A panel of the Ninth Circuit withdrew its earlier opinion and has now joined other circuits in finding that the equitable remedy of surcharge is available for participants seeking recovery of personal losses as opposed to losses suffered by the plan. Gabriel v. Alaska Elec. Pension Fund, 2014 WL 7139686 (9th Cir. Dec. 16,
Second Circuit Holds ERISA Disclosure Claims Are Time-Barred
The Second Circuit recently held (in a summary order) that plan participants’ claims alleging violations of ERISA’s disclosure rules in connection with a cash balance conversion were barred by the statute of limitations. In so ruling, the Court explained that because the participants’ claims that defendants breached their fiduciary duties by mischaracterizing the new plan’s
Second Circuit Rejects Plan’s Claim For Reimbursement From Another Plan
Where an ERISA plan specifically sets forth in the plan document its rights to reimbursement/subrogation vis-à-vis a plan participant then there is no requirement that recovery be conditioned on the plan being able to trace the recovered monies to the original benefit payment. Under such circumstances, the plan is considered to have an equitable lien
District Courts Continue to Reject the Ninth Circuit’s Limitation on Surcharge
We previously reported (here) that the Ninth Circuit stands alone in expressly limiting the availability of surcharge to cases involving loss to, or unjust enrichment at the expense of, the plan (as opposed to being available to a participant claiming personal loss flowing from a fiduciary breach). See Gabriel v. Alaska Electrical Pension