Ninth Circuit Softens Its Position On Surcharge–But Defers Its Scope For Another Day

Since the Supreme Court’s CIGNA v. Amara decision, courts have grappled with the scope of the permissible forms of equitable relief under ERISA, including the surcharge remedy, the sole focus of today’s blog.  Surcharge is generally a type of monetary relief awarded to remedy a fiduciary breach.  In June, the Ninth Circuit sharply limited the scope of surcharge.  See Gabriel v. Alaska Elec. Pension Fund, 12-25458 (6/6/14).  Recently, however, there was a slight change of heart, and the Ninth Circuit replaced that June decision with one that potentially opens the door to surcharge, to be addressed on remand.  Id. (12/16/14).

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