Is there anything more interesting right now than ERISA §502(a)(3)? For those of you who don’t know it off the top of your head, and don’t feel like googling it right this second, this is the section of ERISA’s remedies provision that authorizes suits for equitable relief. For the longest time, this was a nearly dormant provision, with so many doctrinal barriers to its use that many ERISA practitioners had come to view it as akin to the proverbial prodigal son, a cause of action sent off to wander in the desert, with no one really quite sure of its whereabouts (other than existing as text in the U.S. Code). Several years ago, though, thanks to the Supreme Court’s opinion in Amara, it came back from its long exile to the desert with a vengeance, becoming the centerpiece of an explosion of case law and theoretical approaches to liability. From a 30,000 foot perspective, the most interesting, broad brush aspect of the reinvigoration of this area of ERISA litigation is the tension between the expansion of liability theories this development has given to participants and the simultaneous barriers it has thrown up for plan sponsors. Amara encouraged the growth of claims for equitable relief by participants, under disgorgement and estoppel theories that are still being fleshed out by the courts. At the same time, the developing case law on equitable relief has complicated the ability of plan sponsors and fiduciaries to recoup payments from participants, either of overpayments or by subrogation to tort recoveries, as was the case in the recent Supreme Court case of Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan.

I will be discussing this push and pull, and other aspects of this topic, in October at the American Conference Institute’s 13th National Forum on ERISA Litigation. As a speaker, I have access to a reduced rate for attendees, and wanted to pass it along to any readers who may be planning to attend. To obtain the special rate, just mention my name and email Joe Gallagher at ACI to register, by July 26th.