530
Thomas, J., dissenting
enthetically quoting Adams, supra, at 947, for the proposition that " 'a company does not act in a fiduciary capacity when deciding to amend or terminate a welfare benefits plan' "). In contrast, the discretionary interpretation of a plan term, or the discretionary determination that the plan does not authorize a certain type of procedure, would likely qualify as plan administration by a fiduciary. There is no claim in this case, however, that Varity failed to implement the plan according to its terms, since respondents actually received all of the benefits to which they were entitled under the plan, as the courts below found.
An employer will also make countless representations in the course of managing a business about the current and expected financial condition of the corporation.8 Similarly, an employer may make representations that either directly or impliedly evince an intention to increase, decrease, or maintain employee welfare benefits. Like the decision to terminate or modify welfare benefits, the decision to make, or not to make, such representations is made in the employer's "corporate nonfiduciary capacity as plan sponsor or settlor," Borst v. Chevron Corp., 36 F. 3d 1308, 1323, n. 28 (CA5 1994), cert. denied, 514 U. S. 1066 (1995), and ERISA's fiduciary rules do not apply. Such communications simply are not made in the course of implementing the plan or executing its terms. Rather, they are the necessary incidents of conducting a business, and Congress determined that employers
8 The statements Varity made in this case are typical of the kind of statements management often makes in assessing the expected financial health of the company. See App. 80 ("I believe that with the continued help and support of you we can make Massey Combines Corporation the kind of successful business enterprise which we all want to work for"); ibid. ("[D]espite the depression which persists in the North American economy, I am excited about the future of Massey Combines Corporation"); id., at 82 ("We are all very optimistic that our new company, has a bright future, and are excited by the new challenges facing all of us").
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