                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0338p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                  X
                                                   -
 TODD R. ROCHOW and JOHN ROCHOW,
                                                   -
 personal representatives of the Estate of
 Daniel J. Rochow,                                 -
                           Plaintiffs-Appellees, -
                                                       No. 12-2074

                                                   ,
                                                    >
                                                   -
                                                   -
            v.
                                                   -
                                                   -
 LIFE INSURANCE COMPANY OF NORTH
                                                   -
                          Defendant-Appellant. N
 AMERICA,

                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
               No. 2:04-cv-73628—Arthur J. Tarnow, District Judge.
                                     Argued: July 26, 2013
                           Decided and Filed: December 6, 2013
 Before: KEITH and McKEAGUE, Circuit Judges; and WATSON, District Judge.*

                                      _________________

                                           COUNSEL
ARGUED: Jeremy P. Blumenfeld, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia,
Pennsylvania, for Appellant. Erik W. Scharf, SCHARF APPELLATE GROUP, Miami,
Florida, for Appellees. ON BRIEF: Jeremy P. Blumenfeld, Erica E. Flores, MORGAN,
LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania, Brian T. Quinn, HONIGMAN
MILLER SCHWARTZ & COHN, LLP, Lansing, Michigan, for Appellant. Erik W.
Scharf, SCHARF APPELLATE GROUP, Miami, Florida, John J. Cooper, COOPER
LAW FIRM, PLLC, Troy, Michigan, for Appellees. Mary Ellen Signorille, AARP
FOUNDATION LITIGATION, Washington, D.C., for Amicus Curiae.
    WATSON, D. J., delivered the opinion of the court, in which KEITH, J., joined.
McKEAGUE, J. (pp. 25–31), delivered a separate dissenting opinion.




        *
           The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                 1
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                      Page 2


                                  _________________

                                        OPINION
                                  _________________

         MICHAEL H. WATSON, District Judge. In a previous appeal, this Court held
that Defendant-Appellant had acted in an arbitrary and capricious manner when it denied
Daniel Rochow ERISA benefits. Following the prior panel’s mandate, the district court
commenced proceedings to determine the appropriate amount of benefits and other
remedies. Eventually, the district court issued rulings on the calculation of benefits and
ordered LINA to disgorge $3.8 million under an equitable theory of unjust enrichment.
LINA raises three areas of error on appeal. We affirm.

                                   I. BACKGROUND

         In mid-2000, the late Daniel J. Rochow (“Rochow”), a principal of Universico
Insurance Company (“Universico”), sold his interest in Universico to Arthur J. Gallagher
& Co. (“Gallagher”) and became President of Gallagher. As an employee of Gallagher,
Rochow was covered under Life Insurance Company of North America (“LINA”) policy
number LK 30214. LINA’s policy provided for disability benefits if an employee gave
“satisfactory proof” that “solely because of Injury or Sickness [the employee is] unable
to perform all the material duties of [his or her] Regular Occupation or a Qualified
Alternative[.]” See Rochow v. LINA (“Rochow I”), 482 F.3d 860, 863–64 (6th Cir.
2007).

         In 2001, Rochow began to experience short term memory loss, occasional chills,
sporadic sweating, and stress at work. Id. In July 2001, Gallagher demoted Rochow
from President to Sales Executive-Account Manager because Rochow could no longer
perform his duties as President. Id. Rochow continued to have difficulties, and as a
result of his inability to perform his job, Gallagher forced Rochow to resign effective
January 2, 2002. Id. In February 2002, Rochow experienced periods of amnesia and
was hospitalized. Id. During his February 2002 hospital stay, Rochow was diagnosed
with HSV-Encephalitis, a rare and severely debilitating brain infection. Id.
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 3


       On or about December 31, 2002, Rochow filed a claim for long term disability
benefits. LINA denied Rochow benefits stating that Rochow’s employment ended
before his disability began. Rochow I, 482 F.3d at 864.

       Rochow appealed LINA’s denial and included medical records from 2001 that
stated Rochow was suffering short-term memory loss during 2001.               In denying
Rochow’s appeal, LINA noted that Rochow experienced the effects of encephalitis
during 2001 but denied coverage because Rochow continued to work and was not
disabled until February 2002. Rochow I, 482 F.3d at 864.

       Rochow again appealed and included a report from Jack Tellerico, an area vice
president for Gallagher, which identified the material duties of Rochow’s positions with
Gallagher and stated that during 2001, Rochow was not able to perform all the material
duties of those jobs due to his lack of memory. LINA again denied Rochow’s claim
stating, “[s]ince, Mr. Rochow’s long-term disability claim was not filed until after his
termination date; his claim was denied because of, ‘not considered actively working at
time of disability.’ It appears no additional documentation was provided which would
support that Mr. Rochow was actively working when he became disabled.’” (PageID
4056) (Joint App’x ) (sic).

       Rochow appealed the denial a third time. LINA denied his claim for the final
time stating Rochow had not presented any medical records to support his inability to
work prior to the date he was terminated.

       On September 17, 2004, Rochow filed a complaint against Cigna Group
Insurance, LINA’s parent company, in the United States District Court for the Eastern
District of Michigan. Compl., ECF No. 1. The complaint states two claims under
ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3): one to recover full benefits due to the failure
to pay benefits in violation of the terms of the plan and one to remedy the alleged breach
of fiduciary duty in ERISA Section 404(a), 29 U.S.C. §1104(a).

       Defendant moved for judgment on the record and Plaintiff moved for summary
judgment. On June 24, 2005, Judge Tarnow of the United States District Court for the
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                         Page 4


Eastern District of Michigan heard oral arguments on the parties’ motions. At the
conclusion of oral argument, Judge Tarnow stated on the record that LINA acted
arbitrarily and capriciously in finding Rochow was not disabled while still employed and
that Rochow had prevailed. In a one page order which incorporated the reasoning stated
on the record, the Court granted Rochow’s motion and denied LINA’s motion. The
same day, the district court clerk filed a judgment which purported to dismiss the case,
and was signed by the district court clerk and Judge Tarnow.

        LINA appealed the June 24, 2005 Order denying Defendant’s motion and
granting Plaintiff’s motion. Rochow moved to enforce judgment or require Defendant
to post a supercedeas bond pursuant to Federal Rule of Civil Procedure 62(d).
Eventually this motion was withdrawn and Defendant deposited a supersedeas bond in
the amount of $250,000.

        On April 3, 2007, a panel of this Court affirmed Judge Tarnow’s Order. Rochow
I, 482 F.3d at 866. The Rochow I panel held the record supported the district court’s
decision that LINA’s denial of Rochow’s claims was arbitrary and capricious, was not
the result of a deliberate, principled reasoning process, and did not appear to have been
made “‘solely in the interest of the participants and beneficiaries and [ ] for the exclusive
purpose of [ ] providing benefits to participants and their beneficiaries’ as required by
ERISA. 29 U.S.C. § 1104(A)(1).” Id. The opinion noted, “there is no ‘logical
incompatibility between working full time and being disabled from working full time’”
and that the policy required only “satisfactory proof” of disability, not medical evidence.
Id. (internal citations omitted). On the same day, the clerk for this Court entered
judgment stating “the order of the district court is AFFIRMED.” The clerk of this Court
issued the mandate on April 26, 2007, and it was filed May 3, 2007.

        On May 10, 2007, the parties filed a stipulation “to toll the time for all parties
and counsel to bring any post remand motions,” and the district court entered an Order
tolling the filing deadlines for post-remand motions until further order of the court. On
April 3, 2008, the district court referred the remaining issues in dispute to United States
No. 12-2074            Rochow, et al. v. Life Ins. Co. of N. Am.                                    Page 5


Magistrate Judge Whalen. Over the next few months, Judge Whalen held several status
conferences.

         On November 10, 2008, LINA filed a statement of resolved and unresolved
issues and Plaintiff1 filed motions for attorneys’ fees and costs and equitable accounting.
LINA’s statement of issues represented that the parties still disputed several issues,
including whether Plaintiff was entitled to a disgorgement of profits.

         Plaintiff also filed a motion seeking an equitable accounting and a request for
disgorgement.        In that motion, Plaintiff argued Rochow’s estate was entitled to
disgorgement of profits because LINA breached its fiduciary duties, and disgorgement
was necessary to prevent LINA’s unjust enrichment resulting from profits it earned on
the wrongfully retained benefits. Plaintiff supported the motion with the report of his
expert, Dr. David C. Croson. In calculating LINA’s “Return on (Average) Equity”
(“ROE”), Dr. Croson determined LINA used Rochow’s benefits to earn between
11 percent and 39 percent annually and, therefore, made approximately $2.8 million by
retaining Rochow’s benefits.

         In June 2009, the district court granted Plaintiff’s motion for an equitable
accounting of profits and disgorgement of the same. LINA then moved to strike
Croson’s report and to preclude him from testifying as an expert on the ground that his
principles and methods were unreliable under Federal Rule of Civil Procedure 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The motion
was referred to the magistrate judge, who issued a report recommending that the motion
be denied, noting that the matter was being tried to the court rather than a jury and
finding that many of LINA’s objections went to the weight of Croson’s opinions, not
their admissibility. The district court adopted the magistrate judge’s recommendation
over LINA’s objections.



         1
            Rochow died on October 16, 2008, and the representative of his estate, Patrick Rochow, was
substituted as plaintiff in this action. Later, Todd R. Rochow and John D. Rochow were substituted as
administrators of Daniel Rochow’s estate and as plaintiffs in this case. For consistency, this opinion refers
to all litigation actions taken on behalf of Rochow’s estate as actions by Plaintiff.
No. 12-2074              Rochow, et al. v. Life Ins. Co. of N. Am.                               Page 6


         After the parties briefed the issue, the district court conducted an evidentiary
hearing in November 2011 on the issue of calculation of profits for disgorgement. At
the hearing, LINA offered the testimony of its expert, Timothy Holzli, who served as the
Chief Accounting Officer for the group insurance division of Cigna. Holzli opined
Rochow’s withheld benefits earned LINA profits of $32,732. He arrived at that figure
by treating the withheld benefits as though they were earning interest as part of LINA’s
investment assets. On cross examination, Holzli acknowledged, however, that the
account was not a separate or segregated account. He also conceded that LINA payed
its operating expenses and benefits from the account, and the money in the account
formed a basis for LINA to write insurance coverage.

         Following additional briefing and oral argument, the district court issued its
decision on calculation of profits for disgorgement in March 2012.2 The district court
adopted Croson’s ROE metric as the basis for determining the profits LINA gained from
the wrongfully withheld funds, and it rejected Holzli’s retained investment margin
metric. It did so, in part, based upon its factual finding that the subject money was not
placed in a separate investment account, but rather was available for LINA to use for any
business purpose. In the last paragraph of its decision, the district court stated:

         Plaintiff will, within two weeks from this order, submit a final amount to
         be disgorged by Defendant based upon the Court’s rulings, above.
         Defendant may then submit a memorandum in response within seven
         days. This memorandum is limited only to any objections regarding the
         accuracy of Plaintiff’s calculations based on this order, and is not an
         invitation to relitigate issues already decided by this Court.

(PageID 3576).

         On May 4, 2012, in its response brief to Plaintiff’s final calculation of
disgorgement, LINA argued for the first time that permitting disgorgement was outside
the scope of the mandate in the first appeal. Nonetheless, on July 24, 2012, the district
court ordered disgorgement of $3,797,867.92. The court noted, “Defendant has, in


         2
             The district court’s decision is reported at Rochow v. LINA, 851 F. Supp 2d 1090 (E.D. Mich.
2012).
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                        Page 7


response to a proposed order submitted by Plaintiff, raised objections. To the extent that
these objections do not simply repeat arguments already rejected by the Court, and raise
new issues in Defendant’s argument concerning the ‘mandate rule,’ they are untimely
and will not be considered.” (PageID 3907).

        LINA then commenced this timely appeal. We have jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291.

                                    II. DISCUSSION

        LINA makes several objections which can be grouped into three areas. The first
area concerns the finality of the district court’s first entry of judgment and its effect on
the subsequent proceedings. The second involves the propriety of relief under both
ERISA Section 502(a)(1)(B) and 502(a)(3). The third concerns the amount of the
disgorgement.

                                A. Finality of Judgment

        LINA first argues the judgment that the district court entered on June 24, 2005
was a final judgment which ended the litigation between the parties and, therefore, all
subsequent proceedings in the district court were void. Specifically, LINA argues that
the judgment subsumed and implicitly denied all claims not presented in Rochow’s
motion for summary judgment and that Plaintiff’s previous agreement that the judgment
was final should estop Plaintiff from asserting a fiduciary duty claim and requesting
more relief.

        In arguing that the judgment subsumed all requests for relief, LINA attempts to
extrapolate from a series of cases concerning the final judgment rule of 28 U.S.C.
§ 1291. These cases state that a judgment is final, and therefore appealable, when it
“‘ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.’” See, e.g.,Whiteside v. Parrish, 387 F. App’x 608, 611 (6th Cir. 2010)
(internal quotation marks omitted). However, to the extent LINA is arguing that the
district court’s June 24, 2005 judgment foreclosed all future litigation, it is employing
the wrong doctrine to do so. None of the cases applying the final judgment rule support
No. 12-2074           Rochow, et al. v. Life Ins. Co. of N. Am.                                 Page 8


the proposition that a court which enters judgment does not have the authority to reopen
litigation for purposes of determining additional liability and damages or to consider a
claim or theory of damages included in the complaint but not previously raised in a
motion.

         In fact, the rule announced in the decisions LINA cites seems to support that the
June 24, 2005 judgment was not a final judgment and, therefore, the proceedings could
be reopened. The court had not yet considered the breach of fiduciary duty claim or
calculated the benefits owed or other proper remedies and, therefore, had more to do
than simply execute the judgment. See McManus v. St. Joseph Hosp. Corp., 3 F. App’x
379, 380–81 (6th Cir. 2001) (“A judgment determining liability, but not the specific
damages, is not immediately appealable” as a final judgment) (citing Liberty Mutual Ins.
Co. v. Wetzel, 424 U.S. 737, 744 (1976)). “District courts have inherent power to
reconsider interlocutory orders and reopen any part of a case before entry of a final
judgment.” In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008) (quoting Mallory v. Eyrich,
922 F.2d 1273, 1282 (6th Cir. 1991)).3

         LINA does little to pursue the argument that Plaintiff should be estopped from
asserting a fiduciary duty claim and requesting more relief after the first appeal. In its
opening brief, LINA simply points to Rochow’s motion to enforce judgment and his
agreement that the judgment was final for purposes of appellate jurisdiction. In its reply,
LINA cites to Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 546 F.3d 752 (6th Cir.
2008), which applied the doctrine of judicial estoppel, but makes no effort to apply the
test to the procedural history of this case. Failure to expand upon an argument
constitutes waiver of that argument. McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997).




         3
           Although the parties discuss whether the June 24, 2005 judgment was a final judgment, neither
party challenges the jurisdiction of the Rochow I panel. The Rochow I panel did not indicate the source
of its appellate jurisdiction or label the district court’s ruling a final judgment.
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 9


       Accordingly, neither the district court’s June 24, 2005 judgment, nor Rochow’s
representations that such judgment was final prohibited the district court from
subsequently ordering disgorgement.

       Next, LINA argues that once the previous panel of this Court affirmed the district
court’s judgment and issued its mandate, the subsequent district court proceedings
violated the law of the case doctrine. Specifically, LINA invokes two related law of the
case concepts: (1) issues not raised in a previous appeal cannot be litigated later, and
(2) the district court is bound to the scope of the mandate issued by a court of appeals,
known as the mandate rule.

       Plaintiff argues LINA has waived both law of the case arguments by failing to
timely raise them and inviting the alleged error. LINA responds that the law of the case
doctrine is jurisdictional and cannot be waived and, alternatively, that LINA did not
waive the mandate rule argument because it raised the argument before the district court
entered the final disgorgement order.

       The Supreme Court has recently stated the law of the case doctrine “directs a
court’s discretion” but does not “limit the tribunal’s power.” Pepper v. United States,
131 S. Ct. 1229, 1250–51 (2011). In accordance with that understanding, LINA’s first
argument—that any argument not raised by Rochow on appeal cannot be litigated after
the appeal— has been found to be waivable. United States v. Gibbs, 626 F.3d 344, 344
(6th Cir. 2010). LINA failed to raise this argument until after the district court had
ordered disgorgement, determined the method of calculating the disgorgement, and
limited further briefing to objections to Rochow’s calculation of the amount of the
disgorgement. Because this argument exceeded the scope of the district court’s
allowance for the brief, it was essentially a motion for reconsideration. Absent a
legitimate excuse, arguments raised for the first time in a motion for reconsideration are
forfeited. United States v. Huntington Nat. Bank, 574 F.3d 329, 331–32 (6th Cir. 2009).
LINA offers no excuse for the delay in raising the argument and the argument has
therefore been forfeited.
No. 12-2074            Rochow, et al. v. Life Ins. Co. of N. Am.                                 Page 10


         LINA’s second argument is often described as the mandate rule, and although
this Court has described the mandate rule as “a specific application of the law-of-the-
case doctrine,” it is a distinct concept which preserves the hierarchy of the court system.
 Scott v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004) (quoting United States v.
Campbell, 168 F.3d 263, 265 (6th Cir. 1999)). The United States Supreme Court has not
explicitly commented on the jurisdictional nature of the mandate rule and circuit courts
remain split on whether a district court acting outside the scope of a circuit’s mandate
is acting without jurisdiction. United States v. Thrasher, 483 F.3d 977, 982 (9th Cir.
2007) (collecting cases). See also Wright & Miller, Federal Practice and Procedure
§ 4478.3 (2d ed. 2013). In Tapco Products Company v. Van Mark Products Corp., 466
F.2d 109, 110 (6th Cir. 1972), this Court held that the district court was “without
jurisdiction” to take an action inconsistent with the mandate of a previous appeal.4
Accordingly, the mandate rule implicates whether the district court had jurisdiction to
consider disgorgement and is not an argument that LINA could waive.

         A “basic tenant of the mandate rule is that a district court is bound to the scope
of the remand issued by the court of appeals.” Scott v. Churchill, 377 F.3d 565, 570 (6th
Cir. 2004). A district court may, however, consider “those issues not decided expressly
or impliedly by the appellate court.” Allard Ent., Inc. v. Advanced Prog. Res., Inc.,
249 F.3d 564, 570 (6th Cir. 2001).

         This Court reviews the interpretation of its own mandate de novo. United States
v. Parks, 700 F.3d 775, 777 (6th Cir. 2012). The mandate should be read with the
analysis offered in the opinion, and context matters. United States v. O’Dell, 320 F.3d
674, 681 (6th Cir. 2003) (internal citations omitted). “‘The trial court must implement
both the letter and the spirit of the mandate, taking into account the appellate court’s
opinion and the circumstances it embraces.’” United States v. Moored, 38 F.3d 1419,


         4
           In 2002, in an unpublished opinion, this Court stated, “the mandate rule is a rule of policy and
practice, not a jurisdictional limitation.” Mylant v. United States, 48 F. App’x 509, 512 (6th Cir. 2002)
(quoting United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996) (citing similar First Circuit
precedent)). Nevertheless, since nothing but an en banc consideration or a United States Supreme Court
ruling can overrule a published opinion of this Court, this panel remains bound by the decision in Tapco
Products. See Bonner v. Perry, 564 F.3d 424, 430 (6th Cir. 2009); 6 Cir. R. 32.1(b).
No. 12-2074          Rochow, et al. v. Life Ins. Co. of N. Am.                   Page 11


1421 (6th Cir. 1994) (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.
1991)).

          In Rochow I, the panel considered the validity of the order granting summary
judgment, not the separate document that purported to be a judgment. LINA’s notice of
appeal states only that the district court’s order, which simply found the denial of
benefits arbitrary and capricious, is being appealed. The opinion in Rochow I limits the
issue to “whether or not [LINA] acted arbitrarily and capriciously when it concluded that
Rochow was not disabled on the date that he left his job, therefore denying his claim for
disability benefits.” Rochow I, 482 F.3d at 861. The opinion states “the district court
held that LINA’s determination was arbitrary and capricious . . . we AFFIRM that
decision.” Id. At no point does the opinion state that the district court granted Rochow
a remedy or that the panel approved of such a remedy. And although the opinion states
that it does not appear LINA’s denial was made solely in the interest of the participants
as ERISA § 404 requires, it does not purport to affirm a finding by the district court on
the breach of fiduciary duty claim.

          Accordingly, the mandate issued by the panel in Rochow I was limited to the
district court’s decision that LINA had acted in an arbitrary and capricious manner in
denying Rochow benefits, and the district court did not act inconsistent with that
mandate in considering whether LINA breached its fiduciary duty and what remedies
were most appropriate after the Rochow I decision.

                            B. Relief Available Under ERISA

          LINA argues that even if Rochow had pursued disgorgement at what it considers
the appropriate time, disgorgement would still be inappropriate because equitable relief
under § 502(a)(3) is available only where § 502(a) does not otherwise provide an
adequate remedy. Plaintiff argues disgorgement is an appropriate remedy because it is
a remedy in addition to the award of benefits under § 502(a)(1)(B), not a repackaged
benefits claim; it provides a different type of remedy than benefits and can be justified
under the benefits award provision or as pre-judgment interest.
No. 12-2074          Rochow, et al. v. Life Ins. Co. of N. Am.                    Page 12


       ERISA has six remedial provisions. Four provide specific relief and two are
“catchalls” which provide “‘appropriate equitable relief’ for ‘any’ statutory violation.”
Varity Corp. v. Howe, 516 U.S. 489, 512 (1996). The remedial provisions relevant to
this action are § 502(a)(1)(B) and § 502(a)(3), which state:

       (a) Persons empowered to bring a civil action
       A civil action may be brought—
       (1) by a participant or beneficiary—
               ...
               (B) to recover benefits due him under the terms of his
               plan, to enforce his rights under the terms of the plan, or
               to clarify his rights to future benefits under the terms of
               the plan;
       ...
       (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or
       practice which violates any provision of this subchapter or the terms of
       the plan, or (B) to obtain other appropriate equitable relief (I) to redress
       such violations or (ii) to enforce any provisions of this subchapter or the
       terms of the plan.

29 U.S.C. § 1132(a).

       Although the history of the benefits award is less than clear, the parties and the
district court appear to agree that the award of benefits granted was under § 502(a)(1)(b).
The district court based its grant of disgorgement on § 502(a)(3) and the equitable
principle of unjust enrichment.          The district court held the remedies under
§§ 502(a)(1)(B) and 502(a)(3) were not mutually exclusive and both were appropriate
in this case because they provide different kinds of relief: benefits under § 502(a)(1)(B)
compensated Rochow for the denial of his benefits, and disgorgement under § 502(a)(3)
prevents LINA from being unjustly enriched.
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                      Page 13


       LINA argues that the district court erred in finding Plaintiff could recover under
§ 502(a)(3) in addition to recovering benefits under § 502(a)(1)(B) because such an
order violates the holdings in Varity Corporation v. Howe, 516 U.S. 489 (1996) and
Wilkins v. Baptist Healthcare System, Inc., 150 F. 3d 609 (1998), and undermines
ERISA’s goal of creating an efficient system of benefit determinations.

       In Varity, the United States Supreme Court held that an individual can sue for a
violation of the fiduciary duties in ERISA § 404 under the catchall remedial provision
of Section 502(a)(3). 516 U.S. at 509–13. In response to an amicus’s concerns that
allowing recovery for breaches of fiduciary duty under Section 502(a)(3) would
“increase the cost of welfare benefit plans and thereby discourage employers from
offering them,” the Varity Court noted, “we should expect that where Congress
elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need
for further equitable relief, in which case such relief normally would not be
‘appropriate’” Id. at 513–15.

       In Wilkins, this Court held that a plaintiff whose claim for disabilities had been
denied could not recover under § 502(a)(3) for a breach of fiduciary duty. 150 F.3d at
615–16. The plaintiff sought compensatory damages for LINA’s failure to act solely in
Wilkins’s interest for the exclusive purpose of providing benefits to him. Id. at 615. The
panel relied on Varity, stating:

       The Supreme Court clearly limited the applicability of § 1132’s other
       remedies. Varity, 516 U.S. at 512. Because § 1132(a)(1)(B) provides a
       remedy for Wilkins’s alleged injury that allows him to bring a lawsuit to
       challenge the Plan Administrator’s denial of benefits to which he
       believes he is entitled, he does not have a right to a cause of action for
       breach of fiduciary duty pursuant to § 1132(a)(3). Wilkins availed
       himself of the remedy available to him under the statute. The district
       court reviewed his claim de novo and concluded that LINA’s denial of
       benefits was correct. Wilkins therefore has no cause of action under any
       other subsection of § 1132. See Varity, 516 U.S. at 515. Consequently,
       he cannot recover compensatory damages for an alleged breach of
       fiduciary duty. . . . To rule in Wilkins’s favor would allow him and other
       ERISA claimants to simply characterize a denial of benefits as a breach
       of fiduciary duty, a result which the Supreme Court expressly rejected.
       Varity, 516 U.S. at 514–15.
No. 12-2074            Rochow, et al. v. Life Ins. Co. of N. Am.                                  Page 14


Wilkins, 150 F.3d at 615.

         Although courts initially interpreted Wilkins as a complete bar to simultaneous
claims for benefits under § 502(a)(1)(B) and breaches of fiduciary duty under
§ 502(a)(3), several exceptions have emerged. First, in Hill v. Blue Cross and Blue
Shield of Michigan, this Court held that a claim for breach of fiduciary duty under
§ 502(a)(3) seeking a system-wide injunction against a claims processing technique
could exist alongside a claim for benefits under § 502(a)(1)(B). 409 F.3d 710, 718 (6th
Cir. 2005). This Court stressed that unlike the fiduciary duty claim in Wilkins, the claim
under § 502(a)(3) was not simply a repackaged benefits claim because granting the
individual claimants benefits would not rectify the ongoing improper methodology for
handling claims. Id. The court stated, “[o]nly injunctive relief of the type available
under § 1132(a)(3) will provide the complete relief sought by Plaintiffs.” Id.

         Next, in Gore v. El Paso Energy Corp. Long Term Disability Plan, this Court
held that a § 502(a)(1)(B) benefits claim and § 502(a)(3) fiduciary duty claim could exist
simultaneously where each claim was supported by a different injury. 477 F.3d 833,
840–41 (6th Cir. 2007). In his complaint, the plaintiff sought benefits under the plan in
effect at the time he was injured and equitable relief for his employer’s breach of
fiduciary duty through misrepresentations about the benefit plan. Id. This Court stated,
“[w]hen Gore did not receive [benefits], his misrepresentation claim was not moot
because his injury from the misrepresentation was not eliminated.” Id.5 Gore was
permitted to pursue his breach of fiduciary duty claim based on his employer’s
misrepresentations because it was a different injury.

         This case is a logical extension of the Hill exception to Varity and Wilkins
because § 502(a)(1)(B) cannot provide all the relief Rochow seeks. Section 502(a)(1)(B)
cannot provide the equitable redress of preventing LINA’s unjust enrichment because



         5
           Although Gore noted that the plaintiff’s request for equitable relief would have been moot had
the plaintiff been entitled to benefits, the decision does not preclude recovery under both provisions as a
matter of law. Rather, Gore noted that if the plaintiff had been granted permanent disability benefits under
Section 502(a)(1)(B), it would not have mattered that the plaintiff was mislead into thinking he could get
temporary benefits for two years, instead of just one. 477 F.3d at 840–41.
No. 12-2074            Rochow, et al. v. Life Ins. Co. of N. Am.                                 Page 15


it only allows a participant to “recover benefits due to him under the terms of the plan,
to enforce his rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). See also Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 491–92 (6th Cir. 2009) (“The Hill Court allowed
a plaintiff to bring claims under both sections when § 502(a)(1)(B) would not provide
the complete relief the plaintiff sought.”).

         This Court in Wilkins and Gore, and to a certain extent Hill, focused on
redressing the plaintiff’s injuries because the plaintiffs sought compensatory damages.
Nothing in ERISA itself or Varity limits this Court to allowing remedies under
§ 503(a)(3) that focus on the plaintiff’s injuries. The language of § 503(a)(3) allows
participants “to obtain other appropriate equitable relief (I) to redress [violations of any
provision of this subchapter or the terms of the plan].” 29 U.S.C. § 502(a)(3). Although
one meaning of redress is “to set right,” it can also mean “to exact reparation for:
avenge.” MERRIAM WEBSTER DICTIONARY 1904 (3d ed. 2002). Black’s Law Dictionary
defines it as “relief” or “remedy” generally and gives it no restorative tinge at all.
BLACK’S LAW DICTIONARY 1392 (9th ed. 2009). In Varity, the Supreme Court did not
discuss ERISA as a statute solely focused on making a claimant whole. Rather, Varity
noted in support of its argument that allowing individual recovery under § 502(a)(3) was
consistent with the purposes of ERISA because in some instances, like the Varity case
itself, other remedies may not be available. Varity, 516 U.S. at 515.

         Moreover, disgorgement does not result in double compensation, nor does it
represent punishment. An award of both actual damages and disgorgement does not
offend the doctrine against double recovery. See Christopher Phelps & Assocs., LLC v.
Galloway, 492 F.3d 532, 546 (4th Cir. 2007) (“[A] copyright holder is entitled to both
actual damages—the market price of the license—and disgorgement of the infringer’s
profits . . . .”) (emphasis in original).6 Further, equitable disgorgement of profits cannot


         6
           This is distinguishible from cases which preclude a plaintiff from recovering both its own lost
profits as well as disgorgement of the defendant’s profits. See Nintendo of Am., Inc. v. Dragon Pac. Int’l,
40 F.3d 1007, 1010 (9th Cir.1994). Here, the equivalent of “lost profits” for Plaintiff would have been
prejudgment interest, i.e., money he would have earned on the benefits had they been timely paid. The
award below does not impermissibly include both prejudgment interest and disgorgement of profits.
No. 12-2074             Rochow, et al. v. Life Ins. Co. of N. Am.                              Page 16


fairly be characterized as punitive because it leaves LINA no worse off than it would
have been had it paid benefits to Rochow when they were due as the law required.

         Finally, the remedy of disgorgement of profits under § 502(a)(3) was recognized
by the Eighth Circuit in Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999,
1008 (8th Cir. 2004). After finding that the award of pre-judgment interest in the form
of disgorgement was an appropriate remedy for a delay of benefit payments, the Eighth
Circuit stated, “[i]t is undisputed that an accounting for profits—the remedy that allows
for disgorgement of profits awarded by the district court—is a type of relief that was
typically available in equity and therefore is appropriate under § 1132(a)(3)(B).” Id.7
Accordingly, we hold that disgorgement is an appropriate equitable remedy under
§ 502(a)(3) and can provide a separate remedy on top of a benefit recovery.

         LINA argues that allowing Plaintiff to maintain a breach of fiduciary duty claim
based on a denial of benefits would frustrate ERISA’s goal of providing an inexpensive
and expeditious dispute resolution process because it would require significant discovery
beyond the administrative record. However, ERISA also has a goal of ensuring that plan
fiduciaries act solely in the interest of the participants and for the exclusive purpose of
providing benefits to their participants. 29 U.S.C. § 1104(a); Varity, 516 U.S. at 497
(ERISA has competing purposes of offering employees enhanced protection for their
benefits and ensuring benefit systems are not too complex). Although discovery may
slow down litigation over benefit denials in some cases, the risk of liability and
extensive discovery regarding profits or interest will act as an incentive to ensure plan
administrators act in the interest of the plan participants throughout the claims process.
If no remedy beyond the award of benefits were allowed, insurance companies would

         7
             In addition, as amici AARP points out, the United States Supreme Court has recently noted in
dicta,
          [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. . . . Indeed, prior to the merger of law and equity this kind
          of monetary remedy against a trustee, sometimes called a ‘surcharge,’ was ‘exclusively
          equitable.’
Cigna v. Amara, 131 S. Ct. 1866, 1880 (2011). The Court went on to imply that because the equitable
remedy of surcharge fell within Section 503(a)(3), the relief at issue in Amara—the modification of an
ERISA plan—did as well. While the reasoning in Amara is supportive of the position that disgorgement
of profits is allowable under Section 502(a)(3), it is not dispositive of the issue nor were the comments
binding precedent.
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 17


have the perverse incentive to deny benefits for as long as possible, risking only
litigation costs in the process. As the U.S. Supreme Court and this court have
recognized, ERISA fiduciaries that pay benefits already operate under an inherent
conflict of interest. See, e.g., Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 112–15
(2008); Judge v. Metropolitan Life Ins. Co., 710 F.3d 651, 664 (6th Cir. 2013). Indeed,
that inherent conflict is “systemic” to an even greater degree than the mishandling of
claims in Hill v. Blue Cross and Blue Shield of Mich.,409 F.3d 710, 718 (6th Cir. 2005).
Insulating LINA from disgorgement in this case would exacerbate the existing systemic
conflict of interest.

        In addition, not every court will find that a plan administrator who acted
arbitrarily and capriciously in denying benefits also breached its fiduciary duty under
§ 404. Although the district court in the instant suit based its breach of fiduciary duty
finding on the fact that LINA had been arbitrary and capricious in its denial of benefits,
the two standards need not be equivalent in every case. In this appeal, LINA argues only
that the finding of breach of fiduciary duty was untimely, not that it was unsupported by
the record, and this panel therefore has no occasion to consider whether the district
court’s finding was appropriate in this case. Nonetheless, there are facts supporting the
finding that LINA breached its fiduciary duty by continually ignoring its own plan
definitions which resulted in wrongly denying benefits for five years after the initial
request. The Rochow I panel explicitly stated,

        LINA’s determination was not the result of a deliberate, principled
        reasoning process. . . . Nor does the decision appear to have been made
        “solely in the interest of the participants and beneficiaries and [ ] for the
        exclusive purpose of [ ] providing benefits to participants and their
        beneficiaries” as required by ERISA. 29 U.S.C. § 1104(a)(1).

482 F.3d at 866.        Accordingly, Plaintiff was entitled to recover benefits under
§ 502(a)(1)(B) and disgorge LINA of its profits under § 502(a)(3).
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                      Page 18


                        C. Calculation of Unjust Enrichment

       The final issue in this appeal is whether the district court committed reversible
error by calculating LINA’s profits using Professor Croson’s ROE metric. As an initial
matter, the parties dispute which standard of review governs this issue. LINA argues
that the district court’s selection of the methodology for calculating damages or profits
for purposes of disgorgement is subject to de novo review. It relies on case law from
other circuits to support that proposition. See Peabody v. Davis, 636 F.3d 368, 373 (7th
Cir. 2011) (“The method of calculating damages is reviewed de novo; the calculations
pursuant to the method are reviewed for clear error.”) (citing Ream Beverage Can Co.
v. Bolger, 620 F.3d 718, 727 (7th Cir. 2010)). Plaintiff contends that the district court’s
decision on disgorgement, as well as its denial of LINA’s Daubert motion, are reviewed
for abuse of discretion, citing the law of this circuit. See United States v. Ford, 64 F.
App’x 976, 983 (6th Cir. 2003) (“This Court ‘reviews a district court’s decision on
disgorgement for abuse of discretion.’”) (quoting SEC v. Johnston, 143 F.3d 260, 262
(6th Cir. 1998) (abrogated on other grounds by Raymond B. Yates, M.D., P.C. Profit
Sharing Plan v. Hendon, 541 U.S. 1 (2004))).

       In applying the abuse of discretion standard to disgorgement, the Sixth Circuit
in Johnston cited the Second Circuit’s decision in SEC v. First Jersey Securities, 101
F.3d 1450, 1474–75 (2d Cir. 1996), cert. denied, 522 U.S. 812 (1997). First Jersey is
instructive:

       The district court has broad discretion not only in determining whether
       or not to order disgorgement but also in calculating the amount to be
       disgorged. See, e.g., SEC v. Lorin, 76 F.3d [458,] 462 [(2d. Cir. 1996)].
       The amount of disgorgement ordered “need only be a reasonable
       approximation of profits causally connected to the violation,” SEC v.
       Patel, 61 F.3d [137,] 139 [2d Cir. 1995)] (internal quotation marks
       omitted); “any risk of uncertainty [in calculating disgorgement] should
       fall on the wrongdoer whose illegal conduct created that uncertainty,” id.
       at 140 (internal quotation marks omitted). We review the district court’s
       order of disgorgement for abuse of discretion. See, e.g., SEC v. Posner,
       16 F.3d 520, 522 (2d Cir. 1994), cert. denied, 513 U.S. 1077 (1995).
No. 12-2074           Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 19


Id. In short, we apply the abuse of discretion standard to a district court’s decision on
disgorgement.

          Turning to the merits, LINA characterizes the figures resulting from Croson’s
calculations as “absurd.” It maintains that Croson’s calculation, which treats the
withheld benefits as general equity, does not constitute a reasonable approximation of
LINA’s unjust enrichment. It contends that Croson’s calculation is flawed because he
based it on LINA’s surplus, which LINA suggests does not fit the legal definition of
profits for purposes of disgorgement. In addition, LINA challenges Croson’s opinion
as unreliable on the basis that his opinion is not supported by a recognized scholarly
authority, and he lacked experience in the insurance industry, invoking Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993).

          Plaintiff argues that the district court correctly found as a factual matter that the
withheld money was available to LINA for investment, operating expenses, or any other
expenses and therefore properly concluded the money should be treated as equity.
Plaintiff also contends that in light of that finding, the district court did not abuse its
discretion in selecting ROE as the metric for determining a reasonable approximation
of LINA’s profits for the purpose of disgorgement. Plaintiff asserts that LINA
mischaracterizes Croson’s testimony when it claims he equated surplus with profits,
when in fact Croson measured profitability by examining the change in surplus over
time. In addition, Plaintiff maintains that the ROE methodology finds support in Ninth
Circuit case law, relying on Nickel v. Bank of Am., 290 F.3d 1134 (9th Cir. 2002). Last,
Plaintiff contends the district court did not abuse its discretion in denying LINA’s
Daubert motion to exclude Croson’s expert testimony.

          The parties agree the district court applied the correct general standards for an
equitable claim of accounting and disgorgement.

          The parties also agree on some matters pertaining to the calculation of profits,
thereby narrowing the issue on review. Specifically, the parties agree on the first three
variables for determining the amount of LINA’s unjust enrichment: (1) the amount of
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 20


the underlying principal that LINA wrongfully withheld from Rochow ($910,629.24);
(2) the period of time LINA withheld that amount; and (3) the fact that interest should
be compounded monthly. The remaining element, the amount of unjust enrichment
LINA derived from the withheld money, turns on the metric used to calculate LINA’s
profits. Here, the parties provided the district court competing metrics: Rochow
advanced the ROE metric, while LINA advanced the retained investment margin metric.

       The district court’s decision to accept Rochow’s ROE metric and reject LINA’s
retained investment approach rested on a pivotal factual finding. The district court
found, as a factual matter, that the wrongfully withheld money was not held by LINA
in a separate investment account but rather was available to LINA to use as bottom line
equity for any business purpose. The district court reasoned that since the wrongfully
withheld funds were available for LINA to use for any business purpose, ROE was the
appropriate metric to apply to arrive at a reasonable approximation of LINA’s unjust
enrichment. The same finding formed the basis for the district court’s holding that LINA
failed to meet its burden of showing its own approximation was correct: it was not
appropriate to use a metric that treated the funds as if they had been held in a separate
account earning only investment income when in fact there was no such separate
account. In reaching these conclusions, the district court relied on the decision of the
Ninth Circuit in Nickel.

       Nickel involved a class action against a trustee bank which, over a period of
fifteen years, unilaterally raised its fees for administering about 2,500 trusts without
consent of the parties or the approval of the probate court. The district court declined
to impose the remedy of accounting and disgorgement, holding, in part, that the plaintiff
was required to trace the numerous overcharges to specific profits, and absent
traceability, any reckoning of the bank’s profits would be speculative. One plaintiff
appealed.

       The Ninth Circuit phrased the fundamental tenet of accounting and disgorgement
as, “if you take my money and make money with it, your profit belongs to me.” 290
F.3d at 1138. Rejecting the district court’s analysis, the Ninth Circuit stated:
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                     Page 21


       Money is fungible. Once in the bank’s accounts as belonging to the
       bank, the specific sums taken from the trusts could never be identified
       again. A requirement of traceability nullifies the bank tortfeasor’s
       obligation to cough up the profits it has made by the use of what it has
       wrongfully taken.
       The district court suggested that proof of the trusts’ share of the bank
       profits was “speculative.” That suggestion is simply a sophisticated
       restatement of the requirement of traceability. There is no speculation as
       to either the bank’s annual profit or as to the share of the bank’s capital
       represented by the overcharges. Once traceability is seen to be a
       chimera, the calculation of what is owed the trusts is straightforward.

Nickel, 290 F.3d at 1138–39. The court in Nickel remanded the case to the district court
to determine the bank’s profits. Id. at 1139. Here, in selecting the ROE metric, the
district court below extracted from Nickel the principle that where funds are not
traceable, an appropriate remedy is to order disgorgement of a proportionate share of the
wrongdoer’s profits.

       The district court in the instant case also couched its decision in terms of the
shifting burden of proof applied in equitable accounting. The court held:

       [T]he Court finds that the Defendant has the burden of proof in
       demonstrating that its accounting is correct, and that uncertainty in
       accounting is resolved against Defendant. The Court finds that
       Defendant has failed to establish that the benefits wrongfully withheld
       from Plaintiff were segregated in a fund that limited profit to “investment
       income,” and thus the Court adopts Plaintiff’s method of determining the
       extent of Defendant’s profits during the relevant period.

(PageID 3576).

       We find that the district court did not abuse its discretion by ordering
disgorgement based on the ROE metric. First, the district court did not abuse its
discretion when it found that LINA held Rochow’s wrongfully withheld money in its
general account where it could be used for any business purpose, as opposed to a
segregated investment account. LINA does not seriously challenge that factual finding,
and indeed LINA’s expert conceded the point.
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                     Page 22


        Second, the district court did not abuse its discretion by selecting ROE as the
metric for calculating a reasonable approximation of LINA’s profits. While there is a
dearth of case law expressly applying the ROE metric to determine unjust enrichment,
selecting ROE as a basis for calculating LINA’s profits does not violate any clearly
established principle of law or equity.

        LINA does not provide authority expressly rejecting ROE as a metric for
disgorgement of profits. Rather, LINA argues that disgorgement must not represent a
general forfeiture or that an award of prejudgment interest must not be excessive or
overcompensate the plaintiff. LINA fails to show concretely how the district court
violated those general principles, however, other than to point to the amount of the
disgorgement, characterizing it as “absurd.”            At bottom, LINA suggests the
disgorgement award must be unlawful because it is large, as it significantly exceeds the
principal amount of benefits LINA wrongfully withheld from Rochow. But that
argument misapprehends the basic concept of equitable accounting, “if you take my
money and make money with it, your profit belongs to me.” Nickel, 290 F.3d at 1138;
see also Restatement (Third) of Restitution & Unjust Enrichment § 51(4) (2011)
(accounting and disgorgement based on net profit).               Since disgorgement is
fundamentally tied to profits, it follows that where profits are sizeable, the disgorgement
will be proportionately sizeable. Consequently, the size of the disgorgement award does
not, by itself, indicate an abuse of discretion.

        LINA’s more nuanced argument concerns whether Croson’s ROE metric even
measures profits. In particular, LINA contends that by employing the ROE metric, the
district court improperly equated surplus with profit. Citing, inter alia, Black’s Law
Dictionary, LINA defines profits as “[t]he excess of revenues over expenditures in a
business transaction.” BLACK’S LAW DICTIONARY 1330 (9th Ed. 2009). Surplus, in
contrast, is “[a] corporation’s net worth. . . .” Id.

        Plaintiff asserts that LINA’s surplus versus profits argument misstates Croson’s
testimony and opinion. Moreover, Plaintiff acknowledges that surplus and profits are
not synonymous and denies ever advancing such a theory. Plaintiff is correct. Croson
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                       Page 23


did not equate surplus with profit, but rather measured the change in surplus over time,
opining LINA’s annual profits could be measured as the percentage increase in its year
end surplus for each year, adjusted for non-profit factors such as infusion of capital from
LINA’s parent, CIGNA. In that regard, LINA’s surplus versus profits argument
oversimplifies, and thereby mischaracterizes, Croson’s opinion.

       Additionally, the district court’s selection of the ROE metric fits the facts of this
case and a common sense approach to reasonable approximation especially under the
principle that any risk of uncertainty in the calculation is counted against LINA, and
given the broad discretion it had sitting as a court of equity. See First Jersey Secs.,
101 F.3d at 1474; Restatement (Third) of Restitution & Unjust Enrichment § 51(5)(d)
(2011). It hardly seems unreasonable for the district court to treat Rochow’s wrongfully
withheld money as equity in approximating profits when, as a factual matter, LINA had
full access to that money as if it had been equity.

       Finally, LINA’s perfunctory Daubert argument merits little discussion. It
addresses only two factors concerning the reliability of Croson’s testimony. First, LINA
asserts Croson lacked any experience in the insurance industry, but that assertion is not
entirely true, as Croson published and taught economics courses that included the
economics of the insurance industry. Second, LINA notes Croson does not identify a
treatise or scholarly work to support his application of the ROE metric to measure
LINA’s profits. While the latter point is accurate, it scarcely provides a basis for
concluding that the district court abused its discretion by admitting Croson’s testimony
and report. LINA also points to inaccuracies in Croson’s first report, but does not deny
that those errors were later corrected. For these reasons, we reject LINA’s Daubert
argument.

       In sum, given the district court’s “broad discretion not only in determining
whether or not to order disgorgement but also in calculating the amount to be
disgorged,” First Jersey Secs., 101 F.3d at 1474, the district court did not abuse its
discretion by adopting Croson’s ROE metric to calculate LINA’s profits for the purpose
of disgorgement.
No. 12-2074      Rochow, et al. v. Life Ins. Co. of N. Am.              Page 24


                               III. CONCLUSION

      For the above reasons, we affirm the district court’s judgment.
No. 12-2074           Rochow, et al. v. Life Ins. Co. of N. Am.                                Page 25


                                      __________________

                                           DISSENT
                                      __________________

         McKEAGUE, Circuit Judge, dissenting.                      The majority has taken an
unprecedented and extraordinary step to expand the scope of ERISA coverage. The
disgorgement of profits undermines ERISA’s remedial scheme and grants the plaintiff
an astonishing $3,797,867.92 windfall under the catchall provision in § 502(a)(3).1 As
this expansion of ERISA is contrary to clear Supreme Court and Sixth Circuit precedent,
I dissent.

         At its core, ERISA is a remedial statute. It does not seek to punish violators, but
rather, attempts to place “the plaintiff in the position he or she would have occupied but
for the defendant’s wrongdoing.” See Ford v. Uniroyal Pension Plan, 154 F.3d 613, 618
(6th Cir. 1998). As the Second Circuit aptly put it, “[t]he aim of ERISA is to make the
plaintiffs whole, but not to give them a windfall.” Henry v. Champlain Enters., Inc.,
445 F.3d 610, 624 (2d Cir. 2006) (internal quotation marks omitted). The key inquiry,
therefore, in determining how to make the plaintiff whole, requires identification of the
nature of the injury suffered.2 In a wrongful denial of benefits case, like this one, every
time there is a denial of benefits, there will necessarily be a withholding of the benefits.
As even plaintiff Rochow has acknowledged, the denial is the injury, and the
withholding is an ancillary effect. Together they comprise a single injury that must be
remedied.

         Plaintiff was made whole when he was paid his disability benefits and attorney’s
fees. If not, an award of prejudgment interest certainly would have made him whole.
See Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d 675,
685–87 (6th Cir. 2013) (indicating that prejudgment interest effectively prevents unjust


         1
          Section 502(a)(3) is also known as the “catchall” provision and is codified at
29 U.S.C. § 1132(a)(3). Section 502(a)(1)(B) is codified at 29 U.S.C. § 1132(a)(1)(B).
         2
           Neither Rochow, nor the majority claims that there is a second injury apart from the denial of
benefits, preferring instead to gloss over this foundational premise by focusing on the perceived benefit
derived by the defendant.
No. 12-2074          Rochow, et al. v. Life Ins. Co. of N. Am.                   Page 26


enrichment in an ERISA benefits case, but noting that such interest must not be
excessive). Allowing Rochow to recover disgorged profits, in addition to denied
benefits, results in an improper repackaging of the benefits claims. Put differently, it
results in a second recovery for the same injury. Such overcompensation contravenes
ERISA’s basic purpose.

       Both the Supreme Court and this Circuit have interpreted ERISA to prevent such
double recoveries. This is precisely why equitable relief under § 502(a)(3) has been
allowed in only three circumstances: (1) where § 502(a)(1)(B) does not already provide
a remedy to the plaintiff; (2) where an injunction under § 502(a)(3) would remedy future
mishandling of claims and an award of benefits under § 502(a)(1)(B) would remedy past
wrongful conduct; and (3) where the § 502(a)(3) claim was distinct and independent
from the § 502(a)(1)(B) claim, but even then, the plaintiff was permitted to recover
under only one of the two theories—he could not recover under both. Notice what is not
allowed: simply repackaging the § 502(a)(1)(B) claim as an equitable claim under
§ 502(a)(3) and thereby obtaining relief for the same injury under both provisions. The
disgorgement award granted by the district court and upheld by the majority, however,
does exactly this.

       The majority’s ruling works a fundamental change in the interplay between
§ 502(a)(1)(B) and § 502(a)(3). This is not authorized by Supreme Court precedent. In
Howe v. Varity Corp., 516 U.S. 489 (1996), the Supreme Court allowed a group of
plaintiffs, who were unable to bring a claim under § 502(a)(1)(B), to bring suit for
breach of fiduciary duty under § 502(a)(3). As the Court explained, Section 502(a)(3)
“functions as a safety net, offering appropriate equitable relief for injuries caused by
violations that § 502 does not elsewhere adequately remedy.” Id. at 513. Importantly,
however, the Court limited this expansion of ERISA coverage by noting “where
Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely
be no need for further equitable relief, in which case such relief normally would not be
appropriate.” Id. at 515 (emphasis added) (internal quotation marks omitted).
No. 12-2074             Rochow, et al. v. Life Ins. Co. of N. Am.                                    Page 27


         Varity emphasizes the adequacy of the relief for the beneficiary’s injury, not the
nature of the defendant’s wrongdoing. By focusing on disgorgement of profits, the
majority turns the analysis on its head. Disgorgement addresses whether the defendant
has wrongfully gained something, not whether the plaintiff has been made whole. This
pivot from the plaintiff’s injuries to the defendant’s wrongdoing directly contravenes the
approach laid out in Varity. Moreover, the majority’s suggestion that such an approach
is permitted because “redress” could be interpreted to mean “to exact reparation for:
avenge” is directly at odds with the Court’s admonition that § 502(a)(3) does not cover
punitive damages. Id. at 509 (citing Mertens v. Hewitt Assoc., 508 U.S. 248, 255,
256–58 (1993)).

         Varity also indicates that equitable relief is not normally appropriate where
Congress elsewhere provides adequate relief for a beneficiary’s injury. If an arbitrary
and capricious denial of benefits implicates a breach of fiduciary duty entitling a plaintiff
to disgorgement of profits, then equitable relief becomes potentially available whenever
a disability-benefit denial is reversed under an arbitrary and capricious standard of
review.3 Such a result flies in the face of the Court’s decision in Varity. It converts the
exception into the rule, the “safety net” into a first-line of attack. Perhaps this is why
plaintiffs and amici do not cite to any ERISA case allowing a disgorgement of profits,
other than disgorgement in the form of prejudgment interest.

         This reading of Varity as controlling the relationship between § 502(a)(1)(B) and
§ 502(a)(3) and as limiting the application of § 502(a)(3) is clearly expressed in Wilkins
v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir. 1998). There, Wilkins applied
for long-term disability benefits, and after plan administrators denied his claim, Wilkins
sued alleging he was entitled to benefits under § 502(a)(1)(B) and to equitable relief
under § 502(a)(3) based upon breach of fiduciary duty. This court denied relief under
§ 502(a)(3) stating:


         3
           Here, the district court concluded that an arbitrary and capricious denial of benefits is ipso facto
a breach of fiduciary duty. R. 67 Order at 5, PageID # 936. Based on this logic, any time there is an
arbitrary and capricious denial of benefits, a plaintiff would have a viable claim for disgorgement of
profits. Such a holding runs counter to Congress’s intent and Varity’s teaching.
No. 12-2074        Rochow, et al. v. Life Ins. Co. of N. Am.                      Page 28


       Because § 1132(a)(1)(B) provides a remedy for Wilkins’s alleged injury
       that allows him to bring a lawsuit to challenge the Plan Administrator’s
       denial of benefits to which he believes he is entitled, he does not have a
       right to a cause of action for breach of fiduciary duty pursuant to
       [§ 502(a)(3)].

Id. at 615. Just like the plaintiff in Wilkins, Rochow’s entitlement to relief under the
catchall provision should be deemed barred as he obtained adequate remedy under
§ 502(a)(1)(B).

       The majority, nonetheless, points to Hill v. Blue Cross and Blue Shield of
Michigan, 409 F.3d 710 (6th Cir. 2005), which recognized an exception to Wilkins. In
Hill, the plaintiffs brought a class-action lawsuit seeking individual relief for denied
benefits under § 502(a)(1)(B) and plan-wide injunctive relief under § 502(a)(3) based
upon defendant’s alleged breach of its fiduciary duty. The district court dismissed the
§ 502(a)(3) claim finding that “these claims were merely repackaged claims for
individual benefits and did not constitute actual fiduciary-duty claims.” Id. at 717. This
court reversed. Whereas Wilkins involved the rejection of fiduciary-duty claims on the
basis that they were actually disguised individual-benefits claims, in Hill the need for
relief under the catchall provision arose out of a defect in plan-wide claim handling
procedures. “The award of benefits to a particular [plaintiff] based on an improperly
denied claim for emergency-medical-treatment expenses will not change the fact that
[defendant] is using an allegedly improper methodology for handling . . . claims.” Id.
at 718. To remedy this injury, the court permitted injunctive relief, not an additional
award of monetary damages. Thus, the Hill court permitted an exception to Varity and
Wilkins because “[o]nly injunctive relief of the type available under § 1132(a)(3) [would]
provide the complete relief sought by Plaintiffs by requiring [Defendants] to alter the
manner in which it administers all the Program’s claims . . . .” Id. at 718 (emphasis
added). Again, as in Varity, the primary purpose of ERISA was satisfied—providing an
adequate remedy to make the plaintiffs whole.

       The present case does not fall within the Hill exception to Varity and Wilkins.
Hill distinguished between the denial of individual claims and plan-wide mishandling
No. 12-2074         Rochow, et al. v. Life Ins. Co. of N. Am.                      Page 29


of claims. These constituted two distinct injuries. Section 502(a)(1)(B) provided relief
for the denial of the Hill plaintiff’s individual benefits, and § 502(a)(3) remedied the
systemic plan-wide problems that posed a potential for future injury. Contrast Hill with
the present case where the only injury is the denial of benefits and the resultant
withholding of those benefits. These injuries are not actually distinct, they have no plan-
wide repercussions, and they are not directly preventing future malfeasance.
Furthermore, the majority has not provided injunctive relief, but rather has granted a
substantial duplicative pay-out. All of this leads to the conclusion that the majority has
improperly applied the narrow exception articulated in Hill. There is no basis for the
repackaging of the denial of benefits claim as a theory warranting equitable relief for the
same injury.

        The majority also invokes Gore v. El Paso Energy Corp. Long Term Disability
Plan, 477 F.3d 833, 840–41 (6th Cir. 2007). The contrast between this case and Gore is
stark. In Gore, the plaintiff alleged wrongful denial of benefits under § 502(a)(1)(B) and
also sought equitable relief under § 502(a)(3). The court allowed the plaintiff to proceed
under the two theories only because the claims were “distinct and unrelated to each
other.” Id. at 841. The disability-benefits claim addressed whether plaintiff was
wrongfully denied benefits by the plan administrators. The equitable-relief claim turned
upon misrepresentations made by the plaintiff’s employer as to how long he would be
covered under a different plan provision. This court allowed both claims to proceed
because the claims involved different defendants and different injuries. Importantly,
however, the court expressly denied recovery on both claims. The plaintiff could
recover under the equitable-relief theory only if he lost on the disability-benefits theory.
Again, this court limited recovery to an adequate remedy. See id. at 841.

        Unlike Gore, this case presents two related, non-distinct claims asserted against
the same defendant. Moreover, the district court actually awarded recovery under both
§ 502(a)(3) and § 502(a)(1)(B). Finally, whereas in Gore the goal was to give the
plaintiff an adequate remedy and not more, the present case grants Rochow a multi-
million dollar windfall, in addition to his relief under § 502(a)(1)(B). Once Rochow
No. 12-2074            Rochow, et al. v. Life Ins. Co. of N. Am.                                 Page 30


recovered under § 502(a)(1)(B), Gore indicates that his duplicative request for catchall
relief should have been denied.

         The majority derives its final support from Parke v. First Standard Life
Insurance Co., 368 F.3d 999 (8th Cir. 2003). The Eighth Circuit in Parke required a
business under § 502(a)(3) “to disgorge any profits made by breaching” its fiduciary
duty. Id. at 1008. Because “interest is an appropriate measure of the profits made by a
defendant who breaches its fiduciary duty,” the court awarded prejudgment interest. Id.
at 1009. While this dicta is relatively broad, the court’s actual holding is far narrower,
focusing entirely on the issue of interest, not profits. “In sum, we hold that an award of
interest on wrongfully delayed benefits remains permissible under § 1132
(a)(3)(B) . . . .” Id. (emphasis added). It should also be noted that the total interest
disgorged in Parke was less than $700. Thus, Parke stands for the proposition that
prejudgment interest may be afforded as an appropriate equitable relief under § 502(a)(3)
to make the plaintiff whole. Id. at 1009 (“Interest is, in many respects, the only way to
account for this gain and therefore is an appropriate measure of the extent to which [the
insurer] was unjustly enriched.” (emphasis added)). The notion that Parke legitimately
supports a $3.7 million payout of purported “profits,” irrespective of its relation to
plaintiff’s injury, not only is contrary to Supreme Court and Sixth Circuit precedent, but
is simply without basis.4

         The cases discussed above lead to the conclusion that a person is entitled to
§ 502(a)(3) relief in addition to § 502(a)(1)(B) relief only when the catchall would
remedy a distinct injury. As Rochow was fully compensated and made whole by an
award under § 502(a)(1)(B), and as he sustained only one injury—the denial of
benefits—there was no need to resort to the catchall provision. Additional equitable


         4
           Characterizing the award of “profits” as prejudgment interest does not operate as a deus ex
machina to resolve the inherent problems in the majority opinion. This court has previously found that
an excessive award of prejudgment interest may cross the line from remedial to punitive and in the process
violate ERISA. Ford, 154 F.3d at 618–19; see also Schumacher, 711 F.3d at 686 (“An excessive pre-
judgment interest award may contravene ERISA’s remedial goal of simply placing the plaintiff in the
position he or she would have occupied but for the defendant’s wrongdoing. Similarly, an exceedingly low
pre-judgment interest rate fails to make the plaintiff whole.”). The profits in this case, if considered as
“interest,” would undoubtedly be considered excessive. Rochow has received, under the guise of “profits,”
nearly quadruple the total amount of benefits due to him.
No. 12-2074           Rochow, et al. v. Life Ins. Co. of N. Am.                                Page 31


relief, particularly relief as excessive as this, punishes the defendant and grants the
plaintiff a windfall that is inconsistent with the remedial nature of ERISA and Supreme
Court and Sixth Circuit precedent.

         Furthermore, disgorgement under the circumstances of this case fundamentally
alters how denied disability-benefits claims are litigated, forcing district courts to wrestle
with complex calculations of profits5 and raising the specter that any claimant who was
arbitrarily and capriciously denied benefits would have a viable claim for disgorgement.
“A primary goal of ERISA was to provide a method for workers and beneficiaries to
resolve disputes over benefits inexpensively and expeditiously.” Perry v. Simplicity
Eng’g, 900 F.2d 963, 967 (6th Cir. 1990). The majority’s approach is completely
counter to this underlying objective. It increases the cost and complexity of ERISA
litigation, resulting in more expert testimony, discovery motions, and evidentiary
hearings, which inevitably will force the district court “to consider evidence from both
parties that was not presented to the plan administrator [which] would seriously impair
the achievement of [ERISA’s goals.]” Id.

         In conclusion, the majority’s approach is an end run around the limitations placed
on the use of § 502(a)(3) and is willfully blind to the negative repercussions that
undoubtedly will ensue. As § 502(a)(1)(B) provided an adequate remedy, compensation
under § 502(a)(3) was unnecessary. For these reasons, I dissent.




         5
           One need only refer to the district court’s Order Setting Method of Accounting and the Order
Granting in Part and Denying in Part Plaintiff’s Motion for Equitable Accounting in the present case to
recognize what a complex and convoluted process this entails. Forcibly marching district courts into such
a mire is unwarranted, unwise, and contrary to law.
