III is a fraud claim that is not pled with the required specificity under Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that “in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 9(b). Without any argument, or on-point citation, Defendants assert that “because Plaintiffs allege the material misrepresentations and omissions referenced in the Summary Plan Description were ‘fundamentally deceptive,’ Plaintiffs must plead such allegations with particularity under Rule 9(b).” In this case, Rule 9(b)’s heightened pleading requirements do not apply. Allegations of breach of fiduciary duty are not necessarily fraud allegations. See Fink v. Nat’l Sav. & Trust Co., 772 F.2d 951, 959 (C.A.D.C.1985) (<HOLDING>). Only a breach of fiduciary duty claim which
holding that economic loss rule barred claim for breach of fiduciary duty where precontract misrepresentations were directly related to alleged breach of contract holding that plaintiffs were entitled to a jury trial on claim of breach of fiduciary duty where underlying claim was a common law negligence action holding that a plaintiff has a duty to plead the date of discovery of fraud where the alleged fraud apparently occurred at a remote time holding that a plaintiff seeking individual relief under erisa  502a3 under a breach of fiduciary duty theory did not have a cause of action when the alleged breach of fiduciary duty was a failure to distribute benefits in accordance with the plan holding that plaintiffs did not plead fraud where the complaint only alleged a breach of fiduciary duty