FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ESTATE OF BRUCE H. BARTON,*                        No. 13-56379
                Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           2:12-cv-06971-
                                                      BRO-CW
 ADT SECURITY SERVICES PENSION
 PLAN, a pension plan; TYCO
 INTERNATIONAL MANAGEMENT                             OPINION
 COMPANY, as plan sponsor; TYCO
 INTERNATIONAL MANAGEMENT
 COMPANY, LLC, Administrative
 Committee,
               Defendants-Appellees.


       Appeal from the United States District Court
           for the Central District of California
     Beverly Reid O’Connell, District Judge, Presiding

                   Argued and Submitted
           October 23, 2015—Pasadena, California

                       Filed April 21, 2016

    Before: Alex Kozinski, Sandra S. Ikuta, and John B.
                  Owens, Circuit Judges.


   *
     The Estate of Bruce H. Barton is substituted as Plaintiff-Appellant
pursuant to Fed. R. App. P. 43(a).
2                  ESTATE OF BARTON V. ADT

                    Opinion by Judge Owens;
                     Dissent by Judge Ikuta


                           SUMMARY**


        Employee Retirement Income Security Act

    The panel reversed the district court’s judgment after a
bench trial in favor of the defendants in an action under the
Employee Retirement Income Security Act, challenging a
denial of pension benefits on the basis that the plaintiff did
not have sufficient years of service with an employer or its
affiliates.

    The panel held that the burden of proving entitlement to
benefits was not properly placed on the plaintiff because the
defendants were in a better position to ascertain whether an
entity was a participating employer in the ERISA plan. The
panel held that when a claimant has made a prima facie case
that he is entitled to a pension benefit but lacks access to the
key information about corporate structures or hours worked
needed to substantiate his claim, and the defendant controls
such information, the burden shifts to the defendant to
produce this information. The panel remanded the case to the
district court to apply the correct burden of proof.

    Dissenting, Judge Ikuta wrote that the majority’s burden-
shifting rule was contrary to the abuse of discretion review
applicable to the plaintiff’s claim.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 ESTATE OF BARTON V. ADT                       3

                         COUNSEL

Morris S. Getzels (argued), Morris S. Getzels Law Office,
Tarzana, California, for Plaintiff-Appellant.

Stuart D. Tochner (argued), Ogletree, Deakins, Nash, Smoak
& Stewart, P.C., Los Angeles, California, for Defendants-
Appellees.


                          OPINION

OWENS, Circuit Judge:

    Bruce Barton appeals from the district court’s judgment
concluding that the ADT Security Services Pension Plan
Administrator did not abuse its discretion in denying Barton’s
request for pension benefits. Because the district court did
not have the benefit of our analysis regarding the burden of
proof in a case such as this, we reverse and remand for
proceedings consistent with this opinion.

                       I. BACKGROUND

    A. Barton’s Employment History

    The parties dispute Bruce Barton’s employment history
with the American District Telegraph Company (ADT)
and/or its affiliates (ADT-related entities). Barton asserts that
he worked for ADT from November 1967 until he resigned
in September 1986. The parties agree that he also worked for
4                  ESTATE OF BARTON V. ADT

a moving company for a short period in 1968 and served in
the Marine Reserves from 1965–1971.1

    The three named defendants in this case—ADT Security
Services Pension Plan (pension plan), Tyco International
Management Company (plan sponsor), and Tyco
International Management Company, LLC Administrative
Committee (plan administrator)—maintain that they have
access to the pension records passed on by ADT, Inc., which
Tyco acquired in 1997.

        B. Relevant Pension Plans

    Because Barton’s employment spanned eighteen years,
two different plans govern his eligibility for a pension
benefit: the plan in effect January 1, 1968 (1968 Plan) and the
plan in effect January 1, 1985 (1985 Plan). Under the terms
of the 1985 Plan, the 1968 Plan governs Barton’s service
through December 31, 1975, and the 1985 Plan governs his
service as of January 1, 1976. Barton maintains that his right
to a pension vested because, although he stopped working
before normal retirement age, he completed at least ten years
of “continuous service” with the company.

   The 1985 Plan defines “Company” as “American District
Telegraph Company and such of its Affiliated Companies as

    1
   Contrary to the dissent’s characterization of Barton’s “sporadic” work
history, Barton’s FICA records indicate that he received consistent wages
from an ADT-related entity from the fourth quarter of 1967 through his
resignation in 1986. See Dissent at 24. Through 1971, he received
additional wages from his service in the Marine Reserves. Also while
employed at an ADT-related entity, in the fourth quarter of 1968 he
worked briefly for a moving company to earn $162.72 in extra “Christmas
money.”
                ESTATE OF BARTON V. ADT                      5

have adopted the Plan and have been admitted to participation
therein by the Board or any one or more of them, and any
corporation succeeding to the rights and assuming the
obligations of any such company.” An “Affiliated Company”
is “a company which is a member of a controlled group of
corporations of which the American District Telegraph
Company is also a member.” The 1968 Plan defines
“Company” as the “American District Telegraph Company
and those controlled companies authorized by the Board of
Directors to participate in the Plan.”

    The 1985 Plan defines “Continuous Service” as follows.
For employment through December 31, 1975, “Continuous
Service shall be that service determined under the terms of
the Plan as it was constituted on December 31, 1975.” After
January 1, 1976, “[o]ne year of Continuous Service shall be
recorded for any Plan Year during which an Employee has
1,000 or more Hours of Service.” A plan year in which an
employee works 500 hours or less is considered a “break in
service.” Additionally, to the extent required by ERISA or
determined by the Board of Directors, if an employee
transfers to a participating company from an affiliated
company after January 1, 1976, he will receive credit for his
continuous service to that affiliate prior to 1976, even if the
affiliate had not adopted the Plan.

   The 1968 Plan does not define “continuous employment,”
save for the following provision regarding absence without
pay:

       Any absence from the service without pay . . .
       shall be considered as a break in the
       continuity of service, and persons re-
       employed after such a break shall be
6               ESTATE OF BARTON V. ADT

       considered as new employees and the term of
       employment reckoned from the date of such
       re-employment; except that any such person
       reemployed for at least ten continuous years
       after such a break shall have his term of
       employment reckoned from the date of his
       initial employment less the entire period of
       such break.

    C. Barton’s Request for Pension Benefits

     In 2010, Barton reached age sixty-five and contacted the
pension record keeper about benefits. A December 13, 2010
letter from a pension benefit administrator in response stated
that the administrator “could not find any information on
[Barton’s] employment with ADT Security Services, Inc.,”
and enclosed instructions for navigating the pension claim
procedure. Barton then provided documentation regarding
his employment with ADT-related entities. In a June 24,
2011 letter, the pension record keeper said the documents
Barton had sent failed to establish that he had a vested
pension, and that if Barton had additional documentation—
for example, a letter of vested benefits—he could file a claim
with the Employee Benefits Committee. In response to a
telephone inquiry, Barton was again informed that he was
ineligible for a pension benefit.

    Barton filed a claim with the Committee on October 3,
2011. He stated that two former colleagues from the ADT
office in Portland, Maine had provided similar documentation
and received ADT pensions. He included copies of
correspondence from the pension record keeper and the
following documents:
                  ESTATE OF BARTON V. ADT                            7

    •   November 11, 1977 letter from R.B. Carey, Jr.,
        President of ADT, on ADT letterhead listing an
        address of One World Trade Center, Suite 9200, NY,
        NY, addressed to “Mr. B. N. Barton, American
        District Telegraph Company” at the same World
        Trade Center address and suite.           The letter
        congratulates Barton on his completion, on November
        13, 1977, of ten years of service as a “member of the
        ADT organization.”

    •   Copies of key cards and identification/business cards
        issued by “ADT.”

    •   W-2 statements from 1980–1983 and 1986, listing
        employer as “American District Telegraph Co.” at
        1 World Trade Center, NY, NY and showing an X
        marking the “Pension Plan” box.

    •   Pay stubs from 1981 and 1985 listing “American
        District Telegraph” at the bottom.

    •   Personnel Data Maintenance forms from 1984, 1985,
        and 1986 listing Barton’s current annual salary, raise,
        and new annual salary.

    •   Social Security Administration documentation
        summarizing Federal Insurance Contributions Act
        (FICA) withholding from 1968–1980.2




 2
   Barton provided more detailed FICA records during his administrative
appeal.
8               ESTATE OF BARTON V. ADT

    D. Committee’s Denial of Barton’s Claim

   The Committee denied Barton’s claim on January 10,
2012. It reported that it had reviewed the documents listed
above as well as the following documents that Barton had
provided earlier:

    •   Barton’s September 11, 1986 resignation letter on
        ADT letterhead.

    •   September 12, 1986 Memorandum on ADT letterhead
        confirming receipt of a credit card, tools, and
        company truck.

    •   Barton’s September 12, 1986 Exit Interview
        Questionnaire that listed a November 10, 1967 date of
        employment.

    •   Handwritten telephone conversation record describing
        Barton’s July 6, 2011 call to the pension record
        keeper.

   The Committee detailed the relevant plan provisions and
wrote:

        [T]here are no Plan records indicating your
        eligibility for participation in the Plan, your
        actual participation in the Plan, or your
        eligibility for benefits under the Plan. In
        addition, it was unclear from the information
        you provided whether you had a continuous
        term of employment or earned the required
        service to earn at least 10 Years of Continuous
        Service so as to be vested in a Plan benefit.
                 ESTATE OF BARTON V. ADT                       9

The Committee further explained that it was “not clear based
on the information” that Barton provided that he met the
terms of continuous employment. In particular, the
Committee noted that the FICA records and W-2s did not
cover each year of claimed employment, and that some
documents lacked identifying information. Such information
“did not override or contradict the Plan records.” The letter
detailed the appeals procedure and suggested Barton could
“supply copies of any further evidence . . . that would indicate
that [he is] entitled to a Plan benefit, such as certified Social
Security records for the entire period of time from 1967
through 1986 or a pension benefit statement or written
evidence that [he was] eligible to receive a Plan benefit.”

     On January 19, 2012, Barton responded and requested
copies of “all plan documents, records and other information
affecting the claim per your document concerning Applying
for Benefits and Claim and Appeal Procedures.” He
specifically requested a Tyco International Summary Plan
Description booklet, the Committee’s copy of the Social
Security records, an example of a pension benefit statement
and written evidence statement, and “application forms that
should have been provided by the service center.” The
Committee responded by letter and enclosed a memorandum
prepared by outside counsel summarizing key provisions of
the 1968 and 1985 Plans, and the full text of the Plans.
Nothing in the record indicates that the Committee included
the full 1983 Summary Plan Description (SPD) (referenced
in the memorandum drafted by outside counsel) or exemplars
of a pension benefit statement or “written evidence
statement” as Barton requested.
10               ESTATE OF BARTON V. ADT

     E. Barton’s Appeal of the Committee’s Denial

   Barton appealed the Committee’s denial on April 29,
2012. He presented additional FICA records, broken down
quarterly from 1967–1977 when he was an hourly employee
and annually from 1978–1986 when he was a salaried
employee.

    The Committee denied Barton’s appeal on June 29, 2012.
The Committee again noted there was no official record of
Barton’s participation in the Plan and that the documentation
he submitted “was insufficient to override the Plan records.”
As with the initial denial, the appeal notice stated that “[i]t is
not clear based on the information you provided that you
were continuously employed with American District
Telegraph Company.” The Committee also noted that the
FICA records revealed that Barton had worked for companies
in addition to ADT, which “could indicate that [he] did not
have a continuous term of employment.” (emphasis added).
In other words, because Barton could not document that he
worked 1000 hours or more for each of the nearly twenty
years he was employed by ADT and its affiliates, or that his
employers participated in the Plans, he could not prove he
was entitled to a pension.

     F. Procedural History

    On August 13, 2012, Barton filed suit in the Central
District of California pursuant to the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132. He
sought (1) declaratory relief that he was entitled to a pension;
(2) pension benefits based on his employment with ADT;
and (3) recovery of statutory penalties under 29 U.S.C.
                 ESTATE OF BARTON V. ADT                       11

§ 1132(c)(1) based on the pension administrator’s failure to
comply with ERISA’s disclosure obligations.

    After a bench trial, the district court issued its Findings of
Fact and Conclusions of Law on July 19, 2013. It held that
the applicable standard of review was abuse of discretion and
that the Committee did not abuse its discretion in denying
Barton pension benefits. It declined to award Barton
statutory penalties, holding that he lacked standing to assert
a violation of ERISA’s disclosure requirements because he
did not have a colorable claim to pension benefits. Barton
timely appealed.

                       II. ANALYSIS

    A. Standard of Review

    “We review de novo a district court’s choice and
application of the standard of review to decisions by
fiduciaries in ERISA cases. We review for clear error the
underlying findings of fact.” Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc) (citation
omitted). We also review de novo a district court’s allocation
of the burden of proof. See Molski v. Foley Estates Vineyard
& Winery, LLC, 531 F.3d 1043, 1046 (9th Cir. 2008) (citing
Ferrari, Alvarez, Olsen & Ottoboni v. Home Ins. Co.,
940 F.2d 550, 555 (9th Cir. 1991)).

    B. Burden of Proof

    The district court faithfully applied our precedent in
reviewing the Committee’s denial of benefits for abuse of
discretion. See Abatie, 458 F.3d at 963 (citing Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). But
12                 ESTATE OF BARTON V. ADT

because the district court incorrectly placed the burden of
proof on Barton for matters within defendants’ control, we
remand to the district court in light of this opinion. We
express no view on Barton’s eligibility for pension benefits.3

    A claimant may bear the burden of proving entitlement to
ERISA benefits. See, e.g., Muniz v. Amec Constr. Mgmt.,
Inc., 623 F.3d 1290, 1294–95 (9th Cir. 2010) (holding that
where a court reviews a plan administrator’s decision de
novo, the claimant has the burden of proof). This rule makes
sense in cases where the claimant has better—or at least
equal—access to the evidence needed to prove entitlement.
For example, where an employee must establish an illness to
qualify for disability benefits, the burden lies most sensibly
with the claimant, who can provide test results, physician
reports, and other evidence about her condition. See, e.g., id.
at 1298 (holding that the claimant failed to establish he was
“totally disabled” within the meaning of a long-term
disability insurance plan). But in other contexts, the
defending entity solely controls the information that
determines entitlement, leaving the claimant with no
meaningful way to meet his burden of proof. This is one of
those cases.



  3
    Although not central to our resolution of this case, we note that on
remand, the district court also may wish to consider whether defendants
met the standard of meaningful dialogue in the administrative claims
process, including whether the Committee’s denial letters dated January
10, 2012 and June 29, 2012 were written in common-sense language that
a lay person could understand or respond to, and whether the Committee
sought the information it needed to make a reasoned decision. See Booton
v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997); see
also Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d
863, 870–74 (9th Cir. 2008).
                   ESTATE OF BARTON V. ADT                            13

    The district court placed the burden of proof on Barton to
establish that his various ADT-related employers participated
in defendants’ Plan, and that he worked the requisite hours
per year. There are two problems with this approach. First,
defendants are in a far better position to ascertain whether an
entity was a participating employer. After all, they determine
which employers participate in the plan. Indeed, both Plans
state that affiliates or controlled companies may only
participate if the company’s Board of Directors authorizes
them to do so. Yet defendants asserted in the district court
that they “have no records indicating whether the entities
[identified as Barton’s employers in the Social Security
records] were Participating Subsidiaries in the Plan at any
time.” If Barton has made a prima facie case that he is
eligible for a pension, his claim does not fail simply because
he cannot initially prove whether defendants’ Board of
Directors authorized his employers to participate in the Plans.
Defendants never explain how the long-retired Barton could
possibly answer this question if even they have no relevant
records, particularly when, during his many years of
employment, the corporate sub-entities were not evident from
the company materials provided to Barton.4 It is illogical and
unfair for us to require Barton to close this gap, and the
dissent points to nothing in ERISA that supports such a
Kafkaesque regime where corporate restructuring can license
a plan administrator to throw up his hands and say “not my
problem.”



  4
    Defendants argue that the absence of recorded service by Barton in
their records proves that he did not work for a participating employer and
is not entitled to a pension benefit. But they fail to explain why they
cannot identify which affiliated companies they approved to participate in
their Plans, nor how Barton could obtain such information.
14              ESTATE OF BARTON V. ADT

    It should not greatly burden an ERISA-compliant entity
to determine what companies were authorized as
“participating employers,” so the entity, not the claimant,
should bear the risk of insufficient records. See, e.g.,
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946) (“When the employer has kept proper and accurate
records the employee may easily discharge his burden by
securing the production of those records. But where the
employer’s records are inaccurate or inadequate and the
employee cannot offer convincing substitutes a more difficult
problem arises.”). As we explained in Brick Masons Pension
Trust v. Industrial Fence & Supply, Inc.:

       The records that employers are required to
       keep by the FLSA [Fair Labor Standards Act]
       and by ERISA may be the only evidence
       available to employees to prove that their
       employers have failed to compensate them in
       accordance with the statute. An employer
       cannot escape liability for his failure to pay
       his employees the wages and benefits due to
       them under the law by hiding behind his
       failure to keep records as statutorily required.

839 F.2d 1333, 1338 (9th Cir. 1988).

    This shift also follows naturally from ERISA’s disclosure
requirements. Section 502(c)(1) provides for the imposition
of penalties on a plan administrator who has not complied
with disclosure requirements. 29 U.S.C. § 1132(c)(1). One
such requirement, section 104(b)(4), mandates supplying
participants with certain plan information, such as the
summary plan description, annual report, or “other
instruments under which the plan is established or operated.”
                   ESTATE OF BARTON V. ADT                            15

29 U.S.C. § 1024(b)(4). These disclosure requirements and
the corresponding penalties function to ensure that an
individual is duly informed of basic information relating to
his pension plan:

         As the legislative history bears out, the
         documents contemplated by § 104(b)(4) are
         those that allow “the individual participant
         [to] know [ ] exactly where he stands with
         respect to the plan—what benefits he may be
         entitled to, what circumstances may preclude
         him from obtaining benefits, what procedures
         he must follow to obtain benefits, and who are
         the persons to whom the management and
         investment of his plan funds have been
         entrusted.”

Hughes Salaried Retirees Action Comm. v. Adm’r of Hughes
Non-Bargaining Ret. Plan, 72 F.3d 686, 690 (9th Cir. 1995)
(en banc) (quoting S. Rep. No. 127, 93d Cong., 2d Sess.
(1974), reprinted in 1974 U.S.C.C.A.N. 4838, 4863).5

    It follows that if Barton has made a prima facie case that
he is entitled to pension benefits, it is properly defendants’
burden to clarify what entities are covered under the Plans in
the first instance. Employers, plans, and plan administrators
must know the terms and conditions of the benefits they offer


 5
    Section 104(b) illustrates ERISA’s underlying policies of “promoting
informed financial decision making” and “protecting the reliance interests
of plan participants and beneficiaries.” Peter Joseph Wiedenbeck, ERISA
in the Courts 17 (Federal Judicial Center 2008). We do not address
whether the plan administrator here failed to comply with the specific
disclosure requirements of section 104(b).
16                   ESTATE OF BARTON V. ADT

and be able to identify covered employers and participating
employees.6 Cf. Cent. States, Se. & Sw. Areas Pension Fund
v. Cent. Transp., Inc., 472 U.S. 559, 572 (1985) (“[ERISA’s]
reporting and disclosure standards require benefit plans to
furnish all participants with various documents informing
them of their rights and obligations under the plan . . . a task
that would certainly include the duty of determining who is
in fact a plan participant.” (citation omitted)).

   Additionally, the district court faulted Barton for not
proving that he worked over 1000 hours a year for the twenty
years he was employed by ADT or its affiliates. But
requiring Barton to prove his hours over the course of two


  6
    Defendants cite several cases to argue that Barton has the burden “to
provide the Committee with information sufficient to show an entitlement
to a benefit under the plan.” These cases are inapposite. In Mitchell v.
Eastman Kodak Co., 113 F.3d 433, 439 (3d Cir. 1997), the plan itself
allocated the burden to the claimants. Defendants assert for the first time
in their supplemental briefing that the 1985 Plan similarly allocates the
burden of proof to the claimant. Their argument is based solely on
language contained in an informational document entitled “Applying for
Benefits and Claim and Appeal Procedures.” While it is not clear from
the record whether this document provides terms of the 1985 Plan, it is
clear that defendants waived this argument when they failed to raise it in
their answering brief. See, e.g., United States v. McEnry, 659 F.3d 893,
902 (9th Cir. 2011) (holding an argument waived when available at the
time an answering brief is filed but not raised in it). In the other cases, the
district court found that the plaintiffs bore the burden of providing
evidence of a personal medical problem—information within their
possession—to claim disability benefits. See Schwartz v. Metro. Life Ins.
Co., 463 F. Supp. 2d 971, 982 (D. Ariz. 2006); Jordan v. Northrop
Grumman Corp. Welfare Benefit Plan, 63 F. Supp. 2d 1145, 1157 (C.D.
Cal. 1999), aff’d, 370 F.3d 869 (9th Cir. 2004) (holding that it was not
improper to place the initial burden on the claimant where the insurance
company informed her of the information it needed and advised her to call
them if she had questions).
                ESTATE OF BARTON V. ADT                      17

decades is unreasonable and inconsistent with the goals of
ERISA. That is especially so where, as here, nothing
indicates that Barton was warned at the start of his career that
he needed to retain a log of his hours to obtain pension
benefits a generation or two later. We have previously
shifted the burden of proving the number of hours an
employee works where the calculation of damages is
uncertain due to defendants’ failure to keep statutorily
required records. Brick Masons, 839 F.2d at 1337–39.

    We find the reasoning of Brick Masons persuasive in this
context. Brick Masons involved two wholly owned
subsidiaries of one parent company. Id. at 1335. One,
Industrial, had a collective bargaining agreement requiring it
to contribute to the union’s fringe benefit trust funds (Trust)
based on hours that union employees worked. Id. The other,
Harris, was non-union. Id. The Trust sued to recover
contributions for hours that Harris masons had worked on
Industrial jobs. Id. It was undisputed that non-union masons
had performed work for Industrial, but the Trust could not
prove the exact number of hours because Industrial had failed
to maintain certain records required under ERISA. Id. at
1337–38. This court held that “once the Trust Funds proved
the fact of damage and Industrial’s failure to keep adequate
records, the burden shifted to Industrial to come forward with
evidence of the extent of covered work performed by the 35
Harris employees.” Id. at 1338–39. Industrial could not do
so, and consequently was required to pay contributions for all
hours that non-union masons worked during the time period
where they were shown to have performed some covered
work. Id. at 1339.

    The Brick Masons court also found support in Anderson
v. Mt. Clemens Pottery Co. There, the Supreme Court held
18                 ESTATE OF BARTON V. ADT

that where an employer fails to keep adequate records of
hours worked as required by FLSA, the employee carries his
burden of establishing damages “if he proves that he has in
fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show
the amount and extent of that work as a matter of just and
reasonable inference.” 328 U.S. at 687. The Court reasoned
that, where it was the employer’s duty to keep the relevant
records, the employer could not complain that the related
damages were inexact. Id. at 688.

    Accordingly, we hold that where a claimant has made a
prima facie case that he is entitled to a pension benefit but
lacks access to the key information about corporate structure
or hours worked needed to substantiate his claim and the
defendant controls such information, the burden shifts to the
defendant to produce this information.7 Assuming that
Barton can establish a prima facie case on remand, defendants
will then bear the burden of production as to whether he
worked sufficient hours for a participating employer to
collect a pension.

    We recognize that fiduciaries of a defined benefit pension
plan have a duty to protect the pooled funds and distribute
benefits only to those who qualify. See, e.g., Boyd v. Bert
Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173,
1178 (9th Cir. 2005) (“An ERISA fiduciary is ‘obligated to
guard the assets of the [Plan] from improper claims, as well


 7
   This does not require defendants to produce records listing entities not
covered by their pension plans. Cf. Dissent at 25–26, 27. It requires only
that they reveal which companies did in fact participate in their
plans—information they must know to fulfill their fiduciary duty to only
distribute pension funds to qualified individuals.
                 ESTATE OF BARTON V. ADT                     19

as to pay legitimate claims.’” (alteration in original) (quoting
Brogan v. Holland, 105 F.3d 158, 164 (4th Cir. 1997))). We
do not suggest that anyone can force a company to produce
this corporate information by merely asserting that he is owed
a pension—a plaintiff must put forth objective proof. See,
e.g., Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th
Cir. 2015) (“[A] self-serving declaration does not always
create a genuine issue of fact for summary judgement: The
district court can disregard a self-serving declaration that
states only conclusions and not facts that would be admissible
evidence.”).

    Where a claimant, through documentary or other
objective evidence, has made a prima facie case that he is
entitled to a pension but has no means except for information
in the defendant’s control to establish that his work was for
a “covered employer” and of sufficient duration, the burden
then shifts to the defendant to produce such information. A
plaintiff claiming pension benefits will often have access to
at least some objective documentation of prior
employment—such as Social Security records, W-2
statements, income tax returns, and pay stubs—to make his
prima facie case. Cf. Motion Picture Indus. Pension &
Health Plans v. N.T. Audio Visual Supply, Inc., 259 F.3d
1063, 1066–67 (9th Cir. 2001) (holding that the burden does
not shift under Brick Masons where the plaintiff did not
produce sufficient evidence to meet the required threshold
showing).

    We leave it to the district court to determine in the first
instance whether Barton has established a prima facie case.
In doing so, it can consider the evidence available at trial,
such as Barton’s Social Security records, W-2 statements, pay
20              ESTATE OF BARTON V. ADT

stubs with the pension box marked, and letter thanking him
for ten years of service.

     C. Statutory Penalties

    The district court correctly held that to recover statutory
penalties based on a plan administrator’s refusal to comply
with ERISA’s disclosure obligations, a plaintiff must qualify
as a plan participant. See 29 U.S.C. § 1132(c)(1). Thus, if
Barton does not set forth a colorable pension claim, he cannot
assert a violation of ERISA’s disclosure requirements. See
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). As
this issue turns on the ultimate merits of Barton’s claim for
pension benefits, we reverse the judgment for defendants.

                    III. CONCLUSION

    This case ultimately is about burdens—to qualify for his
pension, must a former employee who quit working for the
company more than twenty-five years ago decipher the
corporate structure of his former employer from documents
that were not disclosed to him? Should he have saved all of
his pay stubs in the off chance that his employer would
demand proof that he met the hours requirement for obtaining
a pension? Or should the corporate defendant bear this load?
ERISA, our precedent, and common sense dictate that the
corporate defendant should not lay that arduous task at the
feet of former employees. To hold otherwise would
essentially reward Lucy for pulling the football away from
Charlie Brown, something that we do not believe Congress
intended when it enacted ERISA. See It’s Your First Kiss,
Charlie Brown (CBS television broadcast Oct. 24, 1977).
                 ESTATE OF BARTON V. ADT                     21

   Accordingly, we REVERSE the judgment and
REMAND this matter to the district court so it can apply the
now-clarified burden of proof in this case.



IKUTA, Circuit Judge, dissenting:

    Today the majority goes off the rails. Its one-off burden-
shifting rule, apparently specially designed to let Barton win
on one element of his claim for benefits under an ERISA
plan, is not only contrary to the Supreme Court’s direction
that courts should not make “ad hoc exceptions” to the broad
abuse of discretion standard applicable in this context,
Conkright v. Frommert, 559 U.S. 506, 513 (2010), but it
also does damage to our precedent and basic principles
of ERISA law. Under the abuse of discretion review
applicable to Barton’s claim, Barton must show that the plan
administrator’s decision was “(1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record.” Salomaa v. Honda Long Term Disability
Plan, 642 F.3d 666, 676 (9th Cir. 2011). There is no other
burden of proof. And even when de novo review is
applicable, we have held that only the claimant—not the plan
administrator—has the burden of proof. Muniz v. Amec
Constr. Mgmt., Inc., 623 F.3d 1290, 1294–95 (9th Cir. 2010).
I dissent.

                               I

   Under our precedent, when a claimant challenges the
denial of benefits under 29 U.S.C. § 1132(a)(1) and the
ERISA plan at issue grants discretion to the plan
administrator, the district court conducts a bench trial to
22              ESTATE OF BARTON V. ADT

determine if the plan administrator abused its discretion.
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962–65
(2006). The scope of evidence considered at such a trial is
generally limited to the administrative record. Id. at 970
(“Today, we continue to recognize that, in general, a district
court may review only the administrative record when
considering whether the plan administrator abused its
discretion, but may admit additional evidence on de novo
review.”). There are exceptions to the rule, as when the
district court needs to consider extrinsic evidence to
determine how much weight to give to a claimed conflict of
interest on the part of a plan administrator, or when the
administrator failed to follow procedural requirements, id. at
970, 972–73, but the majority does not suggest that these
exceptions are applicable here.

    In reviewing the plan administrator’s decision in light of
the administrative record, a court may not “substitute [its]
view for that of the factfinder.” Salomaa, 642 F.3d at 676.
Rather, the scope of review is limited: the court may
consider only whether the plan administrator’s decision
was “(1) illogical, (2) implausible, or (3) without support
in inferences that may be drawn from the facts in the
record.” Id. This standard of review applies to the plan
administrator’s factual determinations as well as its ultimate
decision. Walker v. American Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1069–70 (9th Cir. 1999).
Under deferential review, a district court considers only
whether the claimant showed that the plan administrator’s
benefit decision was unreasonable, and the court must uphold
                   ESTATE OF BARTON V. ADT                             23

the decision so long as it is logical, plausible, and supported
by the record, id; there is no other burden of proof.1

    Only when a district court reviews a plan administrator’s
decision denying benefits under a de novo standard of review
does our precedent require a district court to impose the
proper burden of proof. Doing so makes sense in this
context: instead of deferring to the plan administrator’s
decision, the district court must evaluate the evidence de
novo, and therefore must determine which party has the
burden of establishing each fact required for eligibility under
an ERISA plan. Under such de novo review, the burden of
proof remains firmly on the claimant. Muniz, 623 F.3d at
1294–95 (“As concluded by other circuit courts which have
addressed the question, when the court reviews a plan
administrator’s decision under the de novo standard of
review, the burden of proof is placed on the claimant.”). And
we have rejected the argument that the claimant may shift the
burden of proof to the plan administrator. Id. (rejecting the
claimant’s argument that once he met the initial burden of
proving disability, the burden of proof shifts to the plan to
justify its decision to terminate benefits).

                                    II

     The district court correctly followed our precedent. It
first determined that the plan gave discretion to the
administrators. The majority concedes that determination


   1
      Different rules may apply when there is evidence that “a plan
administrator’s self-interest caused a breach of the administrator’s
fiduciary obligations to the claimant,” see Tremain v. Bell Indus., Inc.,
196 F.3d 970, 976 (9th Cir. 1999), but this case does not give rise to such
an issue, and the majority does not hold otherwise.
24              ESTATE OF BARTON V. ADT

was correct. Maj. op. at 11. It then reviewed the evidence of
conflict of interest and concluded that it would review the
plan administrator’s decisions with a low level of skepticism.
The majority does not say this was in error. Id. at 13.
Finally, the court determined that there were no procedural
irregularities present. Therefore, the district court correctly
limited its review to the administrative record.

    The plans at issue here require a claimant to establish,
among other things, that: (1) he worked for one or more
covered employers, as defined in the plans, (2) for a
continuous term of at least ten years. The evidence in the
administrative record showed that Barton was employed by
various ADT companies, as well as other companies, from
1967 to 1986, but did not show that he had continuous service
for ten years with any ADT company, nor that any of the
ADT companies were “covered” as required by the Plan.
Specifically, documents in the record showed that in 1967,
Barton started working at ADT of Maine. From 1967 to
1976, Barton received sporadic wages from ADT of
Massachusetts, Mittman Realty Co, Inc., Pentate Filtration,
Inc., the Marine Reserves, and Ginn-Marvin Moving &
Storage Co. In 1982 he started working for ADT Diversified
Service, Inc., in New Jersey, where he worked until 1985. In
1985, Barton worked for ADT of Illinois, where he stayed
until he resigned on September 11, 1986. His resignation
took effect on September 25, 1986.

    The administrative record also included evidence that the
plan administrator had a system to maintain and update
records regarding pension benefit eligibility for employees
and had an incentive for keeping accurate records. A
declaration from a member of the plan administration
committee stated that those records contained no evidence
                ESTATE OF BARTON V. ADT                     25

that Barton was a participant in the pension plan or that ADT
of Massachusetts or ADT of Maine were participating
employers. The declaration also set forth the committee’s
determination that Barton’s evidence was inconsistent with a
claim of continuous employment by a participating entity
with no break in service.

    Based on its review of the administrative record, the court
made the factual finding that Barton did not establish that he
had worked for a ten-year continuous period for a covered
employer. This factual finding is not clearly erroneous.
Accordingly, the court’s conclusion that the plan
administrator’s benefits denial was not illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record is correct.

     Indeed, there is no way to reach a different conclusion
under our precedent. Although in Salomaa we concluded that
a plan administrator’s decision to deny benefits was illogical,
implausible, and without support in the record where virtually
all the evidence in the record pointed in the other direction,
Salomaa, 642 F.3d at 676, the evidence here is more than
adequate to support the plan administrator’s decision. Nor
could we reverse the district court’s decision on the ground
that the plan administrator abused its discretion because it
knew or should have known of additional information that
would substantiate Barton’s claim. See, e.g., Hess v.
Hartford Life & Accident Ins. Co., 274 F.3d 456, 462–63 (7th
Cir. 2001). Even if we adopted such a standard, no one has
argued that the plan administrator is aware of evidence that
would identify Barton’s employers as “covered employers.”
Indeed, given ADT’s multiple acquisitions, mergers, and
divisions since 1986, it would be unsurprising if the plan
26                 ESTATE OF BARTON V. ADT

lacks records proving that certain ADT entities were not
covered during the period from 1967 to 1986.

    Nor did ADT have a legal duty to maintain such
information. As the majority implicitly acknowledges, no
ERISA provision requires a plan administrator to maintain a
record of covered companies. Maj. op. at 15 n.5. The
majority suggests that 29 U.S.C. § 1024(b)(4) illustrates the
recordkeeping and disclosure requirements imposed on a plan
administrator, Maj. op. at 14–16, but by its terms it does not
require a plan administrator to keep the sorts of records at
issue here.2 The administrative record shows that the plan
administrator provided the information required under
§ 1024(b)(4) to the extent Barton requested it and the
majority does not suggest otherwise, see Maj. op. at 15 n.5.

                                    III

    Rather than follow our ERISA precedent, which requires
us to affirm the district court, the majority abandons it
entirely.

    First, the majority invents a burden-of-proof standard
(along with a burden-shifting approach) that is in direct
conflict with our abuse of discretion standard. The majority
holds that: “Where a claimant, through documentary or other
objective evidence, has made a prima facie case that he is
entitled to a pension but has no means except for information


 2
    29 U.S.C. § 1024(b)(4) provides that “[t]he administrator shall, upon
written request of any participant or beneficiary, furnish a copy of the
latest updated summary, plan description, and the latest annual report, any
terminal report, the bargaining agreement, trust agreement, contract, or
other instruments under which the plan is established or operated.”
                   ESTATE OF BARTON V. ADT                             27

in the defendant’s control to establish that his work was for
a ‘covered employer’ and of sufficient duration, the burden
then shifts to the defendant to produce such information.”
Maj. op. at 19. Under this rule, if Barton has established a
“prima facie case that he is entitled to a pension” (and the
majority does not specify what this means), the burden shifts
to the plan administrator to prove that the claimant’s work
was not “for a covered employer.”3 If the plan administrator
does not have information relevant to the claimant’s work
history, this may mean (again, the majority is unclear) that the
claimant prevails, and the district court must invalidate the
plan administrator’s denial of benefits even if the plan
administrator’s decision was not illogical, implausible, or
without support in the record. This is directly contrary to our
deferential standard, Abatie, 458 F.3d at 965, and contrary to
the Supreme Court’s direction that courts should not make
“ad hoc exceptions” to the abuse of discretion standard,
Conkright, 559 U.S. at 513.

    Here, for instance, if the district court on remand
determined that Barton has made a “prima facie case that he
is entitled to a pension,” and the plan administrator cannot
introduce any extrinsic evidence establishing that ADT of
Massachusetts, ADT of Maine, or ADT of Illinois were not
“covered employers” as defined in the plans,4 the district


  3
    Of course, such a burden-shifting approach is contrary to our burden
of proof standard even under de novo review, see Muniz, 623 F.3d at
1294–95, let alone on abuse of discretion review, where the court does not
assign a burden of proof at all.
 4
   The majority’s burden-shifting rule presumably contemplates that the
plan administrator will have an opportunity to introduce extrinsic evidence
on this issue, which is also contrary to our precedent. Abatie, 458 F.3d at
970, 972–73.
28                 ESTATE OF BARTON V. ADT

court would have to credit Barton’s allegations that these
companies are covered employers, which could compel the
conclusion that Barton is entitled to benefits under the plan.5
But such a result would be directly contrary to our and
Supreme Court case law, see Conkright, 559 U.S. at 513;
Abatie, 458 F.3d at 965, because it would require the plan
administrator to provide benefits to Barton even though the
plan administrator did not abuse its discretion in determining
that Barton did not work for covered employers for ten years
of continuous service.

    The majority argues that its new burden-shifting rule does
not require the plan administrator to carry the burden of
producing “records listing entities not covered by their
pension plans,” but rather requires the plan administrator to
“reveal which companies did in fact participate in their
plans.” Maj. op. at 18 n.7. According to the majority, plan
administrators must know this information in order to “fulfill
their fiduciary duty to only distribute pension funds to
qualified individuals.” Id. But the plan administrator here
elected to fulfill its fiduciary duty by maintaining and
updating a record of past and present employees who are
entitled to pensions, rather than by listing covered companies.
The majority provides no explanation as to why this approach
breached the plan administrator’s fiduciary duty or what
authority required the plan administrator to maintain a



 5
   The majority is unclear whether a determination that some of Barton’s
former employers must be deemed to be “covered employers” under a
burden-shifting approach also compels the conclusion that Barton is per
se entitled to benefits. Since the plan requires Barton to have engaged in
ten years of continuous service with a covered employer, such a ruling
would directly contradict the terms of the plans.
                ESTATE OF BARTON V. ADT                     29

complete list of covered companies in order to comply with
the majority’s unprecedented new rule.

    Moreover, assuming that administrators of multi-
employer plans like this one (ADT instituted its first plan on
April 1, 1913) frequently lack information about which
historical companies are “covered” as defined in the plan, the
majority’s new rule does not just shift a burden, but as a
practical matter, could make the claimant eligible for benefits
whenever the historical information is scanty or unavailable.
Putting the “risk of insufficient records” on the ERISA plan,
as required by the majority, enhances the risk that uninsured
claimants will draw funds away from the legitimate
beneficiaries. That risk is in derogation of one of ERISA’s
core policies: to protect the “soundness and stability of plans
with respect to adequate funds to pay promised benefits.”
29 U.S.C. § 1001(a); see also Boyd v. Bert Bell/Pete Rozelle
NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005)
(holding that fiduciaries of benefit plans are “obligated to
guard the assets of the Plan from improper claims”) (internal
quotation marks and alteration omitted).

   Lacking any support for its new rule in our ERISA case
law, the majority is forced to justify its rule by reference to
cases addressing inapposite issues. See Brick Masons
Pension Trust v. Industrial Fence & Supply, Inc., 839 F.2d
1333, 1337–39 (9th Cir. 1988); see also Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 686–87 (1946).

    In Brick Masons, a masonry company entered into a
contract to make contributions to multi-employer welfare
plans based on hours worked by covered employees.
839 F.2d at 1335. The welfare plans proved that during the
relevant time period, the company had breached the contract
30              ESTATE OF BARTON V. ADT

by using covered employees to perform covered work and
failing to make the required contributions, which resulted in
damage to the welfare plans. Id. Although there was only
limited evidence as to the extent of the covered work (and
hence, limited evidence of the amount of the missing
contributions), the welfare plans proved that this data was
unavailable because the company had violated a statutory
requirement to keep adequate records of its employees’ hours.
Id. at 1338. We held that because the welfare plans had
proved “the fact of damage” and had also proved that the
company failed to keep statutorily required records, the
burden shifted to the company to come forward with evidence
that would show the extent of damages. Id. at 1338–39.
Because the company did not have records regarding the
amount of covered work performed by the covered
employees, this in effect required the company to pay the full
amount estimated by the welfare plans. Id.

    The majority also cites Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 686–87 (1946), which involved a suit by
employees under the Fair Labor Standards Act claiming that
they were deprived of overtime compensation. Id. at 684.
The Court held that where an employee proved that he “has
in fact performed work for which he was improperly
compensated,” and “the amount and extent of that work,” but
the employer violated its statutory duty to keep adequate and
accurate records, the burden shifted to the employer to
disprove the employees’ estimate of the work performed. Id.
at 686–88.

    Brick Masons and Mt. Clemens have nothing to do with
the question presented here, whether a plan administrator
abused its discretion in denying a claimant’s demand for
benefits. The district courts in Brick Masons and Mt.
                 ESTATE OF BARTON V. ADT                      31

Clemens were not considering whether a plan administrator’s
decision was illogical, implausible, or without support in the
record, but rather were conducting a de novo review of the
amount of damages to which claimants were entitled. The
courts shifted the burden to the defendant to show the extent
of damages only after the plaintiffs had both: (1) successfully
proven all elements of their claims; and (2) established that
the defendant’s violation of a statutory requirement to
maintain necessary records precluded them from proving the
precise amount of damages caused by the defendant. Here,
by contrast, Barton has not successfully proven any element
of his claim: The question is not the “amount of damages”
owed to Barton, but rather whether he is owed anything at all.
Moreover, Barton has not pointed to any violation of a
statutory recordkeeping requirement. Even if the majority’s
Brick Masons theory were otherwise applicable in the context
of abuse of discretion review, the lack of any statutory
violation would preclude a court from shifting the burden of
proof. See Motion Picture Indus. Pension & Health Plans v.
N.T. Audio Visual Supply, Inc., 259 F.3d 1063, 1066–67 (9th
Cir. 2001) (noting that the “first threshold burden” for
switching the burden of proof under Brick Masons is proving
that the plan administrator “failed to keep adequate records”
under ERISA).

                               IV

    In short, the majority’s ad hoc rule designed to help
Barton in this case is a disaster. The majority’s requirement
that the district court allocate a burden of proof when it is
supposed to be reviewing a plan administrator’s decision
for abuse of discretion makes no sense and is contrary to
our case law. And the rule itself, which verges on the
incomprehensible, will defy district courts’ efforts to apply it.
32              ESTATE OF BARTON V. ADT

Given that this rule was apparently developed to help a single
claimant, one can only hope that this strange rule will be
confined to the limited facts of this case. I dissent.