If An ERISA Breach of Fiduciary Duty Claim Seeks Individual Recovery (Not Recovery on Behalf of the Plan) Only Equitable Remedies May Be Available

ERISA, through §1132(a)(2), allows an individual to bring a claim for breach of fiduciary duty under 29 U.S.C § 1109.  Section 1109 is read to require that the individual sue in her representative capacity on behalf of the plan.  See 29 U.S.C. § 1132(a)(2).  If the claim of breach of fiduciary duty seeks relief for the individual and not the plan, it falls under § 1132(a)(3) and ERISA limits the individual's remedies to equitable relief.  See 29 U.S.C. § 1132(a)(3).  Thus an individual cannot obtain for herself monetary recovery for a claim of breach of fiduciary duty.  An exception would be if the equitable relief seeks money belonging to the individual that was wrongfully withheld or obtained by the fiduciary.  See Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 481-82 (7th Cir. 2010).

In contrast, if an individual makes a claim for benefits, she is entitled to monetary recovery under § 1132(a)(1)(B).




Dodd-Frank Registration Requirements for Appointed Governmental Pension Plan Board Members

Ice Miller LLP provides a good analysis of the temporary rules for when appointed/non-ex officio board members of governmental pension plans should register with the SEC and MSRB.  See http://www.icemiller.com/enewsletter/Benefits/Muncipal_Advisor_Regulations_Dodd_Frank.htm

Death After Driving Drunk May Be "Accidental" Under Accidental Death Policy

If an accidental death insurance policy does not specifically exclude from the definition of "accident" death resulting from driving under the influence of drugs or alcohol, plan administrators may be subject to reversal in court if they deny coverage on that ground.  See Meek v. Zurich N. America Ins. Co., 704 F.2d 1069 (D. Colo. Mar. 8, 2010), and the cases cited therein for a discussion of the issue.

ERISA Did Not Preempt A Court's Evaluation of State Law Damages

ERISA preemption cases can be pretty technical and, frankly, quite boring.  This case deserves mention for the novel argument made by the employee in his lawsuit for damages.  His lawsuit claimed that his employer or someone with the plan misrepresented facts about one of two benefits plan he was to choose between.  The fundamental problem with the employee's lawsuit is that he picked the richer benefit plan and suffered no damages as a result of the misrepresentation.  

To get around this problem, he claimed that that ERISA preempted the court from evaluating whether he suffered any damages.  (As an aside, I don't understand his argument and the court's opinion does not provide any elaboration.)  The court rejected the preemption argument holding that the court's evaluation of damages in this case is not preempted by ERISA because it did not implicate the structure or administration of the plan, did not affect the type of benefits offered or impose rules for calculating benefits.  To review this case, see Carroll v. Los Alamos Nat'l Security, LLC et al., 2011 U.S. App. LEXIS 1267 (10th Cir. Jan. 19, 2011).