                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1560

D EBORAH A. K ENSETH,
                                             Plaintiff-Appellant,
                               v.

D EAN H EALTH P LAN, INC.,
                                            Defendant-Appellee.


          Appeal from the United States District Court
             for the Western District of Wisconsin.
           No. 08-cv-1-bbc—Barbara B. Crabb, Judge.



     A RGUED D ECEMBER 8, 2011—D ECIDED JUNE 13, 2013




 Before M ANION, R OVNER and T INDER, Circuit Judges.
  R OVNER, Circuit Judge. This is Deborah A. Kenseth’s
second appeal in a lawsuit she filed against Dean
Health Plan, Inc., her health insurer, seeking a remedy
for an asserted breach of fiduciary duty. The district
court has twice granted summary judgment in favor of
Dean, and has denied Kenseth’s cross-motion for sum-
mary judgment. After the district court ruled against
Kenseth for the second time, but before Kenseth briefed
2                                               No. 11-1560

this appeal, the Supreme Court issued its opinion in
Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), clarifying the
relief available for a breach of fiduciary duty in an
action under the Employment Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1001, et seq. (“ERISA”).
Because Kenseth has a viable claim for equitable relief,
we once again vacate and remand to the district court
for further proceedings.


                             I.
  We will assume familiarity with our prior opinion in
this matter, Kenseth v. Dean Health Plan, Inc., 610 F.3d 452
(7th Cir. 2010) (“Kenseth I”). We will review only those
facts necessary to the disposition of the current appeal.
In 1987, Deborah Kenseth underwent vertical gastric
banding, a surgical procedure intended to facilitate sig-
nificant weight loss in obese patients. The procedure
was covered by her insurer at that time. Approximately
eighteen years later, her doctor, Dr. Paul Huepenbecker,
advised her to have a second operation to resolve
severe acid reflux and other serious health problems
that were the result of complications from the first surgery.
  At the time of the second surgery, Kenseth worked
for Highsmith, Inc., a company that provided group
health insurance benefits to its employees through Dean
Health Plan (“Dean”). Dean is the insurance services
subsidiary of Dean Health Systems, Inc., a large, physician-
owned and physician-governed integrated healthcare
No. 11-1560                                                     3

delivery system headquartered in Madison, Wisconsin.1
The benefits available to Highsmith employees through
the Dean plan are set forth in a “Group Member
Certificate and Benefit Summary” (“Certificate”). The
Certificate excludes coverage for “surgical treatment or
hospitalization for the treatment of morbid obesity.”
The Certificate also excludes “[s]ervices and/or supplies
related to a non-covered benefit or service, denied
referral or prior authorization, or denied admission.”
Kenseth I, 610 F.3d at 457. The Certificate directs plan
participants with questions about its provisions to call
Dean’s customer service department. As we noted in
our earlier opinion:



1
  A “privately held Wisconsin corporation, Dean [Health
Systems, Inc.] has been a physician-owned and physi-
cian-governed organization since its inception. Ninety-five
percent of Dean is owned by physician-shareholders. The
remaining five percent is owned by the SSM Health Care.” See
http://www.deancare.com/about-dean/overview/ (last visited
June 6, 2013). Dean bills itself as “one of the largest integrated
healthcare delivery systems in the country,” providing health
services through a network of Dean-owned clinics and
“[h]ealth insurance services through Dean Health Plan.” Id.
According to Dun & Bradstreet, at the time in question, Dean
Health Systems, Inc. owned approximately 53% of Premier
Medical Insurance Group, Inc., which, in turn, wholly owned
Dean Health Plan. SSM Health Care owned the other 47% of
Premier. Thus, the physician-shareholders who owned 95% of
Dean Health Systems, Inc. also owned a majority interest in
Dean Health Plan, the insurer at issue here.
4                                               No. 11-1560

    On the third page of the 2005 Certificate, under the
    heading “Important Information,” the reader is ad-
    vised to make such a call “[f]or detailed information
    about the Dean Health Plan.” Eight pages later, at
    the outset of the Certificate’s summary of “Specific
    Benefit Provisions,” a text box in bold lettering states,
    “If you are unsure if a service will be covered,
    please call the Customer Service Department at
    1-608-828-1301 or 1-800-279-1301 prior to having the
    service performed.” No other means of ascertaining
    coverage is identified for services rendered by an
    in-plan provider.
Kenseth I, 610 F.3d at 457-58 (internal record cites omit-
ted). The Certificate identifies Dean as the claims ad-
ministrator and specifies that Dean has the discretion
to determine eligibility for benefits and to construe
the terms of the Certificate.
  On November 9, 2005, Dr. Huepenbecker advised
Kenseth to undergo a Roux-en-Y gastric bypass procedure
in order to remedy the many problems caused by the
earlier surgery. Dr. Huepenbecker worked at a Dean-
owned clinic, and he scheduled Kenseth for surgery at
St. Mary’s Hospital in Madison, a Dean-affiliated hospi-
tal.2 In anticipation of the surgery, Dr. Huepenbecker
provided Kenseth with a standard set of pre-printed



2
  The hospital is part of the SSM Health Care system, which
owns five percent of Dean Health Systems, Inc. and also owns
a forty-seven percent stake in Dean Health Plan. See note 1,
supra, and http://www.stmarysmadison.com/services/pages/
careers.aspx (last visited June 6, 2013).
No. 11-1560                                             5

instructions that advised her to call her insurance
company regarding the type of surgery and the sched-
uled date. Kenseth called Dean’s customer service
number and spoke with Maureen Detmer, a customer
service representative. We refer the reader to our earlier
opinion for the details of this call. See Kenseth I, 610
F.3d at 459-60. After a brief conversation, Detmer
told Kenseth that Dean would cover the procedure
subject to a $300 co-payment. Detmer did not ask
whether the surgery was related to an earlier surgery
for the treatment of morbid obesity, and Kenseth did
not volunteer that information. Detmer did not warn
Kenseth that she could not rely on Detmer’s assess-
ment regarding coverage. Kenseth did not review the
Certificate before her surgery, although she had reviewed
it in the past. She instead relied on Detmer’s oral repre-
sentation. Dean provided no process other than calling
customer service for a plan participant to determine if
a particular service or procedure would be covered.
  Dr. Huepenbecker performed the surgery on Decem-
ber 6, 2005. On the next day, Dean decided to deny cover-
age for the surgery and all associated services based
on the exclusion for services related to a non-covered
benefit or service, namely, surgical treatment of morbid
obesity. Kenseth was discharged from the hospital on
December 10, 2005, but was readmitted from January 14
through January 30, 2006, for complications from the
surgery, including an infection. Dean denied coverage
for the second hospitalization as well, and the Dean-
affiliated doctors and hospitals sent Kenseth a bill
for $77,974. Kenseth pursued all available internal
6                                              No. 11-1560

appeals to Dean, asking for reconsideration of the
denial, and Dean refused to change its position. Kenseth
then filed suit against Dean, asserting two claims
under ERISA, and one claim under Wisconsin law. Specifi-
cally, Kenseth asserted that Dean had breached its fidu-
ciary duty by providing a Certificate that was unclear
regarding coverage and misleading as to the process
to follow to determine whether her surgery would
be covered. She also alleged that Dean breached its
fiduciary duty when it failed to provide her with a pro-
cedure through which she could obtain authoritative
preapproval of her surgery. Kenseth asserted that Dean
was equitably estopped from denying coverage be-
cause she relied on information provided by Dean’s
customer service representative that the surgery would
be covered. In her state law claim, Kenseth asserted
that Dean’s reliance on the non-covered nature of her
1987 weight-loss surgery to deny coverage for treatment
of later complications ran afoul of a Wisconsin statute
regarding coverage for pre-existing conditions.
  The district court granted summary judgment in
favor of Dean on all of Kenseth’s claims. We affirmed
summary judgment as to the estoppel claim and the
Wisconsin pre-existing condition claim, but we
vacated and remanded for further proceedings on
Kenseth’s claim that Dean breached its fiduciary duty
to her. Kenseth I, 610 F.3d at 462. We found that the facts
(construed in favor of Kenseth as the party opposing
summary judgment) would support a finding that
Dean breached its fiduciary duty to Kenseth. First, we
noted that fiduciaries have a duty to disclose material
No. 11-1560                                              7

information to beneficiaries of trusts, in this case the
plan participants. Kenseth I, 610 F.3d at 466. That duty
encompasses both an obligation not to mislead the par-
ticipant of an ERISA plan, and also an affirmative ob-
ligation to communicate material facts affecting the
interests of plan participants. Kenseth I, 610 F.3d at 466.
In this instance:
    Dean not only permitted but encouraged par-
    ticipants to call its customer service line with ques-
    tions about whether particular medical services were
    covered by the Dean plan. One can readily infer
    that Dean understood that callers like Kenseth were
    seeking to determine in advance whether forth-
    coming medical treatments would or would not
    be paid for by Dean, and to plan accordingly. Yet
    callers were not warned that they could not rely on
    the advice that they were given by Dean’s customer
    service representatives and that Dean might later
    deny claims for services that callers had been told
    would be covered. Nor were callers advised of a
    process by which they could obtain a binding deter-
    mination as to whether forthcoming services would
    be covered. The factfinder could conclude that
    Dean had a duty to make these disclosures so that
    participants could make appropriate decisions about
    their medical treatment.
Kenseth I, 610 F.3d at 469.
  Although “mistakes in the advice given to an insured
which are attributable to the negligence of the individual
supplying that advice are not actionable as a breach of
8                                              No. 11-1560

fiduciary duty,” a fiduciary may be liable for failing “to
take reasonable steps in furtherance of an insured’s right
to accurate and complete information.” Kenseth I, 610
F.3d at 470. A fiduciary could comply with this duty
by providing accurate and complete written explana-
tions of the benefits available to plan participants. 610
F.3d at 471. Nevertheless:
    because it is foreseeable if not inevitable that par-
    ticipants and beneficiaries will have questions for
    plan representatives about their benefits, our cases
    also recognize an obligation on the part of plan fidu-
    ciaries to anticipate such inquiries and to select and
    train personnel accordingly. The fiduciary satisfies
    that aspect of its duty of care by exercising appro-
    priate caution in hiring, training, and supervising
    the types of employees (e.g., benefits staff) whose job
    it is to field questions from plan participants and
    beneficiaries about their benefits.
Kenseth I, 610 F.3d at 471-72. We noted that we were
not called upon to decide in this case whether a plan ad-
ministrator like Dean has a duty to give its insured
binding determinations of coverage before a medical
service is rendered. Because Dean had not denied that
Kenseth could obtain a definitive decision in advance
of her surgery, and because the Certificate itself encour-
aged plan participants with questions about coverage
to call customer service prior to having the service per-
formed, we found that availability of definitive deter-
minations was irrelevant in this instance. Rather, the
critical omission on Dean’s part was its failure to com-
No. 11-1560                                             9

municate to Kenseth whether and how such determina-
tions could be obtained. Kenseth I, 610 F.3d at 472-73.
   We noted that any silence or ambiguity in the Certif-
icate regarding a means of obtaining a binding coverage
determination would be immaterial if the Certificate
itself was clear as to coverage for Kenseth’s surgery.
Assessing the language of the Certificate, we concluded
that, although the average reader might have under-
stood that Kenseth’s original vertical banded gastroplasty
surgery was excluded from coverage, it was far from
clear that the policy excluded coverage for services
aimed at resolving complications from that surgery,
however long ago the original procedure may have
taken place. Kenseth I, 610 F.3d at 474. Moreover, the
confusion created by the language of the Certificate
was exacerbated by Dean’s payments for earlier pro-
cedures that provided temporary fixes for the complica-
tions Kenseth suffered from the vertical banded
gastroplasty.
  The Certificate also lacked clarity on the means by
which a participant may obtain an authoritative deter-
mination on coverage for a particular medical service.
Kenseth I, 610 F.3d at 476. Although the Certificate
advised participants to call customer service if they
were “unsure if a service will be covered,” that invita-
tion was unaccompanied by a warning that the callers
could not rely on the statements of the customer service
representative, or that Dean might later deny coverage
for a service that the customer service representative
assured the callers would be covered. Evidence in the
10                                            No. 11-1560

record supported an inference that Dean was aware
that participants often called with coverage questions
and that callers were likely to rely on what customer
service representatives told them. Other evidence sup-
ported an inference that Dean did not train customer
service representatives to warn callers that they could
not rely on the answers they were given by phone in
response to coverage-related questions. Moreover, the
evidence indicated that Dean did not train customer
service representatives to advise callers like Kenseth
how they might obtain definitive advice regarding
whether particular medical services would be covered
by the policy. As a fiduciary, Dean owed to “Kenseth a
duty to administer the plan solely in her interest, not
its own.” Kenseth I, 610 F.3d at 480. We concluded:
     In this case, the factfinder could conclude that
     this duty included an obligation to warn Kenseth,
     whose call to customer service it had invited, that
     she could not rely on what its customer service agent
     told her about coverage for her forthcoming surgery
     and hospitalization. And, given that Dean does not
     dispute that there was a means by which she could
     have obtained coverage information that she could
     have relied on, the factfinder could further con-
     clude that Dean was also obliged to tell her by what
     means she could obtain that information. . . . These
     facts, construed favorably to Kenseth, lead us to
     conclude that a factfinder could reasonably find
     that Dean breached the fiduciary obligation that it
     owed to Kenseth as the party charged with discre-
     tionary authority to construe the terms of her health
No. 11-1560                                             11

    plan and to grant or deny her claim for bene-
    fits—including the duty to provide her with complete
    and accurate information.
Kenseth I, 610 F.3d at 480.
  We also found that the evidence was sufficient to
survive summary judgment on the issue of whether
Kenseth was harmed by this possible breach of fiduciary
duty. Kenseth produced evidence that she had under-
gone other treatments to ameliorate her condition, and
although the second surgery was the best option to perma-
nently resolve her problems, it was not necessary that
she have that procedure in December 2005. We noted
that Kenseth might be able to demonstrate that she
could have postponed the surgery until obtaining insur-
ance that would cover the procedure, or could have
undergone the same surgery elsewhere for a lower cost,
or she could have continued to pursue other, less costly
treatments. Kenseth I, 610 F.3d at 481.
  At the time of our first opinion, the answer to the ques-
tion of whether Kenseth was seeking a remedy that
ERISA authorizes for a breach of fiduciary duty was far
from clear. Our case law at the time suggested that
Kenseth could not recover monetary damages that re-
sembled compensatory relief. Kenseth I, 610 F.3d at 482.
We held that the equitable relief authorized by section
1132(a)(3) included only the types of relief that were
typically available in equity, such as injunctions, manda-
mus, and restitution. The make-whole relief that Kenseth
seemed to be seeking was beyond the scope of section
1132(a)(3), according to our understanding of the
12                                              No. 11-1560

Supreme Court’s holding in Mertens v. Hewitt Assocs., 508
U.S. 248 (1993). But the parties had not fully briefed
the issue of relief and so we remanded “for a determina-
tion as to whether Kenseth is seeking any form of
equitable relief that is authorized by 29 U.S.C. § 1132(a)(3)
and, if so, for further proceedings on that claim as are
consistent with this opinion.” Kenseth I, 610 F.3d at 483.
We noted that if Kenseth was not able to identify a form
of equitable relief appropriate to the facts of this case,
she would have failed to make out a claim on which
relief could be granted and her claim would have to
be dismissed.
  On remand, Kenseth amended her complaint to
clarify the relief she was seeking. See R. 59. Specifically,
Kenseth asked the court to order Dean to (1) cure an
ambiguity in the summary plan description regarding
the procedure by which a participant may obtain a
binding coverage determination prior to incurring the
costs of care; (2) cure an ambiguity in the summary
plan description regarding when services related to non-
covered services are also not covered; (3) amend the
Certificate to clarify that statements made by a
customer service representative are not binding on
Dean; (4) train customer service representatives to
inform callers that statements made by the representa-
tives are not binding on Dean; (5) implement a pro-
cedure by which persons seeking coverage information
in non-emergency situations may receive a binding de-
termination of whether the plan covers particular pro-
cedures or treatments; (6) amend the plan to describe
that a participant may receive a binding coverage deter-
No. 11-1560                                                13

mination before incurring costs for a non-emergency
treatment; (7) pay Kenseth’s care providers the amount
Dean would have paid if the services had been covered
as represented to Kenseth on the phone; (8) enjoin sub-
sidiary or parent corporations of Dean from collecting
fees for services rendered to Kenseth; (9) make whole
all unaffiliated entities to whom Kenseth owed a debt
due to the surgery that Dean represented would be cov-
ered; (10) pay a surcharge to Kenseth equal to the
amount she owes to others directly due to Dean’s breach
of fiduciary duty; (11) pay Kenseth’s attorneys’ fees and
costs for this action; (12) honor its policy of covering
costs incurred when a customer service representative
mistakenly represents that a service will be covered; and
(13) honor its policy of covering medical expenses when
Dean mistakenly misleads a participant by failing to
have a proper procedure in place by which the par-
ticipant could obtain a binding coverage determina-
tion before costs are incurred. R. 59.
  The parties filed cross-motions for summary judgment
on Kenseth’s remaining claim for breach of fiduciary
duty. The district court declined to decide whether
Kenseth had demonstrated as a matter of law that Dean
breached its fiduciary duty to her because the court
determined that it could not grant Kenseth the relief she
sought even if she proved a breach of fiduciary duty.
Kenseth v. Dean Health Plan, Inc., 784 F. Supp. 2d 1081, 1083-
84 (W.D. Wis. 2011) (“Kenseth II”). The court found that
Kenseth’s request that Dean hold her harmless for
the cost of the surgery was really a plea for compensa-
tory damages that are not available as equitable relief
14                                              No. 11-1560

under section 1132(a)(3). The court also concluded that
it could not grant any of Kenseth’s requests to change
the plan, the Certificate, or Dean’s policies and practices
because Kenseth was no longer a participant in Dean’s
plan. 784 F. Supp. 2d at 1092-93. Finally, the court deter-
mined that Kenseth was not entitled to an award of attor-
neys’ fees because she had achieved only very limited
success in the course of the lawsuit, and the defendant’s
legal position had been substantially justified. 784
F. Supp. 2d at 1094-96. Kenseth appeals from the judg-
ment in favor of Dean.


                             II.
  After the district court granted judgment in favor of
Dean and before the case was briefed on appeal, the
Supreme Court decided Cigna Corp. v. Amara, 131 S. Ct.
1866 (2011). On appeal, Kenseth contends that Cigna
requires that we reverse and remand for further proceed-
ings. Under Cigna, Kenseth argues, equitable relief may
include a money payment, including compensation for
a loss resulting from a breach of fiduciary duty. Kenseth
also objects to the district court’s conclusion that, even if
it was possible to place Kenseth back in the position
she was in before the breach of fiduciary duty, Kenseth
would have incurred the costs of surgery anyway
because she had no other options given the nature of
her health problems. The court erred on the facts and the
law, Kenseth contends, and the record raises at least a
triable question of fact on her other options if she had
been told in a timely manner that the surgery would not
No. 11-1560                                              15

be covered by her insurance. Although the district court
declined to decide the issue, Kenseth also maintains
that she is entitled to partial summary judgment on her
claim that Dean breached its fiduciary duty to her in the
manner we set forth in our original opinion. Moreover,
Kenseth claims that she has adequately demonstrated
her standing to seek injunctions requiring Dean to
change its practices and plan even though she was no
longer a plan participant at the time she moved for sum-
mary judgment. She asserts that she was a plan par-
ticipant at the time of the injury, that she had a different
insurance plan for a time, and that she is now again a
Dean plan participant. That should be sufficient, she
contends. Finally, she asks that we order the district
court to reconsider her entitlement to attorneys’ fees.
  For its part, Dean contends that Kenseth has failed
to identify any form of equitable relief available to her
under the facts of the case. As a threshold matter, Dean
claims that Kenseth has not shown that she is a “partici-
pant” entitled to bring a claim under section 1132(a)(3).
Moreover, Dean claims that Kenseth lacks standing to
pursue prospective injunctive relief under that same
provision. Dean again attacks Kenseth’s pursuit of mone-
tary damages as unavailable as equitable relief under
section 1132(a)(3). Dean contests Kenseth’s pursuit of
equitable relief against Dean affiliates that are not de-
fendants in the lawsuit, and also challenges Kenseth’s
pursuit of attorneys’ fees (both as equitable relief and as
an exercise of the district court’s discretion). Dean asks
us to affirm the district court’s conclusion that Kenseth
failed to demonstrate that she could have averted the
16                                                No. 11-1560

harm if she had been given accurate information by
the customer service representative. Finally, Dean con-
tends that Kenseth is not entitled to summary judgment
on the liability aspect of her claim for breach of
fiduciary duty.


                              A.
   We begin with an overview of Cigna, a case that signifi-
cantly altered the understanding of equitable relief avail-
able under section 1132(a)(3). In 1998, Cigna changed
its basic pension plan for the company’s employees. The
original plan provided a defined benefit in the form of an
annuity calculated on the basis of pre-retirement salary
and length of service; the new plan provided most
retiring employees with a lump sum cash balance calcu-
lated by other means that turned out to be far less favor-
able. For employees who had already earned some
benefits under the old plan, the new plan converted
those benefits into an opening amount in the employee’s
new cash balance account. The employees challenged
the adoption of the new plan, claiming that Cigna failed
to give them proper notice of the changes. The district
court agreed that Cigna violated its disclosure obliga-
tions under ERISA, finding that the company’s initial
descriptions of the new plan were significantly incom-
plete and misleading. The court also concluded that
the employees were likely harmed by the notice viola-
tions. The district court reformed the new plan and or-
dered Cigna to pay benefits accordingly, citing section
1132(a)(1)(B) as the source of its authority. Cigna, 131 S. Ct.
at 1870-72.
No. 11-1560                                                 17

  The Supreme Court granted certiorari to consider
whether a showing of “likely harm” is sufficient to
entitle plan participants to recover benefits based on
faulty disclosures. Cigna, 131 S. Ct. at 1871, 1876. Before
reaching that issue, however, the Court determined that
section 1132(a)(3), rather than section 1132(a)(1)(B), pro-
vided authority for the forms of equitable relief that
the district court granted. Cigna, 131 S. Ct. at 1871, 1876-78.
The Court noted that section 1132(a)(1)(B) addressed
enforcing the terms of a plan, not changing them. 131
S. Ct. at 1876-77. Moreover, the plan summaries could
not be enforced as if they contained the terms of the
plan itself. 131 S. Ct. at 1877. The Court distinguished
between the plan itself and the summaries which consist
of information about the plan. Id. Likewise, the statute
carefully distinguished the roles of the plan sponsor
(usually the employer) that created the basic terms of
the plan, and the plan administrator:
    The plan’s sponsor ( e.g., the employer), like a trust’s
    settlor, creates the basic terms and conditions of
    the plan, executes a written instrument containing
    those terms and conditions, and provides in that
    instrument “a procedure” for making amendments. . . .
    The plan’s administrator, a trustee-like fiduciary,
    manages the plan, follows its terms in doing so,
    and provides participants with the summary docu-
    ments that describe the plan (and modifications) in
    readily understandable form. . . . Here, the District
    Court found that the same entity, CIGNA, filled
    both roles. . . . But that is not always the case. Re-
    gardless, we have found that ERISA carefully distin-
18                                                 No. 11-1560

     guishes these roles. . . . And we have no reason
     to believe that the statute intends to mix the respon-
     sibilities by giving the administrator the power to
     set plan terms indirectly by including them in
     the summary plan descriptions.
Cigna, 131 S. Ct. at 1877. The Court thus concluded that
summary documents provided by the plan administrator
could not themselves constitute the terms of the plan
for the purposes of section 1132(a)(1)(B), and that a
court could not find authority in that section to reform
a plan as written. 131 S. Ct. at 1878.
  Section 1132(a)(3), on the other hand, “allows a “partici-
pant, beneficiary, or fiduciary ‘to obtain other appro-
priate equitable relief’ to redress violations of . . . parts of
ERISA ‘or the terms of the plan’ ” Cigna, 131 S. Ct. at
1878 (emphasis in original). The district court had been
reluctant to grant relief under section 1132(a)(3) because
of perceived limitations under Supreme Court precedent
in the types of relief available under that section. Antici-
pating that the available relief would be an issue on
remand, the Court therefore addressed what types of
equitable relief are available under section 1132(a)(3).
131 S. Ct. at 1878. In Mertens, the Court had interpreted
the term “appropriate equitable relief” as categories of
relief that, prior to the merger of law and equity, were
typically available in equity. Cigna, 131 S. Ct. at 1878;
Mertens, 508 U.S. at 256. A claim that sought com-
pensatory damages against a non-fiduciary, as did the
claim in Mertens, was traditionally legal, not equitable, in
nature. Cigna, 131 S. Ct. at 1878. Similarly, in Great-West
No. 11-1560                                              19

Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), the
Court considered a claim brought by a plan fiduciary
seeking reimbursement of money that a plan beneficiary
received from a tort defendant. The Court noted that
the money in question was not the particular money
paid by the tort defendant, making the claim one for
legal rather than equitable relief. Such a claim could not
be brought under section 1132(a)(3). Great-West, 534 U.S.
at 207-16; Cigna, 131 S. Ct. at 1878-79.
  The claim in Cigna, the Court noted, differed from both
of these cases. This was a suit by a beneficiary against a
plan fiduciary (typically treated in ERISA as a trustee)
regarding the terms of the plan (typically treated under
ERISA as a trust). Cigna, 131 S. Ct. at 1879. Prior to the
merger of law and equity, such a suit could be brought
only in a court of equity. The traditionally available
equitable remedies included, among other things, positive
and negative injunctions, mandamus and restitution.
Cigna, 131 S. Ct. at 1879. Courts in equity specially
tailored remedies to fit the nature of the right they
sought to protect because “ ‘[e]quity suffers not a right to
be without a remedy.’ ” Cigna, 131 S. Ct. at 1879 (quoting
R. Francis, Maxims of Equity 29 (1st Am. ed. 1823)).
  The Court found that the relief entered by the district
court in Cigna resembled traditional equitable remedies.
First, the district court ordered reformation of the terms
of the plan in order to remedy the false and misleading
information that Cigna provided. The Court noted
that the power to reform contracts (as opposed to the
power to enforce contracts as written) was traditionally
20                                              No. 11-1560

reserved to courts of equity as a means to prevent fraud
or correct mistakes. Cigna, 131 S. Ct. at 1879. Second, the
district court ordered that Cigna could not deprive the
employees of benefits they had already accrued, a
remedy resembling estoppel. Cigna, 131 S. Ct. at 1880. The
Court noted that “[e]quitable estoppel ‘operates to place
the person entitled to its benefit in the same position
he would have been in had the representations been
true.’ ” Cigna, 131 S. Ct. at 1880 (quoting J. Eaton, Hand-
book of Equity Jurisprudence § 62, p. 176 (1901)).
  Third, and perhaps most relevant to the circumstances
of Kenseth’s case, the Court approved of the district
court’s order to the plan administrator to pay already-
retired beneficiaries the money owed to them under
the plan as reformed:
     But the fact that this relief takes the form of a money
     payment does not remove it from the category of
     traditionally equitable relief. Equity courts possessed
     the power to provide relief in the form of monetary
     “compensation” for a loss resulting from a trustee’s
     breach of duty, or to prevent the trustee’s unjust
     enrichment. Indeed, prior to the merger of law and
     equity this kind of monetary remedy against a
     trustee, sometimes called a “surcharge,” was “exclu-
     sively equitable.”
                            ***
       The surcharge remedy extended to a breach of trust
     committed by a fiduciary encompassing any viola-
     tion of a duty imposed upon that fiduciary. Thus,
     insofar as an award of make-whole relief is
No. 11-1560                                              21

    concerned, the fact that the defendant in this case,
    unlike the defendant in Mertens, is analogous to
    a trustee makes a critical difference.
Cigna, 131 S. Ct. at 1880 (citations and parentheticals
omitted). The Court thus clarified that equitable relief
may come in the form of money damages when the de-
fendant is a trustee in breach of a fiduciary duty.
   Having elucidated the relief available, the Court
turned to the appropriate legal standard for determining
whether an ERISA plaintiff has been injured. The Court
first noted that “any requirement of harm must come
from the law of equity.” Cigna, 131 S. Ct. at 1881. There is
no need to demonstrate detrimental reliance before a
remedy may be decreed unless the specific remedy im-
poses such a requirement. Id. For example, when courts
of equity used the remedy of estoppel, they traditionally
required a showing of detrimental reliance, a demon-
stration that the defendant’s statement influenced the
conduct of the plaintiff, resulting in prejudice. Thus,
when a court imposes a remedy of estoppel, the plain-
tiff must demonstrate detrimental reliance. Id.
  The Court hastened to add that not all equitable reme-
dies require a showing of detrimental reliance. For ex-
ample, an equity court might reform a contract to
reflect the mutual understanding of the contracting
parties where a fraudulent misrepresentation or omis-
sion materially affected the substance of the contract,
even if the plaintiff was negligent in not realizing the
mistake, so long as that negligence did not fall below a
standard of reasonable prudence. Cigna, 131 S. Ct. at 1881.
22                                              No. 11-1560

Nor was a showing of detrimental reliance necessary to
justify the remedy of surcharge. Courts of equity
“simply ordered a trust or beneficiary made whole fol-
lowing a trustee’s breach of trust. In such instances
equity courts would ‘mold the relief to protect the
rights of the beneficiary according to the situation in-
volved.’ ” Cigna, 131 S. Ct. at 1881 (quoting G. Bogert &
G. Bogert, Trusts and Trustees § 861, at p. 4 (rev. 2d
ed. 1995) (hereafter “Bogert”)).
  An ERISA fiduciary, under the Court’s reasoning, could
be surcharged under section 1132(a)(3) only upon a
showing of actual harm, proved by a preponderance of
the evidence. That actual harm might consist of detrimen-
tal reliance, “but it might also come from the loss of a
right protected by ERISA or its trust-law antecedents.”
Cigna, 131 S. Ct. at 1881. As is also the case with Kenseth,
in Cigna, the breach of fiduciary duty involved an
information-related transgression by the defendant. In
particular, Cigna provided misleading summary plan
documents when announcing the changes to the
plan. The Court found that it was not necessary for a
plaintiff to demonstrate that she relied on those docu-
ments or that she even saw the flawed documents. An
employee may have assumed that fellow employees or
informal workplace discussions would alert them to
harmful changes in the plan. The Court then sum-
marized the required proof of harm:
     We believe that, to obtain relief by surcharge for
     violations of §§ 102(a) and 104(b), a plan participant
     or beneficiary must show that the violation injured
No. 11-1560                                                 23

    him or her. But to do so, he or she need only show
    harm and causation. Although it is not always neces-
    sary to meet the more rigorous standard implicit in
    the words “detrimental reliance,” actual harm must
    be shown. . . . And we conclude that the standard
    of prejudice must be borrowed from equitable princi-
    ples, as modified by the obligations and injuries
    identified by ERISA itself. Information-related cir-
    cumstances, violations, and injuries are potentially
    too various in nature to insist that harm must
    always meet that more vigorous “detrimental harm”
    standard when equity imposed no such strict require-
    ment.
Cigna, 131 S. Ct. at 1881-82 (emphasis added).3 Noting
that “the relevant standard of harm will depend upon
the equitable theory by which the District Court pro-
vides relief,” the Court left “it to the District Court
to conduct that analysis in the first instance.” 131 S. Ct.
at 1871.


                              B.
  So the relief available for a breach of fiduciary duty
under section 1132(a)(3) is broader than we have previ-
ously held, and broader than the district court could
have anticipated before the Supreme Court’s decision in
Cigna. Monetary compensation is not automatically



3
  Sections 102(a) and 104(b) correspond to 29 U.S.C. §§ 1022(a)
and 1024(b).
24                                             No. 11-1560

considered “legal” rather than “equitable.” The identity
of the defendant as a fiduciary, the breach of a fiduciary
duty, and the nature of the harm are important in char-
acterizing the relief. Gearlds v. Entergy Servs., Inc., 709
F.3d 448, 450 (5th Cir. 2013) (“The Supreme Court
recently stated an expansion of the kind of relief
available under § 503(a)(3) when the plaintiff is suing a
plan fiduciary and the relief sought makes the plaintiff
whole for losses caused by the defendant’s breach of
fiduciary duty.”). See also McCravy v. Metropolitan Life
Ins. Co., 690 F.3d 176, 181 (4th Cir. 2012) (under Cigna,
“remedies traditionally available in courts of equity,
expressly including estoppel and surcharge, are indeed
available to plaintiffs suing fiduciaries under Section
1132(a)(3)”).
   Kenseth, of course, is suing the plan fiduciary and she
is requesting relief to make her whole for Dean’s breach
of fiduciary duty. Although there are some factual dif-
ferences, there are also a number of relevant parallels
between Kenseth’s case and Gearlds’ case. Gearlds
agreed to take early retirement because a plan admin-
istrator told him orally and in writing that he would
continue to receive medical benefits. Gearlds then
waived medical benefits available under his wife’s re-
tirement plan in reliance on the assurances he had
received from the plan administrator. Several years
later, the plan administrator notified him that it was
discontinuing his medical benefits because he had not
been entitled to the benefits in the first place. The plan
administrator had been under the mistaken impression
that Gearlds was receiving long term disability benefits
No. 11-1560                                            25

at the time he took early retirement when in fact those
benefits had ceased three years earlier. Under the plan,
Gearlds was therefore ineligible for medical benefits
available to early retirees. Gearlds asserted a claim
under section 1132(a)(3) for breach of fiduciary duty and
equitable estoppel, seeking as damages his past and
future medical expenses, among other things. 709 F.3d
at 449-50. The district court dismissed the complaint
for failure to state a claim because Gearlds sought
only compensatory money damages, which were not
available as equitable relief under section 1132(a)(3).
709 F.3d at 450.
  On appeal, the Fifth Circuit re-evaluated the claims
under the Supreme Court’s decision in Cigna, and con-
cluded that simply characterizing money damages as
a legal remedy was no longer the end of the inquiry.
709 F.3d at 451. Surcharge, the court held, was an
equitable form of money damages that might be
available for a breach of fiduciary duty. 709 F.3d at 451-
52. This was true even though Gearlds had not
specifically included surcharge in his prayer for relief.
Instead, he had asked to be made whole in the form
of compensation for lost benefits, and requested any
other relief “equitable or otherwise,” to which he might
be entitled. After Cigna, such a request stated a viable
claim for relief, according to the Fifth Circuit. 709 F.3d
at 452-53. The court therefore remanded for the district
court to determine whether the plan administrator
breached its fiduciary duty and whether the breach
warranted the equitable relief of surcharge. Gearlds,
709 F.3d at 453.
26                                              No. 11-1560

  Like Gearlds, Kenseth took action in reliance on an
assurance that she would be covered by a plan benefit.
As was the case in Gearlds, Dean, the plan fiduciary,
mistakenly assumed facts that would have entitled
Kenseth to benefits as a plan participant. The plan admin-
istrators in both Gearlds’ and Kenseth’s cases later deter-
mined that the plan participants were not actually
entitled to the benefits under the terms of the plan. Like
Gearlds, Kenseth pled a breach of fiduciary duty by the
plan administrator in misleading her, and like Gearlds
she now seeks to be made whole with money damages.
  In remanding Gearlds’ claim, the Fifth Circuit relied
in part on the Fourth Circuit’s decision in McCravy.
McCravy purchased life insurance for her daughter
through her employer-sponsored accidental death and
dismemberment plan. 690 F.3d at 178. The plan allowed
employees to purchase this coverage for eligible
dependent children. Under the plan, children were
eligible for coverage so long as they were unmarried,
dependent on the insured employee, and either under
age nineteen if not enrolled in school, or under age twenty-
four if they were enrolled full-time in school. McCravy
elected the coverage for her eighteen-year-old daughter,
and continued to pay premiums until her daughter died
at the age of 25. When McCravy filed a claim, the plan
administrator refused to pay because McCravy’s daughter
was not eligible under the terms of the plan. The plan
instead offered to return the premiums. McCravy con-
tended that the plan’s actions constituted a breach of
fiduciary duty because the plan continued to accept
premiums, leaving her under the impression that
No. 11-1560                                             27

her daughter was covered. Because she believed her
daughter was insured, McCravy did not purchase
alternate insurance. She asserted claims for breach of
fiduciary duty and estoppel. The district court, ruling
prior to the Supreme Court’s decision in Cigna, held that
McCravy was limited to a return of premiums under
section 1132(a)(3). McCravy, 690 F.3d at 178-79.
   On appeal, the Fourth Circuit agreed with McCravy
that Cigna expanded the relief and remedies available
to plaintiffs asserting breaches of fiduciary duty under
section 1132(a)(3). In particular, the court found that
McCravy stated a viable equitable claim for make-whole
relief in the amount of the life insurance proceeds lost
because of the trustee’s breach of fiduciary duty.
McCravy, 690 F.3d at 181. She was not limited to seeking
a return of premiums, the court determined, because
under Cigna, courts have the power to provide equitable
relief in the form of monetary compensation for a loss
resulting from a trustee’s breach of duty, or to prevent
the trustee’s unjust enrichment. 690 F.3d at 181-82. The
court thus agreed with McCravy that, as the beneficiary
of a trust, she could rightfully seek to surcharge the
trustee insurer in the amount of life insurance proceeds
lost because of that trustee’s breach of fiduciary duty.
690 F.3d at 181. The court noted that limiting damages
to the return of premiums created a “perverse incen-
tive” for fiduciaries “to wrongfully accept premiums, even
if they had no idea as to whether coverage existed—or
even if they affirmatively knew that it did not.” McCravy,
690 F.3d at 183. After all, the greatest risk the fiduciary
faced in that scenario would be the return of ill-gotten
28                                           No. 11-1560

gains, a risk that would materialize only if a plan par-
ticipant made a claim for benefits. In instances where
plan participants paid premiums but never filed claims,
the fiduciary would reap a risk-free windfall from em-
ployees who had paid for non-existent benefits. Ac-
cording to the court, McCravy could also pursue a
claim for equitable estoppel to prevent the insurer
from denying her the right to convert her daughter’s
coverage to an individual policy. 690 F.3d at 182. The
court reversed and remanded for the district court to
determine in the first instance whether McCravy could
succeed in proving that the plan administrator
breached its fiduciary duty to her and whether sur-
charge or equitable estoppel were appropriate rem-
edies in the circumstances presented. 690 F.3d at 181-82.
  Despite some factual differences, McCravy also pro-
vides parallels to Kenseth’s situation. The plan admin-
istrator in McCravy, in continuing to accept premiums,
lulled McCravy into believing that her daughter was
covered under the policy. Dean, by encouraging
plan participants to call for coverage information
before undergoing procedures, by telling Kenseth that
Dean would pay for the procedure, and by not alerting
Kenseth that she could not rely on the advice she
received, lulled Kenseth into believing that Dean
would cover the cost of the procedure. McCravy did not
obtain alternate coverage because she believed she was
covered. Kenseth did not explore alternate coverage,
treatments or options because she had been led to
No. 11-1560                                                     29

believe that Dean would pay for this treatment.4



4
  The risk to Dean of giving incorrect advice was even less
than the risk to the plan in McCravy because Dean did not even
face the prospect of returning premiums. Although Dean
Health Systems, Inc. and Dean Health Plan share the same
ownership (see note 1, supra), Kenseth has not attempted to
demonstrate that her Dean-affiliated providers stood to gain
from Dean’s possible breach of fiduciary duty. According to
the district court, Kenseth’s health providers would collect
approximately $35,000 if Dean approved the claim, but could
bill Kenseth for more than twice that amount if Dean denied
the claim. See Kenseth II, 784 F. Supp. 2d at 1084. The hospital
where Kenseth had the surgery was owned by SMS Health
Care, which owned five percent of Dean Health Systems, Inc.
and a forty-seven percent interest in Dean. See notes 1 & 2, supra.
As with McCravy, this scenario potentially created “perverse
incentive[s]” for Dean. In general, fiduciaries may not direct
profits from a breach to favored or related third parties any
more than they may pocket the profits themselves. Mosser v.
Darrow, 341 U.S. 267, 272 (1951) (“We think that which the
trustee had no right to do he had no right to authorize, and
that the transactions were as forbidden for benefit of others as
they would have been on behalf of the trustee himself.”); Bogert,
§ 543(V) (trustee may be compelled to pay into trust fund
amount equal to profits made by agents in order to deter
trustee from authorizing agents to engage in disloyal actions,
even where trustee did not profit by the agents’ actions);
Amara v. Cigna Corp., 2012 WL 6649587, *8 (D. Conn. Dec. 20,
2012) (trustees may be surcharged where they have not person-
ally profited from the breach, in situations where they negli-
gently or knowingly permit third parties to benefit from the
                                                    (continued...)
30                                                  No. 11-1560

  Thus, under Cigna, Kenseth may seek make-whole
money damages as an equitable remedy under section
1132(a)(3) if she can in fact demonstrate that Dean
breached its fiduciary duty to her and that the breach
caused her damages. Cigna, 131 S. Ct. at 1881-82; Gearlds,
709 F.3d at 450-52; McCravy, 690 F.3d at 181-82. We deter-
mined in our first opinion that the Certificate was am-
biguous on the question of whether there was cov-
erage for the corrective procedure Kenseth underwent.
Kenseth I, 610 F.3d at 474-76. The Certificate was also
unclear in that it failed to identify a means by which
a participant may obtain an authoritative determina-
tion on a coverage question, even though Dean conceded
that such a process existed. Kenseth I, 610 F.3d at 476.
The Certificate created further uncertainty by inviting
participants to call customer service with coverage ques-
tions but not warning them that they could not rely on
any advice they received. Kenseth I, 610 F.3d at 478. The
plan was thus ambiguous in at least three important
respects and, as in Gearlds, Kenseth may thus bring



4
   (...continued)
trust property) (citing Morrissey v. Curran, 650 F.2d 1267, 1282
(2d Cir. 1981)). See also Metropolitan Life Ins. Co. v. Glenn, 554
U.S. 105, 108 (2008) (when an insurance company both admin-
isters a plan and pays benefits out of its own pocket, this
dual role creates a conflict of interest that a reviewing court
should consider as a factor in determining whether a plan
administrator abused its discretion in denying benefits under
section 1132(a)(1)(B), depending on the circumstances of
the particular case).
No. 11-1560                                                31

a claim for make-whole damages against the plan fidu-
ciary. This is true even if the plan’s language unambigu-
ously supports the fiduciary’s decision to deny coverage.
See Koehler v. Aetna Health, Inc., 683 F.3d 182, 189 (5th
Cir. 2012) (even if the plan’s language unambiguously
supports the administrator’s decision, a beneficiary
may still seek to hold the administrator to conflicting
terms in the plan summary through a breach of fiduciary
claim under section 1132(a)(3)); CGI Techs. & Solutions
Inc. v. Rose, 683 F.3d 1113, 1121 (9th Cir. 2012) (under
Cigna, a district court, sitting as a court of equity in a
section 1132(a)(3) action, need not honor the express
terms of an ERISA plan where traditional notions of
equitable relief so require); US Airways, Inc. v. McCutchen,
663 F.3d 671, 678 (3d Cir. 2011), cert. granted, 133 S. Ct. 36
(2012) (“the importance of the written benefit plan is
not inviolable, but is subject—based upon equitable
doctrines and principles—to modification and, indeed,
even equitable reformation under § [1132](a)(3)”). Indeed,
in Cigna itself, the Court approved of the district court’s
decision to reform the terms of the plan and then
order the administrator to pay benefits according to the
reformed plan.
  The district court, without the benefit of Cigna,
remarked that “[m]any might be surprised to learn that
[the] defendant has no legal duty to make things right”
after “lulling [Kenseth] into believing that she had cover-
age for an expensive operation, only to reverse course
after the procedure was performed, leaving her with a
stack of medical bills.” Kenseth II, 784 F. Supp. 2d at 1084.
We can now comfortably say that if Kenseth is able
32                                            No. 11-1560

to demonstrate a breach of fiduciary duty as we set
forth in our first opinion, and if she can show that the
breach caused her damages, she may seek an appropriate
equitable remedy including make-whole relief in the
form of money damages. But as was the case in Cigna,
Gearlds, and McCravy, we leave it to the district court in
the first instance to fashion the appropriate relief, and
to determine whether surcharge or some other equitable
remedy is appropriate under the particular circum-
stances presented here.


                           C.
  The district court concluded that even if Kenseth
could demonstrate a breach of fiduciary duty by Dean,
she could not prove that Dean’s actions harmed her. In
reaching this conclusion, the court found that the breach
was Dean’s failure to give Kenseth correct information
regarding the lack of coverage for the procedure. The
proper make-whole remedy, the court reasoned, would
be to place Kenseth back in the position she would have
been in if Dean had provided correct information. The
appropriate comparison, the court determined, was to
assess Kenseth’s options as if she were still ill but had
the correct information that the plan would not pay for
the procedure. The court found that Kenseth had failed
to demonstrate that she could have elected to forego
the surgery. The court remarked that Kenseth had not
presented evidence that she could have waited until
she obtained alternative insurance coverage or that she
could have obtained the procedure elsewhere for less.
No. 11-1560                                                    33

Because Kenseth did not set forth any viable alternatives
to the surgery, the court concluded that she would
have incurred the cost of the surgery whether or not
Dean had provided the correct information regarding
coverage. The court thus concluded that any breach
by Dean did not harm Kenseth. Kenseth II, 784 F. Supp. 2d
at 1091.
  But Kenseth had, in fact, produced evidence that she
would not have proceeded with the surgery had she
known that Dean would not pay for it. She also pro-
duced evidence that, although surgery was the best
option to permanently correct her problems, other
viable alternatives were available. Specifically, Kenseth
testified that if the customer service representative had
told her the procedure would not have been covered, she
would have considered other alternatives, checked to see
if her husband’s policy would cover the surgery, and
returned to Dr. Huepenbecker to explore other op-
tions. R. 21, at 32, 34.5 In short, she testified that she



5
   The policy available through the employer of Kenseth’s
husband at the relevant time did exclude coverage for
surgical treatment of morbid obesity, and also excluded
“expenses for treatment of complications of non-covered
procedures or services.” R. 34-3, at 62-63. This language creates
some of the same ambiguities that are present in Dean’s plan.
For example, Kenseth’s original surgery for morbid obesity
was covered by her insurer when she underwent that proce-
dure. This policy language could be read to pay for complica-
tions resulting from services that, although no longer covered,
                                                    (continued...)
34                                              No. 11-1560

“probably wouldn’t have had the surgery if it wasn’t
covered.” R. 21, at 34. Dr. Huepenbecker averred that,
although the surgery he performed was the most effec-
tive treatment for Kenseth’s conditions, “she could have
continued the treatments she had been receiving and
had the surgery at a later date.” R. 38, at 3. Indeed,
Dean effectively conceded the point when it indicated
that it had “[n]o dispute” in response to Kenseth’s Pro-
posed Finding of Fact stating:
     The surgery performed by Dr. Huepenbecker on
     December 6, 2005, was the most effective treatment
     for Ms. Kenseth’s conditions. However, she could
     have continued the treatments she had been re-
     ceiving and had surgery at a later date.
R. 42, at 21. In our first opinion, we also concluded that
Kenseth had “presented evidence that would permit the
factfinder to conclude that she was harmed by Dean’s
alleged breach of fiduciary duty.” Kenseth I, 610 F.3d at
481. Nothing in the record on appeal this time convinces
us that our earlier conclusion was flawed.
  Nevertheless, Dean now contends that Kenseth must
come forward with more evidence of a specific alterna-


5
  (...continued)
were covered at the time they were received. Moreover, an
average plan reader might not understand that the word
“complications” could include issues that arise nearly twenty
years after the original procedure. Finally, we do not know
how the plan administrator for this other plan would have
applied this language to the particular circumstances of
Kenseth’s case.
No. 11-1560                                              35

tive, that she must produce some other insurance policy
that would have been available to her, and that her hus-
band’s policy contained the same exclusions as the
Dean policy. We disagree. This is a classic dispute of fact
and Kenseth has produced sufficient evidence that she
could have avoided some or all of the expense of surgery
at that time. Her Dean-affiliated doctor agreed that
she could have continued other, less-effective treatments
for at least some period of time, treatments that Dean
had been covering without objection up to that point.
Dr. Abigail Christiansen, the physician who referred
Kenseth to Dr. Huepenbecker, also believed that there
was a viable, non-surgical option, as did Dr. Thomas Chua,
another doctor Kenseth consulted prior to deciding on
surgery with Dr. Huepenbecker.6 R. 21. At the very least,
Kenseth could have negotiated a lower cost for the proce-
dure either with the Dean-affiliated hospital or some other
facility. As the district court noted, because of agreements
that Dean had in place with its providers, the insurer
would have paid Kenseth’s Dean-affiliated providers
approximately $35,000, less than half of the $77,974
that those providers billed Kenseth for the procedure.
Kenseth II, 784 F. Supp. 2d at 1084. Undoubtedly, Kenseth
could have negotiated a price between $35,000 and
$77,974 with a rational hospital, given that she could have
foregone (or at least delayed) the surgery at that time.




6
  According to Dr. Christiansen’s notes, Dr. Chua recom-
mended continued dilation and steroid injections instead of
surgical revision of the affected area.
36                                              No. 11-1560

  Dean wishes to place on Kenseth an additional burden
of proving that other treatments would have been
effective until she obtained alternate insurance cov-
erage for surgery. But as we just noted, Kenseth has
already created a genuine issue of material fact on this
issue with her own testimony and with the opinions of
three different doctors (Drs. Huepenbecker, Christiansen,
and Chua) that she could have continued less ag-
gressive treatments. Of course, it is difficult to assess in
hindsight how Kenseth might have responded to these
less drastic and less expensive treatments, and whether
she would have been able to forego surgery until she
obtained alternate insurance or negotiated a price for
the procedure that she could afford without insurance.
Kenseth did not explore other options because Dean
gave her every reason to believe that it would cover the
option that her Dean-affiliated doctor considered the
best treatment. She did not seek alternate insurance,
attempt to find a hospital that might perform the
surgery for a lower cost, or seek out other doctors or
opinions. Instead, she took an irreversible course of
action in reliance on the approval given to her by
Dean’s customer service representative, a reliance that
Dean invited with its directive in the Certificate for par-
ticipants to call with questions regarding coverage.
The surgery could not be undone, the cost un-incurred.
Kenseth could not seek insurance retroactively or
negotiate with other providers for services that had
already been performed. Dean’s actions had the sin-
gular effect of making it impossible to place Kenseth
back in the literal position she would have been in if
No. 11-1560                                                37

the breach had not occurred, and also rendered very
difficult the proof of viable alternatives. See In re Beck
Ind., Inc., 605 F.2d 624, 636 (2d Cir. 1979) (“[c]ourts do not
take kindly to arguments by fiduciaries who have
breached their obligations that, if they had not done
this, everything would have been the same.”). Dean,
notably, has presented no evidence that the surgery
was Kenseth’s only option.
  In any case, Kenseth testified that she probably would
not have undergone the procedure if Dean had denied
coverage in a timely manner, and her doctor has
averred that viable alternatives were available. Moreover,
Kenseth lost the opportunity to negotiate a lower price
with either the Dean providers or some other provider,
an opportunity that likely would have been fruitful
given the large gap between what Dean contracted to
pay its providers and what those providers charged
Kenseth as an uninsured patient. Kenseth’s testimony,
her doctors’ opinions that alternatives were available,
and the simple economics of the situation are enough
to create a genuine issue of fact regarding whether
Kenseth could have avoided some or all of the costs she
incurred. We therefore vacate the district court’s finding
to the contrary. We leave it to the district court on
remand to determine in the first instance the amount of
any loss caused by Dean.


                             D.
  We turn to whether Kenseth is entitled to judgment as
a matter of law on the liability aspect of her claim for
38                                                No. 11-1560

breach of fiduciary duty. The district court declined to
reach this issue after it determined that Kenseth could
not prove that any breach actually harmed her. As we
have just determined, Kenseth produced sufficient evi-
dence that she was harmed and so the question of
whether Dean’s actions constituted a breach of fiduciary
duty must be answered. In our first opinion, we set forth
the facts that would constitute a breach of fiduciary
duty, and noted that most, if not all, of those facts
were undisputed. But we declined to reach the issue
because Kenseth herself had not filed a cross-motion
for summary judgment and Dean was therefore not on
notice that we were contemplating entering judgment
on this issue. Kenseth I, 610 F.3d at 483. On remand,
Kenseth did move for summary judgment and so Dean
was on notice that the district court and the court of
appeals might address the issue. As we noted, the
district court declined to address whether Kenseth was
entitled to partial summary judgment, but we may do so
in the first instance. See 28 U.S.C. § 2106; Turner v. J.V.D.B.
& Assocs., Inc., 330 F.3d 991, 998 (7th Cir. 2003) (federal
courts of appeals have the authority under 28 U.S.C. § 2106
to direct entry of summary judgment when so doing
would be just under the circumstances); Trejo v. Shoben,
319 F.3d 878, 886 (7th Cir. 2003) (noting that we have
the discretion to affirm a district court’s decision to dis-
miss if subsequent discovery reveals that the defendant
would have been entitled to summary judgment on the
claim that was dismissed, and the plaintiff-appellant
fails to identify what additional favorable facts might
possibly have been revealed through additional dis-
No. 11-1560                                               39

covery if the claim had not been dismissed); Swaback v.
American Info. Techs. Corp., 103 F.3d 535, 544 (7th Cir.
1996) (in instances in which the facts and law establish
that the appellant is entitled to judgment as a matter
of law, we are free to direct the district court to enter
judgment in appellant’s favor). But we do not com-
monly take this step, and see no reason at this time to
separate the question of breach from the issues of
causation and relief that the district court must still
decide. Nevertheless, some analysis is required in light
of a new argument that Dean raises in this appeal and
because of Dean’s continued challenges to issues that
we resolved in the first appeal.
  The framework we set forth in our first opinion,
where we extensively addressed the issue of breach of
fiduciary duty, still applies. We framed both the duties
that Dean owed Kenseth as a fiduciary and the actions (or
inaction) taken by Dean that would constitute a breach
of those duties. Kenseth I, 610 F.3d at 464-81. In Kenseth I,
we noted that a fiduciary is obliged to disclose material
information, and has a duty not to mislead a plan par-
ticipant. 610 F.3d at 466. We have previously held that
an insurer has an affirmative obligation to provide
accurate and complete information when a beneficiary
inquires about her insurance coverage. Kenseth I, 610 F.3d
at 468; Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 590
(7th Cir. 2000). At the same time, a fiduciary will not be
held liable for negligent misrepresentations made by an
agent of the plan to a plan participant so long as the
plan documents themselves are clear and the fiduciary
40                                              No. 11-1560

has taken reasonable steps to avoid such errors. Kenseth I,
610 F.3d at 470.
  “The most important way in which the fiduciary com-
plies with its duty of care is to provide accurate and
complete written explanations of the benefits available
to plan participants and beneficiaries.” Kenseth I, 610 F.3d
at 471. Even with reasonably well-written documents,
though, participants will inevitably have questions,
and so our cases acknowledge an obligation for
plan fiduciaries to anticipate inquiries and train staff ac-
cordingly. Id. If the plan documents are clear and
the fiduciary has appropriately trained staff to field
inquiries, a fiduciary will not be held liable if a
ministerial, non-fiduciary agent has given incomplete
or mistaken advice to an insured. Kenseth I, 610 F.3d at
472. But if the documents are ambiguous or incomplete
on a recurring topic, a fiduciary may be liable for
mistakes that representatives make in answering ques-
tions on that subject.
  After reviewing the plan documents, we concluded
that the 2005 Certificate was ambiguous on the issue of
coverage for Kenseth’s surgery. The average reader
may well have understood that the plan would not pay
for surgical treatment of morbid obesity for a person
seeking that surgery in 2005. But the general exclusion
for “services and/or supplies related to a non-covered
benefit or service, denied referral or prior authorization,
or denied admission” was far from clear. We set forth
the many ambiguities contained in this provision in our
earlier opinion. See Kenseth I, 610 F.3d at 474-75. For
No. 11-1560                                               41

example, at the time Kenseth had the original pro-
cedure, it was in fact covered by her health insurer.
The average reader would be unlikely to classify a proce-
dure as a “non-covered service” if it had in fact been
covered. Nor would that reader comprehend that the
treatment of complications occurring some eighteen
years after the original surgery entailed services “related
to a non-covered benefit.” A more natural reading of
this general exclusion is that it would apply to services
and supplies that were contemporaneously needed
for a non-covered service.
  As much as this language might puzzle the average
patient, it turns out that it also created confusion for
at least two of Kenseth’s doctors. On November 1, 2005,
Kenseth saw Dr. Christiansen, who referred Kenseth to
a surgeon, Dr. Huepenbecker. Dr. Christiansen’s notes
regarding this visit indicate that she discussed three
possible treatments with Kenseth: (1) dilation and
steroid injections at the point of the stricture, a treat-
ment that previously had provided temporary relief;
(2) surgical resection of the pouch or the banding, which
Dr. Christiansen noted “would require being paid out of
pocket”; or (3) new gastric bariatric surgery. R. 21, at 16.
Dr. Christiansen noted that she suggested to Kenseth that
she see Dr. Huepenbecker “so that she can see whether
or not this really does need to be considered bariatric
surgery or simply that it needs to be repaired and if it will
get paid for. At this point she is feeling so miserable
she may decide to just pay for it herself however.” R. 21,
at 16. These notes indicate some confusion regarding
42                                             No. 11-1560

whether certain procedures would be considered non-
covered because they were bariatric surgery as opposed
to a repair that might be covered. Dr. Huepenbecker, for
his part, averred that Kenseth’s original surgery was a
common procedure at the time she had it, that most
insurers at that time paid for it and that he believed Dean
routinely covered this surgery for his patients in the
late 1980s, around the time that Kenseth had her surgery.
He noted that the repair was meant to correct a com-
plication of the earlier surgery and that Kenseth was
not obese at the time of the corrective surgery. He
believed that Dean would cover the corrective procedure:
     It is my understanding that Dean Health Plan would
     provide coverage for a complication to a prior VBG
     surgery as I believe Dean covered the VBG in the
     1980’s and 1990’s and therefore should cover com-
     plications in a prospective manner.
R. 34-2. Thus, one doctor was uncertain whether the
procedure would be covered by Dean’s plan, and a Dean-
affiliated doctor affirmatively believed that it would be.
   We also determined in our first opinion that the Cer-
tificate contained other significant ambiguities. Namely,
the Certificate does not identify a means by which a
participant or beneficiary may obtain an authoritative
determination as to whether a particular medical service
will be covered by a plan. Kenseth I, 610 F.3d at 476. Yet
Dean conceded that there was a means by which partici-
pants could obtain such a determination, a means that
Dean has yet to clarify. Instead, the Certificate directed
the reader to contact Dean’s customer service line if
No. 11-1560                                                43

she was “unsure if a service will be covered.” That direc-
tive, though, was not accompanied by a warning that
the caller could not rely on the answer given. Kenseth I,
610 F.3d at 476-77.
    Dean does not seriously dispute our earlier conclu-
sion that the policy was ambiguous. As we noted above,
a plan fiduciary could comply with its duty to provide
material information to participants and its duty not to
mislead participants by providing clearly-written plan
documents and appropriately training staff to field in-
quiries regarding the plan terms. On remand, the dis-
trict court must next assess the issue of customer service
training. Dean concedes it did not train customer ser-
vice representatives to warn callers that they could not
rely on the advice given when they called to inquire
whether a procedure would be covered. Inviting plan
participants to call customer service with their ques-
tions regarding coverage without any warning that they
could not rely on the answers given might have the
effect of lulling callers into believing that they could and
should rely on the advice of Dean’s customer service
representatives regarding the interpretation of Dean’s
Certificate. Kenseth I, 610 F.3d at 477-79. The district
court must consider whether such a practice is con-
sistent with a fiduciary’s obligation to carry out its
duties with respect to the plan:
    “solely in the interest of the participants and beneficia-
    ries and—(A) for the exclusive purpose of: (i) pro-
    viding benefits to participants and their bene-
    ficiaries; . . . [and] (B) with the care, skill, prudence,
44                                            No. 11-1560

     and diligence under the circumstances then pre-
     vailing that a prudent man acting in a like
     capacity and familiar with such matters would use
     in the conduct of an enterprise of a like character
     and with like aims. . . .” 29 U.S.C. § 1104(a)(1).
Kenseth I, 610 F.3d at 465-66.
  That leads us to Dean’s new argument on breach
of fiduciary duty. On appeal, Dean focuses its opposi-
tion to summary judgment for this issue on Kenseth’s
behavior. In doing so, to a certain extent, Dean conflates
the issue of breach with the issue of causation. For ex-
ample, Dean complains that Kenseth did not read the
Certificate and so did not see the warning that no oral
statements of any person shall modify, increase or
reduce benefits. Dean notes that Kenseth admitted at
her deposition that, had she read this statement, she
would have understood it. We addressed both of these
facts in our first opinion and see no reason to alter our
earlier analysis. No doubt Kenseth would have under-
stood the general proposition that oral statements could
not increase benefits. But she was not calling Dean to
ask for increased benefits or a modification of the plan;
she was calling to ask what benefits the Certificate pro-
vided with respect to her upcoming surgery. Kenseth I,
610 F.3d at 479. This is exactly what the Certificate
invited her to do: call customer service with questions
regarding the meaning of the Certificate.
  Dean also complains that Dr. Christiansen discussed
with Kenseth that surgery would be an out-of-pocket
expense because it would be considered a complication
No. 11-1560                                              45

of a prior bariatric surgery. Construing the facts in favor
of Dean, Dr. Christiansen discussed with Kenseth that
“surgical resection of the pouch and/or the banding”
would be out-of-pocket. Dr. Christiansen also noted that
she was not an expert in gastric bariatric surgery and
therefore wanted Kenseth to visit Dr. Huepenbecker to
determine “whether or not this really does need to be
considered bariatric surgery or simply that it needs to be
repaired and if it will get paid for.” R. 21. As we noted
above, neither Dr. Christiansen nor Dr. Huepenbecker
could definitively advise Kenseth on whether Dean
would cover the procedure. The plan did not clearly
exclude it, and Dean advised participants with questions
regarding coverage to call customer service, which is
exactly what Kenseth did. That Dr. Christiansen was of
the opinion that one procedure would be out-of-pocket
and that others might be covered increased the need
for Kenseth to clarify with Dean how the Certificate
applied to her circumstances.
  Finally, Dean asserts that Kenseth did not provide
complete and accurate information to the Dean cus-
tomer service representative when she called with her
coverage question. In particular, she did not mention
that the proposed surgery was intended to address com-
plications from the gastric banding surgery she had
undergone eighteen years earlier to treat morbid obe-
sity. Kenseth testified that she did not specifically decide
to withhold that information, and could not recall why
she did not mention it, other than to comment that she
was calling from work and had a limited amount of time.
R. 21, at 30-31. Kenseth instead described the surgery
46                                              No. 11-1560

using her best recollection of her surgeon’s explanation.
Notably, the customer service representative did not ask
Kenseth if the surgery was related to a prior bariatric
surgery.
  Of course, in general, the plan administrator is in a
far better position to know what information is relevant
to the plan administrator’s own assessment of a coverage
issue than is a plan participant. In this instance, Kenseth
told the customer service representative that she was
scheduled to have “a reconstruction of a Roux-en-Y
stenosis.” Detmer, the representative, asked “what that
had to deal with” and Kenseth replied that “it had to
deal with the bottom of the esophagus because of all the
acid reflux I was having.” R. 21, at 30. In any case, though,
this fact is not material to the breach of fiduciary duty
that we set forth in our earlier opinion:
     The facts support a finding that Dean breached
     its fiduciary duty to Kenseth by providing her with a
     summary of her insurance benefits that was less
     than clear as to coverage for her surgery, by inviting
     her to call its customer service representative with
     questions about coverage but failing to inform her
     that whatever the customer service representative
     told her did not bind Dean, and by failing to advise
     her what alternative channel she could pursue in
     order to obtain a definitive determination of coverage
     in advance of her surgery.
Kenseth I, 610 F.3d at 456. Kenseth’s failure to volunteer
additional information regarding the origin of her illness
is not material to any of Dean’s actions or omissions in
No. 11-1560                                                 47

breaching its fiduciary duty as we defined that possible
breach in our first opinion. Whether Dean’s breach of
duty caused Kenseth’s damages is a different question, but
Kenseth’s actions (or omissions) have nothing to do
with whether Dean breached its duty as a fiduciary. As
of yet, Dean has offered no rebuttal to the facts
regarding the ambiguity of the policy, the invitation to
call customer service with coverage questions, the
absence of any warning that the advice given by
customer service did not bind Dean, and the failure
to advise participants of any other means to obtain a
definitive assessment of coverage prior to incurring
costs. We leave it to the district court on remand to de-
termine whether Dean breached its fiduciary duty. If
so, the court must determine whether that breach
(as opposed to any other cause) harmed Kenseth, and
then fashion appropriate equitable relief to remedy
the harm.


                              E.
  In addition to seeking surcharge, Kenseth sought in-
junctions requiring Dean to amend the Certificate, cure
ambiguities in the summary plan description, train cus-
tomer service representatives, and implement different
procedures.7 The district court noted that, although


7
  Kenseth also asked the court to enjoin subsidiary or parent
corporations of Dean from collecting fees from her. In general,
a court may not enter orders against nonparties. “ ‘It is a
                                                 (continued...)
48                                                      No. 11-1560

these are clearly forms of equitable relief available under
Section 1132(a)(3), Kenseth had not received insurance
from Dean since the end of 2006, when her employer
chose a new plan. The court further found that it was
merely speculative that Kenseth would be a participant
in Dean’s plan in the future. The court thus con-
cluded that, because Kenseth could not benefit from
the prospective injunctions she sought, she lacked
standing to pursue this relief.
    To demonstrate standing:
     a plaintiff must show (1) it has suffered an “injury
     in fact” that is (a) concrete and particularized and
     (b) actual or imminent, not conjectural or hypothet-
     ical; (2) the injury is fairly traceable to the chal-
     lenged action of the defendant; and (3) it is likely, as


7
   (...continued)
principle of general application in Anglo-American jurispru-
dence that one is not bound by a judgment in personam in a
litigation in which he is not designated as a party or to which he
has not been made a party by service of process.’ ” Taylor v.
Sturgell, 553 U.S. 880, 884 (2008) (quoting Hansberry v. Lee, 311
U.S. 32, 40 (1940)). See also National Spiritual Assembly of Bahá’ís of
U.S. under Hereditary Guardianship, Inc. v. National Spiritual
Assembly of Bahá’ís of U.S., Inc., 628 F.3d 837, 847 (7th Cir.
2010) (noting the extent to which an injunction may be en-
forced against nonparties); Fed. R. Civ. P. 65(d) (codifying the
general principle that courts may only bind parties and
noting the exceptions to this rule). Kenseth makes no argu-
ment that any of the exceptions to the general rule apply
here and so the court may not enjoin these nonparties.
No. 11-1560                                                  49

    opposed to merely speculative, that the injury will
    be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000). Moreover, a plaintiff must
demonstrate standing for each form of relief sought. A
plaintiff may have standing to pursue damages but not
injunctive relief, for example, depending on the circum-
stances. Friends of the Earth, 528 U.S. at 185. Finally, the
plaintiff’s personal stake in the outcome of the litigation
must continue throughout the course of the litigation.
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (plaintiff’s resignation from state employment
mooted her First Amendment claim because the chal-
lenged statute no longer governed her speech and she
thus lacked a still-vital claim for prospective relief).
Certainly, at the time that Kenseth filed the action, she
had standing to pursue prospective injunctive relief.
However, her employer’s change in insurance plans
mooted that part of her case. The district court rejected
Kenseth’s claim that she maintained standing because
she might again become a participant in Dean’s plan,
characterizing the claim as merely speculative. See
Sierakowski v. Ryan, 223 F.3d 440, 443 (7th Cir. 2000) (in
order to invoke Article III jurisdiction, a plaintiff in
search of prospective equitable relief must show a sig-
nificant likelihood and immediacy of sustaining some
direct injury).
  Apparently, after the court entered judgment, Kenseth
again became a participant in Dean’s health plan when
her husband signed up for the plan through his new
50                                              No. 11-1560

employer. We say “apparently” because we denied
Kenseth’s motion to supplement the record with this
information and so this fact is not part of the record on
appeal. Although the district court was correct at the
time it entered judgment that Kenseth was not entitled
to prospective injunctive relief at that time, we leave it
to the district court on remand to determine in the first
instance if Kenseth’s new participation in Dean’s plan
revives her claims for prospective injunctive relief. See
Young v. Lane, 922 F.2d 370, 373-74 (7th Cir. 1991) (although
prisoners’ First Amendment claims seeking injunctive
relief against prison officials became moot when they
were transferred to other institutions, they were entitled
on remand to an opportunity to demonstrate that their
claims for prospective injunctive relief remained live
because they were likely to be re-transferred to the of-
fending prison).


                             F.
  We turn finally to a few loose ends. First, Dean belatedly
raises an argument that Kenseth was not a “participant”
as that term is defined in the statute and therefore is
not entitled to bring a claim under section 1132(a)(3).
Dean predicates this argument on the idea that Kenseth
was not a participant in any Dean plan between January 1,
2007 and February 15, 2011, when the district court
entered judgment in favor of Dean. Dean could have
raised this issue in the first round of proceedings in the
district court and in the first appeal but did not do so.
Dean may not now use the opportunity created by the
No. 11-1560                                                 51

remand to raise this issue for the first time. Mirfasihi v.
Fleet Mortgage Corp. 551 F.3d 682, 685 (7th Cir. 2008)
(issue mentioned in complaint but argued for first time
only after remand is too late). United States v. Schroeder, 536
F.3d 746, 751 (7th Cir. 2008) (any issue that could have
been but was not raised on appeal is waived and
thus not remanded); United States v. Husband, 312 F.3d
247, 250-51 (7th Cir. 2002) (same); United States v. Morris,
259 F.3d 894, 898 (7th Cir. 2001) (parties cannot use
the accident of remand as an opportunity to reopen
waived issues). In any event, Kenseth was a participant
at the time she suffered the injury for which she
seeks relief, and so we need not address this waived
issue further.
   Second, the district court declined to award attorneys’
fees to Kenseth under section 1132(g)(1), which allows a
court, in its discretion, to award reasonable attorneys’
fees and costs to either party. See 29 U.S.C. § 1132(g)(1).
At the time the court decided this issue, Kenseth had
obtained only limited success in the litigation. At this
point, however, she has won partial summary judgment
on her breach of fiduciary duty claim and may yet obtain
significant equitable relief on that claim on remand. The
court should therefore again consider whether to award
fees to Kenseth as a party with “some degree of success
on the merits.” Hardt v. Reliance Standard Life Ins. Co., 130
S. Ct. 2149, 2158 (2010); Raybourne v. Cigna Life Ins. Co. of
New York, 700 F.3d 1076, 1088-91 (7th Cir. 2012) (ERISA
litigant who had one claim and one theory throughout
the litigation, a claim on which he ultimately and com-
52                                             No. 11-1560

pletely prevailed, may be entitled to fees for the entirety
of the litigation even though he lost a few skirmishes
along the way).


                           III.
  Cigna substantially changes our understanding of
the equitable relief available under section 1132(a)(3).
Kenseth has argued for make-whole relief in the form
of monetary compensation for a breach of fiduciary
duty from the start of this litigation. We now know that,
in appropriate circumstances, that relief is available
under section 1132(a)(3). See Cigna, 131 S. Ct. at 1881-82.
We remand so that the district court may address the
question of whether Dean breached its fiduciary duty
and whether that breach was the cause of any harm
that Kenseth suffered. Finally, we leave it to the district
court to determine in the first instance what form any
equitable relief should take in light of the particular
circumstances presented here.
                                  V ACATED AND R EMANDED.
No. 11-1560                                            53

  M ANION, Circuit Judge, concurring.      After one of
Deborah Kenseth’s doctors recommended that she
undergo a Roux-en-Y gastric bypass procedure to
address complications from an earlier gastric banding
surgery, Kenseth called Dean to ask whether the sur-
gery was covered by her insurance policy. The Dean
representative asked Kenseth the nature of the surgery
and Kenseth replied that the procedure was related to
the bottom of her esophagus and acid reflux; Kenseth
never mentioned the connection to her earlier gastric
banding surgery. Kenseth I, 610 F.3d at 459-60. After
speaking with her supervisor, the Dean representative
informed Kenseth that the surgery would be covered,
subject to a $300 co-pay. Following her surgery, Dean
learned of the connection between the Roux-en-Y gastric
bypass procedure and the earlier gastric banding surgery
and denied Kenseth coverage. In Kenseth I, this court
held that Dean was not entitled to summary judgment on
Kenseth’s breach of fiduciary duty claim where: Kenseth
had specifically called to determine whether the surgery
was covered; Dean had informed her the surgery would
be covered (subject to a $300 co-pay), but later denied
coverage; the Certificate of Insurance was ambiguous
on whether there was coverage for the surgical pro-
cedure; the Certificate failed to identify a means by
which a participant could obtain an authoritative de-
termination on a coverage question; and the Certificate
invited participants to call customer service with
coverage questions but did not warn them that they
could not rely on any advice they received. Kenseth I, 610
F.3d at 469-78. On the breach of fiduciary duty claim,
54                                              No. 11-1560

we vacated the grant of summary judgment to Dean
and “remand[ed] for a determination as to whether
Kenseth is seeking any form of equitable relief that is
authorized by 29 U.S.C. § 1132(a)(3) and, if so, for further
proceedings on that claim as are consistent with this
opinion.” Kenseth I, 610 F.3d at 483.
  On remand, the district court again granted Dean
summary judgment, this time concluding, among other
things, that Kenseth had not shown the availability of
“appropriate equitable relief” for Dean’s purported
breach of fiduciary duty. In its decision, the district court
acknowledged that it was “not writing on a blank slate”
and it relied in great part on the Supreme Court’s
decision in Mertens v. Hewitt Assocs., 508 U.S. 248 (1993),
and this court’s holding in Kenseth I, both of which
called into question the availability of an equitable rem-
edy. District Court Opinion 5-7; 9-15.
  However, after the district court issued its decision,
the Supreme Court’s decision in Cigna Corp. v. Amara, 131
S. Ct. 1866 (2011), came down. In Cigna, the district court
had held that Cigna had breached its fiduciary duties to
the plaintiffs by changing the nature of its pension plan
for employees, while misleading the employees and
giving them “significantly incomplete” notice of the
changes. Id. at 1872-73. This left a large number of em-
ployees worse off than under the old pension plan.
Among other things, Cigna transferred to the new
pension plan amounts that did not “represen[t] the full
value of the benefits” that employees had earned under
the old pension plan. Id. On appeal, the Supreme Court
No. 11-1560                                              55

considered the propriety of the district court’s remedy.
It held that reformation and then enforcement of the
reformed plan was not authorized by § 502(a)(1)(B).
But it also noted that the employees of Cigna Corpora-
tion might be entitled to recover a monetary remedy of
surcharge as “appropriate equitable relief” under
§ 502(a)(3), for the defendant’s breach of fiduciary
duties. Id. at 1875-80.
  In vacating the district court’s opinion and remanding
the case to the district court for further proceedings,
the court in this case relies extensively on Cigna. Opinion
at 16-24; 30-32. I agree that Cigna requires reversal and
that Cigna makes clear that a monetary payment may
qualify as “an appropriate equitable remedy” when a
fiduciary is involved. Cigna, 131 S. Ct. at 1880 (“But the
fact that this relief takes the form of a money payment
does not remove it from the category of traditionally
equitable relief.”). I also agree that we should leave it to
the district court in this case to fashion appropriate
relief in the first instance. Opinion at 32. I disagree,
though, that “if Kenseth is able to demonstrate a breach
of fiduciary duty as we set forth in our first opinion, and
if she can show that the breach caused her damages,
she may seek an appropriate equitable remedy in-
cluding make-whole relief in the form of money dam-
ages.” Opinion at 31-32.
  Cigna did not hold that money damages are an appropri-
ate equitable remedy. Rather, Cigna concluded that the
fact that “relief takes the form of a money payment
does not remove it from the category of traditionally
56                                                No. 11-1560

equitable relief.” Id. 131 S. Ct. at 1880. The Supreme Court
then illustrated this point, explaining: “[e]quity courts
possessed the power to provide relief in the form of
monetary ‘compensation’ for a loss resulting from a
trustee’s breach of duty, or to prevent the trustee’s unjust
enrichment. . . . [T]his kind of monetary remedy against
a trustee, sometimes called a ‘surcharge,’ was ‘exclusively
equitable.’ ” Id. That language from Cigna, though, does
not support the conclusion that make-whole relief in
the form of money damages is recoverable as “appro-
priate equitable relief” under § 502(a)(3). See McCravy v.
Metropolitan Life Ins. Co., 690 F.3d 176, 181 (4th Cir. 2012)
(“In sum, the portion of [Cigna v.] Amara in which the
Supreme Court addressed [§ 502(a)(3)] stands for the
proposition that remedies traditionally available in
courts of equity, expressly including estoppel and sur-
charge, are indeed available to plaintiffs suing fiducia-
ries.”).
  The court in this case quotes the surcharge language
from Cigna, and also relies on Gearlds v. Entergy Servs., Inc.,
709 F.3d 448, 450 (5th Cir. 2013), and McCravy, 690 F.3d
at 181, both of which also discuss the surcharge remedy.
The court’s discussion today might lead some to wrongly
believe that a plaintiff can recover monetary damages
under § 502(a)(3) by calling the relief sought a sur-
charge. That was not Cigna’s holding. Rather, Cigna
noted that surcharge is one type of equitable remedy
which may be appropriate in certain situations, in-
cluding, possibly, the facts of that case, where the breach
of trust affected the amount of money contributed to
the beneficiaries’ retirement accounts initially, and then
No. 11-1560                                                     57

paid out eventually. And “surcharge” is not simply the
moniker given to any monetary payment for an
equitable harm—if it were, then there would be no
need for other equitable remedies, such as restitution,
equitable estoppel, or a constructive trust.
  Moreover, while Cigna explained that a surcharge
might be an appropriate remedy, it did not go so far as to
say it was an appropriate remedy. See Cigna, 131 S. Ct. at
1880. (“We cannot know with certainty which remedy
the District Court understood itself to be imposing, nor
whether the District Court will find it appropriate to
exercise its discretion under § 502(a)(3) to impose that remedy
on remand. We need not decide which remedies are ap-
propriate on the facts of this case. . . .”) (emphasis added).
The Cigna Court also made clear that its “decision rests in
important part upon the circumstances present here, . . . .”
131 S. Ct. at 1871. Thus, that Cigna concluded that a
surcharge might be an appropriate remedy given the facts
of that case,1 does not mean that it is an appropriate


1
   A surcharge might have made sense in Cigna because the
breach of trust involved the amount of money contributed to
beneficiaries’ retirement accounts initially, and then paid out
eventually. That scenario mirrored the common law trust
situation where the surcharge remedy was utilized, as demon-
strated by the supporting citations in Cigna. For instance, in
discussing the surcharge remedy in Cigna, the Supreme Court
cited the Restatement (Third of Trusts) § 95. That Section is
entitled, “Surcharge liability for breach of trust” and provides:
“If a breach of trust causes a loss, including any failure to
                                                     (continued...)
58                                                  No. 11-1560




1
   (...continued)
realize income, capital gain, or appreciation that would have
resulted from proper administration of the trust, the trustee
is liable for the amount necessary to compensate fully for the
breach. See § 100.” Restatement (Third of Trusts) § 100, cited
by § 95, similarly provides: “If a breach of trust causes a loss,
including any failure to realize income, capital gain, or ap-
preciation that would have resulted from proper administra-
tion, the beneficiaries are entitled to restitution and may have
the trustee surcharged for the amount necessary to compensate
fully for the consequences of the breach.” The Supreme Court
also relied on G. Bogert & G. Bogert, Trusts & Trustees § 862
(rev. 2d ed. 1995), which explained that:
     For a breach of trust the trustee may be directed by the
     court to pay damages to the beneficiary out of the trustee’s
     own funds, either in a suit brought for that purpose or on
     an accounting where the trustee is surcharged beyond
     the amount of his admitted liability.
     Thus the making of unauthorized payments to other
     beneficiaries, the conversion of the trust property, negli-
     gence in recording instruments affecting the trust
     property, or in obtaining security, or in collecting the
     trust property, or in the retention of property until it is
     worthless, wrongful sale of trust property, or negligence
     or misconduct in the making or retaining of investments,
     may give rise to a right in favor of beneficiaries to
     recover money damages from the trustee.
The court also cited Princess Lida of Thurn & Taxis v. Thompson,
305 U.S. 456, 464 (1939), which held that a court had the
power to require the trustee to take over from the trust the
                                                   (continued...)
No. 11-1560                                                         59

remedy in this, or other, cases. See McCravy, 690 F.3d at
181-82 (“Whether McCravy’s breach of fiduciary
duty claim will ultimately succeed and whether sur-
charge is an appropriate remedy under § 502(a)(3) in the
circumstances of this case are questions appropriately
resolved in the first instance before the district court.”);
Gearlds v. Entergy Services, Inc., 709 F.3d 448, 452 (5th
Cir. 2013) (“We leave to the district court the determina-
tion whether Gearlds’s breach of fiduciary duty claim
may prevail on the merits and whether the circumstances
of the case warrant the relief of surcharge.”). And it
does not mean that money damages are available under
§ 502(a)(3).
  In the end, it will be up to the district court to
determine whether an equitable remedy is appropriate,
and if so, which one, following a trial.2 And I do agree


1
  (...continued)
investments the trustee had improperly made and to restore
to the trust the amount expended for them, and to surcharge
the trustee for losses incurred. See generally G. Bogert & G.
Bogert, Trusts & Trustees § 862 (rev.2d ed.1995).
2
  Because § 502(a)(3) authorizes only “equitable relief” there is
no right to a jury trial. McDougall v. Pioneer Ranch Ltd. Partner-
ship, 494 F.3d 571, 576 (7th Cir. 2007); Nat’l Sec. Sys., Inc. v. Iola,
700 F.3d 65, 79 n.10 (3d Cir. 2012); Cox v. Keystone Carbon Co., 861
F.2d 390, 393 (3d Cir. 1988). However, if both Kenseth and
Dean consent to a jury trial and the district court agrees, the
case could be tried before a jury. Rule 39(c). But even
then, whether a jury could determine what is “appropriate
                                                      (continued...)
60                                                 No. 11-1560

with the court that a trial is required on the breach of
fiduciary duty claim and that the district court erred
in granting Dean summary judgment.3
  Finally, I believe it is important to stress again, that, like
Cigna, this “decision rests in important part upon the
circumstances present here, . . . .” 131 S. Ct. at 1871. As
noted above, those circumstances are that Kenseth called
and asked Dean whether the surgery would be covered
by her insurance policy and the Dean representative,
even after checking with her supervisor, wrongly in-
formed Kenseth that the surgery was covered (subject to
a $300 co-pay), but Dean later denied coverage; and the
Certificate of Insurance was ambiguous on whether
there was coverage for the surgical procedure. The Cer-



2
  (...continued)
equitable relief” in this case is questionable. See Pals
v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 501 (7th
Cir. 2000).
3
  I agree that we review the district court’s decision on sum-
mary judgment de novo because there is a factual dispute on
the breach of fiduciary duty claim. Had the only issue been the
appropriateness of equitable relief, the clearly-erroneous
standard of review would apply. See Cent. States, Se. & Sw.
Areas Pension Fund v. SCOFBP, LLC, 668 F.3d 873, 877 (7th Cir.
2011) (“We ordinarily review a district court’s grant of sum-
mary judgment in an ERISA case de novo. Pioneer Ranch, 494
F.3d at 575. When, however, the only issue before the district
court is the characterization of undisputed subsidiary facts,
and where a party does not have the right to a jury trial,
the clearly-erroneous standard of review applies. Id.”).
No. 11-1560                                               61

tificate also failed “to identify a means by which a partici-
pant may obtain an authoritative determination on a
coverage question,” and “invit[ed] participants to call
customer service with coverage questions but not
warning them that they could not rely on any advice
they received.” Opinion at 30. The holding in Kenseth
cannot be separated from these facts and it is in this
context that there is a fiduciary “duty to disclose mate-
rial information” to plan participants, and “also an af-
firmative obligation to communicate material facts affect-
ing the interests of plan participants.” Opinion at 6-7.
Whether there was a breach of fiduciary duty which
harmed Kenseth and whether there is an appropriate
equitable remedy available to her remain questions for
remand.
  For these reasons, I concur in judgment.




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