author: PER CURIAM:

text:
    Ralph S. JANVEY, In His Capacity as Court-Appointed Receiver for the Stanford International Bank, Limited, et al., Plaintiff-Appellant v. LIBYAN INVESTMENT AUTHORITY, Defendant-Appellee Ralph S. Janvey, In His Capacity as Court-Appointed Receiver for the Stanford International Bank, Limited, et al., Plaintiff-Appellee v. Libyan Foreign Investment Company, Defendant-Appellant
    No. 15-10545
    Cons. w/ No. 15-10548
    United States Court of Appeals, Fifth Circuit.
    Filed October 26, 2016

      Kevin M. Sadler, Baker Botts, L.L.P., Palo Alto, CA, Scott Daniel Powers, Baker Botts, L.L.P., Austin, TX, for Plaintiff-Appellant.
    Warren W. Harris, Yvonne Y. Ho, Esq., Bracewell, L.L.P., Houston, TX, Joseph Marion Cox, Attorney, Bracewell, L.L.P., Shana Lynn Merman, Squire Patton Boggs, L.L.P., Dallas, TX, Brian H. Polo-voy, Henry Sabath Weisburg, Attorney, Shearman & Sterling, L.L.P., New York, NY, for Defendant-Appellee.
    Before WIENER, PRADO, and OWEN, Circuit Judges.
   PER CURIAM:

Ralph S. Janvey, the courtappointed receiver (“the receiver”) for a Ponzi scheme orchestrated by Allen Stanford (the “Stanford scheme”), brought claims against the Libyan Investment Authority (“LIA”) and the Libyan Foreign Investment Company (“LFICO”) in the district court, seeking to recover the proceeds of certificates of deposit (“CDs”) previously transferred to LFICO by the Stanford International Bank, Ltd. (“SIB”). LIA and LFICO moved to dismiss the receiver’s claims, insisting that they were immune from the court’s jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”). The receiver opposed dismissal, asserting that the commercial activity exception to FSIA immunity applied. After the parties conducted limited jurisdictional discovery, the district court ruled that LIA was immune but that LFICO was not. Both the receiver and LFICO timely filed appeals, which have been consolidated. We affirm in part and vacate and remand in part.

I.

Facts & Proceedings

Stanford and his associates perpetrated the Stanford scheme through a group of entities (collectively, the “Stanford entities”) that, inter alia, sold sham CDs issued by SIB to unsuspecting investors. The Stanford entities promised those investors that the CDs from SIB would yield extraordinarily high rates of return. Rather than investing the funds they received from later investors, however, the Stanford entities paid those funds to earlier investors, redeeming their maturing CDs. In so doing, the Stanford entities made it appear that the CDs from SIB were producing the phenomenal rates of return they had promised.

In early- 2009, the Securities and Exchange Commission (“SEC”) filed suit against the Stanford entities, including SIB. The Stanford entities were then placed in receivership, and Janvey was appointed their receiver. The receiver is responsible for bringing claims on behalf of the Stanford entities to recover assets for distribution to their defrauded investors.

The instant consolidated appeals relate to the Stanford entities’ transfer of funds to LFICO, an earlier investor that had redeemed some of its maturing CDs.

In 2006, LFICO had developed relationships with SIB, a Stanford entity based in Antigua, and Stanford Group (Suisse) S.A. (“SGS”), a Stanford entity based in Switzerland. LFICO’s relationship with SIB related solely to its purchase of $138 million in CDs from SIB. LFICO’s relationship with SGS related solely to a discretionary management agreement between itself and SGS, under which SGS managed $100 million of LFICO’s funds in an account it held in Switzerland. The agreement was formed in Libya and governed by Swiss law.

These relationships were ongoing when, in 2007, two SGS financial advisors accompanied two LFICO analysts on a training program conducted by SIB. The program began and ended in Switzerland but included visits to Antigua and the United States—in particular, to Houston, Memphis, Washington, and Miami. Otherwise, LFICO’s relationship with the Stanford entities did not include any other acts or activities in the United States.

In 2008, LFICO decided to divest its SIB-issued CDs, “given the size of [these] deposits and the problems facing the international financial market.” It instructed SGS in Switzerland to redeem its SIB-issued CDs as they matured rather than to repurchase them at that time. (In a single exception, LFICO instructed SGS to repurchase $50 million in CDs from SIB several months later.) SGS appears to have complied with these requests: As the CDs matured, SIB transferred their proceeds from its accounts in Canada and England to LFICO’s accounts in Libya and Switzerland. None of these accounts was held in the United States. When SIB entered receivership, LFICO had already received about $50 million in redemption proceeds, far less than it had paid for all of its CDs. As a result, it suffered a greater loss than any other investor in the Stanford scheme.

LFICO’s only shareholder is LIA, whose only shareholder is Libya. Both LFICO and LIA are based in Libya. Unlike LFICO, LIA never purchased SIB-issued CDs, although it apparently considered doing so. LIA asserts that it was wholly uninvolved in LFICO’s purchases and redemptions of the SIB-issued CDs. LIA is not referenced in the discretionary management agreement between LFICO and SGS or in the CDs themselves, which were agreements between SIB and LFI-CO. After Stanford’s arrest, the then-chief investment officer of LIA stated that LIA itself had not purchased any SIB-issued CDs but that he “suspect[ed] a[n] LIA affiliate or [subsidiary may have [$]150 million at most” invested.

In 2009, the receiver filed suit against investors, including LFICO, that had purchased SIB-issued CDs and later had redeemed them. He sought disgorgement of any proceeds of those CDs, but in Janvey v. Adams, this court precluded such claims, holding that the investors had a legitimate ownership interest in those proceeds. The receiver then made new claims against some of those investors for fraudulent transfer and unjust enrichment. Eventually, he asserted such claims against LFICO and LIA, too, alleging that LFICO was LIA’s alter ego. The receiver filed a motion for a preliminary injunction on those claims. The district court denied the receiver’s motion, and we affirmed the district court’s denial.

LIA and LFICO eventually filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (2), claiming that the district court lacked personal and subject matter jurisdiction because (1) they had presumptive immunity under the FSIA as agents or instrumentalities of a foreign state and (2) the commercial activity exception to immunity under the FSIA did not apply. The parties conducted jurisdictional discovery regarding whether LIA and LFICO engaged in activities that fall within the scope of the commercial activity exception under the FSIA.

When that discovery was complete, the district court denied the motion to dismiss as to LFICO. In so doing, it ruled that (1) LFICO had engaged in commercial activity by purchasing, repurchasing, and redeeming the SIB-issued CDs and (2) this activity, which occurred outside the United States, had a “direct effect” on the United States because the Stanford scheme was based in the United States. The court concluded that the commercial activity exception to immunity under FSIA gave it personal and subject matter jurisdiction over LFICO.

The district court granted the motion to dismiss as to LIA. The court concluded that LIA had not engaged in commercial activity at all and that, although LFICO had engaged in such activity, its acts were not attributable to LIA. The court ruled that LFICO was not LIA’s agent or alter ego in purchasing, repurchasing, or redeeming the SIB-issued CDs and that the proceeds of those CDs were not redeemed for LIA’s benefit. Both LFICO and the receiver then appealed.

II.

Analysis

A. STANDARD OF REVIEW

We have appellate jurisdiction over any final order that grants immunity under the FSIA and over any collateral order that denies it. We also have pendant appellate jurisdiction over any closely related issues. In exercising that jurisdiction, we review the district court’s conclusions of law de novo, and, to the extent it makes any findings of fact, we review them for clear error. A finding of fact is clearly erroneous if it is inconsistent with the record in its entirety. Such a finding may be clearly erroneous if (1) it is not based on “substantial evidence,” (2) it is based on a misinterpretation of the evidence, or (3) it is inconsistent with “the preponderance of credible testimony.” If the district court’s conclusions of law “affected” its findings of fact, “remand is the proper course unless the record permits only one resolution of the [fact].”

These appeals require us to determine whether there is any basis for personal and subject matter jurisdiction over LIA and LFICO. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in [federal and state] courts.” It furnishes both the immunity itself, which applies to any “foreign state,” and the only exceptions to that immunity. If an exception applies, the FSIA also specifies the only basis for personal and subject matter jurisdiction over the foreign state. That jurisdiction extends to “any nonjury civil action against a foreign state ... as to any claim for relief in personam....” If no exception applies, there is no other basis for personal or subject matter jurisdiction over a foreign state.

The parties claiming immunity under the FSIA—here, LIA and LFICO— have the initial burden of persuasion that they are foreign, states and therefore entitled to a presumption of immunity, If they bear that burden, then the party opposing immunity—here, the receiver—has the burden of producing evidence that LIA and LFICO fall within an exception enumerated in the FSIA, refuting the presumption of immunity. If the receiver bears his burden, LIA and LFICO then have the ultimate burden of persuasion that the exception does not apply to them and, that they are entitled to immunity.

B. WHETHER LFICO AND LIA ÁRE “FOR- - eign States” under the FSIA

The parties agreed that both LlA and LFICO are “foreign states” under the FSIA. Relying on the parties’ agreement, the district' court determined that LIA and LFICO “qualify as foreign states.” Subject matter jurisdiction, however, “can never be forfeited or waived.” We therefore “have an" independent obligation to determine whether [it] exists, even in the absence of a challenge from any party.” Accordingly, we must determine whether LIA and LFICO are “foreign states” under the FSIA.

In the context of the FSIA, the term “foreign state” refers not only to the state itself, viz., the “body politic that governs a particular territory,” but also to its “agencies] or instrumentalities].” Absent a clear distinction between the terms “agency” and “instrumentality,” they are read together or treated interchangeably.

An agency or instrumentality of a foreign state is a separate entity, “corporate or otherwise,” that is either (1) majority owned by a foreign state or (2) an “organ” of a foreign state. There is a distinction between those agencies or in-strumentalities that qualify because they are “organs” of a foreign state and those that qualify because they are “majority owned” by one. In some instances, however, an agency or instrumentality may be both and thus qualify as either.

1. Majority Owned by a Foreign State .

The Supreme Court has clarified that,- because “[cjontrol and ownership ... are distinct concepts,” “[m]ajority ownership- by [the] foreign state, not control, is the benchmark.” As “only direct ownership” counts, “a subsidiary of an [agency or] instrumentality [of the state] is not itself entitled to [such] status.” Therefore, “[a] corporation is an [agency or an] instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares.” It is not an agency or instrumentality on the basis of majority ownership, however, if the “the foreign state does not own a majority of its shares but does own a majority of the shares of a corporate parent one or more tiers above the subsidiary.”

LIA is majority owned by Libya itself and thus is an agency or instrumentality of Libya. LFICO, however, does not qualify on that basis because it is not majority owned by Libya directly, but by LIA. LFI-CO is merely a subsidiary of LIA, and that is not sufficient.

2. Organ of a Foreign State

LFICO could qualify as an agency or instrumentality, however, if it is an organ of Libya. We have suggested that there is no clear, test for determining whether an entity is an organ of a state but that the following factors are useful: “(1) whether the foreign state created the entity for a national-purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign státe law.” Considering whether an entity is an “organ” is, in some respects, similar to considering whether it is an “agent.” (We noté that the term “agent” should not to be confused with the term “agency” in the phrase “agency or instrumentality.”)

Because the parties agreed that LFICO is a “foreign state” under the FSIA, they did not addréss whether LFI-CO is an organ, and thus an agency or instrumentality, of Libya. The district court did determine, in another context, that LFICO was not LIA’s agent but was Libya’s agent. The court explained that “there is a sufficient connection between LFICO and [Libya] such that LFICO can be considered Libya’s agent.” In so doing, the court determined: “LFICO operates solely in the national interest of Libya”; “LFICO possesses ‘special status and is treated as an organ of ... Libya’ “LFICO is comprised in large part of government representatives”; and “the Libyan legislature has the power to appoint members of ... LFICO[’s board] and to fix their salaries, and [its board] is subordinate to the Libyan legislature.”

The district court, however, erred by relying on a description of the act that created LFICO initially rather than the description of the subsequent act that transferred LFICO to LIA. The subsequent act disentangled LFICO from Libya itself. As a result, LIA became—and remains—Libya’s subsidiary, and LFICO became—and remains—LIA’s subsidiary. This is significant because, as with subsidiaries, “duly created [agencies or] instru-mentalities of a foreign state are to be accorded a presumption of independent status.” The party opposing immunity— here, the receiver—“can overcome that presumption ... by demonstrating that the [agency or] .-instrumentality is the agent or alter ego of the foreign state.” The theories underlying alter egos and agents are “distinct” and, for this reason, are not to be. applied “as if they were interchangeable.” Alter egos are created equitably; agents are created contractually. Both, however, are bases for overcoming the presumption that an agency or instrumentality of a foreign state is separate from the foreign state itself.

LIA is majority owned by Libya proper and therefore an agency or instrumentality of a foreign state. In contrast, LFICO is not majority owned by Libya proper. As noted above, the parties agreed that, in addition to LIA, LFICO is a foreign state under the FSIA, so the parties did not develop the record on the precise issue of whether LFICO is an organ of Libya and thus a “foreign state” under the FSIA. Accordingly, we vacate the district court’s ruling that • it had jurisdiction over the claims against LFICO under the FSIA and remand for development of the factual record on this issue and for a determination whether LFICO is an organ, and thus an agent or instrumentality, of Libya under the FSIA.

C. WHETHER THE CLAIMS AGAINST LFICO Are SubjeCT to the Commeroial Activity Exception to the FSIA

If we were to assume arguendo that LFICO is an agency or instrumentality of Libya proper and therefore presumptively entitled to immunity under the FSIA, there would be no basis for jurisdiction over the receiver’s claims against LFICO under the commercial activity exception to the FSIA. The FSIA provides an exception to sovereign immunity “in any case in which the action is based upon commercial activity that has a jurisdictional nexus with the United States.” The commercial activity exception contains three clauses, each identifying a type of act that is sufficiently connected to the United States to satisfy the jurisdictional nexus requirement: (1) “a commercial activity carried on in the United States by the foreign state”; (2) “an act performed in the United States in connection with a commercial activity of the foreign state elsewhere”; and (3) “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”

The parties dispute whether LFICO’s activity—purchasing, repurchasing, and redeeming SIB-issued CDs—fell within any of the clauses of FSIA’s commercial activity exception. LFICO argues that the district court erred in determining that it had jurisdiction to hear the receiver’s claims against it under any clause of the commercial activity exception. Because the district court based its decision on the third clause, we begin there.

1. ThiRD Clause

The third clause of the exception applies when a claim “is [i] based ... upon an act outside ... of the United States [ii] in connection with a commercial activity” —“either a regular course of commercial conduct or a particular commercial transaction or act”—“of the foreign state elsewhere and [Hi] that act causes a direct effect in the United States.” The parties do not dispute that the receiver’s claim is based “upon an act outside the territory of the United States in connection with [LFI-CO’s] commercial activity [outside the United States].”

The district court determined, however, that the third clause applied because it concluded that LFICO’s acts caused a direct effect in the United States. An effect is “direct” if it follows as an immediate consequence of the foreign state’s activity. “[A] consequence is ‘immediate’ if no intervening act breaks ‘the chain of causation leading from the asserted wrongful act to its impact in the United States.’ ” ■ In considering the effect, we must “isolate those specific acts of the [agency or instrumentality] that form the basis of the plaintiffs [claims].” As the Second Circuit has noted, “even if ... a particular effect might be foreseeable,” such an effect is not “direct” if it “hinge[s] on third parties’ independent ,.. conduct.” “[T]he mere fact that [an agency or instrumentality]’s commercial activity outside of the United States caused ... financial injury to a United States citizen is not itself sufficient to constitute a direct effect in the United States.” Such an injury will constitute a direct effect only if the agency or instrumentality of a foreign state causes the injury through its failure to perform an obligation that it was required to perform in the United States.

The district court determined that LFI-CO’s acts, which occurred outside the United States, had a “direct effect” in the United States. The district court explained that, “by doing business with SIB in Antigua, LFICO was in reality doing business with Stanford in [the United States].” It concluded that, “as an immediate consequence of LFICO’s investments [in Antigua], the [U.S.]-based Stanford Ponzi scheme slipped further into insolvency and received funds it needed to keep its scheme afloat.” This assumption is erroneous.

LFICO purchased, repurchased, and redeemed the CDs from SIB, which was based in Antigua; all of LFICO’s acts occurred in Switzerland and Libya; and all of SIB’s acts occurred in Antigua, Canada, and England. LFICO had nothing to do with SIB’s transfer of funds to or from other Stanford entities as part of the scheme. The district court observed that “[m]oney put into and taken out of SIB’s coffers in Antigua was money being tunneled through Stanford’s [U.S.j-based enterprise.” It did not state that LFICO was tunneling that money. In fact, it did not identify who was doing the tunneling but ducked that issue by relying on the passive voice: “[m]oney ,., was being tunneled.”

LFÍCO acted only pursuant to its obligations under the SIB-issued CDs, which constituted agreements between LFICO and SIB. Those instruments did not require any act in the United States, much less the act of tunneling money through the Stanford scheme or any Stanford entities in the United States. Accordingly, the district court erred in deciding that the third clause of the commercial activity exception applied to the receiver’s claims against LFICO,

2. Fiest and Second Clauses

The receiver asserts that the district court erred in determining that the first and second clauses of the commercial activity exception do not apply. Those clauses provide exceptions to sovereign immunity, when “the action is based [1] upon a commercial activity carried on in the United States by the foreign state ... or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere— ” The receiver contends that SIB was,- in fact, the Stanford scheme itself. But, as discussed above, LFICO’s commercial activity- was limited to its obligations and rights under the SIB-issued CDs, which were contracts between LFI-CO and SIB. The CDs did not require any activity in the United States. LFICO properly assumed that its relationship was with SIB and that SIB was what it represented itself to be, ie., a bank based in Antigua. Even though a few of LFICO’s analysts participated in SIB’s training program, which included a visit to the United States, there is nothing to suggest that this activity was related to LFICO’s relevant acts made pursuant to its obligations, or rights under the SIB-issued CDs. Thus, if LFI-CO is an agency or instrumentality of a foreign state, the commercial activity exception would not strip it of its presumptive immunity under the FSIÁ.'

D. Whether the Claims Against LIA Are Subject to the Commercial Activity Exception under the FSIA

The receiver insists that, even though LIA did not purchase, repurchase and redeem SIB-issued CDs, or receive proceeds of such CDs itself, LFICO did and LFI-CO’s acts were attributable to LIA. He avers specifically that LFICO is LIA’s alter ego or agent and that LIA was the beneficiary of the transfers from SIB to LFICO. He concludes that, as with LFI-CO, the FSIA’s commercial activity exception applies to his claims against LIA.

1. Agent or Alter Ego

The parties do not appear to dispute the relationship between LIA and Libya. Instead, they dispute the relationship between LIA and LFICO. Specifically, they disagree on whether LFICO’s acts are attributable to LIA. As we observed above, “[a] corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary....” “The fact that the shareholder is [an agency or instrumentality of a foreign state] does not change the analysis.” Subsidiaries that are “established as juridical entities distinct and independent ... should normally be treated as such.” In the context of the FSIA, a court must apply “the general rules regarding corporate formalities.” For this reason, “duly created [agencies or] instrumentalities of a foreign state are to be accorded a presumption of independent status.” “A plaintiff can overcome that presumption, however, in certain circumstances by demonstrating that the instrumentality is the agent or alter ego of the foreign state.” Yet, the theories underlying alter egos and agents are “distinct” and are therefore not to be applied “as if they were interchangeable.” Again, alter egos are created equitably; agents are created contractually. Each is a basis for overcoming the presumption that an agency or instrumentality of a foreign state is separate from the foreign state itself. In both instances, the analysis is conducted with reference to federal law, not foreign law or state law.

To determine if one entity is the alter ego of another, “[t]he corporate veil may be pierced to hold a[ parent] liable for the [acts] of its [subsidiary] only if (1) the [parent] exercised complete control over the [subsidiary] with respect to the [acts] at issue and (2) such control was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” In contrast, when determining whether one entity is the agent of another, it is necessary to consider “whether the [parent] exercises day-to-day control over the [subsidiary].” In the context of the commercial activity exception, we further consider “whether the commercial activity is ‘of the foreign state.’ ” Thus, both the principal-agent and alter ego relationships require an element of control.

A declaration provided by LIA, and which the district court credited, states:

LFICO has always operated independently of LIA as described in the [Layas and Mokhtar declarations]. For the avoidance of doubt: (a) LIA has no right to manage LFICO’s investments directly. (b) LIA has no right to actually own and deal directly with LFICO’s assets, (c) LIA has no right to hold LFICO’s assets as LIA’s own. (d) LIA has no right to assign LFICO’s personnel, choose its managers, prepare its accounts, or determine with what third parties LFICO will contract for services.

Considering this declaration offered by LIA, it is apparent that LIA and LFICO are entitled to the presumption that they are separate entities. There is nothing to indicate that LIA had or exercised any significant control over LFICO, either generally or with specific regard to LFI-CO’s purchase, repurchase, or redemption of the SIB-issued CDs or the receipt of proceeds from such CDs. Any control that LIA might have exercised was not nearly enough to justify disregarding the legal distinction between them. The district court did not err in determining that LFI-CO was not LIA’s agent or its alter ego.

2. TRANSFER Beneficiary under TUFTA

The receiver further argues that LIA is liable for the transfer from SIB to LFICO because, under the Texas Uniform Fraudulent Transfer Act (“TUFTA”), LIA was the “person” for whose benefit the transfer was made. The district court rejected this contention.

TUFTA provides that a transfer from a debtor to a creditor is fraudulent if made with actual intent to hinder, delay, or defraud any other creditor of that debtor. In relevant part, it states that either “the first transferee of the asset or the person for whose benefit the transfer was made” may be held liable for such a transfer. Regardless of whether LIA is a beneficiary of the transfer, under TUFTA, we must consider whether the commercial activity exception to the FSIA provides a source of subject matter jurisdiction over such a claim.

As discussed above, the commercial activity exception focuses on the acts or activities of the agency or instrumentality of the foreign state. The receiver’s TUFTA claim is based on SIB’s transfer of proceeds to LFICO, allegedly for the benefit of LIA. As alleged, LIA neither made nor received the transfer. It merely benefited from it.

Notably, “[TUFTA] and the ... Bankruptcy Code are of common ancestry; eases under one are considered authoritative under the other.” Both refer to the person “for whose benefit [a] transfer was made.” In the context of bankruptcy, a transfer beneficiary is typically the guarantor of a debt that was extinguished by the transfer. The obligation of the insolvent debtor in such a circumstance would generally be the guarantor’s obligation, as well. Absent the transfer from debtor to creditor, the guarantor would have had to make the transfer itself. As the transfer beneficiary, it avoids that obligation.

The receiver nevertheless insists that when a debtor makes a transfer to a creditor, that creditor’s shareholder may also be considered a transfer beneficiary. The receiver relies on Esse v. Empire Energy III, Ltd. and Citizens National Bank of Texas v. NXS Construction, Inc., but both are inapplicable. The Esse court determined that shareholders were transfer beneficiaries because they had “ ‘assented to and benefited from these transfers’ and knowingly participated in the wrongdoing.” Those shareholders had also waived any argument that they were not transfer beneficiaries. The Citizens National Bank court determined that a shareholder was a transfer beneficiary because the shareholder was actually involved with the transfer.

By contrast, LIA insists that, without more, a shareholder is not a beneficiary of a transfer made to the corporation. It notes, for instance, that in In re Hansen, a bankruptcy court held that the creditor’s majority shareholder was not a transfer beneficiary. The court explained:

Nothing in [§ ] 550(a)(1) [of the Bankruptcy Code] indicates that corporate form can be thrust aside and all voidable transfers to a corporation recovered from its shareholders on the mere assumption that shareholders somehow automatically “benefit” from such transfers.- If corporate existence is to be observed, transfers cannot be recovered even from a shareholder who by virtue of his majority ownership ostensibly “controls” the corporation. Something more than mere status as a shareholder, officer, or director must be shown.
The better view—and the one consistent with corporate law—is that shareholders, officers, and directors are not liable for transfers to their corporation unless they actually received distributions of the transferred property ... or a showing can be made to pierce the corporate veil.

This appears to be the right approach. When a debtor transfers assets to a creditor to satisfy a guaranteed debt, there are independent benefits: The creditor, as transferee, receives the assets, and the guarantor, as the beneficiary, retains assets that he would otherwise have lost as a result of the debtor’s insolvency. Another creditor might seek to recover either the assets transferred by the debtor or the assets saved by the creditor, or both. This is because the transferee and beneficiary have independent obligations. Here, only LFICO, as -the transferee, has an obligation. LIA’s obligation is merely derivative of that obligation, not independent of it. LIA did not receive an independent benefit as a result of the transfer from SIB to LFICO. Even if LIA itself owned and controlled LFICO’s assets, either LIA or LFICO would have received the benefit of the transfer, but not both. Further, when a debtor transfers assets to a creditor to satisfy a guaranteed debt, the guarantor is involved as a party, or at least an independent obligor, to the contract giving rise to the transfer. But LIA was not a party to the subject contract.

As Collier on Bankruptcy explains, any “approach that permits recovery based merely on the intent of the debtor/trans-feror without any benefit being conferred on the third party results in the harsh outcome that the third party can be liable for the return of an avoidable transfer without having received any benefit, which is generally contrary to the disgorgement remedy of avoidance actions.”

Because LIA was not a transfer beneficiary under TUFTA, we do not consider LIA and LFICO’s contention that TUFTA may not be applied extraterritorially. Neither do we consider whether, if LIA were a transfer beneficiary, its status as such would be a basis for jurisdiction under the FSIA.

III.

-Conclusion

We hold that the FSIA provides no basis for jurisdiction over LIA. We therefore AFFIRM the district court’s holding that it had no jurisdiction over the claims against LIA under the FSIA. However, we VACATE the district court’s holding that it had jurisdiction over the claims against LFICO under the FSIA and REMAND to the district court for it to determine in the first place whether LFICO is an “organ” of Libya, and thus a “foreign state,” under the FSIA.

      . In addition to transferring funds to earlier investors, the Stanford entities also transferred funds to other persons and entities, often for divergent purposes.

      . In late 2008, the then-chairperson of LIA visited the United States for meetings of the International Monetary Fund ("IMF") and, while here, met with Stanford himself. There is no indication that they discussed LFICO’s purchase, repurchase, or redemption of SIB-issued CDs,

      . The management committee’s decision to redeem the CDs in 2008 appears to have been unrelated to the analysts’ visit to the United States in 2007.

      . Although Stanford himself briefly visited Libya several days before SIB transferred the proceeds of these CDs to LFICO in 2009) this was months after LFICO had decided to divest and notified SIB that it would redeem its SIB-issued CDs rather than repurchase them as they matured.

      .The receiver suggests that LFICO has stated that LIA was uninvolved with LFICO’s purchase of SIB-issued CDs but has not stated that it was uninvolved with the redemption of those same CDs. This too closely parses LFI-CO’s language, which actually states that LIA was uninvolved with LFICO’s investment in SIB-issued CDs; use of the term “investment” is sufficiently broad to encompass both LFI-CO’s purchase and subsequent redemption of the CDs.

      . Notably, the Libyan-African Investment Portfolio (“LAP”), an entity similar to LFICO, also purchased SIB-issued CDs between 2007 and 2008. Unlike LFICO, however, it repurchased about $50 million in CDs from SIB as they matured in late 2008. As a result, SIB never transferred any proceeds to LAP.

      . 588 F.3d 831, 834 (5th Cir. 2009).

      . 28U.S.C. § 1291.

      . See Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo General del Sindicato Revolucionario de Trabajadores Petroleros de la Republica Mexicana, S.C., 923 F.2d 380, 385 (5th Cir. 1991).

      . See Walter Fuller Aircraft Sales, Inc., v. Rep. of Phil., 965 F.2d 1375, 1387 (5th Cir. 1992) ("In the exercise of [this Court's] discretion and in the interest of judicial economy ..., we may consider claims under our pendent appellate jurisdiction that are closely related to the order properly before us.”); Morin v. Caire, 77 F.3d 116, 119 (5th Cir. 1996).

      . Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 279 (5th Cir. 2007); see Ynclan v. Dep't of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991).

      . Bd. of Regents of Univ. of Tex. Sys., 478 F.3d at 279; see Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171-72 (5th Cir. 1994).

      . Moran, 27 F.3d at 171-72.

      . Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011).

      . Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015) (internal quotation marks omitted).

      . Id. at 596 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)).

      . Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 & n.2, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).

      . 28 U.S.C. §§ 1602-11.

      . Id. § 1605(a).

      . Id. § 1330(a).

      . Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). See also Argentine Republic, 488 U.S. at 435 n.3, 109 S.Ct. 683 ("Subsection (b) of 28 U.S.C. § 1330 provides that ‘[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have [subject-matter] jurisdiction under subsection (a) where service has been made under [28 U.S.C. § 1608].' Thus, personal jurisdiction, like subject-matter jurisdiction, exists only when one of the exceptions to foreign sovereign immunity ... applies.” (alterations in original)).

      . See United States v. Moats, 961 F.2d 1198, 1205 (5th Cir. 1992).

        .Id.

      . Id.

      . Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), Importantly, the subject matter jurisdiction inquiry under the FSIA involves determining first whether a party is a "foreign state” to which the Act applies, and then whether any exception to the presumption of foreign sovereign immunity applies under the circumstances. See Verlinden, 461 U.S. at 488-89, 103 S.Ct. 1962. Whether the party is a "foreign state” clearly cannot be waived by the parties, just as is the. case with any typical question regarding subject matter jurisdiction. A foreign state entitled to immunity under the FSIA, however, may waive its immunity. See 28 U.S.C. § 1605(a)(1) (providing that a party can expressly or implicitly waive its immunity from the jurisdiction of the United States courts), In this case, when we state that subject matter jurisdiction can never be waived, our statement applies only to whether a party is a "foreign state” under the FSIA.

      . Arbaugh, 546 U.S. at 514, 126 S.Ct. 1235,

      . Samantar v. Yousuf, 560 U.S, 305, 314, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010).

      . 28 U.S.C. § 1603(a).

      . See Agency, Black's Law Dictionary (10th ed. 2014) (defining "agency,” in relevant part, as “[a]n official body, esp. within the government, with the authority to implement and administer particular legislation”); see Instrumentality, Black's Law Dictionary (10th ed. 2014) (defining "instrumentality,” in relevant part, as "[a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body”).

      . We have previously explained; "The use of the single term 'agency' for two purposes in the context of this case may cause some confusion. The FSIA uses it to determine whether an 'agency' of the state may potentially qualify for foreign sovereign immunity itself under the FSIA. This is a completely different question from ... whether or not [such an agency] enjoyed an alter ego relationship with the [foreign state] so that it could bind [the foreign state as a result of its acts]. Although such an alter ego relationship may be described in terms of 'agency,' it is a completely different inquiry than that which might be conducted under [the FSIA’s ‘agency or instrumentality’ requirement]-[T]he level of slate control required to establish an ‘alter ego’ relationship is more extensive than that required to establish FSIA 'agency.' ” Hester Int’l Corp. v. Fed. Republic of Nigeria, 879 F.2d 170, 176 n.5 (5th Cir. 1989).

      . 28 U.S.C. § 1603(b) ("An ‘agency or instrumentality of a foreign state’ means any entity ... (1) which is a separate legal person, corporate or otherwise, and ... (2) which is an organ of a foreign state ... or a majority of whose shares or other ownership interest is owned by a foreign state_” (emphasis added)).

      . Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 846 (5th Cir. 2000) ("[Bjecause we conclude that [the entity] is an organ of a foreign state, we need not consider [the] ownership requirements.”).

      . Dole Food Co. v. Patrickson, 538 U.S. 468, 477, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003).

      . Id. at 474, 123 S.Ct. 1655.

      . Id. at 473, 123 S.Ct. 1655. The Supreme Court discusses only "instrumentalities” in this context, and it does not distinguish agencies from instrumentalities. As discussed above, these appear to be synonymous.

      . Id. at 477, 123 S.Ct. 1655 (emphasis added).

      . Id. at 471, 123 S.Ct. 1655.

      . As another panel noted, LIA is "an agency of the Libyan government.” Janvey v. Libyan Inv. Auth., 478 Fed.Appx. 233, 236 (5th Cir. 2012).

      . Bd. of Regents of Univ. of Tex. Sys., 478 F.3d at 279 (alteration in original) (quoting Kelly, 213 F.3d at 846-47 (5th Cir. 2000)).

      . Notably, LFICO is owned by LIA, not by Libya proper.

      . First Inv. Corp. of Marsh. Is. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 752 (5th Cir. 2012) (quoting First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 627, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983)).

      . Dale v. Colagiovanni, 443 F.3d 425, 429 (5th Cir. 2006); see First Inv. Corp. of Marsh. Is., 703 F.3d at 753.

      . Bridas S.A.P.I.C. v. Gov't of Turkm., 345 F.3d 347, 358 (5th Cir. 2003).

      . Id. at 359 ("The laws of agency, in contrast, are not equitable in nature, but contractual, and do not necessarily bend in favor of justice.”).

      . First Nat'l City Bank, 462 U.S. at 633, 103 S.Ct. 2591.

      . Stena Rederi AB, 923 F.2d at 386 (citing 28 U.S.C. § 1605(a)(2)).

      . 28 U.S.C. § 1605(a); see Stena Rederi AB, 923 F.2d at 386.

      . 28 U.S.C. § 1605(a).

      . Id. § 1603(d) (emphasis added) (defining “commercial activity”).

      . Id. § 1605(a)(2).

      . Id. There is a "difference between [claims] ‘based upon’ commercial activity and [those] ‘based upon’ acts performed 'in connection with’ such activity.” Saudi Arabia v. Nelson, 507 U.S. 349, 358, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (emphasis added). The third clause of the commercial activity exception provides that the claim must be "based ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere” and that the act "causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2) (emphasis added). In contrast, the first clause specifies that the claim must be "based upon a commercial activity ... by the foreign state.” Id. (emphasis added). Because "[distinctions among descriptions juxtaposed against each other are naturally understood to be significant,” the first clause “calls for something more than a mere connection with, or relation to, commercial activity.” Nelson, 507 U.S. at 357-58, 113 S.Ct. 1471.

        .Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992).

      . Terenkian v. Republic of Iraq, 694 F.3d 1122, 1133 (9th Cir. 2012) (quoting Xyon v. Agusta S.P.A., 252 F.3d 1078, 1083 (9th Cir. 2001)); see also Odhiambo v. Republic of Kenya, 764 F.3d 31, 41 (D.C. Cir. 2014).

      . de Sanchez v. Banco Cent. de Nicar., 770 F.2d 1385, 1391 (5th Cir. 1985); see Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 75 (2d Cir. 2010) (“[T]he requisite immediacy is lacking where the alleged effect depends crucially on variables independent of the conduct of the [agency or instrumentality].” (internal quotation marks omitted)).

      . Virtual Countries v. Republic of S. Afr., 300 F.3d 230, 238 (2d Cir. 2002) (“Defining ‘direct effect’ to permit jurisdiction when [an agency or instrumentality]^ actions precipitate reactions by third parties, which reactions then have an impact on a plaintiff, would foster uncertainty in both [agencies or instrumentalities] and private counter-parties. Neither could predict when an action would create jurisdiction, which would hinge on third parties’ independent reactions and conduct, even if in individual cases, such as the one at bar, a particular effect might be foreseeable. To permit jurisdiction in such cases would thus be contrary to the predictability interest fostered by the [FSIA].”),

      . Guirlando, 602 F.3d at 78; see also Westfield v. Fed. Republic of Ger., 633 F,3d 409, 417 (6th Cir. 2011) ("[A]n American entity's mere financial loss is insufficient to establish a direct effect in the United States.”), If financial injury to a United States citizen were considered a sufficiently direct effect, “the commercial activity exception would in large part eviscerate the FSIA's provision of immunity for foreign states.” Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 999 F.2d 33, 36 (2d Cir. 1993).

        .Weltover, 504 U.S. at 619, 112 S.Ct. 2160; see Energy Allied Int'l Corp. v. Petroleum Oil & Gas Corp. of S. Afr., No. H-08-2387, 2009 WL 2923035, at *4 (S.D. Tex. Sept. 4, 2009); Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 896 (5th Cir. 1998) (noting that there was a direct effect in the United States because an agency or instrumentality of the foreign state failed to perform its obligation to transfer assets to an entity in the United States); Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th Cir. 1985) (same); UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210, 218-19 (5th Cir. 2009) (same); Westfield, 633 F.3d at 415 (noting that there was no direct effect in the United States because the foreign state "had not obligated itself to do.anything in the United States”); Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83, 90-91 (D.C. Cir. 2005).

      . 28 U.S.C. § 1605(a)(2).

      . Arriba. Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 533 (5th Cir. 1992) ("Isolated or unrelated commercial actions by a foreign sovereign in the United States do not authorize the exception."),

      . Dole Food Co., 538 U.S. at 475, 123 S.Ct. 1655.

      . Id.

      . First Nat’l City Bank, 462 U.S. at 626-27, 103 S.Ct. 2591.

      . Dole Food Co., 538 U.S. at 476, 123 S.Ct. 1655.

      . First Inv. Corp. of Marsh. Is., 703 F.3d at 752-53 (quoting First Nat’l City Bank, 462 U.S. at 627, 103 S.Ct. 2591).

      . Dale, 443 F.3d at 429; see First Inv. Corp. of Marsh. Is., 703 F.3d at 753.

      . Bridas, 345 F.3d at 358.

      . Id. at 359 ("The laws of agency, in contrast, are not equitable in nature, but contractual, and do not necessarily bend in favor of justice.”).

      . First Nat'l City Bank, 462 U.S. at 633, 103 S.Ct. 2591.

      . See, e.g., id. at 622 n.11, 103 S.Ct. 2591 ("[M]atters bearing on the nation’s foreign relations should not be left to divergent and perhaps parochial state interpretations. ” (internal quotation marks omitted)).

      . Bridas, 345 F.3d at 359.

      . Dale, 443 F.3d at 429.

      . Id.

      . The receiver submitted his own contrary declaration, but the district court discredited it and its reasons for doing so were sound.

      . Tex. Bus. & Com. Code Ann. § 24.005.

      . Id. § 24.009(b)(1).

      . GE Capital Commercial, Inc. v. Wright & Wright, Inc., No. 3:09-CV-572-L, 2009 WL 5173954, at *7 n.1 (N.D. Tex. Dec. 31, 2009).

      . 11 U.S.C. § 550(a)(1); Tex. Bus. & Com. Code Ann. § 24.009(b)(1).

      . See, e.g., In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, 130 F.3d 52, 57 (2d Cir. 1997); In re Columbia Data Prods., Inc., 892 F.2d 26, 29 (4th Cir. 1989); see also Collier on Bankruptcy ¶ 550.02[4] (16th ed. 2011) ("Two frequently cited examples of an entity for whose benefit the transfer was made are (1) a third-party guarantor of the debtor whose liability is reduced by the debtor’s payment of the guaranteed debt and (2) a third party whose debt is paid by the debtor (with payment going to the third party’s creditor as the initial transferee).”).

      . 333 S.W.3d 166, 181 (Tex. App. 2010).

      . 387 S.W.3d 74 (Tex. App. 2012).

      . 333 S.W.3d at 174.

      . Id. at 181.

      . 387 S.W.3d at 85.

      . 341 B.R. 638, 644 (Bankr. N.D. Ill. 2006).

      . Id. at 645-46 (citations omitted).

      . Collier on Bankruptcy ¶ 550.02[4].


source: Caselaw Access Project

author: JULIA SMITH GIBBONS, Circuit Judge.

license: Public Domain

text:
    Andre DESCHAMPS, Plaintiff-Appellee, v. BRIDGESTONE AMERICAS, INC. SALARIED EMPLOYEES RETIREMENT PLAN; Bridgestone Americas Holding, Inc.; Bridgestone Americas, Inc., Defendants-Appellants.
    No. 15-6112
    United States Court of Appeals, Sixth Circuit.
    Argued: July 28, 2016
    Decided and Filed: September 12, 2016

      ARGUED: John E. B. Gerth, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, for Appellants. Karla M Campbell, BRANSTETTER, STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellee. ON BRIEF: John E. B. Gerth, Robert E. Boston, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, for Appellants. Karla M Campbell, R. Jan Jennings, BRANSTETTER, STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellee.
    Before: SILER, GIBBONS, and COOK; Circuit Judges.

       This opinion originally issued as ah unpublished opinion filed on September 12, 2016. The court has now designated' the opinion' as one recommended for full-text publication.

   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

After working for ten years at a Bridge-stone plant in Canada, Andre Deschamps transferred to a Bridgestone facility in the United States. Prior to accepting this position he expressed concern about losing pension credit for his ten years of employment in Canada. But upon receiving assurances from members of Bridgestone’s management team that he would keep his ten years of pension credit, Deschamps accepted the position. For over a decade, Deschamps received various written materials confirming that his date of service for pension purposes would be August 8, 1983. He even turned down employment opportunities from a competitor at a higher salary because of the purportedly higher pension benefits he would receive at Bridgestone. In. 2010, Deschamps discovered that Bridgestone had changed his service date to August 1,1993, the date he began working at the American plant. After failed attempts to appeal this change through Bridgestone’s internal procedures, Deschamps brought a suit against Bridge-stone alleging claims of equitable estoppel, breach of fiduciary duty, and an anti-cutback violation of ERISA. The district court granted summary judgment for Des-champs on these three claims. For the following reasons, we affirm the district court’s judgment.

I.

On August 8, 1983, Deschamps began working for Firestone in Canada as a maintenance manager. In late 1992, Des-champs’s plant manager made him' aware of a job opportunity at one of Bridge-stone’s plants in Wilson, North Carolina. In early 1993, Deschamps began discussing the prospect of employment at the Wilson plant with George Ruccio, the plant manager. Feeling it was in his best interest to negotiate his benefits during the hiring process, Deschamps recalled discussing with Ruccio his pension benefits. Specifically, he communicated to his interviewers his concern that his service date for those benefits would be set as August 8, 1983, his start date at the Canadian facility, so he would not lose his pension credit for his ten years of work there. As his pension benefits were a “driving force” in his decision to transfer from Canada, Deschamps raised the issue at his interview, which included Ruccio, Charles Russell, human resources manager, Thomas Berg, director of manufacturing, and Wayne Hunter, plant controller. Des-champs Dep. 35:12-20, EOF No. 32-1. Deschamps had “full confidence” that these people would give him accurate information about his benefits. Id. at 38:3-20. A few weeks later,- Deschamps testified, Ruccio contacted him to assure him that he would be given pension credit back to -August 8, 1983. However, Deschamps was not given anything in writing regarding his service date until 1994 when he received his first benefit statement.

Russell “clear[ly] recalled]” that upon interviewing for the Wilson plant, Des-champs was concerned about his service date. Russell Deck 1, EOF. No. 40. In response, to Deschamps’s concerns, Russell reached out to Robert Conger, Bridge-stone’s pension analyst, whose assistance, Russell testified, was “instrumental” in reaching a decision about Deschamps’s pension .benefits. Russell Dep. 18:3-15, EOF No. 70-2. Russell testified that after Conger confirmed the terms of Des-champs’s employment, including crediting his years .of employment in Canada for pension purposes, Russell and Ruccio offered Deschamps a position at the Wilson plant, making “specific representations” that his service date would be August 8, 1983. Russell Deck 2. Conger, on the other hand, testified that having been retired for sixteen years, he did not recall any specific conversation with Deschamps or anyone else about Deschamps’s pension benefits, but that he is “.sure [he] did not tell [Des-champs] or anyone else that [Deschamps] would have any pension credit for his employment in Canada” because he was not authorized to do so. Conger Decl. 2, ECF No. 71.

Consistent with Russell’s testimony, Hunter testified that Ruedo and Russell contacted Bridgestone’s corporate office to ensure that Deschamps would be given pension credit for his time in Canada and that, “[w]hen the corporate office approved of the offer to Mr. Desehamps, including the representation that his pension would be calculated using the 1983 date, this information was passed on to Mr. Des-champs.” Hunter Decl. 2, ECF No. 61. Likewise, Berg testified that through his “personal ] involve[ment]” in discussions with Deschamps about the terms of his employment, he knows that Deschamps was offered employment “with one of the conditions being that his employment date” for benefits purposes would be August 8, 1988. Berg Decl. 1-2, ECF 63.

During his employment at the Wilson plant, Continental Tire (Continental), a competitor, twice offered Deschamps a position at its facility, once in 2000 and again in 2003. Continental offered Deschamps a higher salary, but the pension benefits at Bridgestone far exceeded those at Continental, so Deschamps decided to continue his employment with Bridgestone. His decision was based on the assumption that he would receive ten years of service credit for his employment in Canada. Deschamps testified that had he known that he would not receive this credit, he “would have more likely moved to ... Continental.” Deschamps Dep. 95:13-96:2. In 2005, Continental froze its pension plans and subsequently shut down most of its operations in 2006, resulting in mass layoffs.

Through his years of employment at Bridgestone, Deschamps’s belief regarding the service date for his pension benefits was confirmed by written materials like benefit summaries and materials made available online. Many of these documents included a disclaimer warning that the document “is only an estimate of your pension benefits” and that “the Pension Plan Documents govern all benefits.” Mise. Pension Docs. 1-2, 4, 6-12, 14-15, ECF No. 60-2. In either 2009 or 2010, Bridgestone investigated and corrected errors in the service dates of various employees who had been employed by Bridgestone abroad and later transferred to a facility in the United States. Around August 2010, Deschamps discovered that his service date had changed from 1983 to 1993, causing him not to receive pension credit for his years of employment in Canada.

Deschamps’s benefits are governed by the Bridgestone/Firestone, Inc. 1984 Retirement Plan (the Plan). One way that an employee commences participation in the Plan is by completing one year of Eligibility Service, provided that the employee “is a Covered Employee on such date.” Retirement Plan 20, ECF No. 38-8. According to William Phillips, a member of Bridgestone’s pension board, Deschamps’s benefits did not begin to accrue until 1993 because it was at that point that he became a covered employee. The Plan defines “covered employee” in terms of five disjunctive classifications. The first two are of particular relevance in this case:

(10) Covered Employee: An Employee who is described in paragraph (a) of this Subsection....
(a) An Employee is described in this paragraph if he is:
(i) classified by the Employer as a United States salaried Employee not represented by a designated collective bargaining agent; or
(ii) a foreman, supervisor, plant protection Employee, administrative or clerical Employee or confidential Employee of the Employer, whether or not paid on an hourly basis, who is not represented by a designated collective bargaining agent....

Id. at 2-3. Bridgestone denied Des-champs’s appeal to change his service date to 1983, as well as his subsequent appeal of that decision, reasoning both times that he was not a covered employee under subsection (i).

Deschamps then filed a complaint alleging, as relevant here, equitable estoppel pursuant to 29 U.S.C. § 1132(a)(3), breach of fiduciaiy duty pursuant to. 29 U.S.C. § 1104, and an anti-cutback violation pursuant to 29 U.S.C. §■ 1054(g). The parties brought cross-motions for summary judgment. On the claims at issue here, the district court granted Deschamps’s motion and denied Bridgestone’s motion.

II.

Summary judgment is appropriate where the movant shows “there is no gen-mine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review a district court’s summary judgment order de novo, viewing alb reasonable facts, evidence, and inferences in favor of the nonmoving party. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014).

III.

Our precedent permits a claim for equitable estoppel arising out of a pension plan where a plaintiff can establish the following elements:

(1) conduct or language amounting to a representation of material fact; (2) awareness of the true facts by the party to be estopped; (3) an intention on the part of the party to be estopped that the representation, be acted on, or conduct toward the party asserting the estoppel such that the latter has a right to believe that the former’s conduct is so intended; (4) unawareness of the time- facts by the party asserting the estoppel; and (5) detrimental and justifiable reliance by the party asserting estoppel on the representation.

Bloemker v. Laborers’ Local 265 Pension Fund, 605 F.3d 436, 442 (6th Cir. 2010). In the case of an unambiguous pension plan, the plaintiff must also prove three additional elements: “[ (6) ] a written representation; [ (7) ] plan provisions which, although unambiguous, did not allow for individual calculation of benefits; and [ (8) ] extraordinary circumstances in which the balance of equities strongly favors the application of estoppel.” Stark v. Mars, Inc., 518 Fed.Appx. 477, 481 (6th Cir. 2013) (alterations in original) (quoting Bloemker, 605 F.3d at 444). Thus, our first inquiry is whether the Plan provision at issue is ambiguous.

A.

The Plan plainly provides that Des-champs can be classified as a covered employee if he falls under any one of five conditions, as highlighted by the use of the disjunctive term “or.” Bridgestone .insists that Deschamps can only possibly be a “United States salaried Employee,” but does not attempt to explain why he cannot be classified under any of the other four conditions. This interpretation is simply untenable. Subsection (ii) applies to a “foreman” or “supervisor,” either of which seems to encompass Deschamps’s position as a maintenance manager. However, we cannot say so with certainty because the ■Plan does not define these terms. In ordinary parlance, “manager” and “supervisor” are often used interchangeably, so if Bridgestone’s definition of “supervisor” excludes managers, those terms are ambiguous.

Because the Plan is ambiguous, we need not analyze the three elements under the heightened standard. And because Bridge-stone only contests that elements two and five are met, we will only consider those two elements.

B.

To meet the second element of equitable estoppel, Deschamps must establish that Bridgestone was aware of the “true facts.” See Bloemker, 605 F.3d at 442. We have interpreted this element as requiring the plaintiff to demonstrate “either intended deception or such gross negligence as to amount to constructive fraud.” Paul v. Detroit Edison Co. & Mich. Consol. Gas Co. Pension Plan, 642 Fed.Appx. 588, 593 (6th Cir. 2016) (quoting Bloemker, 605 F.3d at 443). Here, the parties dispute whether- Bridgestone committed such gross negligence as to constitute constructive fraud. “A reasonable factfin-der,” Bridgestone contends, “could conclude on th[e] record that Deschamps did not make any inquiries to individuals with authority to administer or interpret the .., Plan or to advise employees of their pension benefits or service credit eligibility.” Appellant Br. 30, R. 18.

" An examination of the cases analyzing this element helps to illustrate the type of conduct that a plaintiff must present to establish the requisite gross negligence. In our recent decision, Paul, for example, the employer and the pension plan concluded that the plaintiffs benefit was improperly calculated, but only two years “after giving repeated written and oral assurances to [the plaintiff] that his retirement benefit was properly calculated.” 642 Fed.Appx. at 590, 593-94. We concluded that this “gross miscalculation” amounted to constructive fraud because “[the defendants] were the only ones in a position to know the true facts, they assumed that they knew the true facts, they failed to ascertain the true facts when [the plaintiff] specifically asked if the calculations were correct, and they repeatedly assured [the plaintiff] that they knew the true facts.” Id. at 594. This was true even though the “Pension Calculation Statement” contained a disclaimer granting the employer the right to correct any errors and providing that the benefit defined in the plan would prevail in the event of a conflict with the statement. Id. at 590. Similarly, Smiljanich v. Gen. Motors Corp. involved an employee who, after leaving his employer for approximately two years, was rehired with the promise that upon his return, he would be classified as .a “bridged employee,” meaning that he would not lose his accrued service time. 302 Fed.Appx. 443, 446-47 (6th Cir. 2008). About two years later however, the employer determined that he should not be bridged. Id. at 447. We found the employer’s actions to constitute gross negligence because the employer represented to him that he would be bridged, it “understood” that he was not in fact bridged, but failed to notify the plaintiff of this fact, “even in the face of persistent inquiries by” the plaintiff. Id. at 449.

Conversely, in Crosby v. Rohm & Haas Co. we found that the employer did not commit gross negligence. 480 F.3d 423, 431 (6th Cir. 2007). There, the employer sent the employee a booklet noting changes in employees’ life insurance benefits. Id. at 426. Attached with the booklet was a worksheet, which purported to list the employee’s benefits, but the benefits listed were actually erroneous. Id. Several times in the ensuing months, the employer attempted to correct the errors. Id. at 426-27, 431. Moreover, not only did the booklet warn employees to check for errors, but the errors were not “the least bit difficult to decipher,” as the booklet explicitly • precluded the benefits that the worksheet professed to provide. Id. at 431. Therefore, we concluded that the employer made an “honest mistake,” and was' at most “guilty of misfeasance, not the malfeasance that estoppel requires.” Id.-, see also Stark, 518 Fed.Appx. at 481-82 (concluding that the employer made an “honest mistake” and was not grossly negligent where it properly investigated the plaintiffs concern about her benefits calculation, even though the calculation ultimately proved erroneous).

Here, it is apparent from the record that even prior to being hired at the American facility, Deschamps was concerned about losing the pension credit he acquired, during his years of employment at the Canadian facility. All those- currently living who interviewed Deschamps recalled him inquiring with them about his pension benefits. And according to Russell, Des-champs’s employment offer was made with the express representation that his service date would be August 8, 1983. Deschamps had no reason to believe that this statement was inaccurate, particularly in light of the fact that it was repeated for more than a decade in benefits summaries and online materials. Unlike the plaintiffs in Crosby, though Deschamps had access to the Plan document, it' was more than a bit difficult to decipher because, as discussed above, Bridgestone apparently defined “supervisor” contrary to the ordinary meaning of the term, without attempting to inform Plan participants of this fact by providing a definition. And in contrast to the actions of the defendant in Crosby, Bridgestone did not quickly attempt to correct the error, but let the misrepresentation stand for sixteen or seventeen years. Though the Plan contained a disclaimer, only Bridgestone, like the defendants in Paul and Smiljanich, was in a position to know the true facts—the unusual definition of “supervisor” that excludes managers—and it failed to notify Deschamps of this fact, despite his repeated initial inquiries about his pension. Consequently, Bridgestone’s actions constituted such gross negligence as to amount to constructive fraud.

C.

Bridgestone next asserts that Des-champs “almost surely would have been economically worse, off had he accepted a Continental job offer” due to Continental’s layoffs and freezing of its pension plan, so Deschamps cannot establish detrimental reliance.

To show detrimental reliance, Deschamps must establish that Bridge-stone’s statements “in truth” influenced his conduct, causing prejudice. CIGNA Corp. v. Amara, 563 U.S. 421, 443, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). The prejudice, or detriment, suffered must be “actual and substantial,” but may be proved by “loss of opportunity to improve one’s position.” Smiljanich, 302 Fed.Appx. at 450. In Smiljanich, the plaintiff applied to be rehired by his former employer, General Motors (GM), at the same time another employer, Rassini Corp., was recruiting him. Id. at 446. Though Rassini did not offer the same retirement benefits as GM, it was prepared to offer the plaintiff a supplemented salary to allow him to receive similar total benefits. Id. This offer notwithstanding, the plaintiff decided to return to GM based on its false representations that his accrued service time would be bridged. Id. We concluded that the plaintiff suffered detriment because, although the benefits at Rassini did not “precisely mirror[ ]” those at GM, the evidence “indicate[d] that Rassini was prepared to offer a salary which reasonably approximated the total compensation (salary and benefits) of full retirement at GM.” Id. at 450-51; see also Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 303 (3d Cir. 2008) (concluding that the plaintiff suffered detriment where he testified that had his employer not miscalculated his pension benefits, “he would have explored whether he could return to [his former employer], get another job with a better pension, or retire sooner and start a consulting business”) (cited with approval in Bloemker, 605 F.3d at 441-42).

Here, Deschamps suffered the loss of an employment opportunity • at Continental, which offered Deschamps a more competitive salary than' he- was receiving at Bridgestone. He testified that had Bridge-stone not misrepresented to him his service date, he would have likely moved to Continental. Bridgestone’s insistence that Deschamps would have been economically worse off at Continental is problematic for several reasons. For one, we cannot definitively conclude that Deschamps would have been worse of at Continental; he very well could have been one of the few who were not laid off. Moreover, Bridgestone does not cite, nor have we found, any authority requiring the detriment suffered to be economic. To the contrary, our precedent requires a “loss of opportunity to improve one’s position.” See Smiljanich, 302 Fed.Appx. at 450 (emphasis added); see also Pell, 539 F.3d at 303 (concluding the plaintiff suffered detriment because he “would have explored” other opportunities (emphasis added)). Deschamps lost that when he twice declined an offer to earn a higher salary at Continental. Moreover, Deschamps’s reliance was reasonable considering that the representations about his pension credit were made by members of Bridgestone’s management and confirmed in written materials and online for well over a decade. See Bloemker, 605 F.3d at 442 (“[The plaintiffs] reliance on [the misrepresentations concerning his service date] was reasonable, particularly in light of an email from [the employer’s] pre-retirement counselor who, in response to a direct question from [the plaintiff], stated that his beginning service date was 1971.” (citing Pell, 539 F.3d at 300-02)).

Therefore, the district court did not err in granting summary judgment to Des-champs on his equitable estoppel claim.

IV.

We turn now to Deschamps’s breach of fiduciary duty claim. To establish a breach of this duty, Deschamps must show that (1) Bridgestone acted in a fiduciary capacity in making misrepresentations to Deschamps, (2) those misrepresentations were material, and (3) Deschamps detrimentally relied on the misrepresentations. James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002). The second element is not disputed.

A.

ERISA imposes on fiduciaries the obligation to “discharge [their] duties with respect to a plan solely in the interest of the participants and beneficiaries and ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use.” 29 U.S.C. § 1104(a)(1)(B). However, at dispute in this case is not whether Bridgestone breached its fiduciary duties, but whether it is a fiduciary. A fiduciary is defined by ERISA to include a corporation who “exercises any discretionary authority or discretionary control respecting management of [a] plan” or “has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). In determining whether a corporation is a fiduciary, rather than looking to the formal title, we use a functional approach, looking to whether it acts in a fiduciary capacity with respect to the conduct at issue. Briscoe v. Fine, 444 F.3d 478, 486 (6th Cir. 2006). In Varity Corp. v. Howe, for instance, the Supreme Court looked to common law, including the law of trusts and agency, to ascertain what actions constitute plan administration so as to make one a fiduciary. 516 U.S. 489, 502-03, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). It concluded that the discretionary act of plan administration “includes the activities that are ‘ordinary and natural means’ of achieving the ‘objective’ of the plan,” such as offering information about the meaning of the plan’s terms or “[c]onveying information about the likely future of plan benefits, thereby permitting beneficiaries to make an informed choice about continued participation.” Id. at 502-04, 116 S.Ct. 1065. Based on this definition, the employer acted in a fiduciary capacity when it falsely represented to its employees that their benefits would remain the same if they voluntarily transferred to a separately incorporated subsidiary, knowing that the subsidiary was in fact insolvent, which caused employees to lose their non-pension benefits. Id. at 494, 498-503, 116 S.Ct. 1065. Accordingly, an employer may “act[ ] in a fiduciary capacity when making misrepresentations to its employees about their benefit plan.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 404 (6th Cir. 1998) (citing Varity, 516 U.S. at 497-504, 116 S.Ct. 1065); accord In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 230 (3d Cir. 2009) (“[A]n employer ‘acts as a fiduciary when explaining plan benefits ... to its employees.’ ” (citations omitted)); Matthews v. Chevron Corp., 362 F.3d 1172, 1178-79 (9th Cir. 2004) (concluding that the employer acted in its fiduciary capacity when it discussed with employees the likelihood of its adopting a severance package, with the purpose of helping employees make informed choices about their plan options). However, a person who makes a business decision, such as reducing the amount of unaccrued plan benefits or terminating a pension plan, that happens to have a collateral effect on employee benefits does not act in a fiduciary capacity. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 718 (6th Cir. 2000); Berlin, 858 F.2d at 1163. Likewise, “purely ministerial functions such as processing claims, applying plan eligibility rules, communicating -with employees, and- calculating -benefits,” are not fiduciary functions. Pipefitters Local 636 v. Blue Cross & Blue Shield of Mich., 213 Fed.Appx. 473, 477 (6th Cir. 2007) (quoting Baxter v. C.A. Muer Corp., 941 F.2d 451, 455 (6th Cir. 1991)).

In response to a direct inquiry from Deschamps, Bridgestone, through its agents Russell and Ruccio, confirmed that Deschamps’s service date would be August 8, 1983, allowing him to receive pension credit for his years of employment at Bridgestone. This act was a discretionary one within the meaning of ERISA because it involved conveying information about the Plan’s terms and the likely benefits that Deschamps would receive in the future, thus purportedly allowing him to make an informed choice about his continued participation' in the Plan. Thus, Bridgestone acted as a fiduciary.

i.

That Bridgestone acted in a fiduciary capacity does not end our inquiry because a corporation does not act on its own, but through its agents. The district court determined that those making misrepresentations to Deschamps concerning his pension benefits had apparent authority, but Bridgestone seemingly disputes the applicability of the principles of apparent authority to the facts of this case.

We have applied agency principles, including those related to apparent authority, in resolving claims under ERISA. In Richards v. Gen. Motors Corp., for instance, the plaintiff was discharged after improperly “back-dat[ing] quarterly stock transfers and purchases under GM’s employee savings plan.” 991 F.2d 1227, 1229 (6th Cir. 1993). He alleged, however, that the plan administrator authorized him to use this procedure. Id. at 1229, -1232. We turned to agency law to determine whether the administrator, who was not in fact authorized, acted with apparent authority such that the employer would nevertheless be’liable for his actions. Id. at 1232;' see also James, 305 F.3d at 455-56 (concluding that the‘employer breached its fiduciary duties when its human resources representative and plant manager made material misrepresentations to employees concerning their retirement benefits); Anderson v. Int’l Union, United Plant Guard Workers of Am., 150 F.3d 590, 592-93 (6th Cir. 1998) (applying agency principles to an ERISA claim). Several of our sister circuits have also looked to agency law in resolving ERISA claims. See, e.g., Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591 (7th Cir. 2000) (“[I]f the written materials [are] inadequate, then the fiduciaries themselves must be held responsible for the failure to provide complete and correct material information in the event that a nonfiduciary agent provides misleading information.” (second alteration in original) (emphasis added) (citation omitted)); Taylor v. Peoples Nat. Gas Co., 49 F.3d 982, 988 (3d Cir. 1995) (“[A] plan administrator violates its ‘fiduciary obligations owed to the plan participants’ when ‘those employees on whom plan participants reasonably rely for important information and guidance about retirement’ make material misstatements regarding possible changes to a company’s pension plan.” (citation omitted)); Kral, Inc. v. Sw. Life Ins. Co., 999 F.2d 101, 103-05 (5th Cir. 1993) (turning to agency law to determine whether the employer clothed the agent with apparent authority so as to make the employer liable for the agent’s actions). Accordingly, the district court did not err in considering the agency principle of apparent authority.

Apparent authority exists when (1) the principal manifests that another is the principal’s agent, and (2) it is reasonable for a third person dealing with the agent to believe' the agent is authorized to act for the principal. Anderson, 150 F.3d at 593. Ruccio and Russell were both actively involved in attempting to verify Des-champs’s pension credits. Ruccio was the manager of the Wilson plant, authorized to oversee a $300 million budget as well as a 2,000-employee workforce. In Russell’s capacity as a human resources manager, he was authorized to. discuss terms and conditions of candidates for employment at the Wilson plant. Bridgestone clothed these two members of management -with extensive authority over hiring, including the discussion of terms and conditions of employment. It was reasonable for Des-champs to believe they had authority to make these representations regarding his pension benefits as underscored by the fact that Deschamps was aware that the interviewers took the time to verify this information with corporate-level employees.

In sum, Bridgestone acted as a fiduciary when it, through its agents with apparent authority, misrepresented to Deschamps the status of his pension benefits.

B.

, For, the reasons discussed above, Des-champs reasonably relied on Bridgestone’s misrepresentations to his detriment. And because Bridgestone acted in its fiduciary capacity in misrepresenting Deschamps’s pension benefits, the district court did not err in granting summary judgment for Deschamps on his breach of fiduciary duty claim.

V.

Finally, we examine Deschamps’s anti-cutback claim. Bridgestone argues that the district court erroneously presumed that Bridgestone previously interpreted the Plan to classify Deschamps as a covered employee. But, reasons Bridge-stone, that conclusion is belied by the rec* ord because Phillips, who served on the pension board, testified that to be a covered' employee, an employee has to be classified as a “United States salaried employee” and Deschamps is not. Thus, it concludes, there is no accrued benefit to be decreased; Bridgestone merely corrected a clerical error.

ERISA prohibits plan amendments .that decrease a participant’s accrued benefits, with two exceptions that do not apply here. 29 U.S.C. § 1054(g). At issue is whether we look to the text of the Plan or the administrator’s interpretation of the Plan in determining if Deschamps. accrued a benefit prior to 1993. The circular definition of accrued benefit—“the individual’s accrued benefit determined under the plan,” 29 U.S.C. § 1002(23)(A)—is not particularly helpful to this analysis. Faced with the lack of guidance from ERISA on the issue, the Supreme Court in Cent. Laborers’ Pension Fund v. Heinz, looked to the “terms” of the plan under which the plaintiff accrued benefits, concluding that the “change of terms” reduced his promised benefits and that the plaintiff acted “reasonably] if he relied on those terms in planning his retirement.” 541 U.S. 739, 744-45, 124 S.Ct. 2230, 159 L.Ed.2d 46 (2004) (emphasis added). In the same vein, we postulated that rather than give a comprehensive definition of “accrued benefits,” Congress chose to leave the responsibility of delineating the. bounds of the term to “the employer and the employee through the agreed-upon terms of the plan document.” Thornton v. Graphic Commc’n Conference of the Int’l Bhd of Teamsters Supplemental Ret. & Disability Fund, 566 F.3d 597, 608 (6th Cir. 2009) (emphasis added). We also reasoned that “Congress’s stated motivations for enacting ERISA, particularly the anti-cutback rule, corroborate our conclusion that what amounts to an ‘accrued benefit’ depends strictly on the terms of the pension plan(s) in effect while the employee was engaged in covered employment.” Id. at 606 (emphasis added). Consequently, we must look to the terms of the Plan in ascertaining which, if any, benefits Deschamps accrued prior to the amendment.

The cases relied on by Bridgestone do nothing to bolster its suggestion that Des-champs can accrue benefits under the Plan only if it is interpreted by a Plan administrator to allow for such benefits; in fact, they undermine its argument. For instance, in Hunter, to determine whether plaintiffs had a right to a lump sum distribution of their accounts under their pre-amendment ERISA plans, we looked to rules of contract interpretation. 220 F.3d at 712. We discussed, at length, the relevant provisions of the plan in reaching our conclusion that the plaintiffs’ anti-cutback claim failed. Id. 712-17. In another case Bridgestone relies on, the plaintiffs, at the time the defendant announced a new interpretation of the plan, were “being paid pension benefits in accordance with the Plan as it was construed at the time of his or her retirement.” Redd v. Bhd. of Maint. of Way Emps. Div. of Int’l Bhd. of Teamsters, No. 08-11457, 2010 WL 1286653, at *8 (E.D. Mich. Mar. 31, 2010). The court held that a plan administrator’s “reinterpretation” of the plan constitutes an amendment for purposes of the anti-cutback rule to the same extent that a customary amendment would. Id. This is far from holding that we should look only to a plan administrator’s post-hoc interpretation of whether a participant accrued benefits under the pre-amendment plan. To be sure, Redd further concluded that to succeed on a claim, plaintiffs must establish that the benefits they received prior to the amendment were based on a “tenable” or “permissible reading of the terms of the Plan.” Id. at *9-10. Based on the foregoing, rather than solely relying on Phillips’s current interpretation, we will look to the text of the Plan to decide whether the interpretation that Deschamps accrued benefits as a covered employee prior to 1993 is plausible.

As discussed above, the text of the Plan is at worst ambiguous, but at best, favors Deschamps’s argument that he was a covered employee in 1983 under the classification of “supervisor.” It is not untenable that Deschamps, in his capacity as a maintenance manager, was a supervisor under the language of the Plan. Further, it is undisputed that as a result of the change in the interpretation of this provision that excluded foreign employees from being classified as covered employees, Des-champs’s benefits were decreased. Therefore, Deschamps has established an anti-cutback violation and the district court did not err in granting summary judgment in his favor on this claim.

VI.

We affirm the grant of summary judgment in Deschamps’s favor on his equitable estoppel, breach of fiduciary duty, and anti-cutback claims, and remand for further proceedings as may be appropriate.

      . Deschamps also sought reformation of the Plan. Reformation is not an issue on appeal.

      , Bridgestone acquired Firestone in 1988.

      .Ruccio was deceased at the time of this litigation.

      . Bridgestone repeatedly insists that there are material disputed facts, but simply points to undisputed facts and disputes whether application of these facts supports Deschamps’s claims. See, e.g., Reply Br. 5, R. 21 ("These uncontested facts at the very least create a material dispute of fact as to whether Des-champs suffered any detriment....”) (first emphasis added).) This is insufficient to preclude a grant of summary judgment in Des-champs’s favor. The material facts here are not in dispute.

      . Black's Law Dictionary, for example, defines "manager” as "[s]omeone who administers or supervises the affairs of a business, -' office, or other organization,” Manager, Black’s Law Dictionary (10th ed. 2014) (emphasis added). It defines “supervisor" as “[o]ne having authority over others; a manager or overseer.” Supewisor, Black’s Law Dictionary (10th ed. 2014) (emphasis added).

      . Bridgestone’s argument that we must consider whether it was actually aware, (Reply Br. at 7-8), is invalid in light of the fact that this element has been interpreted broadly to allow for relief when plaintiffs show mere gross negligence.

      .Bridgestone does not cite any law for the proposition that authority, is required, but to the extent it is, for the reasons discussed below, those making the misrepresentations to Deschamps had apparent authority to do so.

      . Bridgestone, not any individual employee, is named in the complaint, so our inquiry is whether Bridgestone acted as a fiduciary.

      ; It is well established that misrepresenting a participant’s pension benefits breaches a fiduciary duty, and Bridgestone does not argue to the contrary. See, e.g., Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir. 1988).

      . The definition of "fiduciary” refers to a "person,” but "person” is defined to include a corporation. 29 U.S.C. §§ 1002(9), (21)(A).