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District Courts Continue to Reject the Ninth Circuit's Limitation on Surcharge
Proskauer's ERISA Practice Center Link to more items from this source
Dec. 5, 2014
"[T]he Ninth Circuit stands alone in expressly limiting the availability of surcharge to cases involving loss to, or unjust enrichment at the expense of, the plan (as opposed to being available to a participant claiming personal loss flowing from a fiduciary breach).... [A] district court declined to apply the Ninth Circuit's narrow reading of surcharge because there is a pending petition for rehearing en banc in Gabriel and, in that court's view, the Gabriel decision was not binding. Two more district courts have [now] reached the same conclusion and, on that basis, denied motions to dismiss the complaints."

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