Carroll v. Los Alamos National Security, LLC (704 F. Supp. 2d 1200, 2010)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment, filed December 14, 2009 (Doc. 55). The Court held a hearing on January 28, 2010. The primary issues are: (i) whether Plaintiff David Carroll’s can bring a claim for civil penalties under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 through 1461, for the misconduct he alleges; (ii) whether Carroll’s cause of action for negligent misrepresentation is ripe for adjudication; and (iii) whether Carroll has provided some evidence of reliance, causation, and harm related to misrepresentations by Defendant Los Alamos National Security, LLC (“LANS”) and the LANS Benefits and Investment Committee (“BIC”). Because ERISA does not provide the penalty Carroll seeks for the conduct he alleges and because the Defendants’ conduct has not and will not harm Carroll, the Court will grant the motion.

FACTUAL BACKGROUND

Many of the material facts are undisputed. Carroll has worked at Los Alamos National Laboratory (“LANL”) from January 19, 1970, until December of 1974, and from November 1975 to the present. See Deposition of David Carroll at 15:19-16:7 (taken August 11, 2009), filed December 14, 2009 (Doc. 55-2)(“Carroll Depo.”); Affidavit of Louis Polito ¶4, at 2 (taken December 10, 2009), filed December 12, 2009 (Doc. 55-2). When LANL hired Carroll, he elected not to make Social Security and Medicare contributions. See Second Am. Compl. ¶ 18, at 4.

On June 1, 2006, LANS took over operation of LANL from the University of California. The Defendants contend that LANS gave Carroll the choice of participating in either Total Compensation Package 1 (“TCP1”) or Total Compensation Package 2 (“TCP2”). Second Am. Compl. ¶¶ 13 -16, at 3. Both TCP1 and TCP2 are benefit plans. See Response Exhibit 6, at §§ 2.48-2.49. LANS, through BIC was the plan administrator of both TCP1 and TCP2. See Plaintiffs Response to Defendant’s Motion for Summary Judgment Exhibit 6, at § 2.36, filed January 5, 2010 (Doc. 57-8)(“Response”). Carroll disputes the timing of the choices, and disputes that he did not have a choice between TCP1 and TCP2 until June 1, 2006. Carroll’s choice to participate in either TCP1 or TCP2 was made before June 1, 2006. See Election Form at 1 (dated May 2, 2006), Exhibit to Carroll Depo., filed December 14, 2009 (Doc. 55-2).

Under TCP1, Carroll would receive a defíned-benefit pension and a 401(k) savings plan without employer-matching contributions. See Carroll Depo. at 84:6-15. Under TCP2, Carroll’s 401(k) plan would include employer-match contributions of 11.5% of Carroll’s annual salary. See id. at 84:16-85:24; Polito Aff. ¶ 7, 10, at 2, 3. Furthermore, because Carroll selected TCP2, Carroll began drawing his pension from the University of California Retirement Plan (“UCRP”) in July of 2006 while still earning his full salary from LANS, and the UCRP pays Carroll over $6,500.00 per month. See Carroll Depo. at 24:6-25:5; Polito Aff. ¶¶7-9, at 2-3. Under either plan, the participant would have Social Security/Medicare tax deducted from each paycheck. See Carroll Depo. at 82:10-84:1, Exhibit 17. Neither the summary plan descriptions nor the plan documents for TCP1 and TCP2 described the reimbursement policy with respect to Social Security/Medicare contributions. See Affidavit of David Carroll ¶ 6, at 2 (dated January 5, 2010), filed January 5, 2010 (Doc. 57-7)(“Carroll Aff.”). If LANS was to reimburse Carroll for his Social Security/Medicare contributions, that reimbursement would occur after Carroll retires. See Carroll Depo. Exhibit 17 (specifying that only retirees are eligible for Social Security/Medieare reimbursement).

In making his decision between TCP1 and TCP2, Carroll repeatedly communicated with LANS’ transition team to discover whether employees would be reimbursed under TCP2 for Social Security/Medieare contributions. See Carroll Depo. at 47:4-53:22. The Defendants assert that Carroll was leaning toward choosing TCP2 before receiving any information about whether TCP2 participants would receive Social Security/Medieare reimbursements. See Motion at 2; Carroll Depo. at 67:24-68:1. Carroll contests this characterization of his deposition statement, clarifying that Carroll was asked whether he was leaning toward TCP2 before receiving the final answer regarding reimbursements and that he merely responded “Yes.” Response at 1-2; Carroll Depo. at 67:24-68:1. The Defendants also assert as fact that Carroll cannot testify that he would have selected TCP1 over TCP2 even if he had known LANS would not reimburse TCP2 participants’ Social Security/Medieare contributions. See Motion at 3; Carroll Depo. at 86:23-87:18. Carroll contests this fact, stating that he testified that he would not have chosen TCP2 if he had known that Social Security/Medieare contributions would not be reimbursed. See Response at 2; Carroll Depo. at 86:8-14. He argues that the inference to be gleaned from the series of hypothetical questions posed by the Defendants’ counsel is that Carroll’s decision whether to select TCP 1 or TCP2 turned on whether TCP2 participants would receive reimbursements.

Prior to making his election, Carroll was told that he would be reimbursed for his Social Security/Medieare contributions under TCP2. See Motion at 2; Second Amended Compl. ¶¶ 22, 24, at 4, 5. Carroll disputes the Defendants’ characterization of this fact. He asserts that LANS’ transition team communicated to employees, such as Carroll, that, as a TCP2 participant, his Social Security/Medicare contributions would be reimbursed. See Response at 2; Electronic-Mail String between Lori Greening and Ramiro Pereyra, filed January 5, 2010 (Doc. 57-5).

In April or May of 2006, Carroll received the reimbursement information related to Social Security/Medieare contributions. See Carroll Depo. at 56:7-22; Second Amended Compl. ¶ 24, at 5. Carroll elected TCP2 on May 2, 2006. See Carroll Depo. at 78:6-14. Thereafter, Carroll learned that only TCP1 participants, not TCP2 participants, would be eligible to receive reimbursement of their Social Security/Medieare contributions. See id. at 93:23-94:15; id. Exhibit 17. Before May 2, 2006, LANS communicated to some individuals, including Carroll, that TCP2 participants would be reimbursed for Social Security/Medieare contributions. See id. at 47:4-53:21.

Carroll did not ask LANS or the BIC for: (i) a summary plan description of the savings/retirement plans included in TCP1 or TCP2; (ii) the plan documents regarding the savings/retirement plans included in TCP1 or TCP2; (iii) the latest annual report for the savings/retirement plans included in TCP 1 or TCP2; or (iv) any instruments under which the savings/retirement plans in TCP1 or TCP2 were established or operated. See Carroll Depo. at 89:13-91:11. On the other hand, Carroll contacted the “transition hotline” approximately fifty times before making his plan election to try to confirm whether TCP2 participants would be reimbursed for Social Security/Medicare contributions. See Carroll Depo. at 49:14-19 (Doc. 57-3). In June and July of 2006, Carroll requested in writing information regarding how TCP2 participants would be reimbursed for Social Security/Medicare contributions. See id. at 45:4-48:17. Also in June and July of 2006, Carroll sent an electronic-mail transmission requesting a reimbursement policy that described the accounting and procedures related to reimbursement. See Response Exhibit 7.

LANS knew that TCP2 participants would not be reimbursed for their Social Security/Medicare contributions as early as July of 2006. See Response Exhibit 8 (electronic-mail string including an electronic mail transmission from Ben Glover, stating: “This section implies that Social Security Tax Reimbursement is available only for TCP1 participants.”). Thus, by August 2006, Glover knew that TCP2 participants would not be reimbursed for Social Security/Medicare contributions. See id. Nevertheless, Glover did not inform Carroll of this information until January of 2007. See Response Exhibit 9.

Carroll currently receives about $98,000.00 per year from LANS, plus benefits, in addition to his pension of over $6,500.00 per month from UCRP. See Carroll Depo. at 12:14-14:3, 24:6-25:5. Carroll’s pension from UCRP will continue to pay until he dies and then pay at fifty percent for the remainder of the life of Carroll’s wife. See id. at 26:8-17. Carroll had contributed to Social Security for thirteen quarters before his employment by the University of California, see Exhibit B, Interrogatory No. 2, filed December 12, 2009 (Doc. 55-2), and has contributed for an additional fourteen quarters since becoming a LANS employee on June 1, 2006, see Carroll Depo. at 83:5-8. Carroll was aware that he must contribute to Social Security for forty quarters to be eligible for Social Security benefits, which would require him to work until March of 2013. See Carroll Depo. at 43:13-44:13.

Nevertheless, Carroll stated in deposition that he has no retirement plans, no set retirement date, and that any estimate he could give regarding his retirement would be guesswork. See Carroll Depo. at 37:1-38:3. Carroll responds with an affidavit, stating that, because of a change in his financial circumstances, he now anticipates retiring by December 31, 2011. See Carroll Aff. ¶¶ 2-5, at 1. He further alleges that he told the Defendants this same information orally in November of 2009, though he cites no evidence to that effect. See Response at 2. Carroll has even represented that he will enter into an agreement with the Defendants that he will retire on December 31, 2011. See Response at 2.

According to Louis Polito, the Benefits Program Manager at LANS, based on the life expectancy tables in the New Mexico Statutes Annotated, Carroll is expected to live until approximately 2027. See Polito Aff. ¶ 11, at 3. Based on that estimate, assuming Carroll retires at the end of 2011, he will have made approximately $40,472.00 in Social Security/Medicare contributions that, under TCP1, he would begin to have reimbursed. See id. ¶ 12, at 3-4. By electing TCP2, Carroll will receive, over the course of his lifetime, retirement benefit payments of $1,747,374.00. See id. ¶ 14, at 4. If Carroll had selected TCP1, he would receive total retirement benefits in the amount of $1,590,464.00. See id. Thus, according to Polito, based on Carroll’s representation of his expected retirement date and New Mexico’s estimate of Carroll’s life expectancy, Carroll’s benefits under TCP2 will be greater than they would have been under TCP1. See id.

PROCEDURAL BACKGROUND

On January 11, 2008, Carroll filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging that LANS had discriminated against him on the basis of his age. See Second Amended Complaint for Damages from Violations of ERISA, the Age Discrimination in Employment Act, and Negligent Misrepresentation ¶ 5, at 2, filed July 6, 2009 (Doc. 36)(“2d Complaint”). After the EEOC investigated the allegations in the charge, it issued Carroll and his counsel a Notice of Right to Sue. See 2d Complaint ¶ 6-7, at 2. Carroll filed his original complaint in federal court within ninety days of receipt of the Notice. See 2d Complaint ¶ 8, at 2.

Carroll filed the original complaint on October 16, 2008. See Complaint for Damages from Violations of ERISA, the Age Discrimination in Employment Act, and Negligent Misrepresentation, filed October 16, 2008 (Doc. 1). He has since amended his complaint twice. See Amended Complaint for Damages from Violations of ERISA, the Age Discrimination in Employment Act, and Negligent Misrepresentation, filed May 7, 2009 (Doc. 20); 2d Complaint at 1. By that second amendment, Carroll added BIC as a defendant in this action. In all three complaints, Carroll’s claims have been basically the same: (1) ERISA violation under sections 1132(a)(1)(A), 1132(a)(1)(B), and 1132(a)(3); (ii) age discrimination in violation of the ADEA; and (iii) negligent misrepresentation. See 2d Complaint ¶¶ 37-59, at 7-11. On December 14, 2009, Carroll stipulated to dismissal of Count II, violation of the ADEA, and to dismissal of his ERISA claim seeking instatement into TCP1. See Stipulation of Partial Dismissal, filed December 14, 2009 (Doc. 54).

1. The Briefs.

LANS and BIC now move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, for summary judgment on all remaining claims in Carroll’s Second Amended Complaint. The Defendants argue that: (i) Carroll cannot state a claim under ERISA § 502(a)(1)(A) because the Defendants did not withhold information that ERISA creates a duty to disclose, see Motion at 5-6; (ii) Carroll cannot provide evidence of reliance on the Defendants’ misrepresentations, see id. at 6-9; (iii) Carroll cannot provide evidence that any reliance on the Defendants’ misrepresentations harmed him, see id. at 7-9; and (iv) Carroll’s claims for retirement benefits are not ripe, see id. at 9-12. On January 5, 20910, Carroll filed his response. See Plaintiffs Response to Defendants’s Motion for Summary Judgment, filed January 5, 2010 (Doc. 57)(“Response”). Carroll argues that: (i) misleading, deficient, or deceptive information provided to plan participants is sufficient to create a claim under ERISA § 502, see Response at 7-10; (ii) Carroll has provided evidence of his reliance on the Defendants’ misrepresentations, see id. at 11-12; (iii) a claim for negligent misrepresentation under New Mexico law does not require evidence of detrimental reliance, but merely reliance, see id. at 10-14; and (iv) his claim is ripe for adjudication, see id. at 14-16. The Defendants filed a reply on January 13, 2010. See Defendants’ Reply in Support of Motion for Summary Judgment, filed January 13, 2010 (Doc. 58)(“Reply”). The Defendants’ reply delineates their arguments regarding Carroll’s ERISA claim into three sub-parts: (i) Carroll never requested information regarding an ERISAgoverned plan; (ii) even if he the plan were ERISA-governed, the information he requested was not included in the disclosure provision of subchapter I; and (iii) there is no general fiduciary obligation under ERISA to provide plan information on request. See Reply at 7.

2. Arguments at the Hearing.

At the hearing, Scott Gordon, the Defendants’ attorney, began by conceding that LANS gave Carroll some bad information. See Transcript of Hearing at 2:16-17 (taken January 28, 2010)(“Tr.”)(Gordon). Mr. Gordon then reiterated his arguments: (i) that Carroll cannot testify that he would have made a different decision if he had known the truth; (ii) that the Defendants’ misrepresentation did not harm Carroll, even if he had relied on it, because he came out financially ahead by at least $100,000.00 by selecting TCP2; and (iii) that Carroll cannot recover because his damages are speculative until he retires; until he retires, one cannot know how much he contributed to Social Security/Medicare that would otherwise have been reimbursed. See id. at 2:23-6:5 (Gordon). Mr. Gordon sought to differentiate these future damages from those in a personal-injury or wrongful-death context by arguing that, not only is the amount of Carroll’s damages speculative, the existence of any damages at all is speculative. See id. at 7:14-8:2 (Gordon). Mr. Gordon likewise reiterated his arguments regarding ERISA—that the only enforcement provision that Carroll still asserts cannot be used to recover for a breach of ERISA’s general fiduciary duty, and that the Social Security/Medicare reimbursements about which Carroll complains are not covered by an ERISA plan. See id. at 8:3-10:14 (Gordon).

Michael Mozes, Carroll’s attorney, argued that the Defendants misunderstand the reliance element of a claim for negligent misrepresentation under New Mexico law and insisted that Carroll could rely on a misrepresentation even if he would have made the same decision without the misrepresentation. See id. at 10:20-12:7 (Mozes)(“[T]he appropriate element is, and the appropriate question to ask is, did David Carroll rely on the representation?”). Mr. Mozes went so far as to suggest that the Court can find reliance as a matter of law from the record. See id. at 12:13-16 (Mozes). He also reiterated his position that New Mexico law does not require detrimental reliance, but merely reliance, to state a claim for negligence misrepresentation. See id. at 13:18-15:4 (Court, Mozes). Mr. Mozes attacked the Defendants’ argument that Carroll benefit-ted from choosing TCP2 by asserting that the calculations on which they rely are speculative in that they assume that Carroll will live until 2027. See id. at 15:5-17 (Mozes). He then argued that: (i) Carroll’s ERISA claim can be brought based solely on the Defendants’ provision of material misinformation and the resultant breach of fiduciary duty, see id. at 21:10-22:6 (Mozes); (ii) the reimbursement plan was part of the ERISA plan and that ERISA applies to it, see id. at 22:7-20 (Mozes); and, (in) while ERISA does not create a general fiduciary duty to provide plan information, it creates a duty to provide information requested in writing, see id. at 22:21-23:23 (Mozes).

In his rebuttal argument, Mr. Gordon stated that he believes that Carroll’s claims will accrue when he finally retires and that is when his claim will be ripe. See id. at 25:25-26:14 (Gordon). He explained to the Court that, regardless which plan Carroll chose, the same Social Security/Medicare contributions would be withdrawn from his paycheck; the only issue is whether those payments will be reimbursed in March of 2013. See id. at 26:6-25 (Court, Gordon).

LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotes omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980)(“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ”). Nor can a party “avoid summary judgment by repeating eonclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at * 1 (D.Kan. June 2, 2008)(citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. See Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[Tjhere is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the Court should keep in mind three principles. First, the Court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the Court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

RELEVANT LAW OF PRIVATE RIGHTS OF ACTION UNDER ERISA

ERISA provides a uniform regulatory regime over employee-benefit plans and includes expansive preemption provisions which are intended to ensure that employee-benefit-plan regulation would be “exclusively a federal concern.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981)). There are several civil enforcement provisions under ERISA. Those provisions can be put into three general categories: (i) those found under section 502, 29 U.S.C. § 1132; (ii) those found under section 409, 29 U.S.C. § 1109; and (iii) miscellaneous provisions found elsewhere in ERISA. See 1 L. Polk, ERISA Prac. & Litig § 5:3. This case deals only with a claim for a civil penalty under § 501(a)(1)(A) and § 501(c).

1. ERISA’s Penalty Provisions Apply Only in Limited Circumstances.

ERISA’s private-enforcement provisions are elaborate and indicate a preference for certain remedies over others. Compared to the other available enforcement mechanisms under § 502(a) available to plan participants, § 502(a)(1)(A) appears the most limited. Section 502(a)(1)(B) allows a participant to bring a civil action to recover benefits due, enforce rights, or clarify rights under the plan. See 29 U.S.C. § 1132(a)(1)(B). Section 502(a)(3) authorizes a participant to receive an injunction or other equitable relief for any violation of ERISA subchapter I or the terms of the benefit plan. See 29 U.S.C. § 1132(a)(3). Section 502(a)(1)(A) provides that a plan participant may bring a civil action “for the relief provided for in subsection (c) of this section.” 29 U.S.C. § 1132(a)(1)(A).

Section 502(c) deals with an “[ajdministrator’s refusal to supply requested information.” 29 U.S.C. § 1132(c). Each of its subsections set forth a situation in which a penalty may be imposed against—depending upon which subsection is at issue—a plan administrator, an employer, or other person. Most of the subsections of 502(c), however, allow only the Secretary of Labor to level the penalty against the offending person. See 29 U.S.C. 1132(c)(2), (4), (5), (6), (7), (8), (9), (10). Those subsections of § 502(c) that apparently may be brought by a plan participant are § 502(c)(1)(A), (c)(1)(B), and (c)(3). Section 502(c)(1)(A) provides that a penalty of up to $110 per day can be leveled against a plan administrator that fails to meet the requirements of § 1166(1), § 1166(4), § 1021(e)(1), § 1021(f), or § 1025(a) of Title 29. See 29 U.S.C. § 1132(c)(1)(A); 29 C.F.R. § 2575.502c-l (raising the maximum daily fine from $100.00 to $110.00). None of those sections appear related to Carroll’s request for information regarding Social Security/Medieare reimbursement. Section 502(c)(3) provides that the penalty can be leveled against an employer who fails to satisfy § 1021(d), § 1021(e)(1), § 1021(e)(2), or § 1082(d)(12)(E) of Title 29. See 29 U.S.C. § 1132(c)(3); 29 C.F.R. § 2575.502e-3. Again, none of these subsections relate to Carroll’s inquiries regarding the fate of his Social Security/Medicare contributions.

Section 502(c)(1)(B) is the most broad of the penalty provisions that is available to plan participants. It allows a court to assess a penalty against any plan administrator that “fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator).” 29 U.S.C. § 1132(c)(1)(B). The question thus arises: what information does subchapter I require a plan administrator to furnish to a participant upon request?

2. Case Law Recognizes the Limited Scope of Claims for Penalties Under § 502(c).

A number of courts have noted the limited nature of the penalty provisions of § 502(c) of ERISA. The United States Court of Appeals for the Tenth Circuit addressed claims under this provision in Moothart v. Bell, 21 F.3d 1499 (10th Cir. 1994). The Tenth Circuit noted that “Section 1132(c) [a/k/a ERISA § 502(c) ] is the penalty provision applicable where the court finds a violation of [29 U.S.C.] § 1024.” Moothart v. Bell, 21 F.3d at 1503. This statement implies that it is § 1024, and perhaps other sections, which provides the duty to furnish particular documents upon request, and which is enforceable by the penalty outlined in § 502(c)(1)(B), 29 U.S.C. § 1132(c). That interpretation is consistent with the plain language of the statute, which provides that a private individual can bring a civil suit to enforce the penalty against any plan administrator “who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant.” 29 U.S.C. 1132(c)(1)(B) (emphasis added). The Tenth Circuit also noted that imposition of the penalties outlined in § 502(c) is discretionary and would only be disturbed if that discretion was abused. See 21 F.3d at 1504-05. See also Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 437 (6th Cir.2006)(affirming a district court’s discretion to refuse to assess the penalty, even when the defendant violated 29 U.S.C. § 1024(b)(4)).

The United States Court of Appeals for the Seventh Circuit, in Wilczynski v. Lumbermens Mutual Casualty Co., 93 F.3d 397 (7th Cir.1996), held that § 502(c) penalties can be assessed only for conduct that breaches an administrator’s duty of disclosure created by ERISA subchapter I; violations of regulations promulgated thereunder will not suffice. See 93 F.3d at 405-07 (holding that the penalty provision of section 502(c) did not apply because the duty allegedly violated was: (i) placed on plans and not administrators; and (ii) created by regulation and not by statute). The Seventh Circuit has also held that the penalties of § 502(c) are relatively narrow, and refused to assess penalties where an ERISA administrator failed to fill out its portion of a long-term disability claim form because the claim form was not a document that the administrator “is required by this subchapter to furnish to a participant” under 29 U.S.C. § 1024. Allinder v. Inter-City Prods. Corp., 152 F.3d 544, 548 (6th Cir.1998). The United States Court of Appeals for the Fourth Circuit appears to be in agreement, stating: “Under ERISA § 502(c)(1), a district court may, in its discretion, assess penalties of up to $100 a day against plan administrators who fail to furnish requested documents that are required to be furnished by § 104(b)(4)[a/k/a 29 U.S.C. 1024(b)(4)].” Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir.1996)(upholding a $2500 penalty and remanding to determine whether an additional penalty should be assessed). See Christensen v. Qwest Pension Plan, 462 F.3d 913 (8th Cir.2006)(“ERISA provides that pension plan administrators ‘shall furnish’ a statement of the total plan benefits accrued to any participant ‘who so requests in writing.’ An administrator who fails to comply ‘may in the court’s discretion be personally liable’ to the requesting participant for a statutory liability of up to $100 a day.”).

As the Honorable William S. Duffey, Jr., United States District Judge for the Northern District of Georgia, noted:

Section [502(c), 29 U.S.C. § ] 1132(c), by its plain language, addresses only an administrator’s failure or refusal to provide information “which [the] administrator is required by this subchapter to furnish to a participant or beneficiary.” 29 U.S.C. § 1132(c). The section’s phrase “under this subchapter” (¿a, ERISA) clearly embraces an administrator’s failure or refusal to provide the documents identified in Section 1024, namely “the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.” See 29 U.S.C. § 1024(b)(4). The source of the Coca-Cola Defendants’ obligation to provide Plaintiff copies of documents “relevant” or “pertinent” to her claim is outside the statute. To the extent claims-related documents are required to be provided, the obligation arises by federal regulation. See 29 C.F.R. § 2560.503-1(g) (2000).

Bracks v. Coca-Cola Co., 391 F.Supp.2d 1193, 1211 (N.D.Ga.2005)(declining to impose the civil penalty for failure to provide “claims manuals, claims guidelines, CV’s, medical record reviews, etc.”). Judge Duffey concluded that, “[i]n the absence of Eleventh Circuit authority on this issue, the Court declines to rewrite Section 1132(c) to authorize statutory penalties against an administrator for failure to provide documents other than those identified in the statute itself.” Brucks v. Coca-Cola Co., 391 F.Supp.2d at 1212.

The Honorable Dudley H. Bowen, Jr., Senior United States District Judge for the Southern District of Georgia, then Chief Judge, held similarly in McNutt v. J.A. Jones Construction Co., 33 F.Supp.2d 1375 (S.D.Ga.1998). In McNutt v. J.A. Jones Construction Co., the plaintiff sought to recover under the civil penalty provision “because Defendant Jones did not provide him with the forms necessary for him to file his disability claim.” 33 F.Supp.2d at 1381. Judge Bowen rejected this argument, finding that “ERISA contains a comprehensive list of documents administrators must provide. 29 U.S.C. § 1024(b)(4). Claim forms are not among the documents listed under the statute that must be provided to plan participants.” 33 F.Supp.2d at 1382. He rejected the plaintiffs argument that “a penalty should be assessed for failure to furnish claim forms because these forms are such an integral part of the management and administration of the plan.” 33 F.Supp.2d at 1382. “Because Congress has not explicitly provided a statutory penalty for a plan administrator’s failure to provide a claims form,” Judge Bowen “declinefd] to extend the statute to allow Plaintiffs ERISA claim for a statutory penalty to proceed.” 33 F.Supp.2d at 1382.

The United States Court of Appeals for the Third Circuit has held that the connection between the ERISA provision that creates a general fiduciary duty and the provisions that provide for penalties for failure to provide required plan information is “too tenuous” to allow a penalty to be assessed for a breach of fiduciary duty. Kollman v. Hewitt Assocs., LLC, 487 F.3d 139, 147 (3d Cir.2007). In Kollman v. Hewitt Assocs., LLC, the plaintiff brought claims under ERISA’s fiduciary duty provision and § 502(c), arguing

that because the Plan states that a claimant is entitled to copies “of all documents, records and other information relevant to the claim,” the failure to produce the Plan and the [summary plan description] violated [the defendants’] fiduciary duty under § 404(a)(1)(D) of ERISA, thereby incurring the penalty assessed under § 502(c)(1) of ERISA.

487 F.3d at 146. The Third Circuit held, however, that “Section 404(a)(1)(D) [the fiduciary-duty provision] does not contain language that directly imposes information obligations on plan administrators.” 487 F.3d at 147. Rather, the Third Circuit recalled that it had previously stated

that liability under § 502(c) “can be imposed on plan administrators only if they fail to fulfill an obligation [that] ERISA imposes directly upon them,” and that “ § 502(c) subjects plan administrators to liability only for failure or refusal to release the information that Subchapter 1 of ERISA specifically requires plan administrators to release.”

487 F.3d at 147 (quoting Groves v. Modified Ret. Plan for Hourly Paid Employees of Johns Manville Corp. & Subs., 803 F.2d 109 (3d Cir.1986)). The Third Circuit thus affirmed the district court’s refusal to impose the penalty for violation of the fiduciary duty provision. See Kollman v. Hewitt Assoes., LLC, 487 F.3d at 144, 147.

3. Duties to Provide Requested Information in 29 U.S.C. § 1024.

Section 104 of ERISA, 29 U.S.C. § 1024, is entitled “Filing with Secretary and furnishing information to participants and certain employees.” It contains several lists of documents and information about when those documents must be provided, and to whom. It is reasonable to conclude, as did the sources above, that Section 104 lists the documents that an “administrator is required by this subchapter to furnish to a participant or beneficiary.” 29 U.S.C. § 1132(c)(1)(B). It is therefore only for a failure to provide these documents under the circumstances described that a court can impose the penalty described in Section 502(c)(1)(B). Subsection (b)(4) lists the documents that a plan administrator has a duty to provide upon written request:

The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, [sic] plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence.

29 U.S.C. § 1024(b)(4). It therefore appears that the plan administrator can be held liable for the statutory penalty of § 502(c) only where a plan administrator refuses to supply, upon request: (i) a summary plan description; (ii) the latest annual report; (iii) any terminal report; or (iv) the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. Failure to supply other requested documents, if some section of subchapter I of ERISA requires the plan administrator to supply them, can also give rise to ERISA liability under §§ 502(a)(1)(A) and 502(c)(1)(B). See Christensen v. Qwest Pension Plan, 462 F.3d at 918-19 (holding that a telephone request for an estimate of benefits did not constitute a request for a statement of benefits accrued under 29 U.S.C. § 1025(a), and that therefore the penalty provision did not apply). The thrust of the penalty provision, however, is that plan administrators shall furnish, upon request, documents that some section of subchapter I requires them to furnish. It does not provide that plan administrators will be personally liable for the penalty upon any and all wrongful conduct.

NEW MEXICO LAW OF NEGLIGENT MISREPRESENTATION

New Mexico follows the Restatement (Second) of Torts (“RST”) with regard to what a plaintiff must prove to succeed on a negligent-misrepresentation claim. See First Interstate Bank of Gallup v. Foutz, 107 N.M. 749, 750-51, 764 P.2d 1307, 1308-09 (1988)(“Because New Mexico follows the tort of negligent misrepresentation as set forth in the Restatement, it is not unreasonable to conclude that we would also follow the damages as set forth therein.”); Stotlar v. Hester, 92 N.M. 26, 29, 582 P.2d 403, 406 (Ct.App.1978). The RST sets forth the cause of action as follows:

One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

RST § 552 (1977). The New Mexico pattern jury instruction for negligent misrepresentation delineates the elements:

A party is liable for damages caused by his negligent and material misrepresentation.

A material misrepresentation is an untrue statement which a party intends the other party to rely on and upon which the other party did in fact rely.

A negligent misrepresentation is one where the speaker has no reasonable ground for believing that the statement was true.

NMRA UJI 13-1632, at 230 (2008).

The thrust of both the RST and the pattern instruction is the same. For a claimant to state a cause of action for negligent misrepresentation, he or she must establish five elements: (i) an untrue statement, see NMRA UJI 13-1632, at 230 (“A material misrepresentation is an untrue statement....”); RST § 552 (“One who ... supplies false information”); (ii) made by one who has no reasonable ground for believing the statement was true, see NMRA UJI 13-1632, at 230 (“A negligent misrepresentation is one where the speaker has no reasonable grounds for believing that the statement was true.”); RST § 552 (“[I]f he fails to exercise reasonable care or competence in obtaining or communicating the information.”); (iii) on which the speaker intends the listener to rely, see NMRA UJI 13-1632, at 230 (“A material misrepresentation is an untrue statement which a party intends the other party to rely on----”); RST § 552 (“One who ... supplies false information for the guidance of others in their business transactions .... ”); (iv) and on which the listener relied, see NMRA UJI 13-1632, at 230 (“... and upon which the other party did in fact rely.”); RST § 552 (“... is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information .... ”); and (v) such reliance caused harm to the listener, see NMRA UJI 13-1632, at 230 (“A party is liable for damages caused by....”); RST § 552 (“... is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information[.]”).

Some eases from New Mexico courts have failed to enumerate injury or detriment as an element of a claim for negligent misrepresentation. See, e.g., Saylor v. Valles, 133 N.M. 432, 438, 63 P.3d 1152, 1158 (Ct.App.2002)(listing four elements of negligent misrepresentation: (i) a material misrepresentation; (ii) reliance; (iii) the defendant’s recklessness or knowledge of falsity; and (iv) intent to induce reliance)(citing Parker v. E.I. DuPont de Nemours & Co., 121 N.M. 120, 132, 909 P.2d 1, 13 (Ct.App.1995)). The cases acknowledge, however, that “[pjrincples of negligence govern the law of negligent misrepresentation.” Saylor v. Valles, 133 N.M. at 438, 63 P.3d at 1158. See Ledbetter v. Webb, 103 N.M. 597, 602, 711 P.2d 874, 879 (1985)(distinguishing negligent misrepresentation from the intentional torts of fraud or deceit). And it is well established that harm is one of the core elements of a claim of negligence. See N.M. Pub. Schs. Ins. Auth. v. Arthur J. Gallagher & Co., 145 N.M. 316, 327-28, 198 P.3d 342, 353-54 (2008); Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306, 307, 454 P.2d 963, 964 (1969)(“[T]here was no cause of action for negligence until there had been a resulting injury.”).

ANALYSIS

The Defendants move for summary judgment on both of Carroll’s claims. Regarding Carroll’s ERISA claim, the Defendants argue that ERISA does not create a duty to disclose the information that Carroll requested and thus that the penalty provision of ERISA § 502(a)(1)(A) does not apply to the Defendants’ conduct. The Defendants then argue that Carroll’s negligent misrepresentation claim must fail because: (i) Carroll’s deposition testimony establishes that he did not rely on the Defendants’ misrepresentation; (ii) because the evidence shows that Carroll will suffer no injury from the misrepresentation; and (in) Carroll’s claim is not ripe because, even if Carroll is eventually harmed by electing TCP2, such harm will not occur until Carroll retires and does not receive reimbursement of his Social Security/Medicare benefits. Carroll contests each of the Defendants’ arguments. Ultimately, the Court grants the Defendants’ motion.

I. BECAUSE OF THE REMEDY CARROLL SEEKS, CARROLL CANNOT ESTABLISH AN ERISA CLAIM.

Carroll seeks only one remedy by his ERISA claim: the penalty that is available for certain conduct under § 502(c), for which § 502(a)(1)(A) allows a participant or beneficiary to bring suit. See 29 U.S.C. § 1132(a)(1)(A). The Defendants move for summary judgment on several grounds, which they concisely summarize in their reply brief:

Thus, [Carrollj’s § 1132(c) claim fails for three reasons: (1) he never requested information regarding an ERISA plan; (2) even if he had, the information he requested was not specifically required to be furnished under ERISA subchapter I; and (3) “the cases do not recognize a general fiduciary obligation under ERISA to provide information related to the plan on request[.]

Reply at 7. Carroll rejects these arguments, arguing that “misleading, deficient, or deceptive information provided to plan participants may give rise to claims of fiduciary breach under ERISA.” Response at 7 (citing cases). He insists that a plan administrator has a fiduciary duty to plan participants above and beyond the duty to supply particular documents to them upon request. See Response at 7. The Court does not disagree with Carroll, but finds that the remedy he seeks—imposition of the statutory penalty of § 502(c)—is available only in the limited situations outlined in that subsection and not for general breaches of fiduciary duty. Because the § 502(c) penalty is the only remedy he seeks, and because he does not allege conduct under which he can bring a claim for the penalty, the Court will grant the Defendants’ motion for summary judgment as to Carroll’s ERISA claim.

Carroll alleges only one category of wrongful conduct under which he seeks to bring his ERISA claim: after a series of verbal and e-mail inquiries whether TCP2 participants would be eligible for reimbursement of their Social Security/Medicare contributions, one of the Defendants’ employees erroneously told him that the answer was “Yes.” 2d Complaint ¶¶ 21-31, at 4-6. Taking this response into consideration, Carroll selected TCP2, only to later learn that TCP2 participants would not be eligible for such reimbursements. Carroll now brings this suit seeking recovery of his Social Security/Medicare contributions under a theory of negligent misrepresentation, but has explained that he is not seeking benefits of which he was deprived under § 502(a)(1)(B), nor does he seek instatement into TCP1 as an equitable remedy under § 502(a)(3).

Section 502(c)(1)(B) provides for imposition of a penalty of $110 per day if a plan administrator “fails or refuses to comply with a request for any information which such administrator is required by this sub-chapter to furnish to a participant or beneficiary.” 29 U.S.C. § 1132(c)(1)(B). Carroll has failed to point the Court to any part of ERISA that explicitly requires the plan administrator to furnish him with the answer to his question about the fate of his Social Security/Medicare contributions. The Defendants and several courts have asserted that the only section of ERISA the violation of which will give rise to a potential penalty under § 502(c)(1)(B) is § 104, 29 U.S.C. § 1024. See Allinder v. Inter-City Prods. Corp., 152 F.3d at 548; Faircloth v. Lundy Packing, 91 F.3d at 659 (“Under ERISA § 502(c)(1), a district court may, in its discretion, assess penalties of up to $100 a day against plan administrators who fail to furnish requested documents that are required to be furnished by § 104(b)(4).”); Moothart v. Bell, 21 F.3d at 1503 (“Section 1132(c)(1) is the penalty provision applicable where the court finds a violation of § 1024.”); Motion at 5-6; Reply at 2-3. In Brucks v. Coca-Cola Co., Judge Duffey stated:

Section 1132(c), by its plain language, addresses only an administrator’s failure or refusal to provide information “which [the] administrator is required by this subchapter to furnish to a participant or beneficiary.” 29 U.S.C. § 1132(c). The section’s phrase “under this subchapter” (i.e., ERISA) clearly embraces an administrator’s failure or refusal to provide the documents identified in Section 1024[.]

391 F.Supp.2d at 1211. See McNutt v. J.A. Jones Constr. Co., 33 F.Supp.2d at 1381-82 (“ERISA provides statutory penalties against plan administrators who refuse to comply with requests for information that ERISA requires administrators to provide [and] contains a comprehensive list of documents administrators must provide.”)(eiting 29 U.S.C. § 1024(b)(4)). Section 1024 requires that the administrator, on request, furnish the participant only with: (i) a summary plan description; (ii) the latest annual report; (iii) any terminal report; or (iv) the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated. See 29 U.S.C. 1024(b)(4). Carroll has testified that he is not seeking any of these four categories of documents. See Carroll Depo. at 89:13-91:11.

The statute’s plain language suggests that the conduct under which a beneficiary can recover the statutory penalties are limited. Again, the provisions creating private remedies under § 502 are § 502(a)(1)(A), § 502(a)(1)(B), and § 502(a)(3). Section 502(a)(1)(B) allowing a participant or beneficiary to bring a civil 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). That provision, though broadly worded in a way, is highly circumscribed in terms of the remedy available—• the claimant may receive benefits due him or her, rights due him or her, or information. Section 502(a)(3) allows “a participant, beneficiary, or fiduciary” to bring an action “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan,” or to “obtain other appropriate equitable relief.” Again, though the conduct affected is potentially broad—any act or practice which violates any provision of this subchapter or the terms of the plan—the remedy is circumscribed. The claimant can secure only an injunction or other appropriate equitable relief—absent special circumstances, the claimant cannot recover money. See Mertens v. Hewitt Assocs., 508 U.S. 248, 255, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)(holding that “other appropriate equitable relief’ generally does not include compensatory or punitive damages). Similarly, the penalty that Congress provided in § 502(c)(1)(B) is circumscribed in certain respects. It provides that the penalty will be imposed on any administrator “who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary.” The phrase “required by this subchapter to furnish” indicates that the claimant must specify a section of ERISA subchapter I that explicitly imposes a duty upon an administrator to provide certain information. 29 U.S.C. § 1132(c)(1)(B) (emphasis added). A review of ERISA provisions in subchapter I reveals 29 U.S.C. § 1024, entitled “Filing with Secretary and furnishing information to participants and certain employees,” which places a duty upon plan administrators to furnish certain information, and subsection (4), which creates a duty to provide certain plan documents to a participant upon request. 29 U.S.C. § 1024(b)(4).

It thus appears that the penalty of § 502(c) is not available for all breaches of fiduciary duty by a plan administrator or fiduciary. See Kollman v. Hewitt Assocs., LLC, 487 F.3d at 147 (holding that the fiduciary duty imposed by § 404(a)(1)(D) does not impose a duty to provide information that can give rise to a penalty under § 502(c)(1)). Its use is more circumscribed. That result makes sense given the congressional purpose behind ERISA—to ensure that employees are treated fairly and receive appropriate benefits. See 29 U.S.C. § 1001(b) (“It is hereby declared to be the policy of this chapter to protect ... the interests of participants in employee benefit plans and their beneficiaries....”); 29 U.S.C. § 1001(c)(“It is hereby further declared to be the policy of this chapter to protect ... the interests of participants in private pension plans and their beneficiaries .... ”). Such policy is furthered better by broadly allowing actions for benefits due and for equitable remedies, such as instatement into a different plan if the employee was deceived as to the terms of the plans available to him. Carroll, however, does not seek any such equitable remedy—likely because he has concluded that, although his decision to select TCP2 was not fully informed, TCP2 was ultimately the superior plan for him. The Court does not condone the Defendants’ act—accidental or not— of providing the wrong answer to a prospective plan participant’s question about a policy detail. The Court finds, however, that such conduct is outside the scope of ERISA’s penalty provision. In short, assuming, without deciding, that the Defendants breached a fiduciary duty in providing incorrect information to Carroll in response to an inquiry about the details of a retirement plan, the Court finds that ERISA does not provide for a per diem penalty for such a general fiduciary breach.

The cases Carroll cites to the Court are not to the contrary. None of the cases Carroll cites that deal with breach of fiduciary duty impose the statutory penalty as the remedy. See Varity Corp. v. Howe, 516 U.S. 489, 506, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)(reviewing a private action under 29 U.S.C. § 1132(a)(3) and not for the penalty under 29 U.S.C. § 1132(c)); Mathews v. Chevron Corp., 362 F.3d 1172, 1176 (9th Cir.2004)(“At issue here is an alleged violation of section 404(a)(1) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1104(a)(1), and the equitable relief awarded pursuant to ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3).”); Horn v. Cendant Ops., Inc., 69 Fed.Appx. 421, 425-26 (10th Cir.2003)(reviewing a claim for benefits, not mentioning the penalty provision); Bins v. Exxon Co., 220 F.3d 1042, 1047-48 (9th Cir.2000)(dealing with a claim of breach of fiduciary duty under 29 U.S.C. § 1104(a)(1) and not discussing the penalty provisions); Estate of Becker v. Eastman Kodak Co., 120 F.3d 5, 7 (2d Cir.1997)(not discussing the penalty provision where the plaintiff alleged violation of 29 U.S.C. §§ 1022 and 1024); Jordan v. Fed. Express Corp., 116 F.3d 1005, 1009 n. 8, 1010 (3d Cir.l997)(comparing § 502(a)(1)(B) and § 502(a)(3), but not discussing § 502(a)(1)(A) or § 502(c)); Sprague v. Gen. Motors Corp., 92 F.3d 1425, 1441-42 (6th Cir.1996)(dealing with breach of fiduciary duty claims under 29 U.S.C. § 1104 and not mentioning the penalty provisions); Glaziers and Glassworkers Union Local No. 252 Annuity Fund v. Newbridge Sec., Inc., 93 F.3d 1171, 1174 (3d Cir.1996)(discussing the fiduciary duty under 29 U.S.C. § 1104 and not mentioning the statutory penalty provision); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235-39 (3d Cir.1994)(discussing an equitable estoppel claim under 29 U.S.C. § 1132(a)(3)(B) and breach of fiduciary duty under 29 U.S.C. §§ 1104 and 1109, but not discussing the penalty provision); Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1296-99 (3d Cir.1993) (discussing the scope of relief for a claim under § 502(a)(3) and § 502(a)(1)(B), but not § 502(a)(1)(A) or § 502(c)); Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 132 (3d Cir.1993)(plaintiffs claimed violations of §§ 404 and 510); Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750 (D.C.Cir.1990). The only case that Carroll cited that addresses a claim for a § 502(c) penalty, and which the Court has not already discussed, is Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923 (3d Cir.1985), in which the plaintiff sought the penalty for a violation of § 105(a) of ERISA, 29 U.S.C. § 1025(a), which provides a statutory duty to provide an accounting upon request. See 752 F.2d at 927. The accounting is information that the administrator “is required by this sub-chapter to furnish.” 29 U.S.C. §§ 1132(c)(1)(B), 1025(a). None of these cases is inconsistent with the analysis the Court has set forth, nor has the Court come across any such inconsistent cases.

Furthermore, the Court notes that the imposition of a statutory penalty under § 502(c) is discretionary. See Moothart v. Bell, 21 F.3d at 1504. In this case, although Ms. Greening provided some incorrect information to a handful of LANS employees regarding the details of TCP2’s Social Security/Medicare-reimbursement policy, it occurred during a time of transition between the University of California’s and LANS’ management of LANL. It appears from all the evidence provided to the Court that it was unintentional and that the individuals involved sought to provide complete and truthful responses to employees’ questions as they arose. While such absence of bad faith might not influence the Court’s conclusion if Carroll sought an equitable remedy under 502(a)(3) or, under 502(a)(1)(B), for benefits from a plan that he has been denied, the Court cannot ignore that Carroll complains only of receiving a piece of misinformation that factored in to his decision to choose TCP2. Carroll does not seek to be reassigned to TCP1 and refused to testify during his deposition that he would have selected TCP 1 if he had been given the correct information. It is therefore uncertain whether Carroll has been harmed at all by this oversight. The Court is concerned that imposition of the statutory penalty would allow Carroll to financially gain from a mistake that did not cause him any calculable harm, and the results of which he does not wish to have undone. The Court would not assess the statutory penalty even if the penalty provision applied to the Defendants’ conduct.

II. CARROLL’S NEGLIGENT-MISREPRESENTATION CLAIM FAILS BECAUSE HE HAS NOT, AND WILL NOT, SUFFER ANY HARM.

The Defendants concede that one of their employees supplied Carroll with incorrect information. The Defendants nevertheless present several arguments in opposition to Carroll’s claim of negligent misrepresentation. First, they insist that Carroll’s deposition testimony establishes that he has no evidence of reliance upon any misrepresentation. Next, they argue that the misrepresentation did not and will not harm Carroll, because he will come out financially ahead under TCP2. Third, the Defendants argue that Carroll’s claim is not yet ripe because the harm of which he complains may never occur and, until he retires, the quantity of his damages will be speculative. While the Court finds that Carroll may have created a factual issue regarding reliance, he has not created a factual issue regarding causation and cannot yet—and will never be able to—establish damages.

A. CARROLL’S CLAIM IS RIPE AND HAS ACCRUED.

As an initial matter, the Court must deal with the Defendants’ allegation that Carroll’s claim is not yet “ripe,” Motion at 9-12; Tr. at 7:25-8:2 (Gordon), because constitutional ripeness is a jurisdictional issue with which the Court must deal before it addresses the merits, see Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 910 (10th Cir.2008). The Court finds that the claims are ripe in the constitutional sense because Carroll suffered a legally cognizable injury when he was given incorrect information regarding the parameters of TCP2 and allegedly elected TCP2 using that incorrect information. The Court thus has jurisdiction to reach the merits of Carroll’s negligent misrepresentation claim.

The Court’s jurisdiction, as a federal district court, is limited to cases or controversies under Article III of the Constitution of the United States. See Garcia v. Bd. of Educ., 520 F.3d 1116, 1123 (10th Cir.2008). That means that “the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d at 910 (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). These requirements are met where a plaintiff alleges that he was given false information and, based on that, made a decision that detrimentally affected him. Granted, the Defendants allege that he suffered no harm by the decision, but that argument goes to the merits of Carroll’s claim. The Defendants further argue that, if Carroll were to suffer financial harm, he will not suffer it until he retires. That may be true, but at the jurisdictional stage, when Carroll alleges harm, the Court must assume that he has been harmed, and not refuse to decide the case for lack of jurisdiction after it effectively decides the merits. Moreover, the Supreme Court has acknowledged that, for justiciability purposes—specifically, the standing inquiry— harm need only be to some legally protected interest. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Carroll has a legally protected interest in being given correct information regarding his pension-plan options and in making a fully informed selection. For instance, § 502(a)(3) of ERISA creates a cause of action th