133 F.3d 388

LIVELY, Circuit Judge,
concurring in part and dissenting in part.
As a member of the original panel that heard this appeal I voted to remand both the issues raised by the general retirees and those raised by the early retirees. Further study in light of Judge Nelson’s opinion convinces me that the majority is correct in holding that the claims of the general retirees should be dismissed. Accordingly, I concur in the majority opinion to the extent it affirms summary judgment for General Motors ' on the claims of the general retirees.
I agree with Judge Martin’s dissent, however, in its conclusion that the district court correctly certified a class action for the claims of the early retirees and that the early retirees had vested health care benefits for the rest of their lives.
There is a fundamental difference between the claims of the two sets of retirees. The general retirees based their claims solely on plan documents, which reserved the right to change terms of the plan. The early retirees, on the other hand, claimed a new agreement with GM, supported by a new consideration — their agreement to leave their employment early, and as a consequence to save GM significant future costs. I believe the district court correctly found that GM entered into bilateral contracts with the early retirees. Further, I believe that the district court’s findings of fact and conclusions of law following the bench trial are entitled to deference by this court, and should be affirmed.
With respect to the class action issue, the district court did not abuse its discretion in certifying a class consisting of the early retirees. The claims of the early retirees were all based on a common contention: that GM created a new condition for them with respect to future health care benefits by entering into new agreements that accorded them vested rights never given to general retirees. Thus, the “commonality” requirement of Rule 28(a) was satisfied.
I believe, further, the “typicality” requirement was met by the district court’s creation of four subclasses, defined by the evidence upon which the early retirees relied (long form statement of acceptance, short form statement of acceptance, statement of intent to retire, and oral representations at time of entering into agreement for early retirement). The majority states that typicality is lacking because “[a] named plaintiff who proved his own claim would not necessarily have proved anybody else’s claim.” Supra, at 399. This statement appears to rely on a statement in In re American Med. Sys., Inc., 75 F.3d 1069 (6th Cir.1996). Yet, what American Med. Sys. actually says is that “in pursuing his own claims, the named plaintiff will also advance the interests of class members.” Id. at 1082. (emphasis added). I believe the interests of class members in establishing the underlying contention that all were accorded vested rights by the new bilateral agreements would be advanced by each named plaintiff or class member pursuing his own claim. American Med. Sys. does not require that a named plaintiff prove anybody else’s claim by proving his own. American Med. Sys. also quotes with approval the following language from Senter v. General Motors Corp., 532 F.2d 511, 525 n. 31 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976): “[t]o be typical a representative’s claim need not always involve the same facts or law, provided there is a common element of fact or law.” 75 F.3d at 1078.
The majority concedes that while welfare plan benefits are not vested by the terms of ERISA, an employer can give up its freedom not to vest such benefits. I believe this is a ease where the employer did just that. The district court found that “early retirement was presented ... as a special package deal that included health care, separate and distinct from the regular GM retirement program.” Sprague v. General Motors Corp., 843 F.Supp. 266, 271 (E.D.Mich.1994) 0Sprague II). This finding is not clearly erroneous; to the contrary, it is supported by substantial evidence. Unlike the general retirees, the early retirees were sought out by GM and offered inducements to leave their employment before reaching the normal retirement age. The general retirees necessarily had to rely only on plan documents that unilaterally created health care benefits. The early retirees, on the other hand, relied on new agreements that modified the welfare benefit plan. Rather than having only the employer’s unilateral “gift” of health care coverage, they bargained with the employer for their coverage. I believe under the circumstances of this case the district court properly considered the evidence of the early retirees that went beyond plan documents. The district court’s findings, based on this evidence, supported its conclusion that GM was estopped to deny the early retirees lifetime health benefits.
I also believe the majority is in error in concluding that GM did not act in a fiduciary capacity in its dealings with the early retirees. While I agree that an employer does not ordinarily act as a fiduciary in administering a welfare plan, it seems to me that the manner in which GM reached early retirement agreements with these employees necessarily involved a fiduciary relationship. The majority stresses that GM was not required to state, along with its explanation to the retirees that health care coverage was to be provided for their lifetimes at GM’s expense, that it also' retained the right to change this commitment. I disagree. Given that GM was seeking a new agreement from those employees that changed their previous expectations about the time of their retirement, GM could not in equity remain silent if it intended to reserve a right to change or eliminate this important benefit in the future. It was misleading to tell these employees they would have company-provided health care throughout their lives while at- the same time failing to advise them that it was claiming to reserve the right to withdraw the benefit after the employees accepted early retirement. Given the setting in which GM was presenting these employees with a new set of conditions relating to their retirement, GM had a fiduciary obligation to be completely open, with no undisclosed conditions.
It seems to me that the majority reads Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), much too narrowly. In Varity, the Supreme Court emphasized the applicability of trust principles and the fundamental requirement of ERISA that a fiduciary “discharge his duties with respect the plan solely in the interest of the participants and beneficiaries.” (quoting ERISA § 404(a)). Varity, 516 U.S. at 506, 116 S.Ct. at 1074. Viewed in light of trust principles and this ERISA requirement, GM owed a duty to be completely open and forthcoming with the employees that it wanted to retire early. It was unfair, at this juncture in their relationship, to rely on a reservation that was neither discussed nor referred to. This was a situation where silence was misleading. The reservations in the plan and descriptive materials all related to normal retirement. When, at GM’s instigation, some employees were induced to retire early, they should have been told that these reservations applied to the new relationship created by early retirement if that was GM’s intent. There was a fiduciary duty to inform them, and GM breached that duty.
I respectfully dissent from the majority’s denial of all relief to early retirees, both named plaintiffs and putative class members.

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