Amicus Curiae Brief — Jerry Aldridge, et al., Petitioners v. Regions Bank

No. 25-590

In the

Supreme Court of the United States

JERRY ALDRIDGE, et al.,

Petitioners,

v.

REGIONS BANK,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

BRIEF OF SAMUEL L. BRAY, AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

Mark G. Boyko

Counsel of Record

Gregory Y. Porter

Bailey & Glasser LLP

1055 Thomas Jefferson Street, NW,

Suite 540

Washington, DC 20007

(202) 463-2101

mboyko@baileyglasser.com

Counsel for Amicus Curiae

389879

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

IDENTITY AND INTEREST OF AMICUS CURIAE . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

Surcharge is an equitable remedy . . . . . . . . . . . . 2

II. The Court should grant both questions

presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Ackerman v. Halsey,

37 N.J. Eq. 356 (Ch. 1883) . . . . . . . . . . . . . . . . . . . . . . 4

CIGNA Corp. v. Amara,

563 U.S. 421 (2011) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 8

Chauffeurs Local No. 391 v. Terry,

494 U.S. 558 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Great-West Life & Annuity Insurance Co. v.

Knudson,

534 U.S. 204 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Lemon v. Kurtzman,

403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mertens v. Hewitt Associates,

508 U.S. 248 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Montanile v. Board of Trustees of National

Elevator Industry Health Benefit Plan,

577 U.S. 136 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Princess Lida of Thurn and Taxis v. Thompson,

305 U.S. 456 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rose v. PSA Airlines, Inc.,

80 F.4th 488 (4th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 6

iii

Cited Authorities

Page

Trump v. CASA, Inc.,

606 U.S. 831 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Williams v. Central Bank of Nigeria,

[2014] UKSC 10 (Lord Sumption SCJ) . . . . . . . . . . . . 5

Constitutional Provisions

U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statutes

29 U.S.C. § 1132(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other Authorities

Curtis Bradley & Tara Leigh Grove, Disfavored

Supreme Court Precedent in the Lower Federal

Courts, 111 Va. L. Rev. 1353 (2025) . . . . . . . . . . . . 7-8

Samuel L. Bray, Equity, Law, and the Seventh

Amendment, 100 Tex. L. Rev. 467 (2022) . . . . . . . 6-9

S a mu e l L . B r ay, Fi d u c i a r y R e m e d i e s ,

in T h e O x for d H a n dbook of F i duci a ry

L aw (Evan J. Criddle, Paul B. Miller, &

Robert H. Sitkoff eds., 2019) . . . . . . . . . . . . . . . . . . . . 3

Samuel L. Bray & Emily Sherwin, A mes, Chafee,

and Re on Remedies (4th ed. 2024) . . . . . . . . . . . . . 5, 6

iv

Cited Authorities

Page

Matthew Conaglen, Equitable Compensation for

Breach of Trust: Off Target, 40 Melbourne

U. L. Rev. 126 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Paul S. Davies, Compensatory Remedies for

Breach of Trust, 2 Can. J. Comp. & Contemp. L.

65 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

J. D. Heydon, M. J. Leeming & P. G. T urner ,

M eagher , Gummow and L ehane ’s E quit y :

Doctrines and Remedies (5th ed. 2015) . . . . . . . . . 3-4

Jessica Hudson, Ben McFarlane & Charles

Mitchell, Hayton, McFarlane and Mitchell

on Equity and Trusts § 18–004 (15th ed. 2022) . . . . 4

La r issa K atz , Equitable Remedies:

Protecting “What We Have Coming to Us,”

96 Notre Dame L. Rev. 1115 (2021) . . . . . . . . . . . . . . 4

Professor John Langbein in What ERISA

Means by “Equitable”: The Supreme Court’s

Trail of Error in Russell, Mertens, and

Great-West, 103 Colum. L. Rev. 1317 (2003) . . . . . . . 7

Graham Virgo, The Principles of the Law of

Restitution (4th ed. 2024) . . . . . . . . . . . . . . . . . . . . 4-5

D a v i d Ya l e , A T r i c h o t o m y o f E q u i t y,

6 J. Legal. Hist. 194 (1985) . . . . . . . . . . . . . . . . . . . . . 6

1

IDENTITY AND INTEREST OF AMICUS CURIAE1

Samuel L. Bray is a Professor of Law and the Walter

Mander Research Scholar at the University of Chicago

Law School. Professor Bray has written extensively about

the law of remedies, with a particular focus on equitable

remedies. On the specific question of whether surcharge

is an equitable remedy available under ERISA, Professor

Bray’s scholarship is referenced by courts on both sides

of the circuit split, including the court below.

SUMMARY OF THE ARGUMENT

Equitable remedies are available under ERISA.

CIGNA Corp. v. Amara, 563 U.S. 421 (2011). However, in

the years since courts in several Circuits have mistakenly

held that surcharge is not an equitable remedy. This Court

should grant certiorari to clarify for these Circuits the

intent of Amara to allow surcharge as an equitable remedy

for violations of ERISA.

Because a decision to the contrary would raise preemption issues, the Court should grant certiorari on both

questions presented.

1. Counsel for all parties received notice of amici’s intent

to file this brief on January 20, 2026, following the weekend and

January 19, 2026 federal holiday. The parties stated they do not

object to this notice. No counsel for a party has written this brief

in whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of this

brief. No person or entity, other than amicus curiae or his counsel,

has made a monetary contribution to this brief’s preparation or

submission.

2

ARGUMENT

Over the last three decades, this Court has had about

a dozen cases interpreting “equitable relief” under various

provisions of the Employee Retirement Income Security

Act of 1974 (ERISA). It is time for another.

There is confusion in the lower courts about whether

this Court really meant what it said in CIGNA Corp. v.

Amara, 563 U.S. 421 (2011), namely, that “surcharge” is an

equitable remedy available under ERISA. That confusion,

caused in part by tensions in this Court’s precedents, has

now generated a sharp circuit split. The petition in this

case is an ideal vehicle to resolve the split and clear up the

confusion. The Court should reaffirm that surcharge is an

equitable remedy available under 29 U.S.C. § 1132(a)(3).

This brief will concisely make two points. First,

surcharge is an equitable remedy, a position adopted by

this Court previously but ignored in practice by several

Circuits. Second, if the Court grants the petition for

certiorari with respect to the first question presented, it

should also take up the second question presented. Amicus

takes no position on the substantive merits of this case,

i.e., whether there was in fact a violation of ERISA or a

breach of contract.

I.

Surcharge is an equitable remedy.

The remedy most associated with equity today is

the injunction, but in a longer historical perspective,

the characteristic equitable remedy was probably the

accounting. And if we are thinking of trust law—which

is essentially what ERISA is—then accounting was and

is the quintessential equitable remedy.

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When a court orders an accounting, there are multiple

possible results. One is that the trustee will have to fork

over the profits that were made that really belong to the

trust. That is easily called an “accounting for profits.”

But what if the trustee’s mismanagement didn’t lead to

profits, but instead to losses? “Surcharge,” also given

other names, including the broader term “equitable

compensation,” was how equity handled that.

I have described the connection between this remedy

and an accounting thus:

[E]quitable compensation as a distinctive

remedy emerged out of accounting. It was a

shortcut: without going to the trouble of an

accounting, a beneficiary could sue for what

might be called the expected results on the

negative side of the ledger. According to its

“traditional principles,” equitable compensation

“focused on the trustee’s obligation to account

for his or her stewardship of the trust property,

and [t]he form of relief [was] couched in terms

appropriate to require the defaulting trustee

to restore to the estate the assets of which he

deprived it.”

Samuel L. Bray, Fiduciary Remedies, in The Oxford

Handbook of Fiduciary Law 449, 456 – 57 (Evan J.

Criddle, Paul B. Miller, & Robert H. Sitkoff eds., 2019)

(alternation in original) (footnote omitted). 2 As the leading

2. The quoted source is Matthew Conaglen, Equitable

Compensation for Breach of Trust: Off Target, 40 Melbourne U.

L. Rev. 126, 127 (2016); and the cited sources are J. D. Heydon,

4

contemporary equity treatise puts it, the recent “advent of

the term ‘equitable compensation’ . . . supplied a name to a

form of relief which derived from the principles of account,

but was awarded without the accounting procedures.”

Heydon, Leeming, & Turner, supra note 2, § 23–030, at 803.

Although equitable compensation is not restricted to

trust law, in that context it is an especially critical remedy.3

M. J. Leeming & P. G. Turner, Meagher, Gummow and Lehane’s

Equity: Doctrines and Remedies 802–03 (5th ed. 2015); Conaglen,

supra, at 146–50; Ackerman v. Halsey, 37 N.J. Eq. 356, 366

(Ch. 1883). A leading scholar of equity, Professor Larissa Katz,

has similarly recognized the way equitable compensation, or

surcharge, is nestled into an accounting:

[T]he remedy of account [is] where what the beneficiary

is in the end entitled to is the result of an equitable

reconstruction of the books as they ought to be, rather

than as they are. When equity surcharges the account

to reflect what ought to have been received but wasn’t,

the beneficiary is not unjustly enriched by the trustee’s

payment to the beneficiary out of pocket in the amount

of the surcharge.

Larissa Katz, Equitable Remedies: Protecting “What We Have

Coming to Us,” 96 Notre Dame L. Rev. 1115, 1126 n.29 (2021).

3. “Particularly in the trust context, an award of equitable

compensation is sometimes called ‘surcharge,’ and it may also be

subsumed under the heading of ‘accounting for profits.’” Samuel

L. Bray & Emily Sherwin, A mes, Chafee, and Re on Remedies

869–70 (4th ed. 2024). The historical development has been from

“surcharge” in trust law to a broader category of “equitable

compensation” that sweeps in loss-based remedies in equity

both inside and outside of trust law. See Jessica Hudson, Ben

McFarlane & Charles M itchell , H ayton, McFarlane and

Mitchell on Equity and Trusts § 18–004, at 772 (15th ed. 2022);

cf. Graham Virgo, The Principles of the Law of Restitution

5

Surcharge, or equitable compensation, as this Court said

in Amara, is an “exclusively equitable” remedy. 563 U.S.

at 442 (citing, inter alia, Princess Lida of Thurn and

Taxis v. Thompson, 305 U.S. 456, 464 (1939)). Moreover,

surcharge can be seen as an application of the wellestablished equitable principle that equity regards as done

that which ought to be done: “if the trustee misapplied

the assets, equity would ignore the misapplication and

simply hold him to account for the assets as if he had

acted in accordance with his trust.” Paul S. Davies,

Compensatory Remedies for Breach of Trust, 2 Can. J.

Comp. & Contemp. L. 65, 68 (2016) (quoting Williams v.

Central Bank of Nigeria [2014] UKSC 10 (Lord Sumption

SCJ) (cleaned up)).

But if it is so clear that surcharge is an equitable

remedy, why is there confusion in the lower courts?

One reason is a conflation of categories: surcharge,

or equitable compensation, is a monetary remedy that

corresponds to loss. And we are accustomed to calling

monetary remedies for loss damages, which is of course

the standard remedy for legal claims. The court below

said, for example, that “surcharge and damages are

‘essentially equivalent’ because they describe the same

concept: ‘monetary relief’ that a legal or equity court

would grant to compensate a plaintiff for the losses that

the defendant caused.” App. 35a (citation omitted).

Of course, the courts of law and equity didn’t merely

mete out “concepts.” They gave remedies, and these

530–31 (4th ed. 2024) (listing equitable compensation along with

account of profits and proprietary remedies as types of remedy

for equitable wrongs).

6

remedies have their own characteristics, strengths, and

weaknesses. Sometimes an equitable remedy and a legal

remedy will have a core similarity: an injunction is an

order for someone to do something or not do something,

but so are mandamus and habeas corpus. No one would say

these are all names for the same “concept.” And sometimes

law and equity developed different remedies that even

shared a name (e.g., distinctive versions of accounting,

rescission, and quiet title). In short, even distinguished

judges have conflated the legal remedy of “damages”

and the equitable remedy of “surcharge,” or “equitable

compensation,” despite the fact that they are different

remedies with different pedigrees.4

Another reason for the confusion, to be candid, is the

uncertain signals sent by this Court. Justice Scalia got a

lot of things right in his opinion for the Court in Great4. Some differences between “damages” and “equitable

compensation” are cataloged in Bray & Sherwin, supra, at 869–71;

for a more thorough discussion, specific to breach of trust, see

Davies, supra. Even apart from those differences, surcharge is

equitable simply because the entire area of trust law is exclusively

equitable. At issue is the distinction between equity’s exclusive,

concurrent, and auxiliary jurisdictions. This distinction was an

organizing principle for Justice Story’s Commentaries on Equity

and is traceable to the eighteenth century. See Samuel L. Bray,

Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467,

469–71, 487–90 (2022); David Yale, A Trichotomy of Equity, 6 J.

Legal. Hist. 194 (1985). The Fourth and Sixth Circuit decisions

correctly recognized the importance of distinguishing equity’s

“exclusive” and “concurrent” jurisdictions, but they incorrectly

interpreted “equitable relief” in ERISA through the lens of the

concurrent jurisdiction. See Rose v. PSA Airlines, Inc., 80 F.4th

488, 497–98 (4th Cir. 2023); Aldridge v. Regions Bank, 144 F.4th

828, 845–47 (6th Cir. 2025). Trust law is a paradigm example of

the exclusive jurisdiction.

7

West Life & Annuity Insurance Co. v. Knudson, 534 U.S.

204 (2002). But he also made some mistakes. He said that

mandamus was equitable, but it is not. Id. at 215 (relying

on Mertens v. Hewitt Associates, 508 U.S. 248 (1993)). He

treated equitable restitutionary relief as if it were mostly

proprietary, relegating the accounting for profits—a

central remedy in equity’s panoply—to being “a limited

exception.” 534 U.S. at 214 n.2. Most relevant for present

purposes, he ignored surcharge or equitable compensation.

That omission was harshly criticized by Professor John

Langbein in What ERISA Means by “Equitable”: The

Supreme Court’s Trail of Error in Russell, Mertens, and

Great-West, 103 Colum. L. Rev. 1317, 1352–53, 1364–65

(2003). In Amara, the Court appeared to heed Professor

Langbein’s critique on this point, for it correctly identified

surcharge, or equitable compensation, as an exclusively

equitable remedy that counts as “appropriate equitable

relief.” 563 U.S. at 441–42. Commentators have recognized

Amara’s course correction, e.g., Bray, Equity, Law, and

the Seventh Amendment, supra, 100 Tex. L. Rev. at 490

n.120, 504–05, and so have some of the lower federal

courts. But not all—hence the circuit split.

Indeed, this is one instance of a recurring precedential

problem that only this Court can solve. Here’s the pattern:

Case A, a decision of this Court, takes a particular path,

and that decision then gets encased in circuit precedent.

Then along comes Case B, which corrects Case A in some

respect and points in a different direction. But because

Case B does so delicately, offering a harmonious rather

than repudiatory reading of Case A, some of the lower

courts persist in following their prior precedent. The

pattern recurs in a number of contexts. See, e.g., Curtis

Bradley & Tara Leigh Grove, Disfavored Supreme

8

Court Precedent in the Lower Federal Courts, 111 Va.

L. Rev. 1353, 1385 –88 (2025) (discussing Lemon v.

Kurtzman, 403 U.S. 602 (1971)); Bray, Equity, Law, and

the Seventh Amendment, supra, at 478–82 (discussing

Chauffeurs Local No. 391 v. Terry, 494 U.S. 558 (1990)).

The older case, mistaken in some respect, gets locked into

circuit precedent, and dislodging it requires the explicit

statement of this Court. That is exactly what happened

in the case below. See Aldridge, 144 F.4th at 849 (relying

on circuit precedent from a decade prior to Amara and

stating that “[w]e must follow [it] until the Supreme Court

or our en banc court overturns it”).

Here, the Court need not repudiate Knudson. It is, in

the main, good law. As the Court correctly noted in dicta

in Montanile v. Board of Trustees of National Elevator

Industry Health Benefit Plan, 577 U.S. 136, 148 n.3 (2016),

it is incorrect to read Amara “as all but overruling”

Knudson. Moreover, remedies against trustees were not

at issue in Knudson. Nevertheless, Knudson misdescribed

equitable relief on an important point, and on that point,

Professor Langbein got it right and Amara got it right.

A statute like ERISA that authorizes “equitable relief”

depends on correct classification of legal and equitable

remedies, and errors on this score can have serious

repercussions for the statutory scheme. The confusion

needs to be cleared up and the circuit split resolved by

authoritatively reaffirming Amara. No one else can do it.

Finally, I should note that an additional benefit of

this clarification is that it will help the lower federal

courts avoid a similar error in the Seventh Amendment

context. Because trust law and its remedies are

exclusively equitable, they have nothing to do with the

9

“suits at common law” in which the civil jury trial right

is preserved. Nevertheless, federal courts sometimes trip

up on this point, conflating surcharge with damages, and

thus injecting—with no historical basis whatsoever—a

civil jury into suits that are in the exclusive jurisdiction

of equity. See Bray, Equity, Law, and the Seventh

Amendment, supra, at 490. Clarification that surcharge

is not legal damages in this statutory context will make

it easier for lower federal courts to see that surcharge is

not legal damages in the constitutional context.

II. The Court should grant both questions presented.

The petition for certiorari has two questions

presented, the first about surcharge under Section 1132(a)

(3) and the second about the preemption of state-law

contract claims. It may be tempting to grant just the

first question, since that is where there is such a sharp

circuit split. But if the Court grants the first question, it

should also grant the second. Otherwise, there is a risk

that the Court will answer the first question by rejecting

surcharge under Section 1132(a)(3), without taking into

account the interaction of that answer with the second

question. A rejection of surcharge under ERISA and the

preemption of state-law contract claims might well lead to

a position that is inconceivable under trust law, ERISA,

and “principles of equity,” Trump v. CASA, Inc., 606 U.S.

831, 861 (2025): the near total erasure of relief for plaintiffs

who can credibly allege that trustees have violated their

fiduciary duties and through their mismanagement lost

the assets under their control.

10

CONCLUSION

The petition for a writ of certiorari in Aldridge v.

Regions Bank should be granted.

Respectfully submitted,

Mark G. Boyko

Counsel of Record

Gregory Y. Porter

Bailey & Glasser LLP

1055 Thomas Jefferson Street, NW,

Suite 540

Washington, DC 20007

(202) 463-2101

mboyko@baileyglasser.com

Counsel for Amicus Curiae