On January 31, 2022, the Ninth Circuit affirmed the lower court’s finding that surcharges imposed by the Pension Protection Act (“PPA”) are excluded from the determination of an employer’s “highest contribution rate” for withdrawal liability payment calculations. While the Multiemployer Pension Reform Act (“MPRA”) explicitly excluded surcharges that accrued after 2014 from such calculations, this
Surcharge
District Court Defines Surcharge Broadly
By Aaron Feuer on
A New York district court held that surcharge could include not only make-whole relief, but also consequential, exemplary, or punitive damages in limited circumstances where malice or fraud is involved. Plaintiff Janet D’Iorio alleged that Winebow breached its fiduciary duty by failing to provide an SPD and by making material misrepresentations about whether her commissions were included as income in determining LTD benefits.
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.