MEMORANDUM OF DECISION ON REMEDIES AND CLASS CERTIFICATION
The facts of this case have been discussed in numerous opinions and need not be repeated here in full detail.
After remand, the parties briefed the question of what relief was appropriate under ERISA § 502(a)(3). In addition, CIGNA filed a Motion to Decertify the Class [Doc. #323], requesting that the Court decertify the class if it finds that an equitable remedy is available under ERISA § 502(a)(3). As discussed below, this Court finds that both reformation and surcharge are appropriate equitable remedies that allow it to provide Plaintiffs with the same form of relief that was ordered previously. The Court further finds that it is unnecessary to decertify the class and thus DENIES the pending Motion to Decertify the Class.
As noted in an earlier opinion, the remedy issues presented here are as complex as they are important to the American workplace. While the Court is grateful for the Supreme Court’s thoughtful opinion in this case, and heavily relies on it, there remains lingering uncertainty about the proper resolution of many of these issues. Previously, the district court’s judgment was stayed sua sponte to allow the parties to pursue an appeal to the Second Circuit, in light of this uncertainty and the high stakes for CIGNA and its employees. See Amara II,
I.
At the outset, the Court will review the essential facts, its prior opinions, and the Supreme Court’s decision in order to frame the legal issues that are relevant on remand.
This suit arises from revisions made to CIGNA’s pension plan in 1998. Prior to that year, CIGNA offered its employees a defined-benefit plan — an annuity in an amount determined by the employee’s salary and duration of employment. In keeping with past nomenclature, the Court refers to CIGNA’s pre-1998 defined-benefit plan as “Part A.” In November 1997, CIG-NA notified its employees via newsletter that Part A would last through year’s end, to be replaced in the new year by an “account balance plan,” which the Court refers to as “Part B.” Under Part B, retiring employees receive a lump-sum payment based on annual contributions from CIGNA that earn interest. As part of the transition from Part A to Part B, CIGNA promised that an employee’s accrued benefits under Part A would be converted into an equivalent contribution to the employee’s individual cash-benefit account. CIG-NA guaranteed that each employee upon retirement would receive the “greater of A or B” — ie., the higher of an employee’s guaranteed annuity or the benefits accrued under the cash balance plan.
Ms. Amara, on behalf of approximately 25,000 beneficiaries, sued, alleging, inter alia, that CIGNA’s 1998 plan revisions violated ERISA §§ 1022(a), 1024(b), and 1054(h). Judge Kravitz conducted a seven-day bench trial and found CIGNA liable for inadequate disclosures relating to the conversion from Part A to Part B. See Amara I,
In a second decision setting remedies, Judge Kravitz ordered “A + B” relief, whereby the CIGNA Plan would provide class members with “all accrued Part A benefits in the form those benefits were available under Part A, plus all accrued Part B benefits in the form those benefits are available under Part B.” Amara II,
After this judgment was affirmed by the Second Circuit, the Supreme Court granted certiorari on the question of “whether a showing of ‘likely harm’ is sufficient to entitle plan participants to recover benefits based on faulty disclosures.” Amara III,
The Supreme Court did not, however, disturb the underlying findings of fact regarding CIGNA’s notice violations. See id. at 1882 (“We are not asked to reassess the evidence.”). Nor did the Supreme Court suggest that the remedies chosen were improper in any respect aside from the fact that they were ordered pursuant to ERISA § 502(a)(1)(B). Thus, there seems to be little reason why this Court should depart from the relief previously ordered, in the event that it finds that the same relief may be granted pursuant to ERISA § 502(a)(3) and consistent with Rule 23 of the Federal Rules of Civil Procedure. Neither party has put forward compelling reasons why, as a matter of remedial discretion, this Court should alter the form of relief granted four years ago. See Amara II,
Accordingly, the primary questions on remand are: (1) whether ERISA § 502(a)(3) empowers this Court to order CIGNA to provide class members with A + B benefits; and (2) whether Plaintiffs have demonstrated on a classwide basis that they are entitled to the requested relief.
II.
ERISA § 502(a)(3) creates a cause of action for a “beneficiary ... to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter....” As Plaintiffs are beneficiaries and because defects in CIGNA’s notices have been found to have violated ERISA, the only disputed question regarding the applicability of ERISA § 502(a)(3) is whether ordering CIGNA to provide Plaintiffs with A + B benefits constitutes “other equitable relief’ within the meaning of the statute. Whether a particular remedy qualifies as “equitable relief’ under ERISA § 502(a)(3) is a two-part inquiry into (1) the general character of the relief and (2) the basis for the plaintiffs claim. See Sereboff v. Mid Atl. Med. Servs., Inc.,
A.
The remedies decision expressed doubt about whether Plaintiffs could obtain A + B relief pursuant to § 502(a)(3), noting that several Supreme Court opinions had “severely curtailed the kinds of relief that are available under § 502(a)(3).” Amara II,
Ordinarily such a pronouncement would settle the question. Here, however, further analysis is appropriate to address the argument raised by Justice Scalia in his concurrence, and reiterated by CIGNA (see Defs.’ Mem. of Law [Doc. # 323-1] at 2 n. 2), that the Supreme Court’s pronouncement about the availability of surcharge, - reformation, and estoppel under ERISA § 502(a)(3) is “blatant dictum.” See Amara III,
Courts citing Amara III have tended to agree that the Supreme Court’s discussion of the availability of surcharge, reformation, and estoppel under § 502(a)(3) is dicta. See, e.g., Sergent v. McKinstry,
In any event, this Court agrees that surcharge, reformation, and estoppel are remedies generally available under § 502(a)(3), even if the practical result of entering such relief is a monetary payment. See Amara III,
B.
The Court now turns to whether surcharge, reformation, or estoppel is avail
1. Reformation
In considering whether Plaintiffs can establish the equitable prerequisites for reformation, a threshold question is presented: reformation of what? Equity courts applied different standards when the writing to be reformed was a contract or a trust. As the Ninth Circuit observed, “[i]t is unclear whether [a court] should analyze reformation in the context of trust law or contract law because retirement plan documents are similar to both trusts and contracts.” Skinner v. Northrop Grumman Ret. Plan B,
CIGNA argues that the Court should apply the standard for trust rather than contract reformation, noting that the Supreme Court observed that ERISA generally treats plans as trusts. {See Defs.’ Mem. of Law at 25 (quoting Amara III,
Equity courts traditionally had the power to reform contracts that failed to express the agreement of the parties, owing either to mutual mistake or to the fraud of one party and the mistake of the other. See Amara III,
As a result of CIGNA’s fraud, its employees were mistaken as to their retirement benefits. See 3 Pomeroy § 839, at 284-85 (“Mistake,” to courts of equity, meant “an erroneous mental condition, conception, or conviction, induced by ignoranee, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time.”). In the context of ERISA plans, mistake is measured by comparing the actual terms of the plan to the baseline of the beneficiaries’ objective, reasonable expectations about the scope of benefits provided. See, e.g., Young v. Verizon’s Bell Atl. Cash Balance Plan,
These statements taken as a whole created a reasonable expectation on the part of plan participants that Part B would protect all Part A benefits, including early retirement benefits, in the opening account balance or the Part B protected minimum benefit, and that Part B benefits would begin accruing immediately.
Amara II,
In his concurrence, Justice Scalia suggests that ordering reformation on these facts would be inappropriate because it would
alter the terms of a contract in response to a third party’s misrepresentations— not those of a party to the contract. The SPD is not part of the ERISA plan, and it was not written by the plan’s sponsor. Although in this case CIGNA wrote both the plan and the SPD, it did so in different capacities: as sponsor when writing the plan, and as administrator when preparing the SPD. ERISA carefully distinguishes these roles, and nothing the Court cites suggests that they blend together when performed by the same entity.
Amara III,
CIGNA raises two additional arguments against reformation. First, CIGNA argues that reformation is inappropriate because the CIGNA Pension Plan is a distinct and blameless legal entity and because the Court found violations only of obligations imposed on the plan administrator. (See Defs.’ Mem. of Law at 24 (“There is no basis for Plaintiffs’ request for reformation of the Plan here because the Plan has not done anything wrong.”).) This line of argument is unconvincing. Courts do not require a showing that a contract or a trust is itself culpable or liable before ordering the writing reformed, and CIGNA has not articulated why the entity status of the plan makes a material difference. Second, CIGNA contends that reformation fails because there was no clear agreement aside from that which was embodied in Part B. See id. at 27-29. However, the November 1997 Signature Benefits Newsletter, the December 1997 Retirement Program Information Kit, the October 1998 SPD for Part B, and the September 1999 SPD for Part B provide sufficient evidence of the parties’ mutual intent that Part B would ensure that plan participants would be guaranteed the full amount of their accrued Part A benefits, including early-retirement benefits, and that Part B benefits would begin accumulating immediately. See Amara II,
In sum, as there was “mistake on one side and fraud or inequitable conduct on the other,” Simmons Creek Coal Co. v. Doran,
2. Surcharge
Alternatively, under the doctrine of surcharge, “[ejquity courts possessed the power to provide relief in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.” Amara III,
Addressing the appropriateness of applying surcharge as an equitable remedy in a comparable situation, the Second Circuit has made clear that surcharge can take the form of make-whole compensation or disgorgement of ill-gotten profits:
At common law, an accounting surcharging a trustee for breach of his fiduciary duty was a readily available remedy. A trustee was subject to surcharge for loss, destruction, or diminution in value of the trust property if he failed to exercise the requisite skill and care.... If a trustee was acting in his own interest in connection with performing his duties as a trustee, he was held accountable for any loss to the estate or any profit he made, even if the transaction was fair and reasonable. Further, trastees have been surcharged where they have not personally profited from their breach, in situations where they have either negligently or knowingly permitted third parties to benefit from the trust property. For a trustee’s account to be surcharged, he need not be guilty of fraud or intentional wrongdoing, but simply have failed to discharge a duty required by law.
Morrissey v. Curran,
As discussed below, the Court finds that CIGNA may be surcharged on the basis of either a make-whole or unjust-enrichment theory.
As equity courts had the authority to provide beneficiaries with make-whole relief by surcharging a fiduciary that breached its duties for any losses caused by its breach, see Amara III,
To begin with, the Court must grapple with CIGNA’s argument that surcharge is unavailable because the only type of actionable harm that surcharge may redress is harm to a trust itself, here the ERISA plan. (See Defs.’ Mem. of Law at 16-18.) The disclosure violations, CIG-NA insists, did not diminish the plan’s assets, and therefore cannot serve as the substantive basis for surcharge. CIGNA is correct that the archetypal surcharge redressed damage to trust assets attributable to a trustee’s mis- or non-feasance (see Defs.’ Mem. of Law at 18 (citing seven such cases)). However, courts also surcharged trustees for deterrence purposes, even if their breaches caused no harm to their respective trusts. See George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 861, at 5 (2d ed. 1995) (“In some cases the object in assessing damages is to deter trustees from the commission of breaches of trust even though the trust itself has suffered no loss.”); 2 Scott on Trusts § 170.25, at 1387 (3d ed. 1967); cf. Lund v. Albrecht,
The Supreme Court made clear that make-whole surcharge is available “only upon a showing of actual harm — proved ... by a preponderance of the evidence.” Id. at 1881. The Supreme Court further explained that “actual harm may sometimes consist of detrimental reliance, but it might also come from the loss of a right protected by ERISA or its trust-law antecedents.” Id. As Judge Bates observed, the “actual harm” standard is not exactly a model of clarity. See Clark v. Feder Semo & Bard, P.C.,
Starting with the appropriate standard of causation, the Supreme Court clarified that detrimental reliance is sufficient but not necessary to demonstrate the requisite causal link. See id. (noting that “equity courts did not insist upon a showing of detrimental reliance” when ordering surcharge, but that “actual harm may sometimes consist of detrimental reliance”). In Skinner, the Ninth Circuit adopted a standard of “but for” causation.
Considering what this causation inquiry will involve in cases such as this, at a minimum, the inquiry will entail considering what would have happened had CIG-NA’s notices not been materially misleading. In essence, the Court must imagine a counterfactual world in which CIGNA issued valid notices and disclosures, and then, taking account of the various factors (workplace dynamics, the materiality of the information, the stickiness of wages, etc.), to consider whether it was more likely than not in this conjured world that Plaintiffs would not have been harmed. The practical effect of the inherent difficulty of this causal inquiry is that the burden of proof matters a great deal.
A plaintiff-beneficiary seeking surcharge bears the burden of proving that the defendant-trustee breached its fiduciary duty. See Estate of Stetson,
Based on the foregoing, the Court concludes that to evaluate a make-whole surcharge claim under § 502(a)(3), it should first consider whether Plaintiffs have met their burden of establishing (1) that CIG-NA breached its fiduciary duty, and (2) that Plaintiffs suffered a “related loss,” see Estate of Stetson,
Judge Kravitz previously found that CIGNA was the fiduciary responsible for the defective disclosures at issue. See Amara I,
As Plaintiffs have met their burden, CIGNA must demonstrate that its fiduciary breach was not a factual cause of Plaintiffs’ diminished retirement benefits. However, CIGNA has not convinced the Court that, had its disclosures been proper, Plaintiffs would have still suffered the same losses. First, CIGNA has not demonstrated that a critical mass of Plaintiffs already knew about the potential for wear away, that all of their accrued Part A benefits might not preserved in the opening balance in Part B, or that the accrual rates under Part A and Part B were not “roughly equivalent.” See Amara I,
CIGNA was aware of the significant reduction in the rate of future benefit accrual ..., that CIGNA wished to avoid the employee backlash likely to result from a thorough discussion of these aspects of Part B, and that CIGNA sought to negate the risk of backlash by producing affirmatively and materially misleading notices regarding Part B.
Amara I,
b. Unjust Enrichment
The Supreme Court observed that equity courts surcharged breaching trustees not only for make-whole relief, but also “to prevent the trustee’s unjust enrichment.” Amara III,
Courts of equity exercised a “general superintending power” over trustees, regulating fiduciary conduct with a broad range of tools. Trs. of Dartmouth Coll. v. Woodward,
An ERISA fiduciary that breaches its statutory duties may be surcharged for the amount of the benefit to the trustee personally as a result of the breach. See Skinner,
As with make-whole surcharge, the key question is about causation. Although the causation standard is substantially the same, it is not identical. In considering make-whole surcharge, the question is whether, but for CIGNA’s deficient notices, each Plaintiff would not have received diminished retirement benefits. In weighing unjust-enrichment surcharge, the question is whether, but for CIGNA’s deficient notices, CIGNA would not have obtained the cost savings that it did. While these inquiries initially appear to be two sides of the same causal coin, they differ in
However, as the Court has already found that it can order A + B relief on the basis of make-whole surcharge, this unjust-enrichment surcharge issue will not be expanded upon, but because the parties will likely seek the guidance of the Second Circuit, it is in the interests of judicial efficiency to make clear that if the Second Circuit disagrees with its application of reformation and make-whole surcharge, this Court is likely to allow a further hearing to determine whether the Court can order surcharge on an unjust-enrichment theory unless foreclosed by the Second Circuit.
III.
Having determined that reformation and surcharge are available under § 502(a)(3), the Court turns to CIGNA’s contention that neither remedy can be ordered on a classwide basis and that the Court must decertify the class. CIGNA argues that the Court must revisit class certification because the commonality and typicality prerequisites in Rule 23(a) are no longer satisfied in the wake of Amara Ill’s rejection of the “likely harm” standard. CIG-NA also argues that surcharge is not available to a (b)(2) class, because the remedy entails non-incidental monetary damages.
A.
In the initial certification decision, Judge Dominic J. Squatrito found that the class met the commonality and typicality requirements of Rule 23(a) because common questions existed as to whether CIG-NA’s pension plan violated ERISA and whether CIGNA’s notices and disclosures were misleading. See Amara v. CIGNA Corp., No. 3:01cv2361 (DJS),
In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court offered guidance on the Rule 23(a)(2) commonality requirement,
B.
Judge Kravitz previously held that certification of Plaintiffs’ claim pursuant to § 502(a)(3) was appropriate under Rule 23(b)(2). See Amara II,
Our opinion in Ticor Title Ins. Co. v. Brown,511 U.S. 117 , 121,114 S.Ct. 1359 ,128 L.Ed.2d 33 ... (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under [Rule 23(b)(2) ]. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.
Dukes,
should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.
Allison,
Resolution of the question of whether the form of relief to be ordered entails non-incidental monetary damages may depend on which remedy is ordered — reformation or surcharge.
Reformation will lead to a monetary recovery that is wholly incidental to the relief. In a case very similar to this one and decided after Dukes, a district court held a (b)(2) class could seek reformation based on violations of ERISA §§ 104(h) and 102. See Mezyk v. U.S. Bank Pension Plan, Nos. 3:09-cv-384(JPG)(DGW), 3:10-cv-696(JPG)(DGW),
[Dukes ] does not render certification under Rule 23(b)(2) improper----[T]he relief sought ... is for declaratory or injunctive relief that would apply to the class as a whole — a declaration that certain Plan provisions violate ERISA, an injunction requiring the Plan to cease*264 implementing those Plan provisions and reformation of the Plan, plus an injunction requiring recalculation and payment of benefits under the proper calculations. Any monetary relief that might flow from such a decision is incidental, which [Dukes] does not foreclose----
Mezyk,
More recently, in another ERISA class action including claims of “wear away,” the Seventh Circuit directly addressed whether the certification of various subclasses under (b)(2) was appropriate in light of Dukes. See Johnson v. Meriter Health Servs. Emp. Ret. Plan,
[A]ll that the subclasses are seeking, at least initially, is a reformation of the Meriter pension plan — a declaration of the rights that the plan confers and an injunction ordering Meriter to conform the text of the plan to the declaration. If once that is done the award of monetary relief will just be a matter of laying each class member’s pension-related employment records alongside the text of the reformed plan and computing the employee’s entitlement by subtracting the benefit already credited it to him from the benefit to which the reformed plan document entitles him, the monetary relief will truly be merely “incidental” to the declaratory and (if necessary) injunctive relief (necessary only if Meriter ignores the declaration).
Johnson,
Should it appear that the calculation of monetary relief will be mechanical, formulaic, a task not for a trier of fact but for a computer program, so that there is no need for notice and the concerns expressed in the Wal-Mart opinion are thus not engaged, the district court can award that relief without terminating the class action and leaving the class members to their own devices and also without converting this (b)(2) class action to a (b)(3) class action.
Id. at 372 (citing Allison,
Agreeing with the reasoning in Mezyk and Johnson, the Court concludes that it may order reformation without disturbing the (b)(2) certification of the class. The Court can reform the CIGNA Plan consistent with Rule 23(b)(2), because the relief applies to the class as a whole, and any monetary damages that will result flow directly and automatically from the reformation. Calculating damages under the reformed A + B plan would be a “mechanical process,” Amara II,
Surcharge, on the other hand, presents thornier issues under (b)(2). If the Court ordered surcharge on an unjust-enrichment theory, it would almost certainly have to certify a (b)(3) class. See Haddock, 460 FedAppx. at 29 (“[I]f plaintiffs are ultimately successful in establishing [defendant’s] liability on the disgorgement issue, the district court would then need to determine the separate monetary recoveries to which individual plaintiffs are entitled from the funds disgorged.”). The Court need not resolve the issue, however, as it will exercise its remedial discretion to order reformation rather than surcharge. The Court therefore DENIES CIGNA’s Motion to Decertify the Class [Doc. # 323].
Judge Kravitz’s prior remedies opinion, although finding its authority in § 502(a)(1)(B) rather than § 502(a)(3), was the result of careful calibration of the interests at stake. See Amara II,
1. With regard to CIGNA’s failure to provide adequate notice, the Court ORDERS CIGNA to provide all members of the class, including rehires, with a § 204(h) notice regarding the transition to Part B within 60 days after judgment is entered. The new § 204(h) notice shall comply with current Treasury regulations.
2. With regard to CIGNA’s misleading representations of additional benefits with no “wear-away” effect in the SMM and SPDs, the Court REFORMS the CIGNA Plan to reflect the fact that all class members must now receive A + B benefits, where “A” is the Part A benefit and “B” is the total of the cash balance pay and interest credits assigned after January 1, 1998. In other words, class members will receive (1) the full value of “their accrued benefits under Part A,” including early retirement benefits, in annuity form; and (2) “their accrued benefits under Part B,” in annuity or lump sum form. Id. at 222. Retirees and former employees shall receive past-due benefits “to be paid in a lump sum as well as the amount of the monthly annuity payments going forward.” Id. at 217. The Court ORDERS and ENJOINS CIGNA Corp. to enforce the plan as reformed. See Amara III,131 S.Ct. at 1876 .
3. With regard to CIGNA’s misrepresentations that all benefits would be protected, the Court concludes that the previous remedy — A + B relief-adequately addresses this violation as well. These representations provide an independent basis for the Court to REFORM the CIGNA Plan to reflect the fact that all class members must now receive A + B benefits, and to ORDER and ENJOIN CIGNA Corp. to enforce the plan as reformed.
4. With respect to class members who have already retired, the Court ORDERS that retirees and former employees will be entitled to receive the difference in value between the full-value of the Part A annuity (to which they are entitled under the “A + B” approach) and the lump sum; ORDERS that CIGNA Plan must provide new, accurate benefit election notices that reflect the Court’s determinations regarding the appropriate procedure for providing additional remedial benefits; and ORDERS that any class member who has retired is entitled to prejudgment interest, calculated according to the methodology outlined in Amara II,559 F.Supp.2d at 221 .13
5. The Court ORDERS that all of the remedies provided in this opinion are to be stayed to allow the parties*266 to pursue an appeal, if they so choose. The Court also ORDERS that CIGNA post an appeal bond of forty million dollars to ensure that Plaintiffs’ award will be paid, as Judge Kravitz previously required. See Amara II, 559 F.Supp.2d at 222-23 (staying judgment but requiring that Defendants post a bond); Ruling and Order [Doc. # 300] at 1, 3 (setting the appeal bond at $40 million). If CIGNA appeals, it shall post its bond on or before January 22, 2013. During the pendency of the appeal, either party may move to adjust the bond amount, if it becomes clear that the amount is either too low or too high.
6. The issue of attorneys’ fees remains to be decided. Plaintiffs are directed to file an application for attorneys’ fees and supporting documentation by February 19, 2013 or, if there is an appeal, thirty days following the issuance of the Mandate from the United States Courts of Appeals for the Second Circuit.
7. Finally, Defendants’ Motion to Decertify the Class [Doc. # 323] is DENIED. The parties’ Joint Motion for Status Conference [Doc. # 376] is DENIED as moot. The Clerk is directed to enter final judgment.
IT IS SO ORDERED.
Notes
. A richer factual account is contained in Judge Kravitz’s earlier decisions, Amara v. CIGNA Corp.,
. Judge Kravitz also expressed misgivings about ordering relief under § 502(a)(3) when it could otherwise provide relief under § 502(a)(1)(B), observing that "the Second Circuit has clearly held that relief is not available under § 502(a)(3) where the same relief is available § 502(a)(1)(B).” Amara II,
. It can be noted that if the Supreme Court's discussion in Section II.B of ERISA § 502(a)(3) is dicta, so too is the Supreme Court's analysis of the required showing of prejudice in Section III. And this second legal issue — the requisite standard of harm — was the question on which the Supreme Court granted certiorari in the first place. See Amara III,
.Even if the Court were to find estoppel, it is unlikely that Plaintiffs could obtain class recovery on that basis. As Justice Scalia observed, “CIGNA admits that respondents might be able to recover under § 502(a)(3) pursuant to an equitable estoppel theory, but it presumably makes this concession only because questions of reliance would be individualized and potentially inappropriate for class-action treatment.” Amara III,
. The Skinner court addressed the uncertainty by applying both standards, finding that Plaintiff could not succeed under either framework. Skinner,
. Of course, the way compensation is structured in the American workplace has changed dramatically since the merger of law and equity. See Frank R. Dobbin, The Origins of Private Social Insurance: Public Policy and Fringe Benefits in America, 1920-1950, 97 Am. J. Soc. 1416, 1417 (1992) (noting employee welfare programs developed in the 1910s and
. Defendants' counsel calls attention to a recently issued opinion that takes a more restricted view of the equitable requirements of reformation. See Osberg v. Foot Locker, Inc., No. 07 Civ. 1358(KBF),
. Functionally, the difference between these two variations of surcharge is who gets returned to their status quo ante position. Proceeding based on unjust enrichment returns the fiduciary to its pre-breach baseline, while the compensatory version returns the trust estate or beneficiaries to their baseline.
. As a threshold matter, the Court disagrees with CIGNA's contention that Plaintiffs waived their ability to request surcharge as an equitable remedy based on representations they made in a 2006 brief and on their failure to argue surcharge before this and other courts. The burden is on CIGNA to demon
. The Court is also unpersuaded by CIGNA’s argument that allowing surcharge for any harm caused by a fiduciary would render superfluous § 502(a)(2), which provides a cause of action against fiduciaries, incorporating the standard of liability in ERISA § 409, 29 U.S.C. § 1109. Even the most expansive interpretation of § 502(a)(3) would not render ERISA § 502(a)(2) wholly superfluous, as § 502(a)(2) authorizes suits by the Secretary, while § 502(a)(3) does not. Some
. Plaintiffs argue that but-for cause is not the appropriate standard, raising a host of alternatives, none of which persuade the Court. Plaintiffs contend that this Court should either import the standards developed in cases on securities disclosures {see Pis.' Br. at 52) or use proximate cause but not factual cause {see id. at 57). The Court agrees only with the proposition that the materiality of the misstatements is an important factor in analyzing factual causation.
. As the Supreme Court has repeatedly noted, "[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Dulces,
. Neither parly in their post-remand briefing specifically challenged Judge Kravitz’s award of prejudgment interest for class members who already retired, or the manner in which it was to be calculated. The Court is thus led to believe that the parties assume that prejudgment interest does not raise issues distinct from those related to the other relief ordered.