Petition for Writ of Certiorari — Jerry Aldridge, et al., Petitioners v. Regions Bank

Supreme Court briefNov 14, 2025

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No. 25-

In the Supreme Court of the United States

JERRY ALDRIDGE, ET AL.,

PETITIONERS

REGIONS BANK,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES A. HOLIFIELD, JR.

CHRISTINA HALEY

KELLY ENDELMAN

HOLIFIELD & JANICH PLLC

11907 Kingston Pike

Suite 201

Knoxville, TN 37934

(866) 566-0115

XIAO WANG

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW SUPREME

COURT LITIGATION CLINIC

580 Massie Road

Charlottesville, VA 22903

(434) 924-8956

x.wang@law.virginia.edu

Counsel for Petitioners

QUESTIONS PRESENTED

Under § 502(a)(3) of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1132(a)(3), a

beneficiary may bring suit to obtain “appropriate

equitable relief.”

The questions presented are:

1. Whether, when proceeding under § 1132(a)(3), a

beneficiary may seek surcharge, a remedy that

this Court has described as being “exclusively

equitable.” CIGNA Corp. v. Amara, 563 U.S. 421,

442 (2011).

2. Whether, if surcharge is unavailable under

§ 1132(a)(3), a beneficiary may pursue state-law

claims arising out of a contract that is separate and

apart from an ERISA plan and that is not required

by the plan, or whether these state-law claims are

preempted, thereby leaving the beneficiary

without a remedy under either federal or state law.

PARTIES TO THE PROCEEDING

Petitioners are Jerry Aldridge, George Beckmann,

Daniel Bettis, David Biron, E. E. Bishop, Ernest Bishop,

III, Patricia Boutreis, Braxton Brooks, Robert Brown,

Perry Brownlee, William H. Bryant, E. J. Bueche, James

Buettgen, Joe Byrum, Edna T. Caldwell, Belinda Cline,

Collin Cope, Patrick Cowley, Edward F. Crofton, Tamara

Cunningham, Larry Davis, Richard Dearden, Anne

Dillard-McGeoch, Marguerite Duffy, Rick Eldridge,

Gregory Equizi, Betty Flanagan, Paul Freeman,

Kimberly Grant, Henry Grau, Gene Gruver, Ronald

Harman, Cecilia Heath, Andrew Hepp, Veronica Hepp,

Sandra Herrington, Peg Heyman, Robert F. Hightower,

James Holland, James Holman, Pfilip G. Hunt, Ken

Hutson, Nicholas Ibrahim, Ross Jackson, Paul S. Jones,

Roy Keene, Louis Frank Knight, Adam Koontz, Fred

Kuhlemann, Robert Lafreniere, Douglas Lantau,

Marcelino R. Largel, Robert Leboeuf, James Litchford,

Glen T. Lowery, Ray Manning, Marvin Martin, Rebecca

Martin, Scarlett May, Robert McClenagan, Teresa

McConnell, Charles L. McGuff, Clifford Meadows,

Donald Meier, Everett Mills, J. Russell Mothershed,

Craig Nelson, Eric Paul, Maxwell Piet, Sherry Bigby

Prime, John Pryor, Ed Rehm, Mike Roder, Charles

Rosete, Lola Ruble, David Schmidt, Andrew Scoggins,

Joe R. Seaitz, Lois M. Skokos, Alan P. Smith, Eubie

Stacey, John Stephens, Ronnie Tatum, Larry Thompson,

Barry Timmons, Sherry Turner, Jeffrey VanHorne, Jack

Vaughn, Ronald Vilord, Lee Wallace, Clarice Wetmore,

Fred Whitlock and Mark Young. Petitioners were

plaintiffs in the district court proceedings and appellants

in the court of appeals proceedings.

iii

Respondent Regions Bank was the defendant in the

district court proceedings and appellee in the court of

appeals proceeding.

RELATED PROCEEDINGS

United States District Court (E.D. Tenn.)

Aldridge, et al., v. Regions Bank, No. 3:21-CV00082-DCLC-DCP, 2021 WL 4718489 (October

8, 2021).

Aldridge, et al., v. Regions Bank, No. 3:21-CV00082-DCLC-DCP, 2024 WL 2819523 (June 3,

2024). Judgment entered June 3, 2024.

United States Court of Appeals (6th Cir.)

Aldridge, et al., v. Regions Bank, No. 24-5603, 144

F.4th 828 (6th Cir. 2025). Judgment entered

July 17, 2025.

TABLE OF CONTENTS

Question presented ............................................................... i

Parties to the proceeding .................................................... ii

Related proceedings ........................................................... iv

Table of authorities ............................................................ vii

Opinions below...................................................................... 1

Jurisdiction ........................................................................... 1

Statutory provisions involved ............................................. 1

Introduction .......................................................................... 2

Statement of the case........................................................... 6

A. Legal framework ...................................................... 6

B. Factual background ................................................. 8

B. Proceedings below.................................................. 10

Reasons for granting the petition .................................... 14

I. Courts are divided on whether plaintiffs may

seek surcharge under 29 U.S.C. § 1132(a)(3).. .......... 14

A. Six courts of appeals authorize equitable

surcharge. ............................................................... 14

B. Two courts of appeals hold that plaintiffs

cannot seek equitable surcharge. ......................... 19

II. The Sixth’s Circuit’s decision is incorrect. ................ 22

A. Surcharge is a form of equitable relief. ............... 23

B. The decision below misconstrues Amara’s

relationship with this Court’s other

precedents. .............................................................. 28

C. The decision below conflicts with

congressional intent. .............................................. 31

III.

This case presents an excellent vehicle to

address important and recurring questions.............. 34

Conclusion ........................................................................... 36

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Aetna Health Inc. v. Davila,

542 U.S. 200 (2004).............................................. 4, 33, 35

Amara v. CIGNA Corp.,

775 F.3d 510 (2d Cir. 2014) .......................................... 17

Amara v. CIGNA Corp.,

925 F. Supp. 2d 242 (D. Conn. 2012) ........................... 17

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986).......................................................... 9

Boggs v. Boggs,

520 U.S. 833 (1997).......................................................... 4

Browe v. CTC Corp.,

15 F.4th 175 (2d Cir. 2021) ............................................. 6

CIGNA Corp. v. Amara,

563 U.S. 421 (2011)............ 3, 5, 12, 15–18, 21, 24–31, 33

Conkright v. Frommert,

559 U.S. 506 (2010).......................................................... 4

Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101 (1989)........................................................ 33

viii

Franklin v. Gwinnett Cnty. Pub. Schs.,

503 U.S. 60 (1992).......................................................... 36

Gabriel v. Alaska Electric Pension Fund,

773 F.3d 945 (9th Cir. 2014) ................................... 18, 26

Gearlds v. Entergy Servs., Inc.,

709 F.3d 448 (5th Cir. 2013) ........................... 3, 4, 17, 18

Gimeno v. NCHMD, Inc.,

38 F.4th 910 (11th Cir. 2022) ............. 3, 4, 12, 14, 15, 16

Great-West Life & Annuity Ins. Co. v. Knudson,

534 U.S. 204 (2002).................... 21, 23, 25, 26, 28, 29, 35

Ingersoll-Rand Co. v. McClendon,

498 U.S. 133 (1990).................................................... 4, 35

In re IT Grp., Inc.,

448 F.3d 661 (3d Cir. 2006) ............................................ 7

Kenseth v. Dean Health Plan, Inc.,

722 F.3d 869 (7th Cir. 2013) ............................... 4, 16, 17

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013)........................................................ 31

LaRue v. DeWolff, Boberg & Assocs., Inc.,

552 U.S. 248 (2008)........................................................ 15

Liu v. SEC,

591 U.S. 71 (2020).................................. 24, 25, 26, 28, 30

Lockheed Corp. v. Spink,

517 U.S. 882 (1996)........................................................ 36

Loffredo v. Daimler AG,

666 F. App’x 370 (6th Cir. 2016) .................................... 7

Mass. Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985)........................................................ 36

McCravy v. Metro. Life Ins. Co.,

690 F.3d 176 (4th Cir. 2012) ................................... 19, 20

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993)........ 13, 21, 22, 23, 25, 26, 28, 30, 35

Montanile v. Bd. of Trs.,

577 U.S. 136 (2016).......................... 13, 21, 22, 25, 29, 30

Moyle v. Liberty Mut. Ret. Benefit Plan,

823 F.3d 948 (9th Cir. 2016) ..................................... 3, 18

Nachman Corp. v. Pension Benefit Guar. Corp.,

446 U.S. 359 (1980)........................................................ 33

In re Outboard Marine Corp.,

278 B.R. 778 (N.D. Ill. 2002) .......................................... 7

Peters v. Aetna Inc.,

2 F.4th 199 (4th Cir. 2021) ..................................... 19, 20

Pichoff v. QHG of Springdale, Inc.,

556 F.3d 728 (8th Cir. 2009) ......................................... 18

Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41 (1987).......................................................... 11

Rose v. PSA Airlines, Inc.,

80 F.4th 488 (4th Cir. 2023) ............. 4, 19, 20, 21, 29, 35

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002).................................................. 14, 36

Schwab v. Crosby,

451 F.3d 1308 (11th Cir. 2006) ..................................... 31

Sereboff v. Mid-Atl. Med. Servs.,

547 U.S. 356 (2006)........................................................ 23

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983).......................................................... 31

Silva v. Metro. Life Ins. Co.,

762 F.3d 711 (8th Cir. 2014) ............................... 3, 18, 19

Sullivan-Mestecky v. Verizon Commc’ns Inc.,

961 F.3d 91 (2d Cir. 2020) ........................................ 3, 17

Tolan v. Cotton,

572 U.S. 650 (2014)...................................................... 8, 9

Tull v. United States,

481 U.S. 412 (1987).................................................. 25, 26

United States v. Dorcely,

454 F.3d 366 (D.C. Cir. 2006)....................................... 31

Varity Corp. v. Howe,

516 U.S. 489 (1996)........................................................ 33

STATUTES & REGULATIONS

15 U.S.C.

§ 78u(d)(5) ...................................................................... 25

28 U.S.C.

§ 1254................................................................................ 1

29 U.S.C.

§ 1001.................................................................... 6, 26, 33

§ 1002.............................................................................. 27

§ 1101.............................................................................. 26

§ 1104.............................................................................. 27

§ 1132.................. 1–3, 5, 10–14, 16–20, 22, 24, 26, 32–36

§ 1144.................................................................... 2, 11, 12

45 C.F.R.

§ 147.136......................................................................... 20

OTHER AUTHORITIES

ERISA Adv. Op. 90-14A (May 8, 1990) ..................... 31, 32

IRS Rev. Proc. 92-64........................................................... 7

Samuel L. Bray, Fiduciary Remedies, in THE OXFORD

HANDBOOK OF FIDUCIARY LAW (Evan J. Criddle et

al. eds., 2019) ............................................... 15, 23, 24, 25

xii

4 John N. Pomeroy, EQUITY JURISPRUDENCE § 1080

(5th ed. 1941) ................................................................. 15

Restatement (Third) of Trusts § 95 (A.L.I. 2012).......... 15

Rose v. PSA Airlines (23-734), Br. in Opposition .......... 35

Peter J. Wiedenbeck & Brendan S. Maher, ERISA

PRINCIPLES (2024) ........................................................ 32

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the Sixth Circuit is published at 144

F.4th 828 and is reproduced in the appendix to this

petition at App. 2a–39a. The opinion and order of the

district court granting Respondent’s motion to dismiss is

unpublished and is reproduced at App. 50a–68a. The

opinion and order of the district court granting

Respondent’s motion for summary judgment is

unpublished and is reproduced at App. 40a–49a.

JURISDICTION

The Sixth Circuit issued its judgment on July 17, 2025.

This Court has jurisdiction under 28 U.S.C. § 1254(1). On

October 7, 2025, Justice Kavanaugh granted Petitioners’

application for extension of time to file a petition for writ

of certiorari, from October 15 to November 14, 2025.

STATUTORY PROVISIONS INVOLVED

Section 502(a)(3) of the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1132(a)(3), provides that:

A civil action may be brought by a

participant, beneficiary, or fiduciary (A) to

enjoin any act or practice which violates any

provision of this subchapter or the terms of

the plan, or (B) to obtain other appropriate

equitable relief (i) to redress such violations

or (ii) to enforce any provisions of this

subchapter or the terms of the plan.

Section 514(a) of the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1144(a), provides that:

Except as provided in subsection (b) of this

section, the provisions of this subchapter

and subchapter III shall supersede any and

all State laws insofar as they may now or

hereafter relate to any employee benefit

plan described in section 1003(a) of this title

and not exempt under section 1003(b) of

this title. This section shall take effect on

January 1, 1975.

INTRODUCTION

The Employee Retirement Income Security Act of

1974 protects more than 150 million Americans, and

encompasses over four million retirement, health, and

other employee benefit plans. When either a provision of

ERISA itself or a term within an ERISA plan is violated,

a plan participant or beneficiary may, through 29 U.S.C.

§ 1132(a)(3), bring “[a] civil action” to seek an injunction

or “obtain other appropriate equitable relief.”

In CIGNA Corp. v. Amara, 563 U.S. 421, 439–42

(2011), this Court recognized three remedies that fall

within the purview of “appropriate equitable relief”:

reformation, estoppel, and surcharge. Surcharge, the

Court explained, “require[s] the plan administrator to pay

to already retired beneficiaries money owed them under

the plan.” Id. at 441. Although such relief would “take[]

the form of a money payment” from a fiduciary to the

beneficiary, that circumstance “does not remove it from

the category of traditionally equitable relief.” Id. That is

so because, “prior to the merger of law and equity[,] this

kind of monetary remedy against a trustee” was

“exclusively equitable.” Id. at 442. And because “ERISA

typically treats” a plan fiduciary “as a trustee” and a plan

participant as a beneficiary, this same monetary remedy

is available in a suit brought by an ERISA participant

against a plan fiduciary. Id. at 439.

Consistent with this reasoning, six courts of appeals

have held, post-Amara, “that Section 1132(a)(3) creates a

cause of action for monetary relief” for fiduciary

wrongdoing. Gimeno v. NCHMD, Inc., 38 F.4th 910, 914–

15 (11th Cir. 2022) (citing Sullivan-Mestecky v. Verizon

Commc’ns Inc., 961 F.3d 91, 102–03 (2d Cir. 2020); Moyle

v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 960 (9th

Cir. 2016); Silva v. Metro. Life Ins. Co., 762 F.3d 711, 720–

22, 724–25 (8th Cir. 2014); Gearlds v. Entergy Servs., Inc.,

Unless otherwise noted, statutory citations in this petition are to

the U.S. Code.

709 F.3d 448, 450–52 (5th Cir. 2013); Kenseth v. Dean

Health Plan, Inc., 722 F.3d 869, 880–82 (7th Cir. 2013)).

Two years ago, however, the Fourth Circuit departed

from this understanding, by deeming Amara’s discussion

dicta and rejecting a plaintiff’s attempts to rely on it to

seek surcharge. Rose v. PSA Airlines, Inc., 80 F.4th 488,

503–04 (4th Cir. 2023). And in the decision below, the

Sixth Circuit deepened this split even further, by “sid[ing]

with the Fourth Circuit” and parting ways with the other

courts that recognize surcharge as an available §

1132(a)(3) remedy. App. 33a (citing Rose, 80 F.4th at 499–

504; Gimeno, 38 F.4th at 914–15). That conflict alone—

over a “landmark” federal law governing millions of

people and trillions in assets, Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 137 (1990)—more than satisfies

the criteria for granting a writ of certiorari.

Were that not enough, the practical consequences of

the Fourth and Sixth Circuit’s rule furnishes yet another

basis for review. As this Court has explained, “[t]he

principal object of [ERISA] is to protect plan participants

and beneficiaries.” Boggs v. Boggs, 520 U.S. 833, 845

(1997). It does so by providing beneficiaries with “prompt

and fair claims settlement procedures” to “ensure that

employees [can] receive the benefits they ha[ve] earned.”

Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004);

Conkright v. Frommert, 559 U.S. 506, 516 (2010). Yet the

process in this case has been neither prompt nor fair nor

has it offered a path for Petitioners to obtain the benefits

that they have bargained for. It has been the opposite of

all of those things.

Petitioners here allege that Regions fell afoul of its

obligations under Petitioners’ retirement plans and that it

violated a separate trust agreement. App. 10a, App. 32a.

Together, these actions caused Petitioners to lose millions

of dollars in pension benefits. App. 45a. Regions has not

seriously contested these allegations. See App. 32a, App.

41a–44a.

When Petitioners pursued a § 1132(a)(3) claim to

redress violations of their retirement plans, they—

following Amara’s lead—sought surcharge. 563 U.S. at

442. But the Sixth Circuit closed that door to them,

holding that their requested remedy did not qualify as

“appropriate equitable relief,” despite recognizing that

surcharge would have only been available in an equity

court during the days of the divided bench. App. 32a–33a.

So Petitioners turned to state law to enforce a contract to

which Regions agreed to be bound and that was neither

required by ERISA nor by Petitioners’ retirement plans.

Yet that avenue too was unavailable because, according to

the panel, “a breach-of-contract suit” is preempted

“whenever it implicates the ‘relations among the

traditional ERISA plan entities,’” which include “plan

beneficiaries, sponsors, and administrators.” App. 25a–

26a (emphasis added).

In short, Petitioners could not obtain relief under

federal law because the Sixth Circuit adopted an

exceedingly narrow and historically unmoored

understanding of equitable relief. They could not obtain

relief under state law because the Sixth Circuit embraced

an all-too-broad understanding of preemption. That

jarring result—no remedy for Regions’s alleged

wrongdoing—leaves Petitioners with no recourse.

Worse, the panel’s logic serves up a recipe for unchecked

malfeasance in future cases in the Sixth Circuit. There is

nothing to suggest that Congress, which enacted ERISA

“to protect . . . the interests of participants in employee

benefit plans,” intended for that to happen. 29 U.S.C. §

1001(b). And had Petitioners filed suit one state over, in

Alabama or Arkansas, it would not have happened.

This case thus presents the Court an excellent

opportunity to resolve an acknowledged and entrenched

split on a deeply important issue. Alternatively and

additionally, it offers a vehicle to rein in an overly

expansive understanding of ERISA preemption. The

Court should grant review and reverse.

STATEMENT OF THE CASE

A. Legal framework

Petitioners are former employees of Ruby Tuesday,

Inc., and participants of two retirement plans offered by

the company: the Executive Supplemental Pension Plan

and the Management Retirement Plan (together, the

“Plans”). App. 51a. These Plans were established in 1984

and 1989, respectively. Id. They are top-hat plans, which

“provide retirement benefits to a select group of

management or highly compensated employees.” App.

41a (internal quotation marks omitted).

Like other top-hat plans, the Plans are “nonqualified,”

id., which means that they are “exempted from ERISA’s

funding, fiduciary, and other requirements,” Browe v.

CTC Corp., 15 F.4th 175, 186 n.3 (2d Cir. 2021). They are

also “unfunded,” which means that Ruby Tuesday did not

have to “set[] aside money for participants (whether in

‘escrow, trust fund, or otherwise’)” and did not need to

“giv[e] [Petitioners] a security interest in assets.” App. 8a

(quoting In re IT Grp., Inc., 448 F.3d 661, 665, 667–69 (3d

Cir. 2006)).

In order to “provide[]” a degree of “protection to

participants,”

many

employers—including

Ruby

Tuesday—create a “rabbi trust” for top-hat plans. App.

9a. “A ‘rabbi trust’ is a mechanism through which an

employer may segregate top-hat plan funds without

jeopardizing a plan’s unfunded status.” App. 42a n.1

(quoting Loffredo v. Daimler AG, 666 F. App’x 370, 372

(6th Cir. 2016)). The trust is irrevocable, so its funds are

“out of reach of the employer.” Id. Yet “[b]ecause the

trust corpus technically remains property of the

employer, the beneficiaries of the trust are not taxed on

their portion of the Trust corpus or Trust proceeds until

the assets are actually distributed.” Id. (quoting In re

Outboard Marine Corp., 278 B.R. 778, 785 (N.D. Ill.

2002)).

Though an employer need not establish a rabbi trust,

many do, and the Internal Revenue Service has published

a model trust for employers to reference. IRS Rev. Proc.

92-64. This model contemplates that rabbi trusts will both

follow and be governed by state law. It provides, for

example, (1) that the rabbi trust must be “a valid trust

under state law,” (2) “that all of the material terms and

provisions of the trust” be “enforceable under the

appropriate state laws,” and (3) that any trust agreement

“be governed by and construed in accordance with the

laws of” a particular forum state. Id.

Ruby Tuesday created its rabbi trust (the “Trust”) for

the Plans in 1992 and funded it through corporate-owned

life insurance policies. App. 9a, App. 51–52a. The Trust

was governed by a Trust Agreement that designates

Ruby Tuesday as the Trust’s Sponsor and Regions as its

Trustee. D. Ct. Dkt. No. 19-3. (“Tr. Agmt.”) at 1. Like

the IRS’s model trust, the Agreement references state

and federal law, and includes a forum selection clause

stating that all trust agreement provisions “shall be

construed according to the laws of the State of Alabama.”

Id. at 17.

The Agreement, further, specifies the relevant

obligations and responsibilities of Regions and Ruby

Tuesday. These responsibilities include (i) vesting “dayto-day administration of the Plans” to Regions; (ii)

requiring Ruby Tuesday to “fund the Plans to the present

actuarial value of all unpaid benefits” upon a change in

control; (iii) requiring Ruby Tuesday to submit a signed

“writing” to Regions before Regions may cease benefit

payments; and (iv) mandating that Regions “take any and

all legal action to enforce” Ruby Tuesday’s trust

obligations. Id. at 6, 15, 17; App. 10a. Separate and apart

from the Trust Agreement, the Plans provide that, so long

as not prohibited by law, Ruby Tuesday shall “pay a lump

sum . . . of any retirement benefits due to Participants

upon [the Plans’] termination.” D. Ct. Dkt. 19-1 at 15; D.

Ct. Dkt. 19-2 at 13.

B. Factual background

1. In December 2017, NRD Capital, a private

investment firm, purchased Ruby Tuesday.

That

Because this matter arises in a summary judgment posture, the

facts are viewed in the light most favorable to Petitioners, with

reasonable inferences drawn in their favor. Tolan v. Cotton, 572 U.S.

purchase triggered a “change of control” and, as specified

above, this change “triggered many duties” under the

Trust Agreement. App. 10a. Those duties included Ruby

Tuesday fully funding the plans to their present actuarial

value. But Regions did not demand—and Ruby Tuesday

did not take—any such action. Id.

2. In March 2019, Ruby Tuesday’s board “terminated

the Plans” and “permitted participants to take lump-sum

payouts between March 2020 and March 2021.” Id. Yet

contrary to the terms of the Plans, Regions “failed to

notify” participants of their rights to these distributions

and “failed to enforce” Ruby Tuesday’s “obligation to

distribute” these lump-sum payments. App. 52a.

3. In July 2020 (and notwithstanding the provisions of

its March 2019 termination), Ruby Tuesday “orally

instructed” Regions to cease all benefit payments starting

on August 1, 2020. App. 10a. Regions complied. Id. The

Trust Agreement, however, only allowed for the

suspension of benefits with written notice of insolvency.

App. 10a–11a. Ruby Tuesday ultimately sent Regions this

written notice in September 2020. “In that notice, Ruby

Tuesday alerted Regions to its insolvency, ordered

Regions to cease payments, and told it to ‘hold the assets

of the Trust for the benefit of [Ruby Tuesday’s]

creditors.’” App. 11a.

4. On October 7, 2020, Ruby Tuesday filed for

bankruptcy. App. 44a. Around this same time, Regions

brought an interpleader action, seeking clarity on what to

do with the Trust’s assets—i.e., whether to distribute

650, 651 (2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)).

them to Petitioners, return them to Ruby Tuesday, or

transfer them to Ruby Tuesday’s bankruptcy estate. Id.

The bankruptcy court chose the final option and ordered

Regions to transfer all funds to the bankruptcy estate for

the benefit of Ruby Tuesday’s creditors. Id. Petitioners

thereafter settled with the bankruptcy estate by agreeing

to receive a share of the fund assets. App. 11a. In

exchange, Petitioners waived their right to appeal the

court’s order directing Regions to transfer the Trust’s

assets to the bankruptcy estate. Id. Petitioners did not

waive any other rights as to Ruby Tuesday or Regions.

C. Proceedings below

1. Petitioners subsequently filed suit against Regions

in the Eastern District of Tennessee, asserting that its

actions and/or failures to act caused Petitioners to lose

millions in retirement benefits. App. 45a. Petitioners

asserted claims under both Alabama law and § 1132(a)(3).

App. 45a, App. 47a.

2. On October 8, 2021, the district court dismissed

Petitioners’ state-law claims, finding them expressly

preempted. App. 65a. The court characterized these

claims as being “intertwined with the Plans” and thus, in

its view, an attempt by Petitioners to eschew ERISA’s

enforcement scheme in favor of state law. App. 66a.

After discovery, the district court dismissed

Petitioners’ remaining claim under § 1132(a)(3). App. 49a.

According to the court, “although [Petitioners] classif[ied]

their requested relief as an ‘equitable surcharge,’ they

[were], in essence, seeking monetary compensation for

the full amount of benefits they would have received

under the Plans.”

Id.

The court reasoned that

§ 1132(a)(3) “does not, in most situations, authorize an

action for money,” particularly where parties “seek no

more than compensation for loss resulting from the

defendant’s breach.” App. 48a–49a.

3. The Sixth Circuit affirmed. As to preemption, it

held that “no matter the ‘label’ the Participants place on

their four [state-law] causes of action, their claims all seek

the same thing: the benefits allegedly due them under

their ERISA-covered Plans.” App. 22a. Allowing these

claims to proceed in federal court would “impose

additional duties on Regions on top of the duties that

ERISA imposes” and “undercut ERISA’s uniformity

goals” by “subject[ing] plan administrators . . . to the

potentially conflicting standards of conduct of all 50

States.” App. 22a–23a.

In tackling preemption, the panel acknowledged that

“this case comes with a wrinkle”: top-hat plans, it noted,

are exempt from ERISA’s “federal fiduciary duties.”

App. 23a. The panel also observed that “Congress

‘deliberately omitted’ these duties [from federal law]

because high-level employees can protect themselves

through contract.” Id. (quoting Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 54 (1987)). And the panel

recognized Petitioners here did actually seek such

protection, by entering into a separate rabbi-trust

agreement with Regions. App. 9a–10a.

Yet the Sixth Circuit nonetheless held that any claims

arising from the Trust Agreement sufficiently “relate to”

the Plans to trigger ERISA’s preemption provision, which

precludes Petitioners from asserting state-law “right[s]”

or seeking “state-law remed[ies].” App. 21a–22a, App. 24a

(emphasis omitted); 29 U.S.C. § 1144(a) (providing that

ERISA “shall supersede any and all State laws insofar as

they may now or hereafter relate to any employee benefit

plan”). “[T]hat fact remains true even for the top-hat

plans that ERISA exempts from its fiduciary-duty rules”;

§ 1144(a) “continues to apply” even if Petitioners bargain

for protections under state law and codify these

protections into a separate trust agreement. App. 23a–

24a. Thus, if Petitioners wish to obtain relief, “they must

enforce the contractual duties under ERISA’s ‘exclusive’

remedial scheme.” App. 25a.

4. The Sixth Circuit turned next to the claim that

Petitioners did bring under that remedial scheme: for

equitable relief under § 1132(a)(3). As to this claim, the

court declined to address whether Regions had “violated”

a term of the plan or had otherwise committed a

“remediable wrong.” App. 32a. Instead, it examined only

whether Petitioners could obtain their sought-after

remedy: surcharge.

On this question, the panel acknowledged Amara’s

“suggest[ion] that equity courts could grant a beneficiary

‘monetary “compensation” for a loss resulting from a

trustee’s breach of duty[.]’” App. 33a (quoting Amara,

563 U.S. at 441). The Sixth Circuit added that, “[i]n the

years after Amara, several courts [had] relied on that

decision to conclude that ERISA plan participants may

seek this type of monetary award against ERISA

fiduciaries under § 1132(a)(3).” Id. (citing Gimeno, 38

F.4th at 914–15).

But the Sixth Circuit declined to follow these courts

and opted instead for the rule of the Fourth Circuit. Like

that court, the Sixth Circuit characterized Amara’s

surcharge discussion as “not essential” to the judgment.

App. 33a–34a. This dicta, it reasoned, contravenes

Mertens v. Hewitt Associates, which states that

“‘monetary relief for all losses . . . sustained as a result of

[an] alleged breach of fiduciary duties’ [falls] outside the

phrase ‘equitable relief’ in § 1132(a)(3).” App. 35a

(quoting 508 U.S. 248, 255–59 (1993)). According to the

Sixth Circuit, “[n]othing in Mertens suggests that the

Court would have changed its mind if the participants had

simply changed the name of their monetary remedy from

damages to surcharge.” Id.

The Sixth Circuit rejected Amara’s attempt to

distinguish Mertens because the defendant in Amara was

a fiduciary and the defendant in Mertens was not. “[T]his

distinction,” per the panel, “did not matter under the

common law of trusts”; equity courts could grant relief

against both the trustee and against third parties who

knowingly participate in the trustee’s breach. Id.

Finally, the Sixth Circuit reasoned that Montanile v.

Board of Trustees, 577 U.S. 136 (2016), dispelled any

remaining uncertainty over the interplay between

Mertens and Amara. This is because, in Montanile, this

Court characterized Amara’s § 1132(a)(3) discussion as

dicta and affirmed “that Mertens’s interpretation of

§ 1132(a)(3) ‘remains unchanged.’” App. 37a. Such

language, the Sixth Circuit asserted, prevents Petitioners

from moving forward with their § 1132(a)(3) claim.

REASONS FOR GRANTING THE PETITION

I. COURTS ARE DIVIDED ON WHETHER

PLAINTIFFS MAY SEEK SURCHARGE UNDER

29 U.S.C. § 1132(a)(3).

When Congress drafted ERISA, it sought to provide

“a uniform regime of ultimate remedial orders and awards

when a violation has occurred.” Rush Prudential HMO,

Inc. v. Moran, 536 U.S. 355, 379 (2002). The conflicting

approaches courts have taken on whether plaintiffs can

seek and obtain surcharge under § 1132(a)(3) undermines

that goal.

A. Six courts of appeals authorize equitable

surcharge.

1. Of the decisions that recognize equitable

surcharge, Gimeno v. NCHMD, Inc., 38 F.4th 910 (11th

Cir. 2022), is particularly instructive.

In that case, the widower of a covered employee sued

to recover life insurance benefits. Id. at 913. The

employee had sought supplemental coverage from his

employer. Id. His employer, in turn, had “deducted

premiums” from the employee’s pay and “provided him

with a benefits summary stating that he” had

supplemental coverage. Id. But after the employee’s

passing, the employer “refused to pay any supplemental

benefits because it claimed it had never” received a

particular form. Id. The widower asserted that his spouse

“did not receive the form” and that the employer “did not

notify him that the form was necessary or missing.” Id.

Following the employer’s denial of coverage, the widower

sued under § 1132(a)(3), seeking “an order requiring that

[the employer] pay him the plan benefits that he would

have received but for their alleged breach.” Id.

The Eleventh Circuit held that the plaintiff could seek

such relief. The court explained that, as used in

§ 1132(a)(3), the term “‘[e]quitable relief’ refers to ‘those

categories of relief that were typically available in equity’

before the fusion of courts of equity and courts of law.”

Id. at 914. It likewise acknowledged that “[c]ompensatory

damages were not typically available in equity.” Id. But

“[t]hat said, certain kinds of monetary relief were

typically available in equity.” Id. (citing LaRue v.

DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 253 n.4

(2008)) (emphasis added). That includes surcharge, which

was “an order that a trustee compensate a trust

beneficiary for a loss due to a breach of fiduciary duty.”

Id. (citing Samuel L. Bray, Fiduciary Remedies, in THE

OXFORD HANDBOOK OF FIDUCIARY LAW 449, 456–58

(Evan J. Criddle et al. eds., 2019); Restatement (Third) of

Trusts § 95 cmt. b. (A.L.I. 2012)). “The trustee’s personal

liability to make compensation for the loss occasioned by

a breach of trust is a simple contract equitable debt,” is

“equitable in character,” and is “enforceable against a

trustee in a court exercising equity powers.” Id. (citing 4

John N. Pomeroy, EQUITY JURISPRUDENCE § 1080, at 229

(5th ed. 1941); Restatement (Third) of Trusts § 95)

(cleaned up). To close the loop, the Eleventh Circuit

likened a trustee in equity to a fiduciary within an ERISA

plan, observing that both manage assets for the benefit of

a beneficiary. If surcharge is available in the former case,

Gimeno reasoned, then so too should it be available in the

latter. Id.

On this final point, the Eleventh Circuit stressed “that

the defendant’s status as a fiduciary made a ‘critical

difference’ in differentiating a surcharge from the kind of

compensatory damages that were not typically available

in courts of equity.” Id. (quoting Amara, 563 U.S. at 442).

That distinction is why the plaintiffs in Mertens and in

other prior cases could not obtain surcharge: their suits

did not “concern[] claims against a fiduciary.” Id. at 915.

2. The Seventh Circuit charted a substantially similar

course in Kenseth v. Dean Health Plan, Inc., 722 F.3d 869

(7th Cir. 2013). As in Gimeno, the plan in Kenseth denied

an employee coverage despite earlier statements

suggesting otherwise. Id. at 872. And as here, the district

court “declined to decide whether” the plaintiff could

prove that defendant actually “breached [any] fiduciary

duty,” and instead dismissed plaintiff’s claim because it

believed that surcharge was “not available as equitable

relief under section 1132(a)(3).” Id. at 875; accord App.

32a.

The Seventh Circuit reversed. Amara, it explained,

“clarified that equitable relief may come in the form of

money damages when the defendant is a trustee in breach

of a fiduciary duty.” Id. at 878–79. Like Amara, Kenseth

concerned a suit “by a beneficiary against a plan fiduciary

(typically treated in ERISA as a trustee) regarding the

terms of the plan (typically treated under ERISA as a

trust).” Id. at 878. Such a suit could have only been

brought in equity. Id. And if so brought, the “[e]quity

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.” Id. (quoting Amara, 563 U.S. at 441).

Kenseth added that resolving § 1132(a)(3) claims

requires a case-by-case analysis, as “[m]onetary

compensation [can]not automatically [be] considered

‘legal’ rather than ‘equitable,’” or vice versa. Id. at 880.

Rather, courts must consider “[t]he identity of the

defendant as a fiduciary, the breach of a fiduciary duty,

and the nature of the harm.” Id.

3. The Second Circuit is of a piece, a point made clear

in Amara itself, when the district court expressly

recognized on remand that surcharge, reformation, and

estoppel were “remedies generally available under

§ 502(a)(3), even if the practical result of entering such

relief is a monetary payment.” Amara v. CIGNA Corp.,

925 F. Supp. 2d 242, 250 (D. Conn. 2012). Because

calculating surcharge posed challenges for class

certification, however, and because reformation provided

the Amara plaintiffs with adequate relief, the district

court opted ultimately to award reformation rather than

surcharge. Id. at 264. The Second Circuit affirmed.

Amara v. CIGNA Corp., 775 F.3d 510, 532 (2d Cir. 2014).

No such challenges were present in SullivanMestecky v. Verizon Communications Inc., and the court

there held that the plaintiff could seek surcharge as a

form of “appropriate[] . . . equitable relief,” since the

remedy was available only in equity “‘prior to the merger

of law and equity,’” and the plaintiff was a beneficiary

suing a fiduciary for breach. 961 F.3d 91, 99, 102–03 (2d

Cir. 2020) (quoting Amara, 563 U.S. at 442).

4. In Gearlds v. Entergy Servs., Inc., the Fifth Circuit

recognized that a claim to “be made whole in the form of

compensation for lost benefits” was “viable in light of

Amara.” 709 F.3d 448, 452 (5th Cir. 2013). Although

acknowledging that Amara’s discussion may have been

dicta, the panel emphasized that “[b]ased on the depth of

the Court’s treatment of the issue, . . . Amara’s

pronouncements about surcharge as a potential remedy

under § 502(a)(3) should be followed.” Id.

5. The Ninth Circuit has likewise concluded that

ERISA authorizes surcharge. In Gabriel v. Alaska

Electric Pension Fund, it analogized “an ERISA lawsuit

by a beneficiary against a plan fiduciary” to a case

between a trust beneficiary and a trustee—which would

have been an equity suit, brought in an equity court,

seeking an equitable remedy. 773 F.3d 945, 955 (9th Cir.

2014) (cleaned up) (quoting Amara, 563 U.S. at 439–40).

It reiterated the point in Moyle v. Liberty Mutual

Retirement Benefit Plan, emphasizing that “Amara

makes it very clear that remedies such as reformation,

surcharge, estoppel, and restitution are traditionally

equitable remedies, and the fact that they take a

monetary form does not alter this classification.” 823 F.3d

948, 960 (9th Cir. 2016).

6. Finally, the Eighth Circuit has recognized that

“Amara changed the law as our court had previously

interpreted it.” Silva v. Metro. Life Ins. Co., 762 F.3d 711,

724 (8th Cir. 2014). Pre-Amara, Eighth Circuit plaintiffs

faced a “remedy-less regulatory vacuum” under §

1132(a)(3), “created by ERISA’s broad preemption of

state law claims and the Supreme Court’s narrow

interpretation of other appropriate equitable relief.”

Pichoff v. QHG of Springdale, Inc., 556 F.3d 728, 732 (8th

Cir. 2009) (internal quotation marks omitted). Amara

altered this “landscape by clearly spelling out the

possibility of an equitable remedy under ERISA for

breaches of fiduciary obligations by plan administrators.”

Silva, 762 F.3d at 722. Consequently, plaintiffs like those

in Silva could seek a make-whole remedy post-Amara, so

long as they can show fiduciary wrongdoing. Id. at 722,

725.

In reaching this conclusion, the Eighth Circuit drew

not only on Amara but also on McCravy v. Metropolitan

Life Insurance Co., 690 F.3d 176, 182–83 (4th Cir. 2012).

In McCravy, the Fourth Circuit expounded on why

Amara’s approach “ma[de] sense.” Silva, 761 F.3d at 725

(quoting McCravy, 690 F.3d at 182). As it explained, in a

counterfactual world, taking surcharge off the table

“would encourage abuse by fiduciaries.” Id. Fiduciaries

would have “every incentive to wrongfully accept

premiums, even if they had no idea as to whether coverage

existed—or even if they affirmatively knew it did not.” Id.

The result would be “risk-free windfall profits from

employees who paid premiums on non-existent benefits

but who never filed a claim for those benefits.” Id. That

is not a scenario “Congress would have wanted,” and

Amara appropriately “put th[ose] perverse incentives to

rest.” Id. at 722, 725.

B. Two courts of appeals hold that plaintiffs

cannot seek equitable surcharge.

1. From McCravy and for a decade afterward, the

Fourth Circuit “recognized surcharge as a form of

‘appropriate equitable relief’ available under § 502(a)(3).”

Peters v. Aetna Inc., 2 F.4th 199, 216 (4th Cir. 2021). But

two years ago, in Rose v. PSA Airlines, Inc., 80 F.4th 488

(4th Cir. 2023), a divided panel of that court changed tack.

The plaintiff in Rose sought relief stemming from a

wrongful denial of medical coverage to plaintiff’s son. As

the Fourth Circuit recounted, the plan took a month to

review the son’s coverage appeal even though, under

federal law, such “expedited” reviews must “be completed

within—at most—seventy-two hours.” Id. at 493–94

(citing 45 C.F.R. § 147.136(d)(3)(iv)). “Ultimately, after

completing its review,” the plan “vindicated” plaintiff’s

son, and “overturn[ed] [its] previous claim denials.” Id. at

494. But by then “it was too little, too late”: plaintiff’s son

“had been dead for almost a month.” Id.

Plaintiff filed suit and pursued two forms of

§ 1132(a)(3) relief: unjust enrichment and equitable

surcharge. Id. at 496. The Fourth Circuit remanded for

the district court to consider whether the plaintiff could

obtain unjust enrichment, as the district court had not

conducted a proper analysis on the first pass. Id. at 505.

But the Fourth Circuit also determined that the plaintiff

could not seek surcharge as a matter of law, parting ways

with its prior decisions in McCravy and Peters. Id. at 504.

In arriving at this conclusion, Rose observed that

“courts of equity shared ‘concurrent jurisdiction’ with

courts of law over” certain disputes, while in other cases,

certain “suits had to be brought in courts of equity,

making them fall within equity’s ‘exclusive jurisdiction.’”

Id. at 497. The majority acknowledged that a dispute over

a trust—the analogue to an ERISA suit by a beneficiary

against a fiduciary—could only be brought in equity. Id.

And when such a suit was filed, the equity court “had a

relatively free hand to award financial remedies,”

including “surcharge.” Id. at 498. In short, had the Rose

plaintiff brought the very same suit before the merger of

the bench, she would have done so in equity, and the

equity court could have awarded her surcharge.

But that did not end the matter. Instead, according to

the Rose majority, “[p]laintiffs can get monetary relief

under § 502(a)(3) only if such relief was ‘typically

available in equity.’” Id. at 500. “[T]o be a ‘typically’

available remedy,” the Fourth Circuit claimed that “the

relief must have been traditionally available in

concurrent-jurisdiction cases.” Id. In these concurrentjurisdiction cases, “equitable courts could sometimes

award monetary restitution for unjust enrichment, but

they could not award the broad, personal, and

compensatory relief available in law and in exclusivejurisdiction cases.” Id.

Granted, the court acknowledged this conclusion was

at odds with Amara. Id. at 502. But it claimed that

Amara’s discussion of surcharge “was dicta” and,

moreover, “broke with” prior Supreme Court precedent

in Mertens and Great-West Life & Annuity Insurance Co.

v. Knudson, 534 U.S. 204 (2002). Id. at 502–03. The

majority further claimed that, in Montanile, this Court

“rejected the turn that it contemplated in Amara,” and

made clear that “Amara’s approach [was] antithetical to

a proper § 502(a)(3) analysis.” Id. at 503 (citing

Montanile, 577 U.S. at 148 n.3).

Judge Heytens dissented from this aspect of the

majority’s holding. As he noted, lower courts “are bound

by the Supreme Court’s formulation of the relevant

principles.” Id. at 506 (Heytens, J., concurring in part and

dissenting in part). That is “all-the-more-true here,

where the relevant portion of the Supreme Court’s

opinion in Amara extensively discussed both Mertens and

Great-West.” Id. (citing Amara, 563 U.S. at 438–39).

Judge Heytens was also “unconvinced” by the majority’s

reading of Montanile. Id. That case “did not say Amara

had been inconsistent with the Court’s prior decisions.”

Id. “Nor,” Judge Heytens added, “did it say the Court

was now adopting an approach contrary to Amara.” Id.

2. The decision below substantially tracks the

reasoning of the majority in Rose. Like Rose, the Sixth

Circuit held that Amara’s “surcharge discussion [w]as

dicta that ‘was not essential’ to its vacatur judgment.”

App. 33a–34a (quoting Montanile, 577 U.S. at 148 n.3).

Like Rose, it opined that “Amara’s dicta conflicts with”

Mertens and Montanile. App. 34a, App. 37a. And like

Rose, the court ruled that § 1132(a)(3) authorizes “only

those remedies that were typically available in equity, not

all remedies that equity courts could provide in, say, trust

cases.” App. 30a (cleaned up). Consequently, “a request

for compensatory damages—that is, a request for

monetary relief measured by the plaintiff’s losses—falls

on the nonactionable legal side of the divide.” App. 31a

(internal quotation marks omitted).

In addition to dismissing Petitioners’ § 1132(a)(3)

claim, the panel rejected Petitioners’ attempt to invoke

state law. Though it acknowledged that top-hat plans are

unfunded and nonqualified, and that Petitioners

bargained for the terms set forth in the Trust Agreement,

it determined that the Agreement had a sufficient

“relat[ion] to” the Plans to trigger ERISA preemption.

App. 8a, 21a–26a; see also App. 41a.

II. THE

SIXTH

INCORRECT.

CIRCUIT’S

DECISION

The court below erred in three ways. First, it failed to

recognize surcharge as a longstanding and wellestablished equitable remedy, with characteristics and

features unique to equity. Second, it mischaracterized

Amara as an outlier to this Court’s other decisions in

Mertens, Great-West, and Montanile. And third, it

flouted ERISA’s protective purpose, by leaving

Petitioners no recourse under both state and federal law.

A. Surcharge is a form of equitable relief.

1. In reaching its decision, the panel characterized

“surcharge and damages [as] ‘essentially equivalent’

because they describe the same concept: ‘monetary relief’

. . . to compensate a plaintiff for the losses that the

defendant caused.” App. 35a. But just because an

equitable remedy resembles a legal one does not make it

one.

Take restitution. In early cases, this Court described

restitution as one of “those categories of relief that were

typically available in equity.” Mertens, 508 U.S. at 256.

But Great-West later clarified that “not all relief falling

under the rubric of restitution is available in equity.” 534

U.S. at 212. That’s because “restitution is a legal remedy

when ordered in a case at law and an equitable remedy

when ordered in an equity case,” and “whether it is legal

or equitable depends on the basis for the plaintiff’s claim

and the nature of the underlying remedies sought.” Id. at

213 (cleaned up). Hence, in Great-West, this Court held

that the plaintiffs sought legal restitution under the facts

presented, while in Sereboff v. Mid-Atlantic Medical

Services, 547 U.S. 356, 362 (2006), it reasoned that the

beneficiaries there had pleaded a claim for equitable

relief.

2. Surcharge is much the same way. Like equitable

and legal restitution, even if surcharge might look like

compensatory damages, the differences between the two

“are not random,” and “there are reasons to avoid

conflating [surcharge] with legal damages.” Bray,

Fiduciary Remedies, at 458. Indeed, the distinction “has

a number of implications in U.S. law, including that a

claim for this remedy should be subject to equitable

defenses such as laches and unclean hands, and that the

remedy should not be awarded by a jury.” Id. As a

distinctly equitable remedy, surcharge is subject to

offsets for services rendered, is enforceable with

contempt, and may not be accompanied by punitive

damages. Id. at 458, 465. And as relevant here, “[e]quity

courts” could only “provide relief in the form of monetary

‘compensation’ for a loss resulting from a trustee’s breach

of duty,” meaning that, to obtain surcharge, an ERISA

plaintiff must identify a beneficiary-trust-trustee

relationship and point to “actual harm.” Amara, 563 U.S.

at 441, 444. Rather than being available in every possible

§ 1132(a)(3) case, then, surcharge is generally limited to

suits “by a beneficiary against a plan fiduciary (whom

ERISA typically treats as a trustee) about the terms of a

plan (which ERISA typically treats as a trust).” Id. at 439.

3. Nor for that matter is surcharge some anomaly in

structure, purpose,

or operation.

Consider

“disgorgement,” a form of relief that “parallels” the

“equitable remedy” of “accounting for profits.” Liu v.

SEC, 591 U.S. 71, 76 n.1, 81 (2020). As this Court has

explained, such relief “reflect[s] a foundational principle”:

that “it would be inequitable that a wrongdoer should

make a profit out of his own wrong.” Id. at 79–80 (cleaned

up). A court may accordingly issue “a decree compelling

one to disgorge profits.” Id. at 80. Whatever this

remedy’s name—“disgorgement” today or “accounting”

during the divided bench—the remedy itself “fall[s]

comfortably within ‘those categories of relief that were

typically available in equity.’” Id. at 80–81, 84–85

(quoting Tull v. United States, 481 U.S. 412, 424 (1987);

Great-West, 534 U.S. at 214 n.2; Mertens, 508 U.S. at 256).

Surcharge is simply disgorgement’s mirror image.

Both ask a trustee to “account for his or her stewardship

of the trust property.” Bray, Fiduciary Remedies, at 449,

456–57. Where disgorgement requires the trustee to

replenish the trust with any ill-gotten gains, surcharge

returns to the plan “the expected results on the negative

side of the ledger.” Id. The former, in short, is about

wrongful gains. The latter is about wrongful losses.

If anything, the circumstances here make this case

more straightforward than Liu.

The Court there

examined whether 15 U.S.C. § 78u(d)(5) allows the

Securities and Exchange Commission to request

disgorgement in an enforcement action. 591 U.S. at 75.

Under this provision, the Commission may seek and a

federal court may award “any equitable relief that may be

appropriate”—language that, Liu recognizes, parallels §

1132(a)(3). Id. at 75, 78–79 (citing Mertens, 508 U.S. at

256; Amara, 563 U.S. at 439, Montanile, 577 U.S. at 142;

Great-West, 534 U.S. at 217).

But unlike this case, Liu did not involve a formal or

actual trustee-trust-beneficiary relationship; it instead

involved a fraudulent developer, who had no express or

implied fiduciary relationship to the defrauded investors.

Id. at 77–78. Yet that difference, this Court explained,

was not determinative. That is because, in equity, a court

could sometimes “authorize[] profits-based relief” where

“no such trust or special relationship existed” by

“impos[ing] a constructive trust.” Id. at 81–82. It can do

that by “convert[ing]” a patent infringer “into a trustee”

or, as in Liu, by effectively treating a fraudulent

developer as a trustee. Id. at 82. In all such cases,

“disgorgement” remains firmly within the “categories of

relief that were typically available in equity.’” Id. at 79–

81 (quoting Tull, 481 U.S. at 424; Great-West, 534 U.S. at

214 n.2; and Mertens, 508 U.S. at 256).

When read together, Amara and Liu also

demonstrate why it is immaterial that ERISA “exempts

administrators of top-hat plans from its federal fiduciary

duties.” App. 23a (citing 29 U.S.C. § 1101(a)(1)).

After all, to bring a successful § 1132(a)(3) claim,

plaintiffs must either allege breach of a federal fiduciary

duty or identify a “violation” of “the terms of the plan.”

True, § 1101(a)(1) removes the former avenue for top-hat

plan participants. But Petitioners here have not taken

that path. They have instead asserted that the Plans

require lump-sum distributions upon termination, a plan

term that went unenforced under Regions’s watch. App.

10a.

Having satisfied this threshold condition, Petitioners

must then show that the § 1132(a)(3) remedy falls under

the umbrella of “appropriate equitable relief.” On this

point, Amara and several courts of appeals post-Amara

state that surcharge is a form of “appropriate equitable

relief” when sought by a plan beneficiary against a plan

fiduciary. Amara, 563 U.S. at 442; Gabriel, 773 F.3d at

955, 963. As noted above, that is because “ERISA

typically treats” a plan fiduciary as a trustee, “typically

treats” the “terms of a plan” as a trust, and typically

treats a plan participant as a beneficiary. Amara, 563

U.S. at 439. Accordingly, the relationship between an

ERISA plan participant, ERISA plan, and ERISA plan

fiduciary is akin to that between a beneficiary, trust, and

trustee. Id. And because beneficiaries could seek

surcharge against trustees in courts of equity, then—the

logic goes—surcharge should also lie in an analogous

action between a plan participant and plan fiduciary.

But there is no need to carry on that extended analogy

here. Regions—regardless of whether it had any

fiduciary duties under ERISA—is a trustee for a trust for

which Petitioners were beneficiaries.

The Trust

Agreement reflects that understanding, which means that

in this case there is already an identified beneficiarytrust-trustee relationship. Tr. Agmt. at 8–10. Put

differently, there is no need to liken an ERISA fiduciary

to a trustee because here the claims are being brought

against a trustee.

In any event, even if the Court were to apply the

analogical framework from Amara, Petitioners would still

have a viable surcharge claim. After all, ERISA does not

say top-hat plan administrators are not fiduciaries. It

“exempts top-hat plans from [ERISA’s] fiduciary-duty

rules.” App. 32a. In other words, a top-hat administrator

can still be a fiduciary; it just does not have to answer to

29 U.S.C. § 1104, ERISA’s fiduciary-duty provision. And

under 29 U.S.C. § 1002(21)(A), “a person is a fiduciary

with respect to” an ERISA plan so long as they “exercise[]

any authority or control respecting management or

disposition of its assets” or exercise “any discretionary

authority or discretionary responsibility in the

administration of such plan.” There is no question

Regions checks that box.

In sum, if creating a constructive trust to award

disgorgement “fall[s] comfortably” within the confines of

equitable relief (as it did in Liu, 591 U.S. at 84–85), and if

awarding surcharge in a suit between an ERISA

participant and ERISA fiduciary approximates the

equitable award between a trustee and beneficiary (as it

did in Amara, 563 U.S. at 439), then recognizing here an

actual trust to award surcharge stands on even firmer

footing. But if the Court were to have any uncertainty on

that point, Regions remains an ERISA fiduciary and,

consequently, remains liable for surcharge if Petitioners

can prove actual harm from a plan violation.

B. The decision below misconstrues Amara’s

relationship with this Court’s other precedents.

The Sixth Circuit’s second contention, that Amara

conflicts with Mertens, Great-West, and Montanile, fares

no better.

1. Amara examined Mertens and Great-West at

length and explained how to square its understanding of

equitable remedies with those cases.

As it observed, in Mertens, the beneficiary sought

damages “against a private firm that provided a trustee

with actuarial services.” 563 U.S. at 439. This Court thus

examined “only . . . the question whether ERISA

authorizes suits for money damages against

nonfiduciaries who knowingly participate in a fiduciary’s

breach of fiduciary duty.” Mertens, 508 U.S. at 251

(emphasis added).

Great-West, on the other hand, involved a fiduciary

suing a beneficiary “to obtain a lien” or “constructive

trust” on money that “the beneficiary had received.”

Amara, 563 U.S. at 439. As discussed, the case’s critical

question was whether this claim was for legal or equitable

restitution; because the funds at issue were no longer “in

the [beneficiary’s] possession,” this Court held that they

could not be recovered in equity . Great-West, 534 U.S. at

214.

Importantly, neither Mertens nor Great-West

“concern[ed] a suit by a beneficiary against a plan

fiduciary.” Amara, 563 U.S. at 439. That posture, as

Amara explains, makes a “critical difference,” since in

equity, surcharge was available only for a trustee’s

breach, and not under the circumstances presented in

Mertens or Great-West. Id. at 442.

2. Nor did Montanile signal some sea change in the

law. That decision confined its entire discussion of Amara

to a footnote. 577 U.S. at 148 n.3. This footnote is itself

likely dicta, as it addressed a “broad[er]” argument made

in the case, id., while the Court resolved the question

presented on narrower grounds, id. at 148–49.

In any event, as Judge Heytens observed in Rose,

Montanile’s footnote did not say Amara was

“inconsistent with” other Supreme Court precedent.

Rose, 80 F.4th at 506 (Heytens, J., concurring in part and

dissenting in part). Nor did it hold that Amara’s approach

was “contrary to” these cases. Id. Instead, the footnote

offered two salient observations.

The first is that “the Court’s discussion of § 502(a)(3)

in [Amara] was not essential to resolving that case”—

which is both undisputed and says nothing about whether

Amara got it right. Montanile, 577 U.S. at 148 n.3. Next,

the footnote rejected the argument, made by the

respondent in Montanile, that Amara “all but

overrul[ed]” Mertens and Great-West. Id. To the

contrary, Amara “reaffirmed” the holdings from those

cases. Id. In other words, Montanile simply made clear

that Mertens, Great-West, and Amara can and should be

read together, with certain remedies available against

fiduciaries that may be unavailable against other parties.

Five years after Montanile, Liu cited Mertens, GreatWest, Amara, and Montanile together in the same

paragraph, without suggesting that the reasoning from

any particular case stuck out from the rest of the group.

591 U.S. at 79.

What about the panel’s assertion that the

distinction between a fiduciary and non-fiduciary “did not

matter under the common law of trusts,” because courts

in equity could grant relief not only against the trustee

but also “against third persons who knowingly

participated in the trustee’s breach”? App. 35a.

That too is a question this Court has already asked and

answered.

As Mertens acknowledges, “[u]nder

traditional trust law,” “a beneficiary could obtain

damages from third persons for knowing participation in

a trustee’s breach of fiduciary duties.” 508 U.S. at 262.

But “only the trustee had fiduciary duties.” Id. And what

“ERISA has eliminated” is “the common law’s joint and

several liability, for all direct and consequential damages

suffered by the plan, on the part of persons who had no

real power to control what the plan did”—i.e., nonfiduciaries. Id. In other words, ERISA distinguishes

between fiduciaries and non-fiduciaries, and holds the

former to account but not the latter. That is why the fact

that the defendant in Amara was a fiduciary made a

“critical difference” for § 1132(a)(3) relief. Amara, 563

U.S. at 442.

4. As a final point, “carefully considered language of

the Supreme Court, even if technically dictum, generally

must be treated as authoritative.” United States v.

Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006); accord

Schwab v. Crosby, 451 F.3d 1308, 1325–26 (11th Cir. 2006)

(collecting cases). Consistent with this understanding,

virtually every court of appeals has followed Amara. Of

course, the Court is “not necessarily bound by dicta

should more complete argument demonstrate that the

dicta is not correct,” and it can and has reconsidered its

earlier dicta in later cases. Kirtsaeng v. John Wiley &

Sons, Inc., 568 U.S. 519, 548 (2013). But that is a task

better left to this Court, rather than an open invitation for

lower courts to splinter over how to apply the law.

C. The decision below conflicts with congressional

intent.

Finally, ERISA was “designed to promote the

interests of employees and their beneficiaries in employee

benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

90 (1983). The decision below turns that principle on its

head. Under the Sixth Circuit’s reasoning, even if a

trustee acts improperly, and even if beneficiaries incur

millions in losses as a result, they have no recourse under

federal or state law.

1. The panel’s holding is particularly ill-suited when it

comes to top-hat plans. Because Congress presumed that

participants in such plans had bargaining power in

negotiations, ERISA exempts top-hat plans from most of

the law’s substantive protections. App. 7a–8a; ERISA

Adv. Op. 90-14A (May 8, 1990) (“recogniz[ing] that [tophat participants] . . . have the ability to affect or

substantially influence, through negotiation[,] . . . the

design and operation of their deferred compensation

plan”). But these negotiations would be an academic

exercise if top-hat participants could not enforce the fruits

of their bargaining in cases of breach. For these

participants, ERISA represents the “mechanism for

federal judicial enforcement of the terms of the plan.”

Peter J. Wiedenbeck & Brendan S. Maher, ERISA

PRINCIPLES 51 (2024). If the employer refuses to uphold

its end of the bargain, the employee must “have access to

judicial enforcement to vindicate their rights, or the plan

becomes an illusory promise.” Id. at 51–52. To hold

otherwise would ensnare top-hat beneficiaries in a

remedy-less twilight zone.

2. This case sharply illustrates that principle. When

the courts below barred Petitioners from obtaining a

federal remedy under ERISA for violations of the Plans,

they turned to state law, alleging violations of the Trust

Agreement. ERISA, to underscore, does not require tophat plans to establish a rabbi trust or to memorialize trust

duties and obligations in writing. The Plans themselves

also did not impose such a requirement; indeed, the rabbi

trust here was not established until several years after the

Plans were formed. The resulting Trust Agreement was

not some pro forma document. The parties negotiated

relevant terms, and specified that it would be governed by

Alabama law. But when Petitioners pursued remedies

under Alabama law, they ended up in the same place as

their § 1132(a)(3) claim: without relief.

3. Consequently, rather than being a “catchall

[provision] . . . offering appropriate equitable relief for

injuries caused by violations that § 502 does not elsewhere

adequately remedy,” Varity Corp. v. Howe, 516 U.S. 489,

512 (1996), the panel’s reasoning turns ERISA

enforcement into a “regulatory vacuum,” where plaintiffs’

state-law remedies are preempted but very few federal

substitutes are provided,” Davila, 542 U.S. at 222

(Ginsburg, J., concurring) (cleaned up). Under the panel’s

understanding, many beneficiaries would be “afford[ed]

less protection . . . than they enjoyed before ERISA was

enacted.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 114 (1989).

“We doubt that Congress would have wanted to bar”

these employees—i.e., beneficiaries who are “actual[ly]

harm[ed]” because of trustee wrongdoing—“from relief.”

Amara, 563 U.S. at 444. That’s because ERISA was

enacted amid a rise of “employees with long years of

employment . . . losing anticipated retirement benefits.”

29 U.S.C. § 1001(a). To “prevent [this] ‘great personal

tragedy,’” Nachman Corp. v. Pension Benefit Guar.

Corp., 446 U.S. 359, 374 (1980) (cleaned up), Congress

sought “to protect” “participants in employee benefit

plans and their beneficiaries . . . by providing for

appropriate remedies, sanctions, and ready access to the

Federal courts,” 29 U.S.C. § 1001(b). The decision below

fails on that measure, by barring Petitioners from

obtaining any remedy under both federal and state law.

III.

THIS CASE PRESENTS AN EXCELLENT

VEHICLE TO ADDRESS IMPORTANT AND

RECURRING QUESTIONS.

The questions presented are undeniably significant,

given the many people and plans covered by ERISA.

They are also both legally important.

1. If the panel decision is upheld on preemption, for

instance, then ERISA would preclude any state-law claim

“whenever” that claim “implicates the relations among . .

. plan beneficiaries, sponsors, and administrators.” App.

25a (cleaned up). That is so even though (i) ERISA itself

contemplates that parties in certain plans would negotiate

separate contractual trust agreements which would be

governed by state law; (ii) federal agencies have issued a

model trust agreement which is governed by state law;

(iii) and the beneficiaries and trustee here did in fact

negotiate a separate trust agreement that would be

governed by state law. If there were ever a case to draw

a line to rein in the breadth of ERISA preemption, this

would be it.

The other question presented, as to § 1132(a)(3), bears

all of the hallmarks of an issue meriting review. It

concerns a deep and entrenched split, which the court

below acknowledged. App. 33a. The ramifications of that

split are both clear and significant. If the position taken

by the Fourth and Sixth Circuits is correct, then plaintiffs

in the Second, Fifth, Seventh, Eighth, Ninth, and

Eleventh Circuits have been improperly awarding money

to plaintiffs for life insurance, health insurance, and

pension benefits. On the other hand, if these six courts of

appeals are right, then the Fourth and Sixth Circuits have

wrongly denied a critical remedy to beneficiaries

proceeding under § 1132(a)(3), resulting in millions in

unrecovered losses.

This petition, moreover, squarely presents both legal

questions for the Court to resolve. In Rose, the Fourth

Circuit remanded to the district court to determine

whether the plaintiff had plausibly alleged the alternative

remedy of unjust enrichment and could obtain relief

through that avenue. See 80 F.4th at 504–05; Rose v. PSA

Airlines (23-734), BIO at 22 (discussing decision’s

interlocutory posture).

Here, on the other hand,

Petitioners seek no other form of equitable relief, and the

Sixth Circuit disposed of Petitioners’ suit in its entirety,

by dismissing both their § 1132(a)(3) claim and their statelaw claims. App. 6a–7a.

2. That the court below did not address whether

Regions in fact violated state law or the Plans, see App.

32a, does not preclude review.

On the former, this Court has repeatedly examined

ERISA preemption questions without resolving the

underlying merits of a claim. See, e.g., Davila, 542 U.S. at

204–06; McClendon, 498 U.S. at 135–38.

And on the latter, as the Sixth Circuit acknowledged,

Mertens presented the same posture, and this Court

resolved the remedy question without examining liability.

App. 32a (citing Mertens, 508 U.S. at 254). Similarly, in

Great-West, the petitioners lost on liability in district

court, but the Ninth Circuit “affirmed on different

grounds” on appeal—that, even if Great-West could

prevail as to liability, the remedy that it requested was

“not equitable relief.” Great-West, 534 U.S. at 209. And

outside the ERISA context, this Court has regularly

granted review on whether plaintiffs can obtain certain

forms of relief, while reserving questions of liability for

remand. See Franklin v. Gwinnett Cnty. Pub. Schs., 503

U.S. 60, 65–66 (1992). Nothing, in short, bars review of

the questions presented.

In enacting ERISA, Congress sought to provide

participants,

fiduciaries,

and

administrators a

“predictable set of liabilities,” enforced through uniform

rules across the country. Rush Prudential, 536 U.S. at

379. Judicial disagreement over how to apply § 1132(a)(3)

undermines that objective. And refusing to recognize

state-law claims arising from contracts separate from an

ERISA plan and not required by ERISA prevents the

beneficiaries here from obtaining any relief whatsoever.

Together, these circumstances defeat ERISA’s central

goal to “protect contractually defined benefits,” Mass.

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985), and

“ensure that employees will not be left empty-handed,”

Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996). This

case offers the Court an ideal opportunity to resolve these

legal conflicts.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES A. HOLIFIELD, JR.

XIAO WANG

CHRISTINA HALEY

Counsel of Record

KELLY ENDELMAN

UNIVERSITY OF VIRGINIA

HOLIFIELD & JANICH PLLC SCHOOL OF LAW SUPREME

11907 Kingston Pike

COURT LITIGATION CLINIC

Suite 201

580 Massie Road

Knoxville, TN 37934

Charlottesville, VA 22903

(866) 566-0115

(434) 924-8956

x.wang@law.virginia.edu

Counsel for Petitioners

November 14, 2025

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (July 17,

2025) ................................................... 2a

Appendix B — District

court

memorandum

opinion and order (July 3, 2024) ... 40a

Appendix C — District

court

memorandum

opinion and order (Oct. 8, 2021) .... 50a

APPENDIX A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0187p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERRY ALDRIDGE; DANIEL BETTIS;

GEORGE BECKMANN; DAVID BIRON;

ERNEST BISHOP, III; E. E. BISHOP;

PATRICIA

BOUTREIS;

BRAXTON

BROOKS; ROBERT BROWN; PERRY

BROWNLEE; WILLIAM H. BRYANT; E. J.

BUECHE; JAMES (JJ) BUETTGEN; JOE

BYRUM; EDNA T. CALDWELL; BELINDA

CLINE (KITTS); COLLIN COPE; PATRICK

COWLEY; EDWARD F. CROFTON;

TAMARA CUNNINGHAM; LARRY DAVIS;

RICHARD DEARDEN; ANNE DILLARDMCGEOCH; MARGUERITE DUFFY; RICK

ELDRIDGE; GREGORY EQUIZI; BETTY

FLANAGAN;

PAUL

FREEMAN;

KIMBERLY GRANT; HENRY GRAU;

GENE GRUVER; RONALD HARMAN;

CECILIA HEATH; ANDREW HEPP;

VERONICA

HEPP;

SANDRA

HERRINGTON; PEG HEYMAN; ROBERT

F. HIGHTOWER; JAMES HOLLAND;

JAMES HOLMAN; PFILIP G. HUNT; KEN

HUTSON; NICHOLAS IBRAHIM; ROSS

JACKSON; PAUL S. JONES; ROY KEENE,

deceased; LOUIS FRANK KNIGHT; ADAM

No.

24-5603

(DANNY) KOONTZ; FRED KUHLEMANN;

ROBERT

LAFRENIERE;

DOUGLAS

LANTAU; MARCELINO R. LARGEL;

ROBERT LEBOEUF; JAMES LITCHFORD;

GLEN T. LOWERY; RAY MANNING;

MARVIN MARTIN; REBECCA MARTIN;

SCARLETT

MAY;

ROBERT

MCCLENAGAN; TERESA MCCONNELL;

CHARLES L. MCGUFF; CLIFFORD

MEADOWS; DONALD MEIER; EVERETT

MILLS; J. RUSSELL MOTHERSHED;

CRAIG NELSON; ERIC PAUL; MAXWELL

PIET; SHERRY BIGBY PRIME; JOHN

PRYOR; ED REHM; MIKE RODER;

CHARLES ROSETE; LOLA RUBLE;

DAVID SCHMIDT; ANDREW SCOGGINS;

JOE R. SEAITZ; LOIS M. SKOKOS; ALAN

P. SMITH; EUBIE STACEY; JOHN

STEPHENS; RONNIE TATUM; LARRY

THOMPSON; BARRY TIMMONS; SHERRY

TURNER; JEFFREY VAN HORNE; JACK

VAUGHN; RONALD VILORD; LEE

WALLACE; CLARICE WETMORE; FRED

WHITLOCK; MARK YOUNG,

Plaintiffs-Appellants,

REGIONS BANK,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Tennessee at Knoxville.

No. 3:21-cv-00082—Clifton Leland Corker,

District Judge.

Argued: March 20, 2025

Decided and Filed: July 17, 2025

Before: GIBBONS, LARSEN, and MURPHY,

Circuit Judges.

COUNSEL

ARGUED: James A. Holifield, Jr., HOLIFIELD &

JANICH, PLLC, Knoxville, Tennessee, for Appellants.

John C. Neiman, Jr., MAYNARD NEXSEN PC,

Birmingham, Alabama, for Appellee. ON BRIEF: James

A. Holifield, Jr., Christina J. Haley, Kelly P. Endelman,

HOLIFIELD & JANICH, PLLC, Knoxville, Tennessee,

for Appellants. John C. Neiman, Jr., Braden T. Morell,

William B. Wahlheim, Jr., Ashlee D. Riopka, MAYNARD

NEXSEN PC, Birmingham, Alabama, for Appellee.

OPINION

MURPHY, Circuit Judge. The Employee Retirement

Income Security Act of 1974 (ERISA) imposes many

fiduciary duties on those who manage the retirement plans

that employers set up for their employees. ERISA

generally allows employees who participate in these plans

to pursue breach-of-fiduciary-duty claims against these

plan administrators. But the law exempts retirement plans

designed for high-level managers from its fiduciary-duty

requirements. It also directs employers to keep these socalled “top hat” plans unfunded, so participating managers

risk losing their benefits to an employer’s creditors if the

employer becomes insolvent. This risk materialized for

former managers of Ruby Tuesday, Inc., when the

company filed for bankruptcy. After losing their benefits,

these managers sued Regions Bank—the bank that had

administered their top-hat plans. Unable to bring federal

fiduciary-duty claims under ERISA, the managers instead

turned to state law. They asserted that Regions had

breached state-law fiduciary, trust, contract, and tort

duties. Alternatively, the managers sought to obtain their

lost benefits from Regions under an ERISA provision that

allows them to recover only equitable (not legal) relief.

These claims require us to ask both a preemption question

and a remedies question under ERISA.

The preemption question considers whether the Ruby

Tuesday managers may pursue state-law causes of action

against Regions even though ERISA preempts all state

laws that “relate to” ERISA-covered plans. 29 U.S.C.

§ 1144(a). Our answer is no. Congress’s decision to exempt

administrators of top-hat plans from ERISA’s fiduciaryduty requirements shows that participating managers

must protect themselves through contract—not through

50 potentially conflicting state-law standards of conduct.

And while the managers argue that they seek to enforce

the contractual duties that Regions agreed to accept, they

must pursue this type of contract claim through ERISA’s

exclusive remedial scheme, not through a state-law

contract action.

The remedies question considers whether the Ruby

Tuesday managers may pursue their lost monetary

benefits under a provision of ERISA that allows them to

seek only “equitable relief” from Regions. 29 U.S.C.

§ 1132(a)(3). Our answer is again no. The Supreme Court

and this court have both made clear that money damages

qualify as legal relief that plan participants cannot obtain

under § 1132(a)(3). And although the managers argue that

they seek an “equitable surcharge” from Regions, they

merely request damages under another label. All told,

then, our answers to these two questions lead us to affirm

the district court’s judgment for Regions.

I. Background

A. ERISA Top-Hat Plans

ERISA regulates “employee benefit plans,” a phrase

that includes retirement plans for employees. 29 U.S.C.

§§ 1002(3), 1003(a). This law serves competing goals. See

Conkright v. Frommert, 559 U.S. 506, 516–17 (2010). On

the one hand, Congress sought to encourage employers to

create these plans. See id. at 517. ERISA thus contains

uniform rules to simplify the regulatory environment. See

id. It, for example, contains a single remedial scheme and

preempts conflicting state laws. 29 U.S.C. §§ 1132(a),

1144(a). On the other hand, Congress sought to ensure

that employees receive promised benefits. See Conkright,

559 U.S. at 516. ERISA thus imposes many rules on plans.

Among other things, plan fiduciaries must meet several

“standards of conduct” when managing the plans.

29 U.S.C. §§ 1001(b), 1104. And the plans must meet

minimum vesting and funding obligations. See id. §§ 1053,

1082.

Congress cared more about the first of these goals than

the second for retirement plans provided to high-level

executives—what have come to be called “top hat” plans.

A firm’s top-level managers typically have the bargaining

power to “substantially influence” the “design” of their

retirement plans. Bakri v. Venture Mfg. Co., 473 F.3d 677,

678 (6th Cir. 2007) (quoting Dep’t of Labor, Office of

Pension & Welfare Benefit Programs, Opinion 90–14A,

1990 WL 123933, at *1 (May 8, 1990)). So they can insulate

themselves from poor management by adding contractual

protections in the plan itself. See id. ERISA thus exempts

top-hat plans from many of its statutory protections. See

In re IT Grp., Inc., 448 F.3d 661, 664 (3d Cir. 2006);

Simpson v. Mead Corp., 187 F. App’x 481, 483–84 (6th Cir.

2006). For example, the law’s fiduciary-duty rules do not

apply to “a plan which is unfunded and is maintained by an

employer primarily for the purpose of providing deferred

compensation for a select group of management or highly

compensated employees[.]” 29 U.S.C. § 1101(a)(1). And

the law contains identically worded exemptions to its

funding and vesting requirements. Id. §§ 1051(2),

1081(a)(3).

An employer must meet two conditions to create a tophat plan. See Opinion 90–14A, 1990 WL 123933, at *2. The

plan may cover only a “select group” of high-level

employees. 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1).

And the plan must be “unfunded.” Id. Other courts have

interpreted this adjective to bar employers from setting

aside money for participants (whether in “escrow, trust

fund, or otherwise”) or from giving them a security

interest in assets. IT Grp., 448 F.3d at 665, 667–69 (quoting

David J. Cartano, Taxation of Compensation & Benefits

§ 20.01, at 721 (2004)). Employers must instead pay

benefits out of general funds that remain subject to their

creditors if they become insolvent. See id. at 669; Demery

v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 287

(2d Cir. 2000). Although unfunded plans come with greater

risks, they also help executives by delaying taxation on

their benefits until they receive them in later years when

they will likely have less income (and fall in a lower tax

bracket). See IT Grp., 448 F.3d at 664.

Employers often try to meet ERISA’s requirement

that a top-hat plan be “unfunded” by putting benefits into

an account colloquially known as a “rabbi trust” (which got

its name because the first IRS letter about such an account

concerned a congregation’s attempt to set aside benefits

for a rabbi). See Bank of Am., N.A. v. Moglia, 330 F.3d

942, 944 (7th Cir. 2003). A rabbi-trust structure provides

greater protection to participants because the company

itself can use the trust’s assets only to pay the participants’

benefits and not for general corporate purposes. See IT

Grp., 448 F.3d at 665; Moglia, 330 F.3d at 944; I.R.S.,

Revenue Procedure 92-64, 1992 WL 509838, at *6 (July 28,

1992). Despite this restriction on the use of the funds,

rabbi trusts can still meet ERISA’s “unfunded” top-hat

requirement because these assets remain available to pay

the company’s creditors if it becomes insolvent and

because the participants have no beneficial interest in the

assets. See IT Grp., 448 F.3d at 665; Revenue Procedure

92-64, 1992 WL 509838, at *3, 5.

B. Ruby Tuesday’s Top-Hat Plans

Ruby Tuesday, Inc., operates a chain of casual-dining

restaurants. In the 1980s, this company (or its

predecessor) created two top-hat plans for qualifying

executives or managers: the Executive Supplemental

Pension Plan and the Management Retirement Plan. We

will refer to these top-hat plans jointly as the “Plans”

because their differences do not matter on appeal.

In 1992, Ruby Tuesday entered a rabbi-trust

agreement with Regions Bank to help it satisfy “its

obligations under” the Plans. Trust Agreement, R.19-3,

PageID 455. (Technically, their predecessors signed this

agreement, but those corporate distinctions also do not

matter on appeal.) Under the agreement, Ruby Tuesday

established a trust fund that Regions would oversee as the

10a

trustee. The trust agreement “incorporated” the terms of

the Plans. Id. It directed Regions to treat the money

contributed to the trust fund “as general assets of” Ruby

Tuesday and clarified that this money “remain[ed] subject

to the claims of [Ruby Tuesday’s] general creditors.” Id.,

PageID 465. The agreement also noted that the plan

participants would not “have a preferred claim on or any

beneficial ownership” interest in the fund’s assets until the

participants had the actual right to receive payments

under the plan terms. Id. For the most part, the

agreement instructed Regions to undertake the day-today administration of the Plans by paying benefits as they

came due.

According to the complaint, Regions breached the

trust agreement several times before Ruby Tuesday

terminated the Plans and deprived participants of

benefits. These breaches allegedly began in 2017 when

NRD Capital bought Ruby Tuesday. The complaint

suggests that this deal led to a “change in control” under

the trust agreement. If so, that change would have

triggered many duties. Of most note, Ruby Tuesday would

have had to fund the Plans to the present actuarial value

of all unpaid benefits. Yet Ruby Tuesday did not make

these payments. And Regions also did not try to compel

the company to meet this requirement, as the trust

agreement allegedly obliged it to do.

Next, Ruby Tuesday’s board of directors allegedly

terminated the Plans in March 2019 and permitted

participants to take lump-sum payouts between March

2020 and March 2021. But Regions failed to inform

participants of this right to a payout.

Ruby Tuesday also orally instructed Regions in July

2020 to cease all benefit payments starting the next month.

Regions complied with this command. Yet the trust

11a

agreement barred Regions from stopping payments

unless Ruby Tuesday said in writing that it had become

insolvent. This written notice did not come until later—on

September 2. In that notice, Ruby Tuesday alerted

Regions to its insolvency, ordered Regions to cease

payments, and told it to “hold the assets of the Trust for

the benefit of [Ruby Tuesday’s] creditors.” Letter, R. 6130, PageID 1758. According to the complaint, Regions

breached the trust agreement by failing to pay benefits in

August and September based on the oral order alone (not

on the letter). Regions itself recognized this problem. In

September, it filed an interpleader action asking a district

court to decide who had the right to the funds it would have

paid in August and September.

The next month, Ruby Tuesday filed a Chapter 11

bankruptcy petition. Over the objections of the

participants in the Plans, the bankruptcy court ordered

Regions to transfer the money in the trust fund to the

bankruptcy estate for the benefit of Ruby Tuesday’s

creditors. After making this transfer, Regions dismissed

its interpleader action. The participants then settled with

Ruby Tuesday’s bankruptcy estate and received their fees

and a share of the fund assets. In return, the participants

waived their right to appeal the bankruptcy court’s orders

directing Regions to pay the trust funds into the

bankruptcy estate.

Many of these plan participants (whom we will call the

“Participants” from here on) then sued Regions. They

alleged an ERISA claim for “equitable relief” under 29

U.S.C. § 1132(a)(3). In this sole federal claim, they

asserted the right to an “equitable surcharge” of the

benefits that Regions would have paid if it had not

breached the trust agreement. The Participants also

alleged state-law claims against Regions for breach of

12a

fiduciary duty, breach of trust, breach of contract, and

negligence.

The district court rejected the Participants’ claims

across two decisions. The court first dismissed the statelaw claims at the pleading stage on the ground that ERISA

preempted them. Aldridge v. Regions Bank, 2021 WL

4718489, at *5–7 (E.D. Tenn. Oct. 8, 2021). It next granted

summary judgment to Regions on the ERISA claim. It

reasoned that the request for lost benefits did not qualify

as the type of “equitable relief” that the Participants may

seek under 29 U.S.C. § 1132(a)(3). Aldridge v. Regions

Bank, 2024 WL 2819523, at *4–5 (E.D. Tenn. June 3, 2024).

The Participants appeal both opinions. They argue that

ERISA should not preempt their state-law claims because

such preemption might deprive them of a remedy. And if

ERISA does preempt these claims, they add, it at least

allows them to seek an equitable surcharge under

§ 1132(a)(3). We review the district court’s motion-todismiss and summary-judgment decisions de novo. See

Standard Ins. Co. v. Guy, 115 F.4th 518, 521 (6th Cir.

2024); Penny/Ohlmann/Nieman, Inc. v. Miami Valley

Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005) (PONI).

II. ERISA Preemption

The Participants first challenge the district court’s

preemption holding. ERISA implements Congress’s

uniformity goals primarily through two provisions. The

law first includes a “broad” preemption provision—29

U.S.C. § 1144(a)—that displaces the 50 state laws that

might otherwise regulate covered employee benefit plans.

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983). It

next includes an “integrated enforcement mechanism”—

29 U.S.C. § 1132(a)—that lists the exclusive ways that

parties may sue for violations of the law or a covered plan.

Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004).

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These two sections have led federal courts to divide

ERISA preemption into two categories: complete

preemption (a doctrine rooted in the law’s purposes) and

express preemption (a doctrine rooted in the law’s text).

See K.B. ex rel. Qassis v. Methodist Healthcare - Memphis

Hosps., 929 F.3d 795, 800 (6th Cir. 2019).

A. Complete Preemption

ERISA qualifies as one of the few laws that triggers

the Supreme Court’s unique “complete preemption”

doctrine. See Davila, 542 U.S. at 208–09; Metro. Life Ins.

v. Taylor, 481 U.S. 58, 65–66 (1987). This doctrine tells

courts to treat state-law claims seeking benefits from an

ERISA-covered plan as federal claims under the ERISA

cause of action designed for that purpose: 29 U.S.C.

§ 1132(a)(1)(B). See K.B., 929 F.3d at 800–01. The doctrine

thus allows a defendant to remove a case from a state court

to a federal district court based on that court’s federalquestion jurisdiction even if the complaint raises only

state-law claims. See id. By doing so, it departs from the

usual “well-pleaded complaint rule” governing federalquestion jurisdiction. See Davila, 542 U.S. at 207. That

rule typically allows a defendant to remove a case only if

the complaint raises federal claims on its face (not if statelaw claims trigger a federal preemption defense). See id.

Regions suggests that the complete-preemption

doctrine applies to the Participants’ state-law claims. For

three reasons, though, we decline to resolve this issue.

Reason One: Despite its inapt name, the completepreemption doctrine matters more to a district court’s

jurisdiction than to a defendant’s preemption defense. See

Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016). Yet

the district court here had federal-question jurisdiction

over the Participants’ separate ERISA claim. See 28

U.S.C. § 1331. And this fact gave the court supplemental

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jurisdiction over their state-law claims. See id. § 1367(a).

This case thus raises no jurisdictional issues.

Reason Two: If a court finds that ERISA completely

preempts state-law claims, it should dismiss the claims

only if they do not assert cognizable federal claims under

§ 1132(a)(1)(B). See Hogan, 823 F.3d at 883–85; Loffredo v.

Daimler AG, 500 F. App’x 491, 500–01 (6th Cir. 2012)

(Moore, J., for majority). But the Participants do not argue

that they could have turned their state-law claims into

ERISA claims. They have thus forfeited this argument.

See Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000,

1011–12 (6th Cir. 2022). So a finding that ERISA

completely preempted the claims would lead to the same

result as a finding that the law expressly preempted them:

dismissal. Cf. Lowe v. Lincoln Nat’l Life Ins., 821 F. App’x

489, 492 (6th Cir. 2020).

Reason Three: The separate “express preemption”

doctrine that rests on § 1144(a)’s text applies more

“broadly” than complete preemption. K.B., 929 F.3d at

800. So if a state-law claim is completely preempted, it will

also be expressly preempted. But the opposite is not

always true. See id. at 800, 803. Basic judicial-economy

concerns thus favor jumping to the broader expresspreemption doctrine without first considering the

“narrow” complete-preemption issue. Id. at 803.

B. Express Preemption

We thus turn to express preemption: Do the

Participants’ state-law claims fall within the text of 29

U.S.C. § 1144(a)? This text states that ERISA “shall

supersede any and all State laws insofar as they may now

or hereafter relate to any employee benefit plan” covered

by ERISA. This preemption language is “conspicuous for

its breadth.” FMC Corp. v. Holliday, 498 U.S. 52, 58

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(1990). Since 1983, the Supreme Court has defined the

phrasal verb “relate to” broadly to cover any state law that

has “a connection with or reference to” an ERISA plan.

Shaw, 463 U.S. at 97. And ERISA defines “State law”

broadly to cover “all laws, decisions, rules, regulations, or

other State action having the effect of law, of any State.”

29 U.S.C. § 1144(c)(1).

But just how much state law does the preemption

provision swallow up? That question has plagued the

Supreme Court for decades. See Standard Ins., 115 F.4th

at 522. The Court at first suggested that it would read the

phrase “relate to” literally to have its “broad commonsense meaning[.]” Metro. Life Ins. v. Massachusetts, 471

U.S. 724, 739 (1985). But it soon departed from this

reading once it recognized that “relations stop nowhere”

and that an “uncritical literalism” could preempt all state

law. N.Y. State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655–56 (1995) (citation

omitted). Since then, the Court has tried to develop

“workable standards” to guide ERISA preemption.

Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 319 (2016).

Express-Preemption Standards

Today, the Court evaluates express-preemption

questions using the two parts from Shaw’s original

definition of the phrase “relate to.” ERISA can preempt a

state law either if the law makes “reference to” an ERISA

plan or if the law has a “connection with” such a plan.

Shaw, 463 U.S. at 97; see Rutledge v. Pharm. Care Mgmt.

Ass’n, 592 U.S. 80, 86 (2020); Cal. Div. of Lab. Standards

Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 324

(1997). The Court follows different rules for each part of

this test. See Rutledge, 592 U.S. at 86, 88.

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“Reference To” a Plan. The Court has given the

phrase “reference to” a clear (if narrow) scope. A state law

can “refer to” an ERISA plan in two situations. A

reference exists if a state law “acts immediately and

exclusively upon” an ERISA plan. Dillingham, 519 U.S. at

325. For example, a Georgia garnishment law met this test

because it specifically exempted ERISA plans. See

Mackey v. Lanier Collection Agency & Serv., Inc., 486

U.S. 825, 829–30 (1988); see also District of Columbia v.

Greater Wash. Bd. of Trade, 506 U.S. 125, 130–31 (1992).

But a California prevailing-wage law did not meet the test

because it applied generally to all “apprenticeship

programs,” only a subset of which were ERISA plans.

Dillingham, 519 U.S. at 325.

Next, a prohibited reference exists if a state law

depends on the “existence” of an ERISA plan for its

“operation” in practice. Id. at 325. So a Texas common-law

rule met this test by barring employers from firing

employees “to avoid contributing to, or paying benefits

under,” an ERISA plan. Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 140 (1990). This wrongfuldischarge claim referred to an ERISA plan because the

plan’s “existence” qualified as an element of the claim. Id.

Conversely, an Arkansas law regulating the amounts that

pharmacy benefits managers must pay pharmacies under

prescription-drug plans did not meet this test because the

law covered many plans (not just ERISA plans). See

Rutledge, 592 U.S. at 88–89.

“Connection With” a Plan. The Court has given the

phrase “connection with” a more amorphous (if broader)

scope. It has said that this synonym for the phrase “relates

to” offers “no more help” as a linguistic matter. Travelers,

514 U.S. at 656. To decide whether a preemptive

connection exists, the Court instead examines ERISA’s

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“objectives,” id., and the “nature” of a state law’s “effect”

on a covered plan, Dillingham, 519 U.S. at 325.

Under this purpose and effects approach, the Court

typically finds that a preemptive “connection” exists when

state laws touch matters that ERISA already covers. Of

most relevance, the Court has held that plan participants

may not seek benefits under an ERISA-covered plan using

state-law contract and tort claims. See Pilot Life Ins. Co.

v. Dedeaux, 481 U.S. 41, 47–57 (1987). The Court reasoned

that Congress established a “comprehensive civil

enforcement scheme” in 29 U.S.C. § 1132(a). Id. at 54. Yet

plan participants would upend Congress’s careful “choice

of remedies” in § 1132(a) if they could pursue other statelaw remedies that Congress excluded from that

subsection. Id. As a result, state laws that offer

“alternative enforcement mechanisms” to those in

§ 1132(a) have the preemptive connection to ERISA plans.

Travelers, 514 U.S. at 658; see Smith v. Provident Bank,

170 F.3d 609, 613–15 (6th Cir. 1999).

The Court has applied the same logic to many other

ERISA-covered topics. Take ERISA’s reporting

requirements. Plan administrators must “keep detailed

records” and provide an annual report to the Secretary of

Labor about the plan. Gobeille, 577 U.S. at 321–22. Apart

from ERISA, many state laws require payers of healthcare services (including ERISA plans) to disclose to state

agencies their health-care payments for inclusion in a

public database. See id. at 315–16. The Court found one

such Vermont law preempted as applied to ERISA plans.

Id. at 321–26. It held that the law had a preemptive

connection to ERISA plans both because ERISA’s

reporting requirements were “a central matter of plan

administration” and because additional state reporting

duties could impose “wasteful administrative costs” that

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would undermine ERISA’s uniformity goals. Id. at 323

(quoting Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141,

148 (2001)).

Or take beneficiary designations. ERISA requires

administrators to pay the individuals that participants

specifically identify as beneficiaries or those the plan

identifies when participants fail to designate anyone. See

Egelhoff, 532 U.S. at 147–48. Yet some state laws set

different rules. See id. at 144, 146. A Washington law, for

example, revoked a participant’s spouse as a beneficiary

for nonprobate assets (including an ERISA plan’s

benefits) upon their divorce. See id. at 144. The Court held

that this law had a preemptive connection to ERISA plans

because, like reporting requirements, benefits payments

concerned a “central matter of plan administration.” Id. at

148. And it would undercut ERISA’s uniformity goals to

require plans to keep track of all state laws governing

these designations. Id. at 147–50; see Boggs v. Boggs, 520

U.S. 833, 841 (1997).

Lastly, take the content of plans. ERISA seeks to

ensure that employers uphold their promises, but it does

not compel them to offer any specific “substantive

benefits.” Gobeille, 577 U.S. at 320. So state laws had a

preemptive connection to ERISA plans when they

required those plans (among others) to adopt certain

benefit structures. For instance, ERISA preempted state

laws that barred ERISA plans from reducing a

participant’s benefits based on amounts that the

participant recovered in a tort suit. See FMC, 498 U.S. at

59–60; see also Alessi v. Raybestos-Manhattan, Inc., 451

U.S. 504, 523–25 (1981). And it preempted state laws that

compelled plans to pay specific benefits. See Shaw, 463

U.S. at 96–100; see also Metro. Life, 471 U.S. at 739.

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So which “connections” fall short then? ERISA does

not preempt state laws just because they have an

economic effect on ERISA plans. See Rutledge, 592 U.S. at

88. ERISA thus did not preempt a tax on health-care

facilities as applied to facilities operated by ERISA plans

even though this tax increased the costs of the plans. De

Buono v. NYSA-ILA Med. And Clinical Servs. Fund, 520

U.S. 806, 816 (1997). And ERISA did not preempt a state

law that required hospitals to charge certain customers

higher prices even though this law again increased the

costs of ERISA plans. See Travelers, 514 U.S. at 659–62;