# Opposition Brief — Powell v. Chesapeake & Potomac Telephone Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1745%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1170 ## Text Supreme Court, U.S. FILED No. 85-1701 MAY 22 1956 JOSEPH F. SPANIOL, JR. CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1985 ELEANOR POWELL, Petitioner, Vv. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA, CONNECTICUT GENERAL LIFE INSURANCE COMPANY, and AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION STEPHEN M. COLANGELO JEFFERY ANNE TATUM BOOTHE, PRICHARD & DUDLEY ADAMS, DUQUE & HAZELTINE 8280 Greensboro Drive 1920 N Street, N.W. Suite 900, Tysons Corner Suite 420 McLean, Virginia 22102 Washington, D.C. 20036 (703) 356-2200 (202) 833-8334 Counsel for Respondents Counsel for Respondent The Chesapeake and Connecticut General Life Potomac Telephone Insurance Company Company of Virginia and American Telephone and Telegraph Company Pet ii icsissncensni ee i QUESTIONS PRESENTED 1. Whether a participant in a self-funded employee benefit plan, who has received all of the benefits to which she is entitled, may recover extracontractual or punitive damages for breach of fiduciary duty in an action brought under the Employee Retirement Income Security Act. z. Whether state law causes of action alleging mishandling of a claim for benefits under a self-funded employee benefit plan “relate to” the plan and are therefore preempted by the Employee Retirement Income Security Act. 3. Whether, by merely providing some administrative services to a self-funded employee benefit plan, an insurance company thereby engages in “the business of insurance.” il LIST OF PARENTS, SUBSIDIARIES, AND AFFILIATES OF RESPONDENTS Please see Appendices B through D. ill TABLE OF CONTENTS TABLE OF AUTHORITIES ................. ESE LE NE PE RUM GPR oes c.csscccssscesssncccsnesscesesssrces REASONS FOR DENYING THE WRIT.............0..00.. 3 There is No Conflict Among the Circuits Con- cerning the Availability To a Participant of Extra- contractual and Punitive Damages Under ERISA. Petitioner Has Not Raised Any Important Ques- tion of Federal Law Concerning Recovery By a Participant of Extracontractual or Punitive Dam- ages That Has Not Already Been Settled By This eae akanedonisocsdddinsiackanscsinsssinenesess a. This Court Has Recently Held That Extra- contractual and Punitive Damages Are Not Recoverable By a Participant for Breach of ice cacsiskuashsnahchviesanerappoove b. Extracontractual and Punitive Damages Are Not Recoverabie As “Equitable” Relief.......... There is No Conflict Among the Circuits Con- cerning ERISA Preemption of Petitioner’s Claims; the Issue Has Already Been Resolved by TEES EEE REE There is No Important Question Pertaining to the Scope of ““The Business of Insurance” That Has Not Already Been Resolved by This Court............ is sabhisl sinasnencoravaccnosenecsscnatsseenesiorenen IV TABLE OF AUTHORITIES CASES: Authier v. Ginsberg, 757 F.2d 796 (6th Cir. 1985), cert. denied, 106 S.Ct. 208 ( 1985 ) ...........-.ssseeceeeceeees Bell v. Southern Oregon Log Scaling & Grading Bureau, | Empl. Bens. Cas. (BNA) 1439 (D. Or. FP A cicinstosevaiendiiidladeed costae nian ncehncaoreinoncipmmmaeeonaieneste Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 B, ) Reishee om aera nes err ee Bittner v. Sadoff & Rudoy Industries, 490 F. Supp. Se Fe Eo ie cence animes Bone and Bone v. Association Management Services, Inc., No. J85-0408( B) (S.D. Miss. Apr. 3, 1986)... Calhoun v. Falstaff Brewing Corp., 478 F. Supp. 357 CE Be eintein ces Uinta cairn tipiniiesuittemmeteernentien California v. Sierra Club, 451 U.S. 287 (1981)........... Cae 6 a Ee UA 1 TT a DP vcnkisissiccncnasdencctnndnncexsesenes Cowden v. Montgomery Courty Soc. for Cancer Con- trol, 591 F. Supp. 740 (S.D. Ohio 1984) .............. me Curtis v. Loether, 415 U.S. 189 (1974) ........cc ee eeeeeeee De Grace v. Rumsfeld, 614 F.2d 796 ( Ist Cir. 1980)... Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir. 1981), cert. denied, 454 U.S. 968 (1981).. Diano v. Central States, etc., 551 F. Supp. 861 (N.D. I IE Focaccia vaticendenicnsenae causa emenctvecbdeceohadoncsrtuns arog v. Brockway, Inc., 763 F.2d 1091 (9th Cir. | os sa rpasaten thas locediieisccaneiesiameniaaceniniol piemietbcagaauliiinsse Foltz v. U.S. News & World Report, Inc., 627 F. Supp. SE Ce. EE rocoto rcsintentnesedeemcaimnssorsie Gilbert v. Burlington Industries, 765 F.2d 320 (2d a Re case craneestatcernnieancricianentseneenememiationgsses Gilliken v. Hughes, 609 F. Supp. 178 ( D. Del. 1985).. Group Life and Health Ins. Co. v. Royal Drug Co.. 440 deg 205 (1979). reh’g denied, 441 U.S. 917 OI cck cps hicces Sieaeeseaaan die ainakanauudidsinknaianniaaapneers Hancock v. Monigomery Ward Long Term Disability Trust, No. 84-4201. ( 9th Cir. Apr. 17, 1986)........... Harrington v. Vandalia—butler Board of Education, 585 F.2d 192 (6th Cir. 1978). cert. denied, 441 a ee recs les ceca saint erentcacpniescesees Page 3,9,10,11 10 11 Hayden v. Texas-U.S. Chemical Co., 557 F. Supp. eC Ps SE icine eeien Hewlett-Packard Co. v. Barnes, 571 F.2d 502 (9th Cir. 1978), cert. denied, 439 U.S. 831 (1978) wow. Hurn v. Retirement Fund Trust of Plumbing, Heating & Piping Industry, 424 F. Supp. 80 (C.D. Cal. 9S FAB ciecticnvsnsinbeiannecsntsienisiinaseihlaniaaieaiainameane Jackson v. Occidental Life Ins., C-80-4288 SW (N.D. ie Os caicnths dessins has tcebgises-dlaanceednellie de aa iedetemieciabaeaanaasan Massachusetts Mutual Life Insurance Co. v. Russell, a a Wes Be 8 PD sncoracccsasidcsbisnnecicotacnnensiouins Maxfield v. Central States, Southeast & Southwest Areas Health, Welfare & Pension Funds, 559 F. SIONS. Ree 0 Gis 0 IED hnckshnsechseancccnnres Aneeeuecone Metropolitan Life Insurance Co. v. Massachusetts, aa ee OP i cin cechasorsanevtiaastouaneenneaciannintin Meyer v. Phillip Morris, Inc., 575 F. Supp. 1232 (E.D. ek ee NERE 2 SALE CE EDT ete ARN OL IRV SLM te Miner v. International Typographical Union, etc., 601 we MR ae ee em eee errr Moore v. Provident Life and Accident Ins. Co., Nos. 85-1887, 85-1957, (9th Cir. Apr. 17, 1986) .....00.0... Northwest Airlines, Inc. v. Transport Workers, 451 Fee FG PE Ucncccctatnciotncdccka aashonanindashaninmebiemicanees Ogden v. Michigan Bell Telephone Co., 571 F. Supp. Dae CUE CU BP TE Pte citvervenstindatrannereasaeiactin Pearson v. Western Electric Co., 542 F.2d 1150 (10th CUR ee aa cicicibaviaa canes Laencmaoeicaeweaia sacdiaaacemneae Powell v. C&P Telephone Company of Virginia, Inc., ete, THO FAG GUD CAR Cit. T9GS ) vvccnscsesveccecsccsnsvesee Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) ......... Russell v. Massachusetts Mutual Life Ins. Co., 722 F.2d 482 (9th Cir. 1983). rev'd, Massachusetts Mutual Life Ins. Co. v. Russell. 105 S.Ct. 3085 (1985). vacated, 778 F.2d 542 ( 9th Cir. 1985) ....... SEC v. National Securities, Inc., 393 U.S. 453 Shah v. Mt. Zion Hospital & Medical Center, 642 P20 cee (Pt TET icine Page 10,12,13 11,13 VI Page Shaw vy. Delta Airlines, Inc., 463 U.S. 85 (1983 )......... 10 Sheahan v. Leahy, 591 F. Supp. 629 (E.D. Mo. 1984) 10 Union Labor Life Insurance Co. v. Pireno, 458 U.S. NII Tien nina otc hae naa piremicgadinsuacpamsedsaoaasemanbiies 12 Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. i ARAB CS RRL RE tele ere REO rm ae DCD CUA Were oe 7,9 Wardle v. Central States, Southeast and Southwest Areas Pension Fund, No. 77-144-C, 239 Pens. Rep. (BNA) pp. D-1-2 (S.D. Ind. 1979), aff'd, 627 F.2d 820 (7th Cir. 1980), cert. denied, 449 US. RET WIE Pion icin dhassenashieerenelienecemnguaebintedsendesaeantlaxaien I) Whitaker v. Texaco, Inc., 566 F. Supp. 745 (N.D. EE 5 RI ep RA re ON eS AORN IS On OSI os) Wilson, et al. v. Allegheny International, Inc., No. 83C-9254, (N.D. Ill. Nov. 12, 1985)...... ene 9 Winterrowd v. David Freedman & Co., 724 F.2d 823 pb 8s RR EN een a a eee ee” 3,4 Ziskind v. Retail Clerks International Association, 3 Empl. Bens. Cas. (BNA) 1012 (E.D. Cal. 1982).. 10 Zittrouer v. UARCO, 582 F. Supp. 1471 (N.D. Os. DUNNE. -ssncshie chics deueciinsverecathaauedtamianisamadaanaas aeons 10 EMPLOYEE RETIREMENT INCOME SECURITY ACT, 29 U.S.C. §§ 1001 et seg. (1982): eee Oe ee, OUP P acc nc cosncannseasacnapiusavéinacsennseons 2 § 404(a)(1) (29 U.S.C. § 1104(a)( 1) )...................... 2.10 © BOB) C29 US... 8 UUOGC GYD vvsveccnecssnrssarsocsescesseevess 5.6.7 te re a i sccuaeuenusmeuvegen 7 Gee Cw Gi tars Ae RE asc cranninitcnsdpnaigcindabadeaacanmasaosons 2.6.8 S $021 a)(Z).(29 U.S.C. © 1 USZC a 2) ) vccccercccesisescsss. 4,6 § 502(a)(3)(B) (29 U.S.C. § 1132(a)(3)(B))......... 4,5,6,7,9 Br Nt oe Wiis © WETS iiiidicsscccnsdiosdeuanciristions 7 Bh, BoP 2 alk FS |: SONG Cnn amen Anaaane) 2.10 Bt Dh, BOF 8 ake 0S” |) RRR omen O Rtn ie nes 5 Oe £26 a ie PONE Tsocanos 7 Le ees 0 PUES PO sissssisssccsctcnectoceen 10 § 514(b)(2)(A) (29 U.S.C. § 1144(b)(2)(A)) oe. i2 § 514(b)(2)(B) (29 U.S.C. § 1144(b)(2)(B)) ....... 13 Vil OTHER STATUTES: Be a ae PI WI Ns sciniaicosccsenesavenasvcustecnscsncaducccuns Bae es Te UE BORE EOE © WOTEEE D . cerctachecccacoccsdnnwtccecencensce 15 U.S.C. §§ 1681n, 169le(b) (1982)... Be ee Te I WEED vacsiinivcbicnestianacovnenonevancdickedannseamn 42 U.S.C. § 2000( € )-5( g) (1982 ).........cccccccccccecsscsses REGULATIONS: 29 C.F.R. §§ 2560.503-1 e¢ seg. (1985) woe LEGISLATIVE MATERIALS: S.4, 93d Cong., Ist Sess., § 603 (1973), reprinted in Legislative History of the Employee Retirement Income Security Act of 1974, at 3816 (1974) oo... H.R. Rep. No. 533, 93d Cong., Ist Sess. 11 (1973), reprinted in 1974 U.S. Code esl & Ad. News DPT sch cplctbuhssh ovcccannscobedslnehiiachstbaoectbedeeccabeacunnMmidaisniaiaunncniaten TREATISES: 3 A.W. Scott, The Law of Trusts (3d ed. 1967)........... G. Bogert & G. Bogert, The Law of Trusts and Pe GO FINE Pc rnaidcca nica rents salbccanclecanstisssensetacs Restatement (Second ) of Trusts (1959).............0...0005. Page IN THE Supreme Court of the United States OCTOBER TERM, 1985 No. 85-1701 ELEANOR POWELL, Petitioner, Vv. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA, CONNECTICUT GENERAL LIFE INSURANCE COMPANY, and AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Respondents. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: Respondents The Chesapeake and Potomac Telephone Company of Virginia, Connecticut General Life Insurance Company, and American Telephone and Telegraph Company respectfully request that this Court deny the Petition for Writ of Certiorari seeking review of the Fourth Circuit’s Opinion in this case. That Opinion is reported at 780 F.2d 419 (1985).! ' The Opinion attached as Appendix A to petitioner’s bref is incorrect. A portion of the Opinion, contained at p. 16 of petitioner’s Appendix A, was revised by the Court before the Opinion was pubiished. The revised Opinion is set forth as Appendix A to Respondents’ Brief. 2 STATEMENT OF THE CASE Petitioner’s claims arise under a self-funded long-term disability benefit plan (“the Plan”) sponsored by The Chesa- peake and Potomac Telephone Company of Virginia (“C&P”) for its non-management employees. (Appendix, p.6).2 C&¥# is the Plan administrator end provides all of the funding for benefits under tiie Plan. (App., p. 21). There is no insurance policy or insurance coverage. All benefits are paid from a fund maintained by C&P for that purpose. (App., p. 21). Pursuant to an Administrative Services Only Agreement (‘“‘the ASO Agreement”), C&P designated Connecticut General Life Insur- ance Company (“Connecticut General”) as claims adminis- trator to process claims made by C&P employees under the Plan. (App., pp. 122-130). Petitioner was paid long-term disability benefits for every month from February, 1978 through May, 1983. (App. pp. 133-134). The payments ceased in June of 1983 because Petitioner received a substantial retroactive award of Social Security disability benefits. (App., pp. 135-139). As a result of this award, under the terms of the Plan, Petitioner had no entitlement to any further benefits and, in fact, had been substantially overpaid. (App., pp. 140-146). Petitioner filed an action in the United States District Court for the Eastern District of Virginia after Respondents requested that she refund the overpayment. The Amended Complaint invoked federal question jurisdiction, asserting that Petitioner’s claims arose under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seg. The Amended Com- plaint specifically alleged that, by mishandling Petitioner’s benefit claim, Respondents breached *heir fiduciary duties to her under ERISA Sections 404(a)(1), 101 and 503.2 The Amended Complaint did not refer to ERISA’s civil enforcement provision, Section 502,4 nor did it invoke any particular subsec- tion thereof, as the basis for her claims. 2 All references to “Appendix” in this brief are references to the Joint Appendix filed by the parties with the Fourth Circuit as the record in the case. All references to the Appendix will be abbreviated as “App.” 329 U.S.C. §§ 1104(a)(1), 1021, and 1133 (1982). 429 U.S.C. § 1132 (1982). 3 The Amended Cor plaint also set forth four claims under Virginia law: intentionai infliction of emotional distress, viola- tion of Virginia’s Unfair Trade Practices Act, breach of an implied duty of fair dealing, and breach of contract. In her prayer, Petitioner sought cornpensatory and punitive damages. She did not seek any statutory penalties or equitable relief under ERISA. It should be noted that Petitioner conceded in her Brief to the Fourth Circuit that her claim for breach of contract was preempted by ERISA.5 Accordingly, that question is not properly before this Court. REASONS FOR DENYING THE WRIT 1. There is No Conflict Among the Circuits Concerning the Availability To a Participant of Extracontractual and Punitive Damages Under ERISA. All of the circuits that have considered whether punitive damages are available to a plan participant for breach of fiduciary duty under ERISA agree that no such damages are available. Moreover, following this Court’s decision in Massacausetts Mutuai Life Ins. Co. v. Russell, 105 S. Ct. 3085 (1985), there is not even a conflict among the district courts. Contrary to Petitioner’s assertions, the Ninth Circuit and the Eighth Circuit are not in conflict. In Dependahi v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir. 1981), cert. denied, 454 U.S. 968 (1981), the Eighth Circuit expessly determined that Congress did not intend punitive damages to be available under ERISA. Jd. at 1216. The Ninth Circuit’s determination in Russell v. Massachusetts Mutual Life Ins. Co., 722 F.2d 482 (9th Cir. 1983) that such damages were recoverable was explicitly reversed by this Court in Massachusetts Mutual.® Following this Court’s decision in Massachusetts Mutual, the 5 Bnef of Appellant at p. 23. 6 The other Ninth Circuit case cited by Petitioner, Winterrowd v. David Freedman & Co., 724 F.2d 823 (9th Cir. 1984), was decided by the Ninth (footnote continues) 4 Ninth Circuit reversed its earlier position and has fallen into line with the Fourth and Eighth Circuits’ view that extra- contractual and punitive damages are not available under ERISA. In Hancock v. Montgomery Ward Long Term Disability Trust, No. 84-4201 (9th Cir. Apr. 17, 1986), the Ninth Circuit affirmed the denial by a district court of a request by a plaintiff for additional discovery to support a claim for extracontractual damages for breach of fiduciary duty under ERISA. Acknowl- edging this Court’s ruling in Massachusetts Mutual, the Ninth Circuit noted that no such damages are available to a partici- pant for breach of fiduciary duty under Section 502(a)(2),’ and then also found, in accord with the Fourth Circuit in this case, that no such damages are available under Section 502(a)(3)(B).® Accordingly, there is no conflict at all among the circuit courts as to the availability of extracontractual or punitive damages to a participant under an ERISA plan who asserts claims based on the mishandling of benefit claims. None of the district court opinions cited by Petitioner to support her claim of conflict is applicable here. Both Miner v. International Typographical Union, etc., 601 F. Supp. 1390 (D. Colo. 1985), and Gilliken v. Hughes, 609 F. Supp. 178 (D. Del. 1985), rely on the Ninth Circuit’s opinion in Russell, subse- (footnote continued) Circuit after its decision in Russell, but prior to this Court’s reversal. Relying on Russell, the Winterrowd Court heid that an ERISA fiduciary could recover punitive damages on behalf of the pian from an employer who willfully, wantonly, and maliciously withheld its contributions to a multi-employer plan. Jd. at 826. Thus, both because of its reliance on the Russell opinion that was subsequently reversed, and because the recovery was to the plan and not to participants, Winterrowd is inapplicable to the question presented to this Court. 729 U.S.C. § 1132(a)(2) (1982). 829 U.S.C. § 1132(a)(3)(B) (1982). 5 quently reversed by this Court, in finding punitive damages available for breach of fiduciary duty. In Bittner v. Sadoff & Rudoy Industries, 490 F. Supp. 534 (E.D. Wis. 1980), an action for retaliatory discharge under Section 510,9 the district court made an equivocal comment that punitive damages might, under some circumstances, be available under Section 510. In reversing another part of the court’s ultimate ruling, however, the Seventh Circuit expressed a strong disinclination toward the award of such damages. See Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 825-26 (7th Cir. 1984). All of the remaining district court cases cited by Petitioner decline to award extracontractual or punitive damages, consistent with this Court’s ruling in Massachusetts Mutual. 2. Petitioner Has Not Raised Any Important Question of Federal Law Concerning Recovery By a Participant of Extracontractual or Punitive Damages That Has Not Already Been Settled By This Court. Petitioner’s argument that she should be permitted to recover extracontractual and punitive damages under Section 502(a)(3)(B), which permits recovery of “appropriate equi- table relief” to redress violations of ERISA, fails to acknow!l- edge that the Fourth Circuit’s opinion in this case is fully consistent with the law as enunciated by this and other courts. a. This Court Has Recently Held That Extra- contractual and Punitive Damages Are Not Recov- erable By a Participant for Breach of Fiduciary Duty. The question of recoverability of extracontractual and punitive damages for breach of fiduciary duty was recently resolved by this Court in Massachusetts Mutual Life Ins. Co. v. Russell, 105 S. Ct. 3085 (1985). Section 409(a) of ERISA 1° explicitly sets forth the parameters of liability for breach of fiduciary duty, including any breach of the responsibilities, 929 U.S.C. § 1140 (1982). 029 U.S.C. § 1109(a) (1982). 6 obligations, or duties imposed upon fiduciaries by this subchap- ter....” In Massachusetss Mutuai, this Court carefully consid- ered the question whether a successful claim made by a participant under Section 502(a)(2) for liability based on Section 409(a), which permits certain relief to the plan, including “such other equitable or remedial relief as the court may deem appropriate,” could include recovery of extra- contractual or punitive damages. This Court concluded that it could not. Jd. at 3094. Consequently, regardless of the statutory section allegedly violated by an ERISA fiduciary, recovery by a participant of extracontractual or punitive damages under Section 409( a) has been held by this Court to be impermissible. The analysis used by this Court in Massachusetts Mutual in concluding that no extracontractual or punitive damages are recoverable by a participant under Section 409( a) is applicable with equal, if not greater, force to Section 502(a)(3)(B). In fact, the language of Section 502(a)(3)(B), which limits recovery to “other appropriate equitable relief’, is narrower than that of Section 502(a)(2) which, through its reference to Section 409(a)}, provides for “equitable or remedial relief.” It would be incongruous to permit a greater degree of recovery to redress the same conduct simply because the claim is brought under Section 502(a)(3)(B) rather than 502(a)(2), particu- larly where the language of Section 502(a)(2) is narrower. b. Extracontractual and Punitive Damages Are Not Recoverable As “Equitable” Relief. Petitioner argues, however, that the language “other appropniate equitable relief” in Section 502(a)(3)(B) should be construed to permit recovery of punitive damages.'! The Fourth Circuit correctly decided that it should not. ‘1 Petitioner’s reference at p. 16 to a portion of the legislative history stating that ERISA was intended to provide “the full range of legal and equitable remedies available in both state and federal courts” is misleading. That statement had its origins in an earlier version of ERISA which provided a civil action for “legal or equitable” relief to redress breaches of fiduciary duty. See S.4, 93d Cong., Ist Sess., § 603 (1973), reprinted in Legislative History of the Employee Retirement Income Security Act of 1974, at 3816 (1974). Congress, however, deleted all reference to “legal relief” in passing the far more circumscribed civil enforcement provisions found in ERISA Section 502. In drafting ERISA, Congress expressly included in the remedial scheme various punitive measures against errant fiduciaries, including removal under Section 409(a), civil pen- alties under Section 502({c), and criminal sanctions under Sections 501 and 511.'2 Notably absent, however, is any express provision for recovery by a participant of punitive damages. No remedies not expressly included should be implied. The language of Section 502(a)(3)(B), “other appropri- ate equitable relief (i) to redress such violations [of ERISA],” cannot reasonably be construed to provide for such damages. Petitioner relies cn the suggestion in Justice Brennan’s con- curring opinion in Massachusetts Mutual that lower courts should look to the common law of trusts to determine the extent of the recoverability of damages under Section 502(a)(3)(B). The common law of trusts, however, does not provide for punitive damages. Remedies for breach of trust have aiways been within the exclusive province of equity courts. See, e.g., 3 A.W. Scott, The Law of Trusts § 197, at 1625 (3d ed. 1967), Restatement (Second) of Trusts, § 197 (1959), and punitive damages are not an equitable remedy, but a traditional form of legal relief offered only in courts of law. See Curtis v. Loether, 415 U.S. 189, 196 (1974), Walker v. Ford Motor Co., 684 F.2d 1355, 1364 (llth Cir. 1982). The Fourth Circuit therefore correctly concluded that the remedies generally afforded benefi- ciaries by the common law of trusts, although they may include the recovery of money damages, do not include the extra- contractual or punitive damages sought by Petitioner. '3 1229 U.S.C. §§ 1109(a), 1132(c), 1131, and 1141 (1982). 13 The Fourth Circuit cited the following authorities in support of this conclusion: “See Restatement (Second ) of Trusts § 205 (1959) (liability for breach of trust is limited to (a) loss in value of trust estate; (b) profits accrued by trustee; or (c) profits lost to estate); G. Bogert & G. Bogert, The Law of Trusts & Trustees, § 862 (2d ed. 1982) ( trustee is usually charged only with the loss in value of the trust estate although exemplary damages are occasionally awarded in a few states where malice or fraud is involved); A. Scott, The Law of Trusts, § 198.1 (1967) (‘where the trustee is not under an immediate and unconditional duty to pay money to the benefi- ciary, the beneficiary cannot maintain an action at law against him’).” 780 F.2d at 424. Le ae 8 The legislative history of ERISA indicates that Congress considered the remedies traditionally afforded under common law, and modified them to fit the unique circumstances of employee benefit plans. See, e.g., H.R. Rep. No. 533, 93d Cong., Ist Sess. 11 (1973), reprinted in 1974 U.S. Code Cong. & Ad. News 4639, 4649 (“The fiduciary responsibility section, in essence, codifies and makes applicable to... fiduciaries certain principles developed in the evolution of the law of trusts”); Id. at 13, reprinted in 1974 U.S. Code Cong. & Ad. News at 4651: (“The principles of fiduciary conduct are adopted from existing trust law, but with modifications appro- priate for employee benefit plans.”) (emphasis added).'4 Thus, to the extent the common law of trusts may be a guide, Congress has already incorporated it, appropriately modified, into ERISA’s remedial scheme. As this Court stated in Massachusetts Mutual, the “six carefully-integrated civil enforcement provisions” of Section 502 “provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” 105 S. Ct. at 3093 (emphasis added). Indeed, this Court noted that there is a “stark abser.ce” in both ERISA and its legislative history of evidence that Congress intended puni- tive damages to be recoverable under ERISA. Jd. On this point, it cited pertinent language from California v. Sierra Club, 451 U.S. 287, 297 (1981): “The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” 105 S. Ct. at 3092. See also Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94 (1981); Cort v. Ash, 422 U.S. 66, 78 (1975). Where Congress has intended to allow punitive damages, it has enacted provisions expressly authorizing punitive damages re- covery. See, e.g., Securities Exchange Act of 1934, Section 21, 15 U.S.C. § 78u(h) (1982); Consumer Credit Protection Act, Sections 616, 706, 15 U.S.C. §§ 168In, 169le(b) (1982): Omnibus Crime Control & Safe Streets Act of 1968, Section 82, 18 U.S.C. § 2520 (1982). 14 Quoted at n.6 of Justice Brennan’s Concurring Opinion, Massachusetts Mutual, 105 S. Ct. at 3096. 9 The question of what may be deemed “equitable” relief has also already been exhaustively addressed by the circuit courts in connection with virtually identical language contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-5(g) (1982), providing for “any other equitable relief as the court deems appropmate.” The circuit courts of appeals are unanimous in their finding that “equitable relief” under Title VII does not include recovery of emotional distress or punitive damages. E.g., Walker v. Ford Motor Co., 684 F.2d 1355 (llth Cir. 1982); Shah v. Mt. Zion Hospital & Medical Center, 642 F.2d 268 (9th Cir. 1981); De Grace v. Rumsfeld, 614 F.2d 796 (Ist Cir. 1980); Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir. 1978), cert. denied, 441 U.S. 932 (1979); Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977); Pearson v. Western Electric Co., 542 F.2d 1150 (10th Cir. 1976). Finally, varicus lower courts have examined the question and have concluded with virtu2zl unanimity that Section 502(a)(3) permits no such recovery. Foltz v. U.S. News & World Report, Inc., 627 F. Supp. 1143, 1166 (D.D.C. 1986) (recovery under § 502(a)(3) measured by contract, rather than tort, principles); Cowden v. Montgomery County Soc. for Cancer Control, 591 F. Supp. 740, 752-53 ($.D. Ohio 1984); Meyer v. Phillip Morris, Inc., 575 F. Supp. 1232, 1235-36 (E.D. Mo. 1983); Whitaker v. Texaco, Inc., 566 F. Supp. 745, 750-52 (N.D. Ga. 1983); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, No. 77-144-C, 239 Pension Rep. (BNA) pp. D-1-2 (S.D. Ind. 1979), aff'd on other grounds, 627 F.2d 820 (7th Cir. 1980), cert. denied, 449 U.S. 1112 (1981); Bell v. Southern Oregon Log Scaling & Grading Bureau, : Empl. Bens. Cas. (BNA) 1439 (D. Or. 1976); Bone and Bone v. Association Management Services, Inc., No. J85- 0408(B) (S.D. Miss. April 3, 1986); Wilson, et al. v. Allegheny International, Inc., No. 83 C-9254 (N.D. Ill. Nov. 12, 1985).15 'S Other lower courts have held that no extracontractual or punitive damages are available under ERISA’s civil enforcement sections generally. See, e.g., Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208 ( 8th Cir. 1981), (footnote continues) eee eee re NE Ba EIEN DO NE TOT ET CR TS TN ae 10 3. There is no Conflict Among the Circuits Concerning ERISA Preemption of Petitioner’s Claims; the Issue Has Already Been Resolved by This Court. The Fourth Circuit’s holding that Petitioner’s state law claims are preempted by ERISA is fully consistent with the mandates of this Court as well as with the rulings of all other circuits that have reached the issue. In Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983), this Court specifically addressed the extent of ERISA preemption of state law claims, and held that the term “relate to” in ERISA’s preemption section, Section 514(a),*® was intended by Con- gress in its broadest sense, encompassing laws of general application as well as laws specifically designed to regulate employee benefit plans. Jd. at 96-97. This Court stated that a state law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Jd. See also Metropolitan Life Ins. Co. v. Massachusetts, 105 S. Ct. 2380, 2389 (1985). Congress has made the processing of a claim for benefits an integral part of an ERISA plan’s administration, and it has comprehensively regulated claims handling to the exclusion of state law. ERISA Sections 503, 404(a)(1), 514(a);17 29 C.F.R. § 2560.503-1(g)(1), (2), .503-1(h)(1)(ii) (1985). Petitioner’s state law claims against C&P as plan administrator (footnote continued) cert. denied, 454 U.S. 968 (1981) (dictum) Zittrouer v. UARCO, Inc., 582 F. Supp. 1471, 1478 (N.D. Ga. 1984); Diano v. Central States, Southeast & Southwest Areas Health, Welfare & Pension Funds, 551 F. Supp. 861, 863 (N.D. Ohio 1982); Maxfield v. Central States, Southeast & Southwest Areas Health, Welfare & Pension Funds, 559 F. Supp. 158, 160 (N.D. Ill. 1982); Calhoun v. Falstaff Brewing Corp., 478 F. Supp. 357, 359 (E.D. Mo. 1979); Hurn v. Retirement Fund Trust of Plumbing, etc., 424 F. Supp. 80, 82 (C.D. Cal. 1976); Sheahan v. Leahy, 591 F. Supp. 629 (E.D. Mo. 1984); Ziskind v. Retail Clerks Int’l Assoc., 3 Empl. Bens. Cas. (BNA) 1012, 1015-16 (E.D. Cal. 1982); Jackson v. Occidental Life Ins., C-80-4288 SW (N.D. Cal. 1981). 1629 U.S.C. § 1144(a) (1982). 1729 U.S.C. §§ 1133, 1104(a)( 1), 1144(a) (1982). (einai aie and Connecticut General as claims administrator plainly relate to claims handling and the actual payment of benefits, and directly encroach on the administration and integrity of the Plan itself. Thus a cause of action alleging the mishandling of a claim for benefits by the administrator of an ERISA plan obviously has a “connection with or reference to such a plan.” As the Fourth Circuit noted in its opinion: A contrary rule would undermine ERISA’s important policy of promoting uniformity in employee benefit laws, reflected in the legislative history, in the Act’s declaration of policy, and in the preemption clause itself, by creating the ‘potential . . . for conflicting employer obligations and variable standards of re- covery.’” 780 F.2d at 422. The federal! circuit courts have ruled consistently in favor of preemption of such claims, and there is no conflict about the meaning of Shaw in this regard. The Ninth Circuit, in Russell v. Massachusetts Mutual Life Ins. Co., 722 F.2d 482 (9th Cir. 1983), rev’d on other grounds, Massachusetts Mutual Life Ins. Co. v. Russell, 105 S. Ct. 3085 (1985), vacated on other grounds, 778 F.2d 542 (9th Cir. 1985), in Ellenberg v. Brockway, Inc., 763 F.2d 1091, 1095 (9th Cir. 1985), and more recently in Moore v. Provident Life and Accident Ins. Co., Nos. 85-1887, 85-1957 (9th Cir. April 17, 1986), has held that all causes of action alleging mishandling of benefit claims under an ERISA-governed plan “relate to” such plans and are therefore preempted by ERISA, which occupies the field. The Eighth Circuit, in Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir. 1981), cert. denied, 454 U.S. 968 (1981), has similarly held that ERISA occupies the field and preempts state law claims for fraud and tortious interference with contract. Other courts have likewise concluded that ERISA preempts state common law claims filed against self-funded plans. See, e.g., Gilbert v. Burlington Industries, 765 F.2d 320 (2d Cir. 1985): Authier v. Ginsberg, 757 F.2d 796 (6th Cir. 1985), cert. denied, 106 S. Ct. 208 (1985); Ogden v. Michigan Bell Telephone Co., 571 F. Supp. 520 (E.D. Mich. 1983); Hayden v. Texas-U.S. Chemical Co., 557 F. Supp. 382 (E.D. Tex. 1983). 12 4. There is No Important Question Pertaining to the Scope of “The Business of Insurance” That Has Not Already Been Resolved By This Court. Petitioner’s claims are not saved from preemption by the ERISA “saving” clause, Section 514(b)(2)(A)},'® which ex- empts from preemption state laws regulating insurance. As this Court noted in Metropolitan Life Ins. Co. v. Massachusetts, 105 S. Ct. 2380 (1985), which involved insured employee benefit plans, the purpose of this “saving” clause is to preserve the reservation by Congress in the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (1982), of the regulation of the “business of insurance” to the states, Jd. at 2392, n.21.19 In Metropolitan Life, this Court reviewed the elements which, in its view, make up “the business of insurance,” quoting Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129 (1982), as follows: first, whether the practice has the effect of transfer- ring or spreading a policyholder’s risk; second, whether the practice is am integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. 105 S.Ct. at 2391 (emphasis in orginal). Using these criteria, this Court held in Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205 (1979), reh’g denied, 441 U.S. 917 (1979), that when an insurance company enters into an agreement which does not involve the spreading and underwriting of a policyholder’s risk, it is not engaged in the business of insurance. 1829 U.S.C. § 1144(b)(2)(A) (1982). '9 To the extent that sections of ERISA “specifically relate” to the business of insurance, including the ERISA fiduciary responsibility sections, those sections control over state laws regulating insurance. See Hewlett- Packard Co. v. Barnes, 57\ F.2d 502, 505 (9th Cir. 1978), cert. denied, 439 U.S. 831 (1978). ats pes Fer PRE, t | 13 In SEC v. National Securities, Inc., 393 U.S. 453, 459-60 (1969), this Court stated: The statute did not purport to make the states supreme in regulating all the activities of insurance companies, its language refers not to the persons or companies who are subject to state regulation, but to laws “regulating the business of insurance.” Insur- ance companies may do many things which are subject to paramount federal regulations; only when they are engaged in the “business of insurance” does the statute apply. In Metropolitan Life, 105 S. Ct. at 2393, this Court expressly distinguished self-funded plans, such as that involved in this case, from plans in which an insurance policy funds the Plan, stating that self-funded plans are not open to any state regu- lation: We are aware that our decision results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not. Thus, in the present case, where Connecticut Genera! is merely performing administrative duties delegated by the plan sponsor and there is no contract of insurance, the Fourth Circuit correctly held that Connecticut General is not engaged in the “business of insurance.” 29 The Ninth Circuit reached exactly the same conclusion in Moore v. Provident Life and Accident Ins. Co., Nos. 85-1887, 85-1957 (9th Cir. April 7, 1986), holding that “purely administrative claims processing func- tions” engaged in by an insurance company serving as adminis- trative overseer to the self-funded portion of an ERISA plan “have nothing to do with the spreading or underwniting of a 20 To the extent any analogy could be drawn between an employee benefit plan and a group insurance policy or insurance company, ERISA’s “deemer” clause, Section 514(b)(2)(B), 29 US.C. § 1144(b)(2)(B) (1982), explicitly dispenses with this argument, stating: “Neither an em- ployee benefit plan. . . , nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer . . . or to be engaged in the business of insurance . . . for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts. . . .” 14 policyholder’s risk,” and therefore do not render the insurance company engaged in the “business of insurance” within the contemplation of the “saving” clause. CONCLUSION For the foregoing reasons, this Court should deny the Petition for a Wnt of Certiorari to review the Opinion of the Court of Appeals for the Fourth Circuit. Respectfully submitted, STEPHEN M. COLANGELO BOOTHE, PRICHARD & DUDLEY 8280 Greensboro Drive Suite 900, Tysons Corner McLean, Virginia 22102 (703) 356-2200 Counsel for Respondents Chesapeake and Potoimac Telephone Company of Virginia and American Telephone and Telegraph Company JEFFERY ANNE TATUM ADAMS, DUQUE & HAZELTINE 1920 N Street, N.W., Suite 420 Washington, D.C. 20036 (202) 833-8334 Counsel for Respondent Connecticut General Life Insurance Company May 20, 1986 = ind ae i 3 “x ¥ :* £ ie Se Ww a an 2 — 44 a 4 he +, ae APPENDIX A IN THE United States Court of Appeals FOR THE FOURTH CIRCUIT No. 85-1072 ELEANOR POWELL, Appellant, versus CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA; CONNECTICUT GENERAL LIFE INSURANCE COMPANY, A CIGNA COMPANY, AND AMERICAN TELEPHONE AND TELEGRAPH, INC., A NEw YorK CORPORATION, Appellees. and AT&T COMMUNICATIONS OF VIRGINIA, INC., Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (C/A 84-554) Argued November 8, 1985. Decided December 18, 1985 Before WIDENER and PHILLIPS, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation. Diane H. Mahshie (James R. Tate; Tate and Bywater, Ltd. on bnef) for Appellant; Jeffrey Anne Tatum (Adams, Duque & Hazeltine on brief); Stephen M. Colangelo ( Boothe, Prichard & Dudley; Rodney H. Glover; Thomas & Fiske on brief) for Appellees. REVISED OPINION NEW PAGE 12 2a PHILLIPS, Circuit Judge: Eleanor Powell, a former employee of C&P Telephone Company of Virginia (C&P) and a beneficiary under its self- funded employee benefit plan (the Plan), sued that company, its former parent, AT&T, and Connecticut General Life Insur- ance Company (Connecticut General), the Plan’s adminis- trator, for the breach of various fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 ef seg., in the handling of her claim for disability benefits.' Although she had received all of the benefits to which she was entitled, Powell sought $5 million in extracontractual and punitive damages under ERISA, and also sought to invoke the court’s pendent jurisdiction over Virginia state law claims for intentional infliction of emotional distress, breach of an implied covenant of good faith and fair dealing, breach of contract, and violation of Virginia’s Unfair Trade Practices Act, Va. Code § 38.!-49, et seg. (1950), based on the same alleged misconduct as gave rise to her federal cause of action under ERISA. The district court granted the defendants’ motions for summary judgment and dismissed all of Powell’s claims. We agree with the district court that Powell’s state law claims are preempted by ERISA, and that extracontractual and punitive damages are not, in these circumstances, available under ERISA, and we therefore affirm. I Powell received disability benefits under the Plan from February 1978 through May 1983. She complains of constant harassment by C&P and Connecticut General throughout this period, causing her and her son emotional distress and pre- cipitating her divorce. According to Powell, the appellees repeatedly demanded unnecessary medical reports, refused to ' Specifically, tae complaint alleges that C&P and Connecticut General failed to discharge their fiduciary duties solely in the interest of Plan beneficianes pursuant to 29 U.S.C. § 1104(a)(1); breached their duties of disclosure under 29 U.S.C. § 1021; and failed to provide Powell with adequate wnitten notice of termination, as required by 29 U.S.C. § 1133(1). 3a provide her attorney with copies of her claim file, and unjusti- fiabiy withheld venefit payments on two occasions. Powell’s benefits were terminated in June 1983, after she received a substantial Social Security award, which represented monthly benefits retroactive to July 1977. When combined with the Socia! Security award, Powell’s Plan benefits exceeded 50% of her base pay prior to disability, the benefits ceiling under the Plan. Powell refused C&P’s request to refund the overpayment. Thereafter, Powell filed this action and the defendants counterclaimed for a refund of benefits. The counterclaim was nonsuited after Powell’s complaint was dismissed, and this appeal followed. II A. Preemption of State Law Claims. With certain stated exceptions,? ERISA preempts “‘any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. 29 U.S.C. § 1144(a). “State law” is defined to include “‘all laws, deci- sions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983), the Supreme Court, citing legislative history and referring to the language and structure of the statute, construed the preemption clause in its broadest sense, and held that “[a] law ‘relates to’ an employee benefit plan...if it has a con- nection with or reference to such a plan.” Thus, the scope of § 1144(a) is not limited to state laws “specifically designed to affect employee benefit plans.” /d. at 98. The state laws at issue in Shaw, the New York Human Rights Law (prohibiting discrimination in empioyment, in- cluding discrimination in employee benefit plans on the basis of pregnancy), and New York’s Disability Benefits Law ( requir- 2 The most important of these exceptions allow continued operation of state insurance, tanking, and securities laws, 29 U.S.C. § 1144(b)(2)(A), and generally applicable criminal laws, 29 U.S.C. § 1144(b)(4). 4a ing employers to pay sick-leave benefits to employees unabie to work due to pregnancy ), “clearly ‘relate to’ ”’ employee benefit plans. Jd. at97. The Court observed, however, that some state actions may affect employee benefits plans in “‘too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Jd. at 100, n21. This category includes, for example, state garnishment of a spouse’s pension income to enforce alimony and support orders. Id., citing American Telephone and Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979). In this case, none of the state laws under which Powell claims relief have any intrinsic connection with employee benefit plans. The question is therefore whether state law claims which relate to the administration of an ERISA- governed plan, but which arise under general state Jaws which themselves have no impact on employee benefit plans, are within the scope of ERISA preemption. Given the “unparal- leled breadth” of the preemption clause, Holland v. Burlington Industries, Inc., No. 84-2241(L), slip op. at 17 (4th Cir. Sept. 3, 1985), and the broad remedial policy of ERISA, we hold that state laws, insofar as they are invoked by beneficiaries claiming relief for injures arising out of the administration of employee benefit plans, “‘relate to” such plans and, absent an applicable exemption, are preempted by ERISA. The preemption clause effectuates a broad remedial policy to protect the interests of participants in ERISA-governed plans and their beneficiaries “by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit . plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C. § 1001(b). Thus, ERISA imposes extensive duties on plan administrators, 29 US.C. §§ 1101-1114, and provides a comprehensive scheme for the cnminal and civil enforcement of fiduciary obligations , 29 U.S.C. §§ 1131-1132.3 To the extent that ERISA redresses the mishandling of benefits claims or other maladministration 3 Under 29 U.S.C. § 1132, entitled “Civil enforcement,” a plan partici- pant or beneficiary may sue to recover benefits due under the plan, to enforce his nghts under the plan, or to clanfy his nights to future benefits under the (footnote continues) Sa of employee benefit plans, it preempts analogous causes of action, whatever their form or label under state law. See Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215-16 (8th Cir. 1981) (“If Congress has already provided a remedy {under ERISA], ...the state law is preempted, regardless of whether or not a conflict exists which involves a direct inter- ference by the state law with [ERISA].”). A contrary rule would undermine ERISA’s important policy of promoting uniformity in employee benefit laws, reflected in the legislative history, in the Act’s declaration of policy, and in the preemption clause itself, by creating the “potential... for conflicting em- ployer obligations and variable standards of recovery.” Hel- land, No. 84-2241(L), slip op. at 17-18. Accordingly, the state law claims in this case, all of which relate exclusively to alleged breaches of fiduciary responsibility in the administration of C&P’s employee benefit plan, “relate to” the plan and, unless an exception applies, are preempted, leaving Powell to such remedies as are available under ERISA. This analysis comports with several recent Ninth Circuit decisions in which that court concluded that state claims based on the maladministration of employee benefit pians are pre- empted by ERISA, even where the state statutory and common law under which the claims arise bears no inherent connection with ERISA-governed plans. See Ellenburg v. Brockway, Inc., (footnote continued} plan, § 1132(a)(1)(B); or if the plan administrator fails or refuses to comply with a request for certain information, a beneficiary may recover, subject to the court’s discretion, up to $100 a day from such failure or refusal, § 1132(a)(1)(A); or a participant. beneficiary, or fiduciary may bring an action to enjoin administrative acts which violate ERISA or the terms of the plan or to obtain “other appropriate equitable relief’ to redress such violations or to enforce provisions of ERISA or the terms of the plan. § 1132¢a)(3). A plan may recover from its administrator any losses resulting from the breach of fiduciary duties and may seek “such other equitable or remedial relief as the court may deem appropnate, inciuding removal of such fiduciary,” § 1109(a). Any person who willfully violates the provisions of ERISA may be fined, upon conviction, up to $5,000, or imprisoned up to one year, or both, and in the case of violations by other than an individual, a fine of up to $100,900 may be imposed, § 1131. For other remedies, including those available to the Secretary, see §§ 1132(a)(4), (a)(5), (a)(6), (b); for availability of attorney’s fees and costs see § 1132(g). 6a 763 F.2d 1091, 1095 (9th Cir. 1985); Scott v. Gulf Oil Corp., 754 F.2d 1499, 1504-05 (9th Cir. 1985); Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir. 1984); Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482, 487-88 (9th Cir. 1983); rev’d on other grounds, Re <