More Complaints From The Federal Judiciary . . .
. . . about ERISA's lack of meaningful remedies. This version of a recurring theme comes in Eichorn v. A.T.&T., ___ F.3d ___, 2007 U.S. App. LEXIS 10137 (3rd Cir. 2007). In that case a group of employees alleged they lost a significant portion of their pension benefits when an ERISA fiduciary improperly interfered with their rights to "bridge" pension benefits. The trial court ruled that, even if the employees could prove their allegations, based on Supreme Court precedent, the employees right to "appropriate equitable relief" under 29 U.S.C. Sec. 1132(a)(3) does not include any right to compensation for lost benefits. The plaintiffs appealed and early last month, in the opinion I link to in this paragraph, the Third Circuit agreed. Undaunted, the plaintiffs requested rehearing en banc, i.e., consideration of the question by the entire group of Third Circuit judges rather than simply the three judge panel that issued the original opinion. This week the Third Circuit denied that request but it prompted a concurring opinion from Judge Thomas Ambro. He agreed that the Supreme Court foreclosed the issue against the employees but wanted to put on the record his opinion that Congress or the Supreme Court needed to reconsider the unjust refusal to provide adequate remedies to ERISA participants and beneficiaries when they suffer monetary loss as a result of a violation of ERISA. In his opinion, the case illustrates that the Supreme Court precedent "functionally prohibits many legitimate plaintiffs from seeking an ERISA remedy." Citing a long list of cases and law review articles noting this large hole in ERISA's remedial framework, Judge Ambro states: "[j]udicial and scholarly concern could hardly be higher. It is time for Congress or the Supreme Court to reconsider the interplay between the extent to which make-whole monetary relief is available under 29 U.S.C. Sec. 1132(a)(3) and the preemption of state-law causes of action that could accord that relief." Judge Ambro's reference to the sleeping dog in "Silver Blaze" piqued my interest. Comments about the meaning of his metaphor?