District Courts Continue to Reject the Ninth Circuit’s Limitation on Surcharge as Relief for Individual ERISA Fiduciary Breach Claims
We previously reported (here) that the Ninth Circuit stands alone in expressly limiting the availability of surcharge to cases involving loss to, or unjust enrichment at the expense of, the plan (as opposed to being available to a participant claiming personal loss flowing from a fiduciary breach). See Gabriel v. Alaska Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014). We also reported that a district court declined to apply the Ninth Circuit’s narrow reading of surcharge because there is a pending petition for rehearing en banc in Gabriel and, in that court’s view, the Gabriel decision was not binding. Two more district courts have reached the same conclusion and, on that basis, denied motions to dismiss the complaints. In Zisk v. Gannett Co. Income Prot. Plan, No. 2014 WL 5794652 (N.D. Cal. Nov. 6, 2014), Zisk developed cancer and then applied for and began receiving benefits from Gannet’s Income Protection Plan. The claims administrator subsequently terminated his benefits because Zisk failed to provide updated medical records. Zisk claimed in the lawsuit that the plan fiduciaries breached their fiduciary duty by failing to conduct an adequate investigation into his medical condition prior to terminating his benefits and by providing misleading information regarding the status of that investigation. In Witt v. United Behavioral Health, 14-cv-02346-JCS (N.D. Cal. Nov. 20, 2014), plaintiffs alleged that UBH breached its fiduciary duty by wrongfully denying their claims and improperly limiting the scope of their insurance coverage for mental health and substance abuse-related residential treatment. Plaintiffs claimed, among other things, that they were entitled to surcharge since the breach harmed them and UBH’s corporate affiliates were unjustly enriched by not having to pay claims. Both cases thus appear to be headed for discovery notwithstanding the fact that the relief sought is not for the plan.