Will Equitable Relief Be Redefined . . . Again?

For several years now, there has been a faction on the U.S. Supreme Court that appears to be seeking the appropriate case in which to reevaluate the meaning of the phrase "appropriate equitable relief" under ERISA 502(a)(3), 29 U.S.C. 1132(a)(3). The Court may have found its case in Amschwand v. Spherion Corp., 505 F.3d 342 (5th Cir. 2007), and is currently deciding whether to grant Amschwand's petition for certiorari. In fact, on March 3, 2008, the Supreme Court asked the U.S. Solicitor General for its opinion on the issue? based on the U.S. Department of Labor's longstanding public views, discussed below, it is expected that the Solicitor will argue that the Fifth Circuit's opinion was wrong and that certiorari should be granted.

The Department of Labor has consistently taken the position before the Supreme Court (and other courts) that the limitations imposed on equitable relief by Mertens v. Hewitt Associates, 113 S. Ct. 2063 (1993), and its progeny do not apply to claims brought against fiduciaries? rather, such limitations only apply to claims brought against nonfiduciaries. The lower courts have generally rejected this argument, and have read Mertens broadly. However, Justice Ginsburg's concurrence in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) suggested that at least some on the Court viewed this as an open issue:

Recognizing that this Court has construed section 502(a)(3) not to authorize an award of money damages against a nonfiduciary, the Government suggests that the Act, as currently written and interpreted, may allow at least some forms of makewhole relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench . . . The Government's suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue. Congress . . . intended ERISA to replicate the core principles of trust remedy law, including the makewhole standard of relief. I anticipate that Congress, or this Court, will one day so confirm.

More recently, in LaRue v. DeWolff, Boberg & Associates, Inc., 128 S. Ct. 1020 (2008) (discussed above), Justice Ginsberg suggested during oral argument that the Section 502(a)(3) issue was not ripe in that case, notwithstanding that the Court granted certiorari on the issue. Many thought this was a signal that LaRue was not viewed as the appropriate case in which to address this issue, and the Court specifically declined to address...