"The Court noted that the key to the Varity analysis was whether both theories of recovery were based upon the same alleged conduct; if so, the claim for equitable relief under ERISA 502(a)(3) was not appropriate. But here, Judge Story found, the alleged wrongful conduct was not Prudential's benefit determination, but rather the employer's failure to provide the conversion application in a timely manner. In fact, as a direct result of the employer's alleged breach, plaintiffs had no a claim for benefits pursuant to ERISA 502(a)(1)(B) under the policy terms; they had a claim under ERISA 502(a)(3) or nothing." [Biller v. Prudential Ins. Co. of America and Six Continents Hotels, Inc., No. 1:13-CV-03495 (N.D. Ga. Aug. 26, 2014)]

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