp. ¶ 101.) Neuma also charges Wells Fargo with failing to produce the “group life insurance policy” and any Benefits Book for 1996. (Pl.’s 56.1 ¶ 31.) In support of its position, Neuma provides the court with the May 9, 2005 affidavit of Howard Fish-man (the “Fishman Affidavit”), an attorney with the Aronberg firm and “one of the attorneys with primary responsibility for the handling of’ this action, who identifies an attached exhibit as “[a] genuine and complete copy” of all documents provided by Wells Fargo on August 16, 2000. (Pl.’s 56.1 ¶¶ 31-32; Fishman Aff. ¶¶ 1-2, Ex. 5 to Pl.’s 56.1.) Wells Fargo moves to strike the Fishman affidavit and all assertions in Neuma’s Local Rule 56.1 materials that rely on the Fishman Affidavit. (Defendant Wells Fargo & Company’s Motion to Strike the Affidavit of Howard J. Fishman and Motion for Sanctions [hereinafter “Def.’s Mot. to Strike”], at 1.) Before discussing this motion, however, the court observes that the exhibit to the Fishman affidavit actually supports Wells Fargo’s assertion that Wells Fargo did produce portions of the 1998 Benefits Book relevant to life insurance coverage, a “summary plan description,” and the “group” or “master” life insurance policy. It is undisputed that Wells Fargo did not produce a 1996 Benefits Book, and did not produce the entire 1998 Benefits Book. (PL’s 56.1 Resp. Addnl. ¶¶ 28-29.) The court notes, however, that the chapters Wells Fargo allegedly omitted from the 1998 Benefits Book relate to non-life insurance benefits, such as health care and investment benefits, (1998 Benefits Book, Table of Contents, Ex. A to Fishman Aff., Ex. 5 to Pl.’s 56.1, at iii-viii), and that the portions of the 1998 Benefits Book that Neuma claims Wells Fargo provided comprise, save for the two-page Appendix, all the materials constituting a “summary plan description.” (Sheean Dep., at 41:21-25, 42:19-23, 43:3-6.)

1. Well’s Fargo’s Motion to Strike the Fishman Affidavit

Wells Fargo moves to strike the Fishman Affidavit in its entirety, or, in the alternative, Paragraphs 2 and 9 thereof, on grounds of Neuraa’s failure to disclose Fishman as a witness, lack of foundation, and violation of the “Lawyer-Advocate Rule.” (Def.’s Mot. to Strike, at 1-2.) The court agrees that the Fishman affidavit is improper and must be stricken in its entirety.

Under Rule 37(c) of the Federal Rules of Civil Procedure, a court must exclude evidence provided by a witness that the party did not disclose during discovery, if the failure to disclose is without substantial justification and is not harmless. See Fed.R.Civ.P. 37(c); In re Thomas Consol. Indus., Inc., 456 F.3d 719, 726 (7th Cir.2006); Musser v. Gentiva Health Serv., 356 F.3d 751, 758 (7th Cir.2004) (“The exclusion of non-disclosed evidence is automatic and mandatory”). Neuma did not disclose Fishman as an individual likely to have discoverable information in its Rule 26(a)(1) initial disclosures, (Neuma, Inc.’s Initial Disclosures Pursuant to F.R.C.P. 26(a), Ex. A to Defendant Wells Fargo & Company’s Memorandum of Law in Support of its Motion to Strike the Affidavit of Howard J. Fishman and Motion for Sanctions [hereinafter, “Def.’s Strike Mem.”], at 1-2), or in its interrogatory responses. (Neuma, Inc.’s Answers to Wells Fargo & Company’s Revised First Set of Interrogatories to Plaintiff, Ex. B to Def.’s Strike Mem., at 2-3.) Neuma contends that its failure to disclose Fishman was harmless because Wells Fargo “sent documents directly to [Fishman]” on August 16, 2000 and thus was aware that Fishman was a potential witness, and because the Fish-man affidavit contains no “substantive testimony.” (Neuma, Ine.’s Response to Defendant’s Motion to Strike the Affidavit of Howard J. Fishman and Motion for Sanctions [hereinafter, “Pl.’s Strike Resp.”], at 3-4.) See Fenje v. Feld, 301 F.Supp.2d 781, 814-15 (N.D.Ill.2003) (finding no violation of Rule 37(c) where either the plaintiff was “well aware of [the affiants’] roles and their potential as witnesses” or the affidavits merely purported to authenticate exhibits).

Neuma’s argument is without merit. Wells Fargo did not, as Neuma asserts, send documents directly to Fishman on August 16, 2000; rather, the correspondence was addressed to Lisa J. Brodsky at the Aronberg firm. (Letter from Hernandez to Brodsky of 8/16/2000, Ex. F to Sheean Aff., Ex. to Def.’s 56. 1.) There is no indication that Fishman was at all involved in the Wells Fargo matter in August 2000; indeed, the first time Fishman’s name appears in the record is as the signatory to a letter sent from the Aronberg firm to Wells Fargo on July 24, 2003-nearly three years later. (Letter from Fishman to Sheean of 7/24/2003, Ex. J to Sheean Aff., Ex. to Def.’s 56. 1.) Thus, Wells Fargo would not have considered Fishman a potential witness with information relating to what documents the Aron-berg firm received on August 16, 2000. If anything, only Brodsky would come to mind as a potential witness, and, perhaps tellingly, Neuma has not submitted an affidavit from Brodsky. Nor can Neuma rely on its argument that because Brodsky and Fishman were both attorneys at the Aron-berg firm, Fishman is a potential witness with firsthand knowledge of what documents were delivered to Brodsky. (Pl.’s Strike Mem., at 7.) By this logic, every attorney at the Aronberg firm — there were thirty-eight listed on its letterhead in July 2000 — could submit an affidavit in this case, and Wells Fargo would have had to consider each of them a potential witness and depose them all. Finally, the Fishman affidavit indeed includes “substantive testimony” in that it testifies as to what documents Wells Fargo provided— facts at the heart of Neuma’s claim that Wells Fargo failed to produce required documents. Neuma’s failure to disclose Fishman thus bars Neuma’s use of his affidavit.

Moreover, Paragraphs 2 and 9 of the Fishman affidavit — the crucial sections, and the only paragraphs to which Neuma cites in its Local Rule 56.1 Statement — must be stricken in any event for lack of personal knowledge. See Fed. R.Civ.P. 56(e) (“affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence .... ”); Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987) (“The use of affidavits by counsel ... is a tactic fraught with peril, and counsel must remember that the requirements of Rule 56(e) are set out in mandatory terms and the failure to comply with those requirements makes the proposed evidence inadmissible during the consideration of the summary judgment motion.”). Neuma’s claim that Fishman has personal knowledge of what documents Brodsky received by virtue of the fact that both Fishman and Brodsky were attorneys at the same law firm (Pl.’s Strike Mem., at 7) bears little discussion; the fact that Fishman was another of the Aronberg firm’s 38 attorneys provides no basis for any inference that Fishman was privy to Brodsky’s correspondence in August 2000. Neuma lays no other foundation; indeed, the fact that the first indication of Fishman’s involvement in this case appears in July 2003 provides the opposite inference.

The Fishman affidavit is stricken in its entirety. With the Fishman affidavit stricken, the portions of Neuma’s 56.1 statements that cite to the Fishman affidavit lack evidentiary support. (Pl.’s 56.1 ¶¶ 31-33; Pl.’s 56.1 Resp. ¶ 101.) Therefore, the court must disregard Neuma’s challenge to Wells Fargo’s assertion that Wells Fargo provided, on August 16, 2000, a copy of the “master Plan document” and a “summary plan description.”

2. Further Communications Between the Parties

On November 30, 2000, attorney Paul A. Greenberg of the Aronberg firm sent a letter to Wells Fargo on behalf of Neuma, asserting that Wells Fargo had breached a fiduciary duty to Ockhuysen and/or Neuma by failing to inform Neuma that Wells Fargo’s insurance carrier had changed from MetLife to Minnesota Life, and demanded that Ockhuysen’s policy be reinstated to allow Neuma to exercise its conversion rights. (Defi’s 56.1 ¶ 102; Letter from Greenberg to Sheean of 11/30/2000, Ex. G to Sheean Aff., Ex. to Def.’s 56.1.) The letter did not request further documents, and did not state that the documents provided by Wells Fargo on August 16, 2000 were in any way deficient. (Def.’s 56.1 ¶ 103.) On February 21, 2001, after apparently receiving no reply, the Aron-berg firm sent a fax to Wells Fargo requesting a response to the November 30 letter, but again making no complaint about the sufficiency of the documents Wells Fargo provided on August 16, 2000. (Id. ¶ 104.) On February 28, 2001, Wells Fargo responded to the November 30, 2000 letter, denying that Wells Fargo had committed any breach of fiduciary duty and stating that it would return Neuma’s premium payments for Ockhuysen’s 1999 life insurance coverage. (Id. ¶ 105.)

There was no further communication between the parties for nearly two and a half years. On July 24, 2003 — nearly three years after Neuma’s July 31, 2000 request for documents — attorney Howard Fishman of the Aronberg firm wrote to Neuma and, for the first time, claimed that Wells Fargo had failed to comply with that July 31, 2000 request. (Letter from Fishman to Sheean of 7/24/2003, Ex. J to Sheean Aff., Ex. to Def.’s 56. 1.) Specifically, Fishman alleged that Wells Fargo had not produced its 1996 Benefits Book; should have provided the entire 1998 Benefits Book, rather than excerpts thereof; and should have provided documents regarding benefits under the Minnesota Life policy that became effective in July 1999. (Id.) Notably, Fish-man did not allege in the July 24, 2003 letter that Wells Fargo had neglected to provide a “master plan document” or the actual group life policy. A second letter, also dated July 24, 2003, requested that Wells Fargo reconsider its “denial of benefits” and reinstate $139,000 of life insurance coverage on Ockhuysen. (Def.’s 56.1 ¶ 106; Letter from Fishman to Sheean, Ex. K to Sheean Aff., Ex. to Def.’s 56. 1.)

On February 2, 2005, this court directed Wells Fargo to produce “all documents involving the MetLife Plan that relate to Ockhuysen and Neuma,” as well as “complete copies of the 1998 Employee Benefits Book and 1996 Benefits Book.” Order of 2/2/98. On or around March 3, 2005, Wells Fargo produced, inter alia, complete copies of the 1998 and 1996 Benefits Books. (Def.’s 56.1 Resp. Addnl. ¶21.)

H. This Lawsuit

Neuma filed suit against Wells Fargo on June 23, 2004. On July 20, 2004, Plaintiff filed its First Amended Complaint for Declaratory Judgment and Other Relief (the “Complaint”). Count I of the Complaint alleges that Wells Fargo “breached its duties to Neuma under the Plan,” and seeks a declaration of the parties’ rights and duties under the Plan, including a declaration that Wells Fargo must pay Neuma $139,000 upon Ockhuysen’s death. (First Am. Compl. ¶¶ 27-30.) In Count II, labeled “Recovery of Benefits Pursuant to ERISA § 502,” Neuma asserts that Wells Fargo “violated its duties under the Plan” by (1) “improperly terminating ... Neu-ma’s coverage under the Plan”; (2) “failing to advise Neuma of the change in Ockhu-ysen’s status”; and (3) accepting Neuma’s premiums but failing to “maintain coverage.” (Id. ¶¶ 32-34.) Neuma seeks an award of Ockhuysen’s death benefits of $139,000, or, if Ockhuysen is still alive, an order requiring Wells Fargo to procure a life insurance policy on Ockhuysen’s life in that face amount. (Id. ¶ 35.) Count III is a breach of fiduciary duty claim that seeks only damages; specifically, Neuma alleges that Wells Fargo owed fiduciary duties to Neuma as an assignee pursuant to 29 U.S.C. § 1104(a)(1), which it breached by failing to “maintain Ockhuysen’s life insurance benefits as required by the Plan,” and by failing to “inform Neuma of circumstances which could lead to the reduction or discontinuance of benefits under the Plan.” (Id. ¶¶ 36-39.) Count IV charges Wells Fargo with failure to produce requested ERISA documents in violation of 29 U.S.C. § 1132(c), and seeks a statutory fine of $110 per day from either June 28, 2000, or July 31, 2000. (Id. ¶¶ 42-46.)

On May 6, 2005, the parties filed cross-motions for summary judgment. Defendant Wells Fargo seeks summary judgment in its favor on all four counts asserted in the Complaint. (Defendant Wells Fargo & Company’s Amended Motion for Summary Judgment, at 1.) Plaintiff Neu-ma moves for summary judgment on Counts III and IV. (Plaintiffs Motion for Summary Judgment, at 1.) This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1) (providing exclusive or concurrent federal court jurisdiction for ERISA claims).

DISCUSSION

I. Summary Judgment Standard

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Alexander v. Wisconsin Dep’t of Health and Family Servs., 263 F.3d 673, 680 (7th Cir.2001). A genuine issue of material fact exists “only if there is sufficient evidence for a jury to return a verdict for that party.” Alexander, 263 F.3d at 680 (citing Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir.1999)). When presented with cross-motions for summary judgment, the court considers the motions simultaneously, and draws all reasonable inferences in favor of the party opposing a particular motion. Buttitta v. City of Chicago, 803 F.Supp. 213, 217 (N.D.Ill.1992), aff'd, 9 F.3d 1198 (7th Cir.1993). This “Janus-like” perspective can result in the denial of both motions if material facts are disputed. Id. The Seventh Circuit has observed, in another case involving this plaintiff (and elsewhere), that “[cjases involving the interpretation of contractual documents are particularly well-suited to disposition on summary judgment.” Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 871 (7th Cir.2001).

II. Construction of Neuma’s Claims for Recovery of Benefits and Breach of Fiduciary Duty

As an initial matter, the court attempts to discern precisely what relief Neuma seeks in Counts II and III and under what statutory provision Neuma proceeds in those counts. Neuma styles Count II as a claim for “Recovery of Benefits Pursuant to ERISA § 502,” (Am.Compl^ 31), and Count III as a claim breach of fiduciary duty under ERISA, (Id. ¶ 36), without specifying which subsections of section 502 it charges Wells Fargo with violating. Section 502 provides various avenues for bringing a civil action. See 29 U.S.C. § 1132(a). Claims for recovery of benefits are typically brought pursuant to 29 U.S.C. § 1132(a)(1)(B), which allows an ERISA plan participant or beneficiary to bring an action “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.” 29 U.S.C. § 1132(a)(1)(B); see, e.g., Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 574 (7th Cir.2006). Claims for breach of fiduciary duty can be brought by the ERISA plan as a whole under 29 U.S.C. § 1132(a)(2), or by an individual beneficiary under 29 U.S.C. § 1132(a)(3). See Anweiler v. Am. Elec. Power Serv. Corp., 3 F.3d 986, 992-93 (7th Cir.1993). Specifically, § 1132(a)(3) authorizes an ERISA beneficiary to sue “to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or ... to obtain other appropriate equitable relief ... to redress such violations.” 29 U.S.C. § 1132(a)(3); Anweiler, 3 F.3d at 992-93.

Claims under ERISA for breach of fiduciary duty are, however, limited in two major ways. First, a plaintiff cannot recover compensatory damages or monetary relief for a claim of breach of fiduciary duty under § 1132(a)(3). Mertens v. Hewitt Assoc., 508 U.S. 248, 255-59, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); Anweiler, 3 F.3d at 993. Second, a plaintiff cannot proceed under § 1132(a)(3) if it can state a claim for recovery of benefits under § 1132(a)(1)(B). Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1088 (11th Cir.1999) (affirming district court’s grant of summary judgment and conclusion that “an ERISA plaintiff with an adequate remedy under § 1132(a)(1)(B), cannot alternatively plead and proceed under § 1132(a)(3)”); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998) (“Because [the plaintiff] has adequate redress for disavowed claims through his right to bring suit pursuant to section 1132(a)(1), he has no claim for breach of fiduciary duty under section 1132(a)(3).”); Clark v. Hewitt Assoc., LLC, 294 F.Supp.2d 946, 950 (N.D.Ill.2003) (“Defendants further argue that plaintiff may not avail herself of relief under § 1132(a)(3) because she has the right to seek relief under § 1132(a)(1)(B). We agree.”); cf. Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (explaining that § 1132(a)(3) is a “catchall provision” that offers “appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy” but allowing the plaintiffs to proceed after determining that they could not recover benefits under § 1132(a)(1)(B)).

Both limitations are implicated here. First, Plaintiffs claim for breach of fiduciary duty in Count III seeks monetary, not equitable relief. Neuma asks for “damages, in an amount to be proven at trial ... attorneys fees and costs ... prejudgment and post-judgment interest ... [and] such other and further relief as the Court deems just and appropriate.” (First Am. Compl. ¶ 39.) Nowhere in Count III does Neuma seek injunctive or any other equitable relief; thus, Count III cannot be maintained as a claim for breach of fiduciary duty under § 1132(a)(3). See Anweiler, 3 F.3d at 993. Second, if Neuma’s self-styled claim for “Recovery of Benefits” is brought under § 1132(a)(1)(B), that claim may preclude any claim for breach of fiduciary duty under section 1132(a)(3). See Clark, 294 F.Supp.2d at 950. Neuma appears to recognize the latter difficulty. In its brief in response to Defendant’s motion for summary judgment, Neuma flatly states “Neuma cannot obtain relief under ERISA Section 502(a)(1)(B).” (Neuma, Ine.’s Response to Defendant’s Motion for Summary Judgment (hereinafter, “Pl.’s Resp.”), at 3.) If that is the case, however, Neuma may be left with nothing. If Neu-ma’s claim for breach of fiduciary duty in Count III is barred as a matter of law because it seeks only monetary relief, and if Count II is (as Neuma identifies it in the Complaint) a claim for recovery of benefits — a claim that Neuma itself admits is unsustainable under § 1132(a)(1)(B) — then Neuma has no viable claims in Count II or Count III.

Neuma appears to suggest a way around this: interpreting Count II, not Count III, as stating a claim for breach of fiduciary duty. Thus, Neuma contends that its claim for fiduciary duty seeks “appropriate equitable relief’ under § 1132(a)(3) because it seeks an order requiring Wells Fargo to reinstate or otherwise procure a new life insurance policy on Ockhuysen’s life. (Pl.’s Resp., at 2.) In fact, this prayer for relief appears in the Complaint not under Count III, Neuma’s self-identified claim for breach of fiduciary duty, but under Count II, its claim for “recovery of benefits.” (First Am. Compl. ¶ 35.) In any event, regardless of how it is labeled, Neuma’s Count II charges Wells Fargo with having “violated its duties under the Plan.” (Id. ¶¶ 32-34.) Moreover, complaints must be construed favorably to their drafters, see North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 444 (7th Cir.1996), and Rule 8(f) of the Federal Rules of Civil Procedure provides that “[a]ll pleadings shall be so construed as to do substantial justice.” Fed.R.CivP. 8(f); cf. Holman v. Indiana, 211 F.3d 399, 407 (7th Cir.2000) (internal quotations and citations omitted) (“The liberal construction accorded a pleading under Rule 8(f) does not require the courts to fabricate a claim that a plaintiff has not spelled out in his pleadings.”). The court thus proceeds under the assumption that Neuma in Count II asserts a claim for breach of fiduciary duty, seeking equitable relief, pursuant to § 1132(a)(3).

This is not to say that Neuma in Count II does not also assert a claim for recovery of benefits under § 1132(a)(1)(B). Despite Neuma’s current assertion, noted above, that it cannot state a § 1132(a)(1)(B) claim, a literal reading of the Complaint shows that Neuma has indeed done so. Indeed, it would be difficult to interpret “Recovery of Benefits Pursuant to ERISA § 502” any other way. (First Am. Compl. ¶ 31.) Nor does it appear that Neuma has entirely abandoned such a claim: in its brief in support of its summary judgment motion, Neuma states, while discussing its information request claim under 29 U.S.C. § 1132(c), that “Neuma should prevail on the merits of its claim for benefits.” (Neu-ma’s Amended Memorandum of Law in Support of its Motion for Summary Judgment (hereinafter, “Pl.’s Mem.”), at 14.) Neuma’s assertion of, or ability to state a claim under § 1132(a)(1)(B), is significant for two reasons. First, as noted, Neuma may be barred from proceeding under § 1132(a)(3) if it can proceed under § 1132(a)(1)(B). See Clark, 294 F.Supp.2d at 950; cf. Varity, 516 U.S. at 512, 116 S.Ct. 1065. Second, to maintain its § 1132(c) information request claim, Neu-ma must be able to show that at the time it filed suit, it had a “colorable claim” for benefits, which the Seventh Circuit has explained means an “arguable” or non-frivolous claim. See Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 878 (7th Cir.2001) (“AMP”) (Neuma, in litigation unrelated to this case, stated a colorable claim for recovery of benefits that allowed it to proceed under § 1132(c), even though the court affirmed summary judgment for the defendant on Neuma’s § 1132(a)(1)(B) claim). In other words, Neuma cannot proceed here under § 1132(c) unless it states a “colorable claim” for recovery of benefits, see id.; however, if it can state a claim for recovery of benefits under § 1132(a)(1)(B), that may bar its ability to proceed under § 1132(a)(3) for breach of fiduciary duty. See Clark, 294 F.Supp.2d at 950. The court addresses the significance of these procedural issues in its analysis of Neuma’s claims. For now, the court merely concludes that Neuma has in Count II asserted claims both for recovery of benefits pursuant to § 1132(a)(1)(B), and for breach of fiduciary duty pursuant to § 1132(a)(3).

Accordingly, because Count III— which cannot be construed as anything but a claim for breach of fiduciary duty — seeks only monetary relief, the court grants summary judgment for Wells Fargo for Count III, and denies summary judgment for Neuma. To the extent that Count II asserts a claim for breach of fiduciary duty, the court considers Neuma to have moved for summary judgment on that count as well. The court proceeds with its analysis of Wells Fargo’s motion for summary judgment on Neuma’s claims for recovery of benefits pursuant to § 1132(a)(1)(B) and for declaratory relief (Counts I and II); the parties’ cross-motions for summary judgment on Neuma’s breach of fiduciary duty claim pursuant to § 1132(a)(3) (now, also Count II); and the parties’ cross-motions for summary judgment on Neu-ma’s § 1132(c) claim for deficient production of documents (Count IV).

III. Recovery of Benefits Pursuant to Section 1132(a)(1)(B)

As noted, Neuma has asserted a claim for recovery of benefits under § 1132(a)(1)(B). To prevent its breach of fiduciary duty claim from being barred by a viable recovery-of-benefits claim, however, Neuma now purports to be unable to maintain a § 1132(a)(1)(B) claim, (Pl.’s Resp., at 3), and offers no argument in support of it. Neuma asserts that it “cannot obtain relief under ERISA Section 502(a)(1)(B)” and that it “cannot recover ‘benefits due’ under section 1132(a)(1)(B) for obvious reasons.” (Id. at 3, 5.) Defendant argues that Neuma has thereby waived its right to oppose summary judgment. (Defendant Wells Fargo & Company’s Reply to Neuma, Inc.’s Response to Defendant’s Motion for Summary Judgment (hereinafter, “Def.’s Reply”), at 3-4.) The court agrees. Neuma fails to articulate any reason why the court should not grant Wells Fargo summary judgment as a matter of law on Neuma’s § 1132(a)(1)(B) claim, offers no response to any of Wells Fargo’s arguments as to why the claim is insufficient, and even goes so far as to affirmatively deny its ability to prevail on the claim. The court thus grants summary judgment for Wells Fargo on Neuma’s claim for recovery of benefits under 29 U.S.C. § 1132(a)(1)(B). See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 n. 2 (7th Cir.1996) (“Bombard abandoned his FMLA claim after failing to respond to the FMLA arguments in [defendant’s] motion for summary judgment.”); Kowalczyk v. Walgreen Co., No. 03 C 8335, 2005 WL 1176599, at *11 (N.D.Ill. May 17, 2005) (granting summary judgment on an ADA claim after finding that plaintiff abandoned the claim by failing to respond to defendant’s argument).

Because Neuma’s ability to maintain its § 1132(c) and § 1132(a)(3) claims depends in part on its ability to state a colorable § 1132(a)(1)(B) claim, however, the court examines Neuma’s recovery of benefits claim more closely. The parties offer different reasons as to why the claim fails: Neuma appears to argue that it lacks standing, (Pl.’s Resp., at 5), while Wells Fargo argues that the claim fails on its merits as a matter of law. (Def.’s Mem., at 5.) The court concludes that both defenses defeat any § 1132(a)(1)(B) claim here.

Only a “participant” in an ERISA plan or a “beneficiary” has standing to bring a claim under § 1132(a)(1)(B). See Kennedy v. Connecticut Gen. Life Ins. Co., 924 F.2d 698, 700 (7th Cir.1991). A “participant” is “any employee or former employee ... who is or may become eligible to receive a benefit” from an ERISA plan. 29 U.S.C. § 1002(7). A “beneficiary” is “a person designated by a participant ... who is or may become entitled to a benefit” under the plan. 29 U.S.C. § 1002(8). The assignee of a beneficiary (such as Neuma here) stands in the shoes of the beneficiary. Kennedy, 924 F.2d at 700 (citing Misic v. Bldg. Serv. Employees Health & Welfare Trust, 789 F.2d 1374 (9th Cir.1986)). Neuma nevertheless observes that it lacks standing to pursue a recovery-of-benefits claim for two reasons: first, because Neuma is “no longer a member of the Plan” and did not convert Ockhuysen’s policy to an individual policy, it is “not qualified to receive life insurance benefits”; second, because Ockhuysen is still alive (as of August 2005), no benefits would be due to Neuma even if it had converted the policy. (Pl.’s Resp., at 5.) Neuma’s second argument requires little discussion. Section 1132(a)(1)(B) expressly allows a participant or beneficiary to bring an action to “clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B); see Sladek v. Bell Sys. Mgmt. Pension Plan, 880 F.2d 972, 976 (7th Cir.1989). Thus, as long as Neuma is a participant or beneficiary, it has standing even if benefits are not presently due. With respect to Neuma’s first argument-that it is “no longer” a member of the Plan-the court notes that Neuma never was a “participant” in the Plan in the first place; rather, Ockhuysen was the participant, and Neuma was the beneficiary as his assignee. Thus, Neuma’s standing does not depend on whether Neuma was a “member” or “participant” in the Plan, but on whether Neuma qualifies as a “beneficiary.”

As noted, ERISA defines a “beneficiary” as “a person designated by a participant ... who is or may become entitled to a benefit” under the plan. 29 U.S.C. § 1002(8). The Seventh Circuit interprets the term “beneficiary” broadly for standing purposes. Sladek, 880 F.2d at 976. A party is considered a beneficiary “if it can show that at the time it filed suit it had a colorable claim to vested benefits.” AMP, 259 F.3d at 878. The test for a colorable claim “is not a stringent one.” Id. (quoting Panaras v. Liquid Carbonic Indus. Corp, 74 F.3d 786, 790 (7th Cir.1996)). Rather, a plaintiff has standing as a beneficiary if she has “even an ‘arguable’ claim” to recover benefits. Id. (quoting Kennedy, 924 F.2d at 700). An assignee fails to qualify as a beneficiary “ ‘[o]nly if the language of the plan is so clear that any claim as an assignee must be frivo- lousId. (quoting Kennedy, 924 F.2d at 700).

As noted, Neuma is in an awkward position, and one that forces Neuma to argue against its own § 1132(a)(1)(B) claim in order to assert its right to recover for a breach of fiduciary duty under § 1132(a)(3). (Pl.’s Resp., at 5.) At the same time, however, Neuma forcefully argues that it has a colorable claim to benefits that gives Neuma standing to pursue its § 1132(c) claim for failure to produce documents. (Pl.’s Mem., at 13-14.) But the test for whether a party has standing under § 1132(a)(1)(B) and under § 1132(e) is identical: whether the party can state a colorable claim to benefits. See AMP, 259 F.3d at 878; Panaras, 74 F.3d at 790. If Neuma has a colorable claim for recovery of benefits, its argument that it lacks standing to assert a § 1132(a)(1)(B) necessarily fails; and vice-versa.

Neuma is no stranger to these issues. In AMP, Neuma asserted claims both for recovery of benefits under § 1132(a)(1)(B) and for failure to produce documents under § 1132(c) under facts similar to those here. In that case, Neuma entered into a viatical agreement with AMP employee Larsen while Larsen was on disability leave. 259 F.3d at 868. Under Larsen’s life insurance plan, AMP would continue to pay premiums for disabled employees under the age of 60; however, the plan provided that the insurance would cease upon termination of the plan. Id. Shortly after entering into the viatical agreement with Neuma, AMP terminated Larsen, and shortly after that, AMP switched insurance carriers, terminating the life insurance plan and thus Larsen’s benefits. Id. at 868-69. Several months later, Neuma requested plan documents from AMP, a request to which AMP did not respond until well after Neuma filed suit. Id. at 869. The Seventh Circuit affirmed summary judgment for AMP on Neuma’s recovery of benefits claim, concluding that the express terms of the plan documents permitted AMP to stop paying premiums when it switched carriers. Id. at 877.

As to the production of documents claim, however, the Seventh Circuit reversed the district court’s holding that Neuma was not a beneficiary and thus lacked standing to proceed under § 1132(c). The court noted the “minimal standard” that Neuma needed to meet to establish that it had a colorable claim to benefits, and explained that Neuma’s argument that the plan documents required AMP to keep paying Larsen’s premiums was “not so bizarre or so out of line with existing precedent that Neuma has failed to meet the low threshold of the colorable requirement.” Id. at 879 (internal quotations and citations omitted). Neuma had standing as a beneficiary because its claim for recovery of benefits “had at least an arguable chance of success” and was “not so obviously lacking in any legal merit as to be characterized as frivolous.” Id.

Notwithstanding its disavowal of its § 1132(a)(1)(B) claim, Neuma asks this court to follow the Seventh Circuit’s AMP decision and find that Neuma nonetheless has asserted a colorable claim to benefits. (Pl.’s Mem., at 13-14.) The court declines to do so. First, although the court acknowledges the low threshold of the color-able claim requirement, there are key differences between AMP and the present action. Unlike in AMP, Neuma here asserts no argument whatsoever in support of its § 1132(a)(1)(B) claim. In AMP, Neuma at least argued that the plan documents required the employer to maintain coverage; in this case, Neuma does not contend that the Plan did not allow Wells Fargo to terminate Ockhuysen’s group policy. Neuma does not dispute that the Plan provided that an employee’s group life benefits would end on the last day of the month in which employment ended; that Ockhuysen’s life insurance benefits under the Plan terminated in accordance with this provision on December 31, 1998; that the Plan allowed for conversion to an individual policy only during the subsequent 31-day conversion period; or that Neuma failed to timely convert the policy. Indeed, Neuma admits that it “is not qualified to receive life insurance benefits.” (PL’s Resp., at 5.) Thus, Neuma does not, as it did in AMP, present a non-frivolous argument that it is entitled to benefits; rather, it offers no argument at all. Second, given that the Seventh Circuit in AMP affirmed summary judgment for the defendant on a recovery of benefits claim on facts similar to those here, it is that much more difficult for Neuma to characterize its recovery of benefits claim in this case as “colorable.” Finally, and perhaps most importantly, Neuma, as noted, forcefully argues that it lacks standing to pursue a claim for recovery of benefits. (PL’s Resp., at 5.) Neuma cannot have it both ways: if it for such “obvious reasons” lacks standing to pursue a claim, (id.), then that claim likely cannot be colorable.

The court concludes that Neuma has no colorable claim for recovery of benefits, and thus lacks standing to pursue its claim under § 1132(a)(1)(B). Although it need not reach the issue, the court notes that Wells Fargo’s argument that Neuma’s claim fails on its merits as a matter of law has traction as well. Where the terms of an employee benefit plan afford the plan administrator broad discretion to interpret the plan and determine benefit eligibility, the appropriate judicial standard of review of a denial of benefits is the deferential “arbitrary and capricious” standard. See Davis, 444 F.3d at 575. This standard applies here because it is undisputed that Wells Fargo, as plan administrator, had “full discretionary authority to administer and interpret” the Plan. (Def.’s 56.1 ¶ 31.) Under this standard, a court will uphold an administrator’s denial of benefits “so long as that decision has ‘rational support in the record.’ ” Davis, 444 F.3d at 576 (quoting Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 409 (7th Cir.2004)). A court will not overturn an administrator’s decision unless it is “downright unreasonable.” Id. (internal quotations and citations omitted).

Here, Wells Fargo denied Neuma’s demand that Wells Fargo reinstate Ockhuysen’s policy because, as noted, the Plan provided that upon an employee’s termination, the policy would lapse if not converted to an individual policy within 31 days after the last day of the month of termination of employment. Neuma failed to convert the policy. Because Wells Fargo’s decision not to reinstate the policy was thus authorized by the express terms of the Plan, Wells Fargo’s denial of benefits was neither arbitrary, capricious, nor unreasonable.

IV. Breach of Fiduciary Duty Pursuant to Section 1132(a)(3)

To state a claim for breach of fiduciary duty under ERISA, a plaintiff must establish: (1) that the defendant is a plan fiduciary; (2) that the defendant breached its fiduciary duties; and (3) that the breach caused harm to the plaintiff. Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 465 (7th Cir.2005) (citing Kamler v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th Cir.2002)). The parties do not dispute that Wells Fargo was a fiduciary under the Plan, and owed fiduciary duties to Neuma as assignee of Ockhu-ysen’s life benefits while the Policy was in effect. Nor do the parties dispute that Neuma has suffered financial harm. Rather, the parties dispute the extent of Wells Fargo’s fiduciary duties under the Plan. Neuma contends that in November 1998, when Neuma Chief Financial Officer Heid-rich called Wells Fargo’s Fickett to verify Ockhuysen’s employment status, Wells Fargo had an affirmative obligation to inform Neuma that Ockhuysen’s employment was scheduled to terminate on December 16, 1998. (PL’s Mem., at 11; Pl.’s Resp., at 10.) Wells Fargo disputes that its fiduciary duties extend so far, (Def.’s Mem., at 10-12; Def.’s Resp., at 10), but further argues that two procedural impediments bar Neuma from even asserting its claim: first, that Neuma cannot assert a claim for breach of fiduciary duty under § 1132(a)(3) where relief is available under § 1132(a)(1)(B); and second, that Neuma’s claim is barred by the statute of limitations set forth in 29 U.S.C. § 1113. (Def.’s Mem., at 7-8.)

Defendant’s first procedural argument need not det