In the latest chapter of the Amara saga, the Second Circuit recently affirmed the district court’s class-wide order to reform CIGNA’s cash balance plan, as a means to remedy what the district court previously found to be CIGNA’s breach of its statutory notice obligations.
Remedies
Ninth Circuit Breathes Life Into Participant’s Claim for Surcharge
By Aaron Feuer on
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,…
District Courts Continue to Reject the Ninth Circuit’s Limitation on Surcharge
By Aaron Feuer on
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…
View From Proskauer: The Availability of Surcharge as Relief for Individual ERISA Fiduciary Breach Claims
By Aaron Feuer on
Three years ago, the U.S. Supreme Court identified three forms of appropriate equitable relief — reformation, equitable estoppel and surcharge — that are available under Section 502(a)(3) of the Employee Retirement Income Security Act (‘‘ERISA’’). See Cigna Corp. v. Amara, 131 S. Ct. 1866, 50 EBC 2569, 2011 BL 128629 (2011). This article focuses on the availability of surcharge and, in particular, a division among the lower courts on whether surcharge is available to plaintiffs seeking monetary recovery for personal loss as opposed to a loss to the plan.