Opposition Brief — Jerry Aldridge, et al., Petitioners v. Regions Bank
Supreme Court briefFeb 27, 2026
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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 APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENT
IN OPPOSITION
JOHN C. NEIMAN, JR.
MAYNARD NEXSEN PC
1901 Sixth Ave. North
Suite 1700
Birmingham, AL 35203
(205) 254-1228
jneiman@maynardnexsen.com
GREGORY G. GARRE
Counsel of Record
CHRISTINA R. GAY
SOREN J. SCHMIDT
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
BEN HARRIS
LATHAM & WATKINS LLP
1271 Avenue of the
Americas
New York, NY 10020
Counsel for Respondent
QUESTIONS PRESENTED
1. Whether, when proceeding under ERISA
Section 502(a)(3), a beneficiary may seek
surcharge against an ERISA non-fiduciary?
2. Whether, if surcharge is unavailable under
Section 502(a)(3), state law claims arising out
of a contract are preempted?
ii
CORPORATE DISCLOSURE STATEMENT
Regions Financial Corporation is the parent
company of respondent Regions Bank. The Vanguard
Group, Inc., owns more than 10% of the outstanding
shares of the common stock of Regions Financial
Corporation.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
CORPORATE DISCLOSURE STATEMENT ........... ii
TABLE OF AUTHORITIES ..................................... iv
INTRODUCTION .......................................................1
STATEMENT OF THE CASE ....................................3
A. Legal Background ..........................................3
B. Factual Background ......................................7
C. Procedural Background .................................9
REASONS FOR DENYING THE WRIT ..................12
I.
THE FIRST QUESTION PRESENTED
DOES NOT WARRANT REVIEW .....................13
A. The Alleged Circuit Conflict Is Illusory ......13
B. The Fifth Circuit’s Recent Decision Does
Not Change Things ......................................21
C. The Decision Below Is Correct ....................25
II. THE SECOND QUESTION PRESENTED
DOES NOT WARRANT REVIEW .....................27
III. THIS CASE IS A FATALLY FLAWED
VEHICLE IN ANY EVENT ...............................28
CONCLUSION ..........................................................31
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Accardi v. IT Litigation Trust (In re IT
Group, Inc.),
448 F.3d 661 (3d Cir. 2006) ...................................5
Amschwand v. Spherion Corp.,
505 F.3d 342 (5th Cir. 2007), cert.
denied, 554 U.S. 932 (2008) .................................15
Aramark Services, Inc. Group Health Plan
v. Aetna Life Insurance Co.,
162 F.4th 532 (5th Cir. 2025) ... 2, 21-23, 25, 27-28
Bakri v. Venture Manufacturing Co.,
473 F.3d 677 (6th Cir. 2007)..................................6
Callery v. United States Life Insurance Co.
in the City of New York,
392 F.3d 401 (10th Cir. 2004), cert.
denied, 546 U.S. 812 (2005) .................................16
CIGNA Corp. v. Amara,
563 U.S. 421 (2011) ........................ 1, 16, 17, 22, 26
Crosby v. Bowater Inc. Retirement Plan for
Salaried Employees of Great Northern
Paper Inc.,
382 F.3d 587 (6th Cir. 2004), cert.
denied, 544 U.S. 976 (2005) ...........................15, 16
Demery v. Extebank Deferred Compensation
Plan (B),
216 F.3d 283 (2d Cir. 2000) .........................4, 6, 28
v
TABLE OF AUTHORITIES—Continued
Page(s)
Duggan v. Hobbs,
99 F.3d 307 (9th Cir. 1996)....................................6
Eastman Kodak Co. v. STWB, Inc.,
452 F.3d 215 (2d Cir. 2006) ...................................5
Gearlds v. Entergy Servs., Inc.,
709 F.3d 448 (5th Cir. 2013)..........................17, 20
Gimeno v. NCHMD, Inc.,
38 F.4th 910 (11th Cir. 2022) ........................17, 20
Gobeille v. Liberty Mutual Insurance Co.,
577 U.S. 312 (2016) ................................................4
Goldstein v. Johnson & Johnson,
251 F.3d 433 (3d Cir. 2001) ................... 4, 6, 24, 28
Great-West Life & Annuity Insurance Co. v.
Knudson,
534 U.S. 204 (2002) ............................ 11, 14, 15, 26
Holloman v. Mail-Well Corp.,
443 F.3d 832 (11th Cir. 2006)..............................24
Kemmerer v. ICI Americas Inc.,
70 F.3d 281 (3d Cir. 1995), cert. denied,
517 U.S. 1209 (1996) ..............................................5
Kenseth v. Dean Health Plan, Inc.,
610 F.3d 452 (7th Cir. 2010)................................15
Kenseth v. Dean Health Plan, Inc.,
722 F.3d 869 (7th Cir. 2013).................... 17, 19, 20
vi
TABLE OF AUTHORITIES—Continued
Page(s)
LaRue v. Dwolff, Boberg & Associates, Inc.,
450 F.3d 570 (4th Cir. 2006), vacated on
other grounds by 552 U.S. 248 (2008) .................15
Loffredo v. Daimler AG,
500 F. App’x 491 (6th Cir. 2012) ...................10, 12
McLeod v. Oregon Lithoprint Inc.,
102 F.3d 376 (9th Cir. 1996), cert.
denied, 520 U.S. 1230 (1997) ...............................16
Mertens v. Hewitt Associates,
508 U.S. 248 (1993) ..... 1-4, 10-11, 14, 25-26, 29-30
Montanile v. Board of Trustees of National
Elevator Industry Health Benefit Plan,
577 U.S. 136 (2016) .................... 1, 2, 11, 17, 18, 26
Moyle v. Liberty Mutual Retirement Benefit
Plan,
823 F.3d 948 (9th Cir. 2016).................... 17, 20, 21
Pereira v. Farace,
413 F.3d 330 (2d Cir. 2005), cert. denied,
547 U.S. 1147 (2006) ............................................15
Pichoff v. QHG of Springdale, Inc.,
556 F.3d 728 (8th Cir.), cert. denied, 558
U.S. 828 (2009).....................................................15
Pilot Life Insurance Co. v. Dedeaux,
481 U.S. 41 (1987) ................................................12
Rose v. PSA Airlines, Inc.,
144 S. Ct. 1346 (2024)....................................14, 19
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Rose v. PSA Airlines, Inc.,
80 F.4th 488 (4th Cir. 2023), cert.
denied, 144 S. Ct. 1346 (2024) ................. 18, 19, 27
Senior Executive Benefit Plan Participants
v. New Valley Corp. (In re New Valley
Corp.),
89 F.3d 143 (3d Cir. 1996), cert. denied,
519 U.S. 1110 (1997) ........................................6, 28
Sereboff v. Mid Atlantic Medical Services,
Inc.,
547 U.S. 356 (2006) .................................. 11, 15, 26
Shaw v. Delta Air Lines, Inc.,
463 U.S. 85 (1983) ............................................4, 27
Silva v. Metropolitan Life Insurance Co.,
762 F.3d 711 (8th Cir. 2014).................... 17, 19, 20
Sullivan-Mestecky v. Verizon
Communications Inc.,
961 F.3d 91 (2d Cir. 2020) ....................... 17, 20, 21
Todisco v. Verizon Communications, Inc.,
497 F.3d 95 (1st Cir. 2007) ..................................15
US Airways, Inc. v. McCutchen,
569 U.S. 88 (2013) ..........................................11, 26
STATUTES
29 U.S.C. § 1001(b)......................................................3
29 U.S.C. § 1002(3)......................................................3
29 U.S.C. § 1002(21)(A) .............................................25
viii
TABLE OF AUTHORITIES—Continued
Page(s)
29 U.S.C. § 1053 ..........................................................4
29 U.S.C. § 1082 ..........................................................4
29 U.S.C. § 1101(a)(1) ....................... 2, 4, 6, 10, 28, 30
29 U.S.C. § 1104 ..........................................................4
29 U.S.C. § 1132(a)................................................3, 10
29 U.S.C. § 1132(a)(3) ..................................... 4, 12, 30
29 U.S.C. § 1144(a)................................................3, 12
OTHER AUTHORITIES
I.R.S. Priv. Ltr. Rul. 8113107 (Dec. 31,
1980), 1980 WL 137740 .........................................7
U.S. Dep’t of Lab., Opinion Letter 90-14A
on Title I of the Employee Retirement
Income Security Act (May 8, 1990), 1990
WL 123933 .............................................................6
INTRODUCTION
In seeking certiorari, petitioners pitch this case as
deepening an entrenched split concerning a plaintiff’s
ability to recover surcharge under Section 502(a)(3) of
the Employee Retirement Income Security Act
(ERISA). In reality, though, this case does not
implicate any divide among the circuit courts because
it involves a niche type of plan under ERISA that (as
petitioners concede, Pet. 11) is exempt from the
statute’s typical imposition of fiduciary duties.
Petitioners cannot point to a single circuit court that
would resolve such a case differently than the panel
below, and the unusual nature of this case makes it a
poor vehicle to address the questions presented. In
any event, the panel below carefully analyzed this
Court’s precedents and correctly rejected petitioners’
claims. The petition should be denied.
Petitioners allege a 6-2 split, but that divide is
illusory and stems from a misreading of this Court’s
caselaw—a misreading the Court has already
corrected. This Court’s cases are clear that Section
502(a)(3) of ERISA authorizes only those remedies
that were “typically available in equity” and not the
damages remedy petitioners seek here. Mertens v.
Hewitt Assocs., 508 U.S. 248, 256 (1993). Although
dicta from this Court’s decision in CIGNA Corp. v.
Amara, 563 U.S. 421, 442 (2011), created some
confusion regarding the availability of surcharge, the
Court squarely resolved that confusion by confirming
that CIGNA’s discussion of the issue was merely dicta
and reaffirming the bedrock rule Mertens already
announced. See Montanile v. Board of Trs. of Nat’l
Elevator Indus. Health Benefit Plan, 577 U.S. 136,
142, 147-48 & n.3 (2016).
None of the cases
petitioners cite as conflicting with the decision below
2
grapples with Montanile’s recent, definitive, guidance
on how to interpret Section 502(a)(3).
A recent Fifth Circuit decision, see Aramark
Servs., Inc. Grp. Health Plan v. Aetna Life Ins. Co.,
162 F.4th 532 (5th Cir. 2025), concluded that
surcharge was available under Section 502(a)(3)
against ERISA fiduciaries. But this case is readily
distinguishable because it concerns a niche, “top-hat”
plan for high-level, highly-compensated employees,
like petitioners. Such plans are expressly exempted
under ERISA from the typical fiduciary duties that
govern ERISA plans. See 29 U.S.C. § 1101(a)(1).
That express statutory exemption means there is no
real divide among the circuits on the question
whether surcharge is available against a defendant
like respondent, which is exempted from fiduciary
duties. Every case petitioners cite as allowing
surcharge permits that remedy only against ERISA
fiduciaries.
As the Fifth Circuit specifically
emphasized in Aramark, the ERISA claim in that case
was against an ERISA fiduciary, making it
fundamentally different.
In any event, the panel below got it right. In an
unbroken line of holdings, this Court has explained
that Section 502(a)(3) permits only those remedies
that were “typically” available in equity, and not any
remedy an equitable court could conceivably
authorize. Those holdings, which stem from Justice
Scalia’s own construction of ERISA for the Court, see
Mertens, 508 U.S. at 256, and which this Court
recently reaffirmed, see Montanile, 577 U.S. at 148
n.3, resolve this case. Petitioners offer nothing—
other than dicta this Court has already explicitly
abandoned—suggesting otherwise.
3
This case is a fatally flawed vehicle anyway. As
the panel below explained, notwithstanding available
remedies, it is far from clear whether petitioners can
establish liability under Section 502(a)(3) in the first
place. And the unusual top-hat nature of the plan at
issue here makes this case unlike mine-run ERISA
cases. Although many ERISA plans protect ordinary
employees from financial mismanagement or
wrongdoing by fiduciaries under the statute, the plan
at issue in this case is designed specifically to help
highly-compensated employees and is therefore
expressly exempt from the typical duties arising in
ERISA cases. Even if there were a conflict, there is
no reason for the Court to weigh in on the questions
presented in this unusual, fact-bound posture.
The petition should be denied.
STATEMENT OF THE CASE
A. Legal Background
1. ERISA regulates the retirement and deferred
compensation plans that employers set up for their
employees. See 29 U.S.C. § 1002(3). It establishes
“‘comprehensive
and
reticulated’”
standards
governing such plans, “the product of a decade of
congressional study of the Nation’s private employee
benefit system.” Mertens, 508 U.S. at 251 (citation
omitted).
That includes “standards of conduct,
responsibility, and obligation for fiduciaries of
employee benefit plans.” 29 U.S.C. § 1001(b).
To ensure that regulation is uniform, ERISA
creates a single remedial scheme and expressly
preempts state laws that “relate to” covered employee
benefit plans. Id. § 1144(a); see id. § 1132(a). That
way, plan administrators are not subject to “the
potentially conflicting standards of conduct of all 50
4
States.” Pet. App. 23a (citing Gobeille v. Liberty Mut.
Ins. Co., 577 U.S. 312, 323 (2016)).
Typically,
ERISA
imposes
“fiduciary
responsibilit[ies]” on plan administrators to exercise
prudence and loyalty concerning retirement plans.
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983);
see 29 U.S.C. § 1104 (setting forth “[f]iduciary duties”
under ERISA). Likewise, ERISA requires most plans
to be both vested and funded, 29 U.S.C. §§ 1053, 1082,
giving participants a secured interest in plan benefits.
See Demery v. Extebank Deferred Compensation Plan
(B), 216 F.3d 283, 287 (2d Cir. 2000).
ERISA also establishes a variety of “‘carefully
crafted’” causes of action that “distinguish between
the plaintiffs who may sue, the conduct that they may
challenge, and the remedies that they may seek.” Pet.
App. 27a (quoting Mertens, 508 U.S. at 254). Section
502(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.” 29
U.S.C. § 1132(a)(3). The “other equitable relief” is
tailored: it may be used either “(i) to redress such
violations” of ERISA or the plan, “or (ii) to enforce any
provisions of this subchapter or the terms of the plan.”
Id.
2. ERISA does not treat all plans the same.
Relevant here, ERISA provides for the creation of a
special “top hat” plan—“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.” Id. § 1101(a)(1); see also Goldstein v.
Johnson & Johnson, 251 F.3d 433, 435 (3d Cir. 2001).
5
Top-hat plans “largely exist as devices to defer taxes,”
which is a significant advantage for the high-level
executives who usually participate in them.
Kemmerer v. ICI Ams. Inc., 70 F.3d 281, 286 (3d Cir.
1995), cert. denied, 517 U.S. 1209 (1996); Eastman
Kodak Co. v. STWB, Inc., 452 F.3d 215, 217 (2d Cir.
2006); Pet. App. 7a.
By allowing highly paid
employees to delay payment until after retirement—
when their income will presumably be lower and
qualify for a lower tax bracket—top-hat plans allow
such employees to ultimately pay lower tax rates on
that deferred compensation. Pet. App. 8a.
Congress chose to treat top-hat plans differently
from other ERISA plans in two crucial respects. First,
unlike typical ERISA plans, top-hat plans must be
“unfunded.” Id. (citations omitted). This means that
employers may not “set[] aside money for participants
(whether in ‘escrow, trust fund, or otherwise’).” Id.
(quoting Accardi v. IT Litig. Tr. (In re IT Grp., Inc.),
448 F.3d 661, 665 (3d Cir. 2006)). Instead, benefits
must be drawn from the employer’s assets rather than
vested funds, meaning that the benefits are subject to
claims of the employer’s creditors in the event of
bankruptcy. See In re IT Grp., 448 F.3d at 665. As a
result, the tax benefits of top-hat plans also carry with
them “greater risks” of the senior-executive
participants losing compensation if the company they
run becomes insolvent. Pet. App. 8a. In other words,
“[i]n return for th[e] tax benefit” top-hat plans confer
on highly paid employees, the “beneficiaries of such
plans remain vulnerable to the risk of losing their
benefits in the event of their employer’s bankruptcy.”
Id. at 42a (citation omitted).
Second, and particularly important here, Congress
chose to exempt top-hat plans from ERISA’s
6
imposition of fiduciary duties.
See 29 U.S.C.
§ 1101(a)(1); see also Demery, 216 F.3d at 290 (“[T]he
fiduciary responsibility provisions of ERISA do not
apply to top hat plans . . . .”); Senior Exec. Benefit
Plan Participants v. New Valley Corp. (In re New
Valley Corp.), 89 F.3d 143, 148 (3d Cir. 1996) (“The
dominant characteristic of the special top hat regime
is the near-complete exemption of top hat plans from
ERISA’s substantive requirements.”), cert. denied,
519 U.S. 1110 (1997). This exemption recognizes that
the senior executives participating in top-hat plans
“have the bargaining power to ‘substantially
influence’ the ‘design’ of their retirement plans” and
“can insulate themselves from poor management by
adding contractual protections in the plan itself.” Pet.
App. 7a-8a (quoting Bakri v. Venture Mfg. Co., 473
F.3d 677, 678 (6th Cir. 2007)). As the Department of
Labor has recognized, top-hat plans are designed to
cover employees who, “by virtue of their position or
compensation level, have the ability to affect or
substantially influence, through negotiation or
otherwise, the design and operation of their deferred
compensation plan.” Duggan v. Hobbs, 99 F.3d 307,
312-13 (9th Cir. 1996) (quoting U.S. Dep’t of Lab.,
Opinion Letter 90-14A on Title I of the Employee
Retirement Income Security Act (May 8, 1990), 1990
WL 123933, at *1).
Because of the fiduciary-duties exemption, “it is
well-established in the caselaw that there is no cause
of action for breach of fiduciary duty involving a top
hat plan.” Goldstein, 251 F.3d at 443; see also In re
New Valley Corp., 89 F.3d at 153 (“Top hat employees
have rights only under the contract.”); Duggan, 99
F.3d at 310 (Under “a top-hat plan, [a plan
administrator] is exempt from the fiduciary duties
7
ERISA imposes . . . [and] cannot be held personally
liable for their breach.”); Pet. App. 32a, 46a-47a.
Petitioners do not argue otherwise.
B. Factual Background
Petitioners were a select group of management or
highly compensated long-term employees at Ruby
Tuesday, Inc., a restaurant chain. They participated
in Ruby Tuesday’s top-hat retirement and pension
plans, both of which deferred compensation until after
retirement so that the participants could pay lower
taxes on their income. Pet. App. 9a, 51a. To satisfy
its obligations under those top-hat plans, Ruby
Tuesday’s predecessor entered into a special
agreement, called a “rabbi trust,” with the
predecessor to Regions Bank. Id. at 9a.
A “rabbi trust”—which derives its name from the
first such arrangement sought by a Jewish synagogue
and approved by the IRS for its rabbi—is an
arrangement that segregates top-hat funds while still
preserving the plan’s unfunded status. See I.R.S.
Priv. Ltr. Rul. 8113107 (Dec. 31, 1980), 1980 WL
137740. Specifically, top-hat funds are placed in an
account that can be used only to pay out participant
benefits and not to make general corporate
expenditures. Pet. App. 9a. The funds are thus “out
of reach of the employer but are subject to the claims
of the employer’s creditors in the event of bankruptcy
or insolvency,” meaning that the plan still qualifies as
unfunded. Id. at 42a n.1 (citation omitted). And
because the funds “technically remain[] property of
the employer,” the plan participants are not taxed
“until the assets are actually distributed” to them. Id.
(citations omitted).
8
Ruby Tuesday turned to Regions to implement its
rabbi trust. Among other things, their agreement
established a fund to be held by Regions and
instructed Regions to undertake certain duties; “[f]or
the most part, . . . paying benefits as they came due.”
Id. at 10a. Regardless, the agreement made clear that
the fund would be treated “as general assets” of Ruby
Tuesday and “subject to the claims of [its] general
creditors.” Id. (citation omitted). Accordingly, the
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. (citation
omitted). Thus, Ruby Tuesday’s plans remained
unfunded, preserving their top-hat status.
Petitioners allege that Regions breached its rabbi
trust agreement in several ways. To begin, they argue
that after NRD Capital purchased Ruby Tuesday in
2017, Regions should have compelled Ruby Tuesday
to provide it funds equal to “the present actuarial
value of all unpaid benefits.” Id. Petitioners further
assert that, after Ruby Tuesday allegedly terminated
the plans in 2019, Regions should have informed them
of a right to take lump-sum payouts. Id. Finally,
petitioners claim that Regions wrongly ceased
providing benefits in 2020 after Ruby Tuesday orally
instructed it to do so, rather than waiting for
instructions in writing. Id. at 10a-11a.
Ruby Tuesday filed for Chapter 11 bankruptcy in
late 2020. When Ruby Tuesday asked the bankruptcy
court for authorization to take possession of the funds
held by Regions, petitioners initially objected, arguing
among other things that they were entitled to recover
the fund assets “under ERISA,” and citing Section
502(a)(1)(B), a different ERISA remedy provision that
9
empowers a participant to “‘recover benefits due to
him,’” “‘enforce his rights,’” or “‘clarify his rights to
future benefits’” pursuant to “‘the terms of the plan.’”
Id. at 22a, 44a-45a (citation omitted). Ultimately,
however, petitioners settled with Ruby Tuesday’s
bankruptcy estate, receiving their fees and a share of
their trust assets, but waiving their right to appeal
the bankruptcy court’s orders incorporating the funds
held by Regions into the bankruptcy estate. Id. at
11a.
C. Procedural Background
Four months after settling with Ruby Tuesday’s
bankruptcy estate, petitioners filed this suit against
Regions in the Eastern District of Tennessee. See id.
at 41a. They asserted an ERISA claim for “equitable
relief” under 29 U.S.C. § 1132(a)(3). In particular,
they claimed a right to “‘equitable surcharge’ of the
benefits that Regions would have paid if it had not
breached the [rabbi] trust agreement.” Pet. App. 11a.
In other words, petitioners sought monetary
compensation from Regions in “the amounts that
should have been paid to [them] as benefits.” Id. at
33a (citation modified). Petitioners also brought
state-law claims for breach of fiduciary duty, breach
of trust, breach of contract, and negligence. Id. at
11a-12a.
The district court rejected petitioners’ suit in full.
It first determined that ERISA preempted all of
petitioners’ state-law claims. See id. at 59a-67a.
Then, it explained why the ERISA claim failed for
several independent reasons. See id. at 46a-49a. “As
an initial matter, because [Ruby Tuesday’s plans] are
top-hat plans, they are exempt from ERISA’s
substantive fiduciary requirements.” Id. at 46a-47a.
10
So, Regions never owed petitioners fiduciary duties to
begin with. Petitioners tried to source the fiduciary
duty to “Alabama state trust law” instead, id. at 47a
(citation omitted), but the court declined, citing the
“well-established” principle that “‘[w]hen Congress
exempts a plan from ERISA’s fiduciary-duty
requirements, as it did with top-hat plans, plaintiffs
may not use state law to put back in what Congress
has taken out,’” id. (alteration in original) (quoting
Loffredo v. Daimler AG, 500 F. App’x 491, 496 (6th
Cir. 2012) (Sutton, J.)). The court also rejected the
argument that “federal common law rules of contract
apply to the Plans at issue.” Id. “[E]ven if” petitioners
could show that “Regions violated the terms of the
Trust or the Plans,” ERISA’s “‘equitable’” relief does
not allow a claim for surcharge, which is just
monetary relief by another label. Id. at 47a-48a
(citation omitted).
The Sixth Circuit affirmed in an opinion by Judge
Murphy.
At the outset, the court noted that
petitioners failed to explain why Regions could be
liable at all under ERISA. Section 502(a)(3) allows a
participant to pursue equitable relief only to “redress”
an ERISA violation or to “enforce” the law or the Plan
terms. 29 U.S.C. § 1132(a). But ERISA exempts
top-hat plans from ERISA’s fiduciary duties, see id.
§ 1101(a)(1), and petitioners failed to identify any
plan terms that Regions violated—instead, their
allegations concerned only breaches of the rabbi trust
agreement, see Pet. App. 32a. As a result, the court
observed that it was “far from clear” that petitioners’
allegations were sufficient to state a claim that
Regions had violated ERISA at all. Id. (quoting
Mertens, 508 U.S. at 253).
11
But even assuming that petitioners’ allegations
would have sufficed to state a claim, the panel agreed
with the district court that surcharge is not an
“equitable” remedy for purposes of Section 502(a)(3).
That equitable relief provision in ERISA is instead
limited to remedies that—as this Court has
explained—were “typically available in equity.” Pet.
App. 33a (quoting Mertens, 508 U.S. at 256). As the
court explained, this Court’s precedents teach that
“‘typically available’” refers to whether the remedy
was offered by premerger courts of equity in cases
where they shared “concurrent” jurisdiction with
courts of law. Id. at 29a-30a (citation omitted);
Montanile, 577 U.S. at 142, 147-48; US Airways, Inc.
v. McCutchen, 569 U.S. 88, 94-95 (2013); Sereboff v.
Mid Atl. Med. Servs., Inc., 547 U.S. 356, 361 (2006);
Great-West Life & Annuity Ins. Co. v. Knudson, 534
U.S. 204, 210, 219 (2002); see Mertens, 508 U.S. at
255-56. Any broader reading, the court explained,
would “effectively read out the word ‘equitable’ from
the statute because equity courts in trust cases could
grant any conceivable remedy.” Pet. App. 30a.
The court determined that the surcharge sought
by petitioners was not “‘typically available in equity’”
because surcharge was not offered “outside trust
cases.” Id. at 36a. Rather, in this context, “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.” Id.
at 35a (citation omitted). And as “the classic form of
legal relief,” monetary compensation, cannot qualify
as “appropriate equitable relief” under Section
502(a)(3). Id. at 28a (first emphasis added) (first
quoting Mertens, 508 U.S. at 255; then quoting
12
29 U.S.C. § 1132(a)(3)); see id. at 31a, 34a-35a.
Petitioners’ ERISA claim for surcharge thus could not
succeed.
Separately, the panel concluded that ERISA
expressly preempted petitioners’ state-law claims,
including for breach of fiduciary duty. That is because
“ERISA . . . establishes uniform standards to govern
the conduct of those who manage covered plans.” Id.
at 24a. Those standards “supersede any and all State
laws” that “relate to any employee benefit plan”
covered by ERISA.
29 U.S.C. § 1144(a).
And
“Congress contemplated that ERISA’s fiduciary
duties would be replaced by the contractual duties set
forth in” top-hat plans, and “not by the fiduciary-duty
rules from all 50 States.” Pet. App. 24a. “[C]ourts
would eviscerate this legislative decision to allow for
‘less-intrusive regulation of top-hat plans’ if they
substituted ‘a more-intrusive system’ of state
regulation.” Id. at 23a (quoting Loffredo, 500 F. App’x
at 495). As a result, petitioners could not “avoid
ERISA’s ‘exclusive’ provisions for seeking plan
benefits by pursuing those benefits through a
state-law contract claim as third-party beneficiaries
of a rabbi trust agreements.” Id. at 27a (quoting Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987)).
REASONS FOR DENYING THE WRIT
Neither question presented warrants this Court’s
review. On the first question, the asserted conflict is
illusory and not implicated on the facts of this case.
The only circuit case going the other way in the wake
of this Court’s decision in Montanile—the Fifth
Circuit’s decision in Aramark—recognizes that
Section 502(a)(3) claims are unavailable against
ERISA non-fiduciaries, like Regions here. As a result,
13
petitioners cannot point to a single circuit court that
would resolve the question presented in their favor.
On the second question presented, the Sixth Circuit
simply applied this Court’s well-settled precedent to
the facts of this case. Petitioners do not even try to
allege a circuit conflict. Nor do they provide any
credible argument that the decision below was wrong.
Even if the questions were otherwise cert-worthy,
this case is the wrong vehicle to address them. The
unusual, “top-hat” nature of the benefits plans at
issue distinguishes this case from mine-run ERISA
cases and limits the need for this Court’s intervention.
And, as the Sixth Circuit noted, the remedies
petitioners seek here may not ever be needed in this
case because it is “far from clear” that petitioners even
alleged that Regions violated ERISA in the first place.
Pet. App. 32a (citation omitted). Should the Court
wish to address either question presented, it should
wait for a case where it can do so cleanly.
I. THE FIRST QUESTION PRESENTED DOES
NOT WARRANT REVIEW
A. The Alleged Circuit Conflict Is Illusory
Petitioners claim the existence of a split among the
courts of appeals, pointing to “six courts of appeals”
that “authorize equitable surcharge,” Pet. 14, and
“[t]wo courts of appeals”—the panel decision below
included—“hold[ing] that plaintiffs cannot seek
equitable surcharge” under Section 502(a)(3), id. at.
19. But that split is illusory. Each of the decisions
petitioners cite as permitting surcharge claims under
Section 502(a)(3) fails to account for this Court’s most
recent guidance on the question in Montanile. That
is why this Court already appropriately denied
certiorari in a case presenting the same question that
14
is presented here. See Rose v. PSA Airlines, Inc., 144
S. Ct. 1346 (2024) (denying certiorari). The Court
should similarly deny the petition here.
1. The flaw in petitioners’ attempt to establish a
split starts with this Court’s original guidance on
what kinds of relief fall within Section 502(a)(3). In
Mertens v. Hewitt Associates, this Court addressed
“whether a nonfiduciary who knowingly participates
in the breach of a fiduciary duty” under ERISA “is
liable for losses that an employee benefit plan suffers
as a result of the breach.” 508 U.S. 248, 249-50 (1993).
Like petitioners in this case, the petitioners in
Mertens invoked Section 502(a)(3), arguing that their
lawsuit sought “appropriate equitable relief” under
ERISA. Id. at 255 (quotations and citation omitted).
This Court disagreed in an opinion by Justice
Scalia. The Court explained that, because “all relief
available for breach of trust could be obtained from a
court of equity, limiting the sort of relief obtainable
under § 502(a)(3) to ‘equitable relief’ in the sense of
‘whatever relief a common-law court of equity could
provide in such a case’ would limit the relief not at
all.” Id. at 257. Instead, the Court read ERISA to
draw a clear distinction “between ‘equitable’ and
‘legal’ relief.” Id. at 258. As a result, ERISA’s
reference to “‘equitable relief’” does not mean
“whatever relief a court of equity is empowered to
provide in the particular case at issue.” Id. at 256.
Instead, the Court held, “equitable relief” means
“those categories of relief that were typically available
in equity (such as injunction, mandamus, and
restitution, but not compensatory damages).” Id.
This Court cemented Mertens’s approach in two
subsequent cases. In Great-West Life & Annuity
Insurance Co. v. Knudson, the petitioners sought “in
15
essence, to impose personal liability on respondents
for a contractual obligation to pay money.” 534 U.S.
204, 210 (2002). Following Mertens, the Court, in
another opinion by Justice Scalia, explained that such
relief was “not typically available in equity” and
therefore unavailable. Id. After all, “‘[a] claim for
money due and owing under a contract is
“quintessentially an action at law.”’” Id. (quotations
and citation omitted). Then, in Sereboff v. Mid
Atlantic Medical Services, Inc., the Court, in an
opinion by the Chief Justice, permitted a fiduciary to
“seek to recover a particular fund” because that
specific kind of relief was “‘typically available in
equity.’”
547 U.S. 356, 361-63 (2006) (citation
omitted). The scope of relief available under Section
502(a)(3) was thus clearly established after Mertens,
Great-West, and Sereboff: only those remedies
“typically” available in equity can be afforded.
Following Mertens, every court of appeals to
address the question presented here agreed that only
those remedies “typically available in equity” can be
afforded under Section 502(a)(3). Crosby v. Bowater
Inc. Ret. Plan for Salaried Emps. of Great N. Paper
Inc., 382 F.3d 587, 589 (6th Cir. 2004) (citing
Great-West and Mertens), cert. denied, 544 U.S. 976
(2005); see also Kenseth v. Dean Health Plan, Inc., 610
F.3d 452, 482-83 (7th Cir. 2010); Pichoff v. QHG of
Springdale, Inc., 556 F.3d 728, 731-32 (8th Cir.), cert.
denied, 558 U.S. 828 (2009); Todisco v. Verizon
Commc’ns, Inc., 497 F.3d 95, 99-101 (1st Cir. 2007);
Amschwand v. Spherion Corp., 505 F.3d 342, 347 (5th
Cir. 2007), cert. denied, 554 U.S. 932 (2008); LaRue v.
Dwolff, Boberg & Assocs., Inc., 450 F.3d 570, 576-77
(4th Cir. 2006), vacated on other grounds by 552 U.S.
248 (2008); Pereira v. Farace, 413 F.3d 330, 340 (2d
16
Cir. 2005), cert. denied, 547 U.S. 1147 (2006); Callery
v. United States Life Ins. Co. in the City of N.Y., 392
F.3d 401, 408-09 (10th Cir. 2004), cert. denied, 546
U.S. 812 (2005); McLeod v. Oregon Lithoprint Inc.,
102 F.3d 376, 378 (9th Cir. 1996), cert. denied, 520
U.S. 1230 (1997). As the Sixth Circuit explained in
Crosby, “[a]n action in which the plaintiff complains
that the defendant owes him money . . . is, of course,
the locus classicus of an action at law; if we were to
say that such an action qualifies as a suit in equity,
we should be giving the words used by Congress in
§ 502(a)(3) a meaning that Great-West and Mertens
teach they will not bear.” Crosby, 382 F.3d at 589.
2. Against this settled understanding, this Court
decided CIGNA Corp. v. Amara, 563 U.S. 421 (2011).
In CIGNA, this Court, in an opinion by Justice
Breyer, held that a different section of ERISA—
Section 502(a)(1)(B)—did not authorize reformation
of a plan governed by ERISA. Id. at 437-38. But the
Court went on to question whether Section 502(a)(3)
might nevertheless provide similar relief. See id. at
438-42. And in answering that question—which was
not necessary to decide the case—this Court opined
about the surcharge remedy petitioners seek here.
See id. at 442. “The surcharge remedy extended to a
breach of trust committed by a fiduciary
encompassing any violation of a duty imposed upon
that fiduciary.” Id. And, CIGNA opined, such a
remedy could “fall within the scope of the term
‘appropriate equitable relief’ in § 502(a)(3).” Id.
Justice Scalia wrote separately in CIGNA to
“agree . . . that § 502(a)(1)(B) . . . does not authorize
relief for misrepresentations in a summary plan
description,” but concurred only in the judgment
because he saw “no need and no justification for
17
saying anything more than that.” Id. at 445 (Scalia,
J., concurring in the judgment). There had been “no
discussion whatsoever of . . . surcharge in the briefs of
the parties or even amici,” id. at 447, and the majority
opinion’s discussion of the issue amounted to
“speculation upon speculation,” id. at 448. CIGNA’s
discussion of surcharge, as Justice Scalia saw it, was
“utterly irrelevant.” Id. And because the “discussion
of the relief available under § 502(a)(3) and Mertens
[was] purely dicta, binding upon neither us nor the
District Court,” the “District Court need not read any
of it—and, indeed, if it takes our suggestions to heart,
we may very well reverse.” Id. at 449.
CIGNA produced some confusion among the
circuit courts as to the availability of surcharge under
Section 502(a)(3). For instance, in Kenseth v. Dean
Health Plan, Inc., the Seventh Circuit held that
“under CIGNA,” a plaintiff could “seek make-whole
money damages as an equitable remedy under section
[502](a)(3) if she can in fact demonstrate that [the
defendant] breached its fiduciary duty to her and that
the breach caused her damages.” 722 F.3d 869, 882
(7th Cir. 2013). Other courts likewise read CIGNA to
allow plaintiffs to seek surcharge as an equitable
remedy under Section 502(a)(3) for breaches of
fiduciary duty. See Gearlds v. Entergy Servs., Inc.,
709 F.3d 448, 451 (5th Cir. 2013); Silva v.
Metropolitan Life Ins. Co., 762 F.3d 711, 720 (8th Cir.
2014); Moyle v. Liberty Mut. Ret. Benefit Plan, 823
F.3d 948, 960 (9th Cir. 2016); Sullivan-Mestecky v.
Verizon Commc’ns Inc., 961 F.3d 91, 102-03 (2d Cir.
2020); Gimeno v. NCHMD, Inc., 38 F.4th 910, 914-15
(11th Cir. 2022).
3. But this Court clarified the issue in Montanile
v. Board of Trustees of the National Elevator Industry
18
Health Benefit Plan, 577 U.S. 136 (2016). There, in
an opinion by Justice Thomas, the Court addressed
“what happens when a participant obtains a
settlement fund from a third party,” and, “in
particular whether a plan fiduciary can sue under
§ 502(a)(3) to recover from the participant’s
remaining assets the medical expenses it paid on the
participant’s behalf.” Id. at 139. In at least some
circumstances, this Court concluded, “the fiduciary
cannot bring a suit to attach the participant’s general
assets under § 502(a)(3) because the suit is not one for
‘appropriate equitable relief.’” Id. Along the way, the
Court explained that “the Court’s discussion of
§ 502(a)(3) in CIGNA was not essential to resolving
that case.” Id. at 148 n.3. Instead, the Court’s
“interpretation of ‘equitable relief’ in Mertens,
Great-West, and Sereboff . . . remains unchanged.” Id.
After Montanile reaffirmed that the scope of
equitable relief under Section 502(a)(3) is defined by
the Court’s decisions in Mertens, Great-West, and
Sereboff—and not by dicta in CIGNA—the circuit
courts have corrected course. The Fourth Circuit
analyzed the question presented here at depth and
concluded (like the panel decision below) that under
the governing test from Mertens—the test that
remains “unchanged” in this Circuit’s caselaw—
surcharge does not qualify as available equitable
relief under ERISA. See Rose v. PSA Airlines, Inc., 80
F.4th 488, 503 (4th Cir. 2023) (emphasis and citation
omitted), cert. denied, 144 S. Ct. 1346 (2024). As Rose
explained, this Court “has since rejected the turn that
it contemplated in [CIGNA].” Id. “Montanile’s
approach—which is really Mertens’s and Great-West’s
approach—is inconsistent with” the “approach” this
Court suggested in dicta in CIGNA, and surcharge is
19
therefore not available under Section 502(a)(3)’s
provision of other equitable relief. Id. at 503-04. The
panel decision below adopted the majority approach
in Rose, see Pet. App. 28a-31a, 33a-35a, 37a, to
conclude the same thing.1
Just as petitioners do here, the petitioners in Rose
sought
certiorari,
arguing
that
CIGNA’s
since-discarded approach should still control. But
this Court rejected that petition, see Rose, 144 S. Ct.
at 1346, and there is no reason for the Court to take a
different approach here. As in Rose, the panel
faithfully analyzed this Court’s caselaw, including the
rule articulated in Mertens, seemingly shifted in
CIGNA, and then reaffirmed in Montanile.
4. The cases upon which petitioners rely to allege
the existence of a split either predate Montanile or do
not wrestle this Court’s holding in Montanile that the
Mertens approach remains “unchanged.” As a result,
petitioners do not identify a genuine split on the first
question presented: whether surcharge claims are
cognizable under Section 502(a)(3).
Three cases in petitioners’ alleged split predate
Montanile. See Kenseth v. Dean Health Plan, Inc., 722
F.3d 869 (7th Cir. 2013); Gearlds v. Entergy Servs.,
Inc., 709 F.3d 448 (5th Cir. 2013); Silva v.
Metropolitan Life Ins. Co., 762 F.3d 711 (8th Cir.
2014). Each of those cases relied on CIGNA to
1
Judge Heytens wrote separately in Rose, reasoning that this
Court’s decisions could be reconciled by allowing surcharge
claims against ERISA fiduciaries. See 80 F.4th at 507 (Heytens,
J., concurring in part and dissenting in part). But no judge on
the panel in Rose believed that a surcharge claim could be
brought against a non-fiduciary under ERISA—the situation
here. See infra Part I.B.
20
conclude that surcharge claims qualify as “equitable
relief” under Section 502(a)(3). Kenseth, 722 F.3d at
879-80 (analyzing surcharge in light of CIGNA);
Gearlds, 709 F.3d at 452 (“Gearlds’s complaint is
viable in light of [CIGNA].”); Silva, 762 F.3d at 720
(explaining “how [CIGNA] has changed the
availability of relief” under Section 502(a)(3)). And
because each case predated this Court’s subsequent
holding in Montanile that CIGNA’s discussion of
Section 502(a)(3) was pure dicta, none of these cases
is evidence of an bona fide divide in authorities among
the circuit courts.
The three other cases petitioners rely upon
post-date Montanile, but each fails to grapple with
this Court’s instruction in Montanile that the
approach Justice Scalia articulated in Mertens
remains “unchanged.” See Gimeno v. NCHMD, Inc.,
38 F.4th 910, 914-15 (11th Cir. 2022);
Sullivan-Mestecky v. Verizon Commnc’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).
In Gimeno, for instance, the Eleventh Circuit
asserted that “the Supreme Court has recognized that
Section [502](a)(3) allows an ERISA beneficiary to sue
an ERISA fiduciary for this kind of relief.” 38 F.4th
at 914. And, Gimeno pointed out, “[s]ince [CIGNA],
every circuit court to address the issue has recognized
that Section [502](a)(3) creates a cause of action for
monetary relief for breaches of fiduciary duty.” Id. at
914-15. But the Gimeno court evinced no awareness
that this Court had since repudiated CIGNA’s dicta in
Montanile, and the Eleventh Circuit did not even cite
Montanile in reaching its incorrect decision regarding
the scope of relief available under Section 502(a)(3).
So too in the Second Circuit’s opinion in
21
Sullivan-Mestecky, which analyzed the availability of
surcharge in a single paragraph, relied entirely on
CIGNA’s dicta, and failed to cite Montanile. See
Sullivan-Mestecky, 961 F.3d at 102-03. And the same
goes for the Ninth Circuit in Moyle, which analyzed
CIGNA at depth while failing to cite or recognize
Montanile. See Moyle, 823 F.3d at 960-62.
The bottom line is that the cases upon which
petitioners rely to allege the existence of a split either
neglect to analyze the question in light of this Court’s
most recent—and definitive—guidance on the
question presented, or they predate this Court’s most
recent guidance altogether. Either way, petitioners
fail to cite a single case from a circuit court analyzing
the question here in light of this Court’s holding in
Montanile that CIGNA’s discussion of surcharge
under Section 502(a)(3) was pure dicta. Just as the
Fourth and Sixth Circuits have done, these courts can
consider the question in light of Montanile and
correctly conclude that Section 502(a)(3) does not
authorize surcharge as an equitable remedy.
B. The Fifth Circuit’s Recent Decision Does
Not Change Things
Although the petition raises no bona fide split, the
Fifth Circuit recently disagreed with the approach
adopted by the Fourth and Sixth Circuits in a divided
decision issued after the petition in this case was
docketed. See Aramark Servs., Inc. Grp. Health Plan
v. Aetna Life Ins. Co., 162 F.4th 532 (5th Cir. 2025).
In Aramark, the Fifth Circuit considered the
import of Montanile on surcharge claims under
Section
502(a)(3)
brought
against
“ERISA
fiduciaries.” Id. at 541. The Fifth Circuit recognized
that “Montanile . . . explained that [CIGNA] did not
22
overrule Mertens and Great-West, and the Court
reiterated that its ‘interpretation of “equitable relief”
in Mertens, Great-West, and Sereboff remains
unchanged.’” Id. at 543 (citation omitted). But the
Fifth Circuit reasoned that Montanile “came as no
surprise” because CIGNA addressed “fiduciary
defendants,” whereas “Mertens and Great-West . . .
addressed a distinct issue (the remedy against
non-fiduciary defendants).” Id. “Montanile,” the
Fifth Circuit reasoned, “said nothing about ERISA
fiduciaries.” Id. at 544.
As the Fifth Circuit saw it, the fiduciary versus
non-fiduciary line is the critical distinction. Aetna—
the ERISA defendant in that case—did “not contest
that it is an ERISA fiduciary.” Id. So the court
concluded that Aramark’s claims “lie[d] in equity”
because it was “seeking ‘make-whole relief’ for a
‘violation of a duty imposed on that fiduciary.’” Id.
(quoting CIGNA, 563 U.S. at 442). As the Fifth
Circuit read the Court’s decisions, Mertens,
Great-West, and Sereboff mean that “ERISA plaintiffs
cannot recover money from non-fiduciaries,” while
they can against ERISA fiduciaries. Id. at 542.2
2
Judge Jones concurred in part and dissented in part.
Reviewing this Court’s decisions, she explained that Section
502(a)(3) permits only relief that was “typically available in
equity” and that CIGNA’s dicta about surcharge was “shortlived.” 162 F.4th at 548. As she observed, “rarely has the
Supreme Court so thoroughly distanced itself from ‘dicta’ in a
previous case” as Montanile did with CIGNA. Id. Judge Jones
further explained that Montanile’s course correction applied to
cases involving ERISA fiduciaries and non-fiduciaries alike:
“Montanile does not distinguish [CIGNA] factually based on the
identity of the [CIGNA] defendant as a fiduciary.” Id. Thus, she
23
Under Aramark’s own reasoning, the Fifth Circuit
and the panel decision below are in agreement when
it comes to entities, like Regions, that are
non-fiduciaries under ERISA. All agree that ERISA
exempts top-hat plan administrators from ERISA’s
fiduciary duty rules. Pet. 11 (acknowledging that
top-hat plan administrators need not comply with
fiduciary duty rules under ERISA); Pet. App. 23a
(recognizing that “ERISA exempts administrators of
top-hat plans from its federal fiduciary duties”). As a
result, Regions is—by definition—a non-fiduciary to
which even the Fifth Circuit’s rule in Aramark does
not apply. See 162 F.4th at 542.
The panel below (like Judge Jones in Aramark, see
note 2, supra) rejected the argument that Section
502(a)(3) distinguishes between ERISA fiduciaries
and non-fiduciaries. Pet. App. 35a-36a. As Judge
Murphy explained, “[the] distinction” between
fiduciaries and non-fiduciaries “did not matter under
the common law of trusts.” Id. at 35a. But the
analytical difference is purely academic. To the
extent there is a divergence between the Fifth
Circuit’s approach and the panel’s reasoning below,
this case does not implicate the difference. Under
Aramark, the Fifth Circuit would decide this case the
continued, “the dicta in [CIGNA] rests on a fig leaf, a
nonstatutory distinction based on the identity of the defendant,
and is inconsistent with the analysis of ‘typical equity relief’
otherwise adopted by the Supreme Court.” Id. at 549. As a
result, Judge Jones would have held that monetary
compensation is unavailable under Section 502(a)(3), regardless
whether the defendant is an ERISA fiduciary. Id. But including
Judge Jones’s view, the panel in Aramark was unanimous that
Section 502(a)(3) does not create a surcharge remedy for claims
against non-fiduciaries under ERISA.
24
same way the panel below did: petitioners cannot
pursue a surcharge claim against Regions, a
non-fiduciary, under Section 502(a)(3).
Petitioners argue that ERISA provides that “a
top-hat administrator can still be a fiduciary,” even if
the administrator is expressly exempt from the
fiduciary obligations imposed by ERISA. Pet. 27. Yet
some circuit courts have already rejected that very
argument. See Goldstein v. Johnson & Johnson, 251
F.3d 433, 443 (3d Cir. 2001) (“[W]e rejected [the]
contention that . . . administrators of top-hat plans
are also fiduciaries.”); see also Holloman v. Mail-Well
Corp., 443 F.3d 832, 842 (11th Cir. 2006) (relying on
Goldstein to reject claims against a top-hat
administrator). As Goldstein explained, “a top hat
administrator has no fiduciary responsibilities,” and
“[t]op hats are more analogous” to a situation in which
“a plan administrator has no discretion to interpret
the plan’s terms (and thus is not a fiduciary), in which
case the plan is reviewed de novo, according to the
federal common law of contract.” 251 F.3d at 443.
That is why the Third Circuit expressly “reject[ed]”
the “contention that, because ERISA’s definitional
section lists a ‘fiduciary’ as one who exercises
discretion in interpreting the terms of a plan,
administrators of top hat plans are also fiduciaries.”
Id. at 443 (citation omitted).
Nor can Plaintiffs show a split with the Fifth
Circuit based on the notion that Regions, “regardless
of whether it had any fiduciary duties under ERISA[,]
is a trustee for a trust for which Petitioners were
beneficiaries.” Pet. 27. Aramark repeatedly drew the
line at fiduciary status. Nowhere did the Fifth Circuit
suggest that Section 502(a)(3) provides for the
surcharge remedy with respect to non-fiduciary
25
trustees. See 162 F.4th at 542-43. As this Court
explained in Mertens, “ERISA . . . defines ‘fiduciary’
not in terms of formal trusteeship, but in functional
terms of control and authority over the plan.” 508
U.S. at 262; see 29 U.S.C. § 1002(21)(A) (defining
“fiduciary”). There is no reason to think the Fifth
Circuit would disregard the statute’s explicit
exemption of top-hat plan administrators from
ERISA’s fiduciary duties and allow a surcharge claim
against a non-fiduciary trustee. Either way, the
existence of this threshold issue is an independent
reason to deny review. See Part III, infra.3
In short, there is no conflict warranting this
Court’s review.
C. The Decision Below Is Correct
The decision below is also correct. As this Court
held in Mertens, the critical question is whether
surcharge was a remedy that was “typically available
in equity.” 508 U.S. at 256. As Justice Scalia
explained, Section 502(a)(3) does not allow plaintiffs
to seek only “compensatory damages—monetary
relief for all losses their plan sustained as a result of
[an] alleged breach of fiduciary duties.” Id. at 255.
Section 502(a)(3)’s provision of “equitable relief”
refers to remedies like injunctions and restitution,
3
The defendant in Aramark has filed a petition for rehearing.
The Fifth Circuit has requested a response and the petition is
pending as of the date of this submission. The existence of that
pending petition further obviates the need for review in this
case. If the Fifth Circuit grants rehearing, it may eliminate any
possible argument as to a conflict. If the Fifth Circuit denies
rehearing or agrees with the panel decision on rehearing, that
case would likely provide a more appropriate opportunity for this
Court to consider the question presented.
26
but “not compensatory damages,” classic relief at law.
Id. at 256.
Moreover, Justice Scalia himself
recognized the harmful dicta in CIGNA, see 563 U.S.
at 449 (Scalia, J., concurring in the judgment), and in
Montanile, this Court eliminated any confusion
created by CIGNA by clarifying that it did not intend
to depart from the path carved by Justice Scalia in
Mertens, see 577 U.S. at 148 n.3.
Indeed, an unbroken line of this Court’s holdings
recognizes that Congress used the phrase “equitable
relief” in Section 502(a)(3) in the narrow sense—to
refer to relief that was “typically” equitable and not
merely any kind of relief that a court sitting in equity
could order. See, e.g., Montanile, 577 U.S. at 142,
147-48; US Airways, Inc. v. McCutchen, 569 U.S. 88,
94-95 (2013); Sereboff, 547 U.S. at 361; Great-West,
534 U.S. at 210, 219; Mertens, 508 U.S. at 255-59.
All of this makes sense. As the panel below
correctly held, petitioners’ request for “surcharge”
seeks what amounts to monetary relief, and that is a
quintessentially legal remedy, not an equitable one.
See Pet. App. 35a (explaining that in this context,
“surcharge and damages are ‘essentially equivalent’”
(citation omitted)). If petitioners were right, it would
collapse the difference between equitable and legal
relief in the ERISA context. That would render
Congress’s language concerning equitable remedies
meaningless and radically expand the availability of
traditional money damages under ERISA.
See
Mertens, 508 U.S. at 257. Indeed, the fact that
petitioners invoked Section 502(a)(1)(B) in the
bankruptcy proceedings to pursue functionally the
same relief they seek here underscores that
petitioners are confusing legal and equitable relief
under ERISA.
27
Petitioners’ argument rests on reading dicta from
this Court’s decision in CIGNA to allow surcharge
claims under Section 1132(a)(3). In CIGNA itself,
Justice Scalia—the author of Mertens—rejected this
spin on Mertens in his separate opinion. Then, in
Montanile, the Court itself explicitly disavowed
CIGNA’s dicta. As Judge Jones observed in Aramark,
“[r]arely has the Supreme Court so thoroughly
distanced itself from ‘dicta’ in a previous case.” 162
F.4th at 548 (Jones, J., concurring in part and
dissenting in part). And petitioners point to no circuit
judge who has analyzed Montanile and adopted
petitioners’ view that surcharge claims are available
against even non-fiduciaries. Even Judge Heytens,
dissenting in the Fourth Circuit’s decision in Rose,
adopted the view embraced by the Fifth Circuit in
Aramark that the key distinction is fiduciary status.
80 F.4th at 507 (Heytens, J., concurring in part and
dissenting in part) (reasoning that surcharge was not
available to “just anyone” and was instead available
to breaches “committed by a fiduciary” (citation
omitted)). Put differently, petitioners would have this
Court articulate a rule that no court of appeals
analyzing the issue in light of Montanile has adopted.
II. THE SECOND QUESTION PRESENTED
DOES NOT WARRANT REVIEW
The second question presented—regarding
ERISA’s preemptive scope—is even less cert-worthy.
On this question, the Sixth Circuit simply applied this
Court’s well-settled precedent that ERISA preempts
state law claims that have a “connection with” or
“reference to” an ERISA plan to the facts of this case.
Pet. App. 15a (quoting Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 97 (1983)). Petitioners do not even assert
28
a circuit conflict on this question. That alone is
reason to deny certiorari on this question, regardless
whether the Court is inclined to address the first
question presented.
But even beyond the
(undisputed) lack of any conflict, petitioners offer no
reasoning or explanation in their petition for how or
why the panel’s analysis was flawed.
III. THIS CASE IS A FATALLY FLAWED
VEHICLE IN ANY EVENT
Even if the questions presented were cert-worthy,
this case would be a horrible vehicle to resolve them.
1. For starters, the unusual, top-hat nature of
Ruby Tuesday’s benefits plans adds a significant
“wrinkle” to the case. Pet. App. 23a. As explained
above, supra at 4-7, it is undisputed that ERISA does
not establish fiduciary duties as to top-hat plans, and
that there is accordingly “no cause of action for breach
of fiduciary duty involving a top hat plan.” Goldstein,
251 F.3d at 443; see 29 U.S.C. § 1101(a)(1); Demery v.
Extebank Deferred Compensation Plan (B), 216 F.3d
283, 290 (2d Cir. 2000); Senior Exec. Ben. Plan
Participants v. New Valley Corp. (In re New Valley
Corp.), 89 F.3d 143, 148-49 (3d Cir. 1996), cert.
denied, 519 U.S. 1110 (1997).
If, as the Fifth Circuit held in Aramark, the
surcharge remedy under Section 502(a)(3) is available
only against ERISA fiduciaries, the dispute here is
academic because Regions is a non-fiduciary
administrator of a top-hat plan. See 162 F.4th at 542.
If the Court wishes to review the issue, this Court
should await a case presenting the question in the
context of an ERISA fiduciary. If it takes up the first
question presented in this context, the Court will
have to confront the antecedent question whether any
29
remedy under Section 502(a)(3) is available against a
non-fiduciary. This case may therefore produce an
opinion that does not settle the question as to ERISA
fiduciaries, or suggest an answer only in dicta.
At the very least, the abnormality of top-hat plans
and rabbi trusts may substantially diminish the
precedential and practical value of a decision from
this Court. No guidance or uniformity is needed in
this unusual factual context; none of the cases in the
alleged circuit conflict involve top-hat plans, rabbi
trusts, or anything of the sort. See supra at 17. That
is no surprise, given the rarity with which top-hat
plans—and their accompanying exemptions from
ERISA’s general provisions—are litigated.
What is more, because this case concerns a
benefits plan that, by definition, applies only to
relatively high-earning executives and management
employees, it will not affect ordinary workers who are
likely to be more financially dependent on ERISA
benefits, or in need of guidance from this Court on
such benefits. As the Sixth Circuit recognized,
Congress was less concerned about top-hat plans
because the “high-level executives” that participate in
such plans “typically have the bargaining power to
‘substantially influence’ the ‘design’ of their
retirement plans.” Pet. App. 7a (citation omitted).
There is no reason for this Court to reach out to decide
either question presented in this context.
2. More broadly, and even if petitioners succeed
on their arguments here about the availability of
remedies, “it is ‘far from clear’” that they have even
alleged potential ERISA liability, much less that they
will ultimately be able to adduce evidence to “hold
Regions liable under § 1132(a)(3).” Id. at 32a (citing
Mertens, 508 U.S. at 253). As the Sixth Circuit
30
explained, Section 502(a)(3) relief is available only to
redress a violation of either ERISA itself or an ERISA
benefit plan’s terms.
Id. (citing 29 U.S.C.
§ 1132(a)(3)). Petitioners do not—and could not—
argue that Regions violated ERISA itself, since it is
conceded that ERISA expressly exempts top-hat plan
administrators from its fiduciary obligations. See 29
U.S.C. § 1101(a)(1).4
For purposes of liability, then, that leaves only a
claim that Regions violated Ruby Tuesday’s top-hat
plans. “Yet [petitioners] have identified no plan terms
that Regions violated.” Pet. App. 32a. Instead, in an
effort to “shield their state-law claims from
preemption,” petitioners “argue that they seek to
enforce the trust agreement” in a manner that would
compel payment of benefits they claim to be owed
under the plan. Id. But the dubious proposition that
Regions’s alleged breach of the rabbi trust agreement
is a “remediable wrong” under Section 1132(a)(3) has
not been resolved. Id. (quoting Mertens, 508 U.S. at
254).
It is entirely possible, therefore, that
petitioners’ claims will fail at the liability stage and
never require the availability of surcharge as
“appropriate equitable relief.” 29 U.S.C. § 1132(a)(3).
The Court should await a case in which the
remedies issue is cleanly presented and would be
dispositive. This case is not close to that.
4
For this reason alone, the sole amicus brief in support of
certiorari—which is premised on the flawed notion that Justice
Scalia got it wrong in Mertens, Bray Br. 7—is also unavailing.
Professor Bray’s brief fails to account for ERISA’s exemption of
top-hat plans from fiduciary responsibilities.
31
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
JOHN C. NEIMAN, JR.
GREGORY G. GARRE
MAYNARD NEXSEN PC
Counsel of Record
CHRISTINA R. GAY
1901 Sixth Ave. North
SOREN J. SCHMIDT
Suite 1700
LATHAM & WATKINS LLP
Birmingham, AL 35203
555 Eleventh Street, NW
(205) 254-1228
jneiman@maynardnexsen.com Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
BEN HARRIS
LATHAM & WATKINS LLP
1271 Avenue of the
Americas
New York, NY 10020
Counsel for Respondent
February 27, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.