                                         PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                         No. 12-1581
                         ___________

                 CONNIE J. EDMONSON,
           individually and on behalf of all others
                      similarly situated

                              v.

 LINCOLN NATIONAL LIFE INSURANCE COMPANY
           _______________________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
          D.C. Civil Action No. 2-10-cv-04919
            (Honorable Michael M. Baylson)
                    ______________

                 Argued November 13, 2012

Before: SCIRICA, FISHER, and JORDAN, Circuit Judges.

                   (Filed: August 7, 2013)


M. Scott Barrett, Esq.
Barrett & Associates
320 West 8th Street
Suite 100, P.O. Box 5233
Bloomington, IN 47407

John C. Bell, Jr., Esq. (ARGUED)
Lee W. Brigham, Esq.
Bell & Brigham
457 Greene Street
Augusta, GA 30901

Jeffrey G. Casurella, Esq.
Suite 310
400 Interstate North Parkway
Atlanta, GA 30339

Cary L. Flitter, Esq.
Flitter Lorenz
450 North Narberth Avenue
Suite 101
Narberth, PA 19072
   Counsel for Appellant Connie J. Edmonson

David H. Pittinsky, Esq. (ARGUED)
Joel E. Tasca, Esq.
Ruth S. Uselton, Esq.
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
   Counsel for Appellee Lincoln National Life Insurance
   Company

Waldemar J. Pflepsen, Jr. Esq.




                                 2
Jorden Burt
1025 Thomas Jefferson Street, N.W.
Suite 400 East
Washington, DC 20007
   Counsel for Amicus Curiae American Council of Life
   Insurers

                    _________________

                OPINION OF THE COURT
                   _________________

SCIRICA, Circuit Judge.

       Plaintiff Connie Edmonson was a beneficiary of a life
insurance plan established by her employer and governed by
the Employee Retirement Income Security Act of 1974
(ERISA). Defendant Lincoln National Life Insurance Co.
chose to pay her benefits using a retained asset account,
which allowed it to hold onto the benefits and invest them for
its own profit until Edmonson affirmatively chose to
withdraw them from the account.

       Edmonson claims Lincoln breached its fiduciary duty
of loyalty under ERISA and seeks disgorgement of the profit
Lincoln earned by investing the benefits owed to her. The
District Court granted summary judgment in Lincoln’s favor,
concluding Lincoln was not acting in a fiduciary capacity
when it took the actions subject to complaint. We will affirm.

                       I. Background




                              3
       Connie Edmonson’s husband was insured under a
group life insurance policy issued by Lincoln. The policy was
established under an ERISA employee benefit plan sponsored
by Edmonson’s employer, Schurz Communications. When
her husband died, Edmonson was entitled to $10,000 in
benefits. The policy states, “[u]pon receipt of satisfactory
proof of a Dependent’s death while insured under this Policy,
the Company will pay the amount of the Dependents [sic]
Life Insurance in effect on the date of such death,” and that
“[a]ny benefits payable under this Policy will be paid
immediately after the Company receives complete proof of
claim.” The policy does not state that Lincoln will pay the
benefits using a retained asset account and does not otherwise
specify how Lincoln was to pay Edmonson the benefits.

       Edmonson submitted a claim form to Lincoln for
payment. The form stated that when the benefits are greater
than $5,000, Lincoln’s usual method of payment is to open a
SecureLine Account in the beneficiary’s name. After Lincoln
approved Edmonson’s claim, it set up a SecureLine Account
in her name in the amount of $10,000, and sent her a
checkbook from which she could draw checks on the account.
Lincoln explained to Edmonson that she would receive
interest on the account in the amount of the Bloomberg
national average rate for interest-bearing checking accounts
plus 1%. Lincoln also explained that if Edmonson wanted the
entire proceeds immediately, all she had to do was write one
check for the entire balance.

       The SecureLine Account was a retained asset account.
When distributing benefits using retained asset accounts, an
insurance company does not deposit any funds into the
account. Rather, it merely credits the account with the




                              4
benefits, and when a beneficiary writes a check on the
account, the insurance company transfers funds into the
account to cover the check. Until that time, the insurance
company retains the money owed to the beneficiary (the
“retained assets”), and can invest the retained assets for its
own profit.

       Three months after Lincoln set up the SecureLine
Account, Edmonson withdrew the full amount of the
insurance proceeds. Lincoln wrote her a check for $52.33 of
interest. Edmonson contends that the profit Lincoln earned
from investing the retained assets was greater than the amount
of interest paid to her, and that Lincoln made approximately
$5 million in profit in 2009 by investing retained assets
credited to her account and the accounts of other
beneficiaries.

        Edmonson brought an ERISA claim contending
Lincoln violated its fiduciary duties under ERISA by
choosing to pay her using a retained asset account and by
investing the retained assets for its own profit. She contends
ERISA’s fiduciary duties were implicated because both acts
involved exercising “discretionary authority or discretionary
control respecting management” or “administration” of an
ERISA plan and exercising “authority or control respecting
management or disposition of [plan] assets.” 29 U.S.C. §
1002(21)(A) (setting forth the various functions that trigger
ERISA fiduciary duties). She argues Lincoln’s acts breached
its fiduciary duties because these actions were not taken for
her exclusive benefit and because they involved self-dealing.
See id. § 1104(a)(1) (“[A] fiduciary shall discharge his duties
with respect to a plan solely in the interest of the participants
and beneficiaries and . . . for the exclusive purpose of . . .




                               5
providing benefits to participants and their beneficiaries.”);
id. § 1106(b)(1) (“A fiduciary with respect to a plan shall not
. . . deal with the assets of the plan in his own interest or for
his own account.”). Edmonson seeks disgorgement of the
profits earned by Lincoln from the investment of the retained
assets under 29 U.S.C. § 1132(a)(3), which allows a
participant, beneficiary, or fiduciary to obtain equitable relief
to redress violations of ERISA.

        Lincoln moved to dismiss, arguing Edmonson lacked
both constitutional and statutory standing to bring her claim.
It also argued it was not acting as a fiduciary under ERISA
when it took the actions subject to complaint and, even if it
were, it did not breach any fiduciary duty by taking these
actions. See Edmonson v. Lincoln Nat’l Life Ins. Co., 777 F.
Supp. 2d 869, 876 (E.D. Pa. 2011). The trial court rejected all
of Lincoln’s arguments. Id. at 874. The court first concluded
Edmonson had standing under Article III because she
suffered an injury-in-fact based on the amount of the spread
between the interest Lincoln paid to her and the profit it
earned by investing the retained assets. Id. at 881. The court
then concluded Edmonson had statutory standing under
ERISA, rejecting Lincoln’s argument that Edmonson was no
longer a “beneficiary” of an ERISA plan once the SecureLine
Account was closed. Id. at 883. Finally, the court concluded
Edmonson had sufficiently alleged that Lincoln breached its
fiduciary duties under ERISA. Id. at 892.

       Following discovery, Lincoln moved for summary
judgment on the ground that it was not a fiduciary under
ERISA when it took the contested actions. Edmonson moved
for partial summary judgment on the same issue. Edmonson
also moved to certify a class of individuals who were paid




                               6
ERISA benefits by Lincoln via a retained asset account. The
court granted Lincoln’s motion for summary judgment,
denied Edmonson’s motion for partial summary judgment,
and dismissed as moot Edmonson’s motion for class
certification. Edmonson v. Lincoln Nat’l Life Ins. Co., 899 F.
Supp. 2d 310, 313 (E.D. Pa. 2012). The court concluded
Lincoln’s actions were not governed by ERISA fiduciary
duties because the acts did not involve the administration or
management of the plan and did not involve exercising
authority or control over plan assets. Edmonson appeals,
contending the court erred with respect to both conclusions.1

                   II. ERISA’s Fiduciary Principles

       “‘ERISA is a comprehensive statute designed to
promote the interests of employees and their beneficiaries in
employee benefit plans.’” Ingersoll-Rand Co. v. McClendon,
498 U.S. 133, 137 (1990) (quoting Shaw v. Delta Air Lines,
Inc., 463 U.S. 85, 90 (1983)). To protect participants in
employee benefit plans and their beneficiaries, ERISA
“‘establish[es] standards of conduct, responsibility, and
obligation for fiduciaries of employee benefit plans.’” Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44 (1987) (quoting 29
U.S.C. § 1001(b)). ERISA defines the circumstances under
which a person or entity is a fiduciary, sets forth the duties of
these fiduciaries, and provides various causes of action
designed to promote the enforcement of these duties.

       Under ERISA,

1
 The District Court had jurisdiction under 28 U.S.C. § 1331
and 29 U.S.C. § 1132(e)(2). We have jurisdiction under 28
U.S.C. § 1291.




                               7
       a person is a fiduciary with respect to a plan to
       the extent (i) he exercises any discretionary
       authority or discretionary control respecting
       management of such plan or exercises any
       authority or control respecting management or
       disposition of its assets, (ii) he renders
       investment advice for a fee or other
       compensation, direct or indirect, with respect to
       any moneys or other property of such plan, or
       has any authority or responsibility to do so, or
       (iii) he has any discretionary authority or
       discretionary      responsibility     in      the
       administration of such plan.

29 U.S.C. § 1002(21)(A). “‘ERISA . . . defines ‘fiduciary’
not in terms of formal trusteeship, but in functional terms of
control and authority over the plan.’” In re Unisys Corp.
Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 228 (3d
Cir. 2009) (alteration and emphasis in original) (quoting
Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993)).
“Accordingly, ‘[f]iduciary duties under ERISA attach not just
to particular persons, but to particular persons performing
particular functions.’” Id. (alteration in original) (quoting
Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1158 (3d
Cir. 1990)). The definition of a fiduciary under ERISA is to
be broadly construed. Curcio v. John Hancock Mut. Life Ins.
Co., 33 F.3d 226, 233 (3d Cir. 1994) (citing Smith v. Hartford
Ins. Grp., 6 F.3d 131, 141 n.13 (3d Cir. 1993)).

       Among other duties, ERISA requires that a fiduciary
“discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . for the
exclusive purpose of . . . providing benefits to participants




                               8
and their beneficiaries.” 29 U.S.C. § 1104(a)(1). ERISA
further requires that “[a] fiduciary with respect to a plan shall
not . . . deal with the assets of the plan in his own interest or
for his own account.” Id. § 1106(b). At least in one respect,
these duties can be characterized as a fiduciary’s duty of
loyalty.

        Edmonson contends Lincoln was acting as a fiduciary
both when it chose to pay her using a retained asset account
and when it later invested the retained assets for its own
profit. She argues both acts were constrained by fiduciary
duties because the acts involved the management or
administration of the plan, or alternatively, because the acts
involved exercising authority or control over plan assets.
Lincoln argues that it was no longer acting as an ERISA
fiduciary when it took the challenged acts and, alternatively,
that these acts did not breach its duty of loyalty.

        ERISA provides for private enforcement of its duties
by creating causes of action available to participants,
beneficiaries, and fiduciaries. Edmonson brings her
disgorgement claim under 29 U.S.C. § 1132(a)(3), which
allows a participant, beneficiary, or fiduciary to bring a cause
of action “(A) to enjoin any act or practice which violates any
provision of [ERISA] 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 [ERISA] or the terms of
the plan.” The Supreme Court has described §1132(a)(3) as a
“catchall” provision which “act[s] as a safety net, offering
appropriate equitable relief for injuries caused by violations
that § [1132] does not elsewhere adequately remedy.” Varity




                               9
Corp. v. Howe, 516 U.S. 489, 512 (1996) (quotation
omitted).2

                         III. Standing

       On appeal, amicus American Council of Life Insurers
argues Edmonson lacks standing to bring her claim because
she suffered no injury-in-fact, as she received all the benefits
owed to her under the policy, plus interest. The District Court
rejected this argument, concluding Lincoln’s failure to pay
Edmonson the full amount of the profit it earned from
investing the retained assets constituted for standing purposes
an injury-in-fact. The court concluded Edmonson’s injury
was the “spread” between the interest Lincoln earned by
investing the retained assets and the interest it paid to her.
Edmonson, 777 F. Supp. 2d at 881. The court rejected
Lincoln’s argument that Edmonson suffered no injury merely
because she received all she was entitled to under the plan
and policy. See id.

       Although Lincoln did not appeal this ruling, “federal
courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore they
must raise and decide jurisdictional questions that the parties

2
  Based on the language of § 1132, “[t]he Supreme Court has
reasoned that ‘[e]quitable relief must mean something less
than all relief,’ and therefore it has explained that §
1132(a)(3) authorizes only ‘those categories of relief that
were typically available in equity,’” i.e., not claims available
at law. Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292,
306 (3d Cir. 2008) (quoting Great-West Life & Annuity Ins.
Co. v. Knudson, 534 U.S. 204, 210 (2002)).




                              10
either overlook or elect not to press.” Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011). We
review the legal conclusions related to standing de novo, “but
review for clear error the factual elements underlying the
District Court’s determination of standing.” Gen. Instrument
Corp. v. Nu-Tek Elecs. & Mfg., 197 F.3d 83, 86 (3d Cir.
1999).

        Article III of the United States Constitution “limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
“Courts enforce the case-or-controversy requirement through
the several justiciability doctrines that ‘cluster about Article
III.’” Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131,
137 (3d Cir. 2009) (quoting Allen v. Wright, 468 U.S. 737,
750 (1984)). These doctrines “include standing, ripeness,
mootness, the political-question doctrine, and the prohibition
on advisory opinions.” Id. Standing is “perhaps the most
important of these doctrines.” Allen, 468 U.S. at 750.

        “[T]he irreducible constitutional minimum of standing
contains three elements.” Lujan, 504 U.S. at 560. First, the
plaintiff must suffer an injury-in-fact that is concrete and
particularized and actual or imminent, as opposed to
conjectural or hypothetical. Id. Second, “there must be a
causal connection between the injury and the conduct
complained of—the injury has to be ‘fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not before the
court.’” Id. (alterations in original) (quoting Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). “Third, it
must be likely, as opposed to merely speculative, that the




                               11
injury will be redressed by a favorable decision.” Id.
(quotation omitted).

         We begin with the first requirement, injury-in-fact.
Generally, disgorgement claims for breach of fiduciary duty
do not require that a plaintiff suffer a financial loss, as relief
in a disgorgement claim “is measured by the defendant’s
profits.” Restatement (Third) on Restitution and Unjust
Enrichment § 51 cmt. a (2011); see also id. § 43 cmt. d
(stating a claim based on a breach of the duty of loyalty may
be brought “without regard to economic injury”); id.
(providing examples where fiduciary is liable for gains even
though plaintiff suffered no loss). This is because
disgorgement claims seek not to compensate for a loss, but to
“deprive[] wrongdoers of ill-gotten gains.” Commodity
Futures Trading Comm’n v. Am. Metals Exchange Corp., 991
F.2d 71, 76 (3d Cir. 1993) (quotation omitted). See S.E.C. v.
Huffman, 996 F.2d 800, 802 (5th Cir. 1993) (“[D]isgorgement
is . . . an equitable remedy meant to prevent the wrongdoer
from enriching himself by his wrongs . . . .” (citations
omitted)).3 A requirement of a net financial loss would allow

3
  In contrast, a claim for restitution seeks to compensate a
plaintiff for a loss, so a financial loss is required to bring such
a claim. As the Court of Appeals for the Fifth Circuit has
explained, “disgorgement is not precisely restitution.
Disgorgement wrests ill-gotten gains from the hands of a
wrongdoer. It is an equitable remedy meant to prevent the
wrongdoer from enriching himself by his wrongs.
Disgorgement does not aim to compensate the victims of the
wrongful acts, as restitution does.” Huffman, 996 F.2d at 802
(citations omitted).




                                12
fiduciaries to retain ill-gotten profit—exactly what
disgorgement claims are designed to prevent—so long as the
breaches of fiduciary duty do not harm the plan or
beneficiaries. Accordingly, the nature of disgorgement claims
suggest that a financial loss is not required for standing, as a
loss is not an element of a disgorgement claim.

        The principles of ERISA provide further support for
this conclusion. ERISA’s duty of loyalty bars a fiduciary
from profiting even if no loss to the plan occurs. Under 29
U.S.C. § 1109(a), ERISA provides that plans can recover that
profit whether or not the plan suffered a financial loss. See
Leigh v. Engle, 727 F.2d 113, 122 (7th Cir. 1984) (“ERISA
clearly contemplates actions against fiduciaries who profit by
using trust assets, even where the plan beneficiaries do not
suffer direct financial loss.”).4 “The purpose behind this rule
is to deter the fiduciary from engaging in disloyal conduct by
denying him the profits of his breach.” Amalgamated
Clothing & Textile Workers Union v. Murdock, 861 F.2d


4
  Nothing in the text of ERISA suggests a beneficiary must
suffer a financial loss in order to bring a suit against a
fiduciary for breach of the duty of loyalty. The duty of loyalty
is unqualified, as ERISA provides that a fiduciary “shall . . .
discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . for the
exclusive purpose of . . . providing benefits to participants
and their beneficiaries” and that the fiduciary “shall not . . .
deal with the assets of the plan in his own interest or for his
own account.” 29 U.S.C. §§ 1104(a)(1), 1106(b) (emphases
added).




                              13
1406, 1411 (9th Cir. 1988) (citing G. Bogert and G. Bogert,
The Law of Trusts and Trustees § 543, at 218 (2d ed. 1978)).5

       Notwithstanding these principles, the amicus contends
our decision in Horvath v. Keystone Health Plan East, Inc.,
333 F.3d 450 (3d Cir. 2003), requires a plaintiff to show a
financial loss in order to have standing to bring a
disgorgement claim. The plaintiff’s claim in Horvath was that
her HMO failed to disclose details of cost-control incentives
offered to participating physicians, and thus violated ERISA’s
duty to make full disclosures. She sued for restitution,
disgorgement, and an injunction barring the defendant from
omitting information regarding physician incentives from its
disclosures to plan members. Id. at 455. We first concluded
the plaintiff did not need to “demonstrate actual harm in order
to have standing to seek injunctive relief.” Id. at 456. But
because her claims for restitution and disgorgement sought
monetary relief for herself, as opposed to the plan, we
concluded those claims “are individual in nature and therefore

5
  These principles are consistent with the law of trusts, which
“often will inform, but will not necessarily determine the
outcome of, an effort to interpret ERISA’s fiduciary duties.”
Varity Corp., 516 U.S. at 497. A financial loss is not a
requirement for a disgorgement claim under trust law. See
Restatement (Third) of Trusts § 100 cmt. c (explaining a
trustee “is liable for any profit he has made through his
breach of trust even though the trust has suffered no loss”);
see also Scanlan v. Eisenberg, 669 F.3d 838, 846 (7th Cir.
2012) (holding a plaintiff had standing to bring a state law
disgorgement claim even though her ultimate distributions
were not diminished by the breach of fiduciary duty).




                              14
require her to demonstrate individual loss.” Id. (citing In re
Unisys Sav. Plan Litig., 173 F.3d 145, 159 (3d Cir. 1999)).
She acknowledged, however, she had suffered no direct
financial loss and conceded “that the care and coverage she
received as a member of the [HMO] was never affected by
the existence of physician incentives.” Id. Instead, she
contended her injury was that her firm overpaid for the
healthcare she received and that, absent the breach, the firm
would have passed any savings on to her. Id. We rejected this
“diminished value” theory of injury as a means to satisfy the
injury-in-fact requirement. Id. at 456-57. We also concluded
the plaintiff’s theory was “far too speculative to serve as the
basis for a claim of individual loss” because it rested “not
only on the troublesome assumption that a factfinder can
accurately determine the amount [the plaintiff’s] firm
allegedly overpaid [the HMO], but also on the notion that the
firm would have passed these savings on to its employees in
the form of a higher salary or additional benefits.” Id. at 457.

        Our decision in Horvath did not revolve around
whether the plaintiff suffered a financial loss. The Horvath
plaintiff never contended she suffered a financial loss, as her
employer paid all the premiums to the HMO and did not
make any deductions from employee paychecks. Id. at 452.
Despite this fact and her concession that she received all she
was entitled to under the plan, we went on to determine
whether she nevertheless had demonstrated an individual loss.
Accordingly, we doubt Horvath should be read to require a
financial loss. Nothing in Horvath, beyond any possible
connotation of the word “loss,” states or implies that a net
financial loss is required for standing to bring a disgorgement
claim. Accordingly, we disagree with the amicus’ contention




                              15
that Horvath requires a financial loss for standing to bring a
disgorgement claim.

        Rather, the question in Horvath was whether the
plaintiff could bring individual claims for restitution and
disgorgement or whether any relief had to be sought by the
plan.6 She contended that her firm overpaid for the healthcare
she received due to the defendant’s breach. But because she
sought relief for herself individually, we stated she must show
an individual right to recover those overpayments. She
attempted to do by arguing that she would have received
more benefits or a higher salary absent the breach, but she
failed to make this showing. Any injury, and thus any right to
relief, accrued only to the plan, not to the individual plan
members. Accordingly, we believe Horvath holds that a
plaintiff must show she has an individual right to the

6
  Notably, for the proposition that an “individual loss” is
required, the Horvath court cited to In re Unisys Savings Plan
Litigation, 173 F.3d at 159, which in turn cited to Varity
Corp., 516 U.S. at 507-15. These cases neither discuss the
requirements for a disgorgement claim nor provide any
support for an argument that a financial loss is required for
standing to bring a disgorgement claim. Rather, like Horvath,
both of these cases focus on the difference between a claim
brought by an individual and a claim brought on behalf of the
plan. See Varity Corp., 516 U.S. at 507-15 (comparing causes
of action under ERISA available to plans and individuals); In
re Unisys, 173 F.3d at 159 (concluding the plaintiff’s claim
failed because his expert “referred only to those losses
incurred by the Fund and not to any losses incurred by
individual participants named as plaintiffs”).




                              16
defendant’s profit and that when a plan has the right to the
profit, the individual plaintiff has not suffered a constitutional
injury.

        Therefore, we conclude a financial loss is not a
prerequisite for standing to bring a disgorgement claim under
ERISA. As discussed, such a rule would be contrary to the
nature of a disgorgement claim, principles of trust law, and
principles of ERISA. Edmonson is seeking recovery based on
Lincoln’s use of assets that belonged to her. Unlike in
Horvath, any right to recover belongs to her, not to the plan,
and there has been no suggestion to the contrary.
Accordingly, we agree with the District Court that, for
standing purposes, Edmonson incurred an injury-in-fact
because she “suffered an individual loss, measured as the
‘spread’ or difference” between the profit Lincoln earned by
investing the retained assets and the interest it paid to her.
Edmonson, 777 F. Supp. 2d at 881; see also Vander Luitgaren
v. Sun Life Ins. Co. of Canada, No. 09-11410, 2010 WL
4722269, at *1 (D. Mass. Nov. 18, 2010) (rejecting argument
that plaintiff lacked standing to sue for disgorgement of profit
earned via a retained asset account). But see Faber v. Metro.
Life Ins. Co., No. 08-10588, 2009 WL 3415369, at *5
(S.D.N.Y. Oct. 23, 2009) (reaching opposite conclusion).7

7
  Although the Court of Appeals for the Second Circuit
affirmed the district court in Faber, 648 F.2d 98 (2d Cir.
2011), the issue regarding standing for disgorgement claims
was not addressed on appeal. The Second Circuit only
discussed whether the plaintiff had constitutional standing to
seek injunctive relief, id. at 103, and explicitly declined to
reach the question of whether the plaintiff had standing to
seek disgorgement, id. (“[O]ur merits analysis does not




                               17
        Finally, the amount of the alleged injury, Lincoln’s
profit, is not hypothetical or speculative. There is evidence of
how much profit Lincoln earned by making investments with
its general asset pool, in which the retained assets were held.
It is a question of mathematics to determine how much of
Lincoln’s profit was the result of its investment of
Edmonson’s $10,000. Importantly, Edmonson’s claim is not
that, had Lincoln not set up the SecureLine Account, she
would have invested the retained assets on her own.
Accordingly, it does not matter that there is no evidence of
how she would have used the benefits had they not been
retained by Lincoln.

       To summarize, an ERISA beneficiary suffers an
injury-in-fact sufficient to bring a disgorgement claim when a
defendant allegedly breaches its fiduciary duty, profits from
the breach, and the beneficiary, as opposed to the plan, has an
individual right to the profit.8 As Edmonson has met these
requirements, we conclude that for standing purposes she
suffered an injury-in-fact..



depend on whether Faber also has standing to seek
disgorgement . . . . In light of our ultimate conclusion that the
complaint fails to state a claim, we are not required to answer
th[is] question[].”).
8
  As Horvarth demonstrates, not every breach of duty will
cause beneficiaries to suffer an injury-in-fact sufficient to
bring a disgorgement claim. In cases like Horvath, when the
right to a defendant’s profit belongs to the plan, a beneficiary
has not suffered a constitutional injury.




                               18
        The second requirement of Article III standing,
causation, requires that “the alleged injury-in-fact is causally
connected and traceable to an action of the defendant[].” The
Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000); see
Lujan, 504 U.S. at 560. We have described this requirement
as akin to “but for” causation and found the traceability
requirement met even where the conduct in question might
not have been a proximate cause of the harm, due to
intervening events. The Pitt News, 215 F.3d at 360-61
(finding traceability requirement met where regulation was
cause-in-fact of newspaper’s lost revenue when third parties
stopped buying advertisements because of the regulatory
action). Lincoln’s acts of selecting the method of payment
and then investing the retained assets allowed Lincoln to
profit. Edmonson could have prevented Lincoln from
profiting after it set up the SecureLine Account by
immediately withdrawing all of her benefits. Nevertheless, we
conclude Edmonson’s injury—Lincoln’s decision to keep the
profit for itself—is “fairly traceable” to its initial decision to
pay her via the retained asset account. Allen, 468 U.S. at 751.

       The final element of constitutional standing is
redressability, which requires that “it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan, 504 U.S. at 561
(quotation omitted). Edmonson contends she is entitled to
Lincoln’s profit via disgorgement.9 Therefore, we conclude

9
  For standing purposes, we assume without deciding that
Edmonson is correct that ERISA’s disgorgement remedy
would entitle her to Lincoln’s profit even though it complied
with its contractual requirement to pay her interest at an
agreed-upon rate.




                               19
Edmonson has standing under Article III to bring her
disgorgement claim against Lincoln for allegedly breaching
its fiduciary duty of loyalty.

                     IV. Statutory Standing

        In addition to having Article III standing, an ERISA
plaintiff must also have statutory standing. Graden v.
Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007).
“Statutory standing is simply statutory interpretation,” and we
ask whether the remedies provided for in ERISA allow the
particular plaintiff to bring the particular claim. Id. As
discussed, Edmonson seeks disgorgement under § 1132(a)(3),
which only provides for “appropriate equitable relief.”

        Lincoln argues that not all disgorgement is necessarily
equitable in nature, relying on Great-West Life & Annuity Ins.
Co. v. Knudson, 534 U.S. 204 (2002). In Great-West Life, the
Court held that relief under § 1132(a)(3) is only available
when a plaintiff seeks equitable restitution, as opposed to
restitution available only at law. The Court explained that
“not all relief falling under the rubric of restitution is
available in equity. In the days of the divided bench,
restitution was available in certain cases at law, and in certain
others at equity.” Id. at 212. For example, when a “plaintiff
could not assert title or right to possession of particular
property, but . . . nevertheless might be able to show just
grounds for recovering money . . . the plaintiff had a right to
restitution at law.” Id. at 213 (quotation omitted). “In
contrast, a plaintiff could seek restitution in equity, ordinarily
in the form of a constructive trust or an equitable lien, where




                               20
money or property identified as belonging in good conscience
to the plaintiff could clearly be traced to particular funds or
property in the defendant’s possession.” Id. The Court further
explained that “for restitution to lie in equity, the action
generally must seek not to impose personal liability on the
defendant,” as a claim for breach of contract does. Id. at 214.
Rather, restitution lies in equity when the relief seeks “to
restore to the plaintiff particular funds or property in the
defendant’s possession.” Id. at 214.10

        The Court noted, however, that “an accounting for
profits, a form of equitable restitution,” is a “limited
exception” to its rule defining the nature of equitable
remedies. Id. at 214 n.2. “If, for example, a plaintiff is entitled
to a constructive trust on particular property held by the
defendant, he may also recover profits produced by the
defendant’s use of that property, even if he cannot identify a
particular res containing the profits sought to be recovered.”
Id. The relief sought by Edmonson falls within this exception
to the general principles established in Great-West Life, as
disgorgement and accounting for profits are essentially the
same remedy. See Restatement (Third) on Restitution and

10
   When we distinguished restitution from disgorgement
above, we were using the term restitution to refer to a
particular remedy. Restitution, however, can also be used
more generally “as a metonym for the class of remedies
particularly identified” with unjust enrichment. See F.T.C. v.
Bronson Partners, LLC, 654 F.3d 359, 370 (2d Cir. 2011).
The Court in Great-West Life was using the term in the latter
sense and, accordingly, its analysis applies to claims for
disgorgement.




                                21
Unjust Enrichment § 51(4); id. cmt. a (“Restitution measured
by the defendant’s wrongful gain is frequently called
‘disgorgement.’ Other cases refer to an ‘accounting’ or an
‘accounting for profit.’”); see also Great-West Life, 534 U.S.
at 217 (instructing courts to look to the Restatements for
guidance). The disgorgement remedy is equitable even
though Lincoln no longer has possession of the retained
assets, making a claim for a constructive trust unnecessary.
See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 213
(3d Cir. 2004) (concluding that a claim to recover interest
earned on illegally retained benefits is equitable under Great-
West Life even though the defendant had voluntarily paid the
benefits over to the plaintiff, meaning that no constructive
trust over the benefits was required). Accordingly, we
conclude Edmonson’s claim for disgorgement, which is akin
to an accounting for profits, is an equitable remedy available
under ERISA and Great-West Life.11

                           V. Merits



11
  The dissent concludes Edmonson lacks statutory standing
because she cannot demonstrate she would be entitled to a
constructive trust over the retained assets, as the dissent
contends Edmonson had legal title over the assets (we
question whether Edmonson had legal title over $10,000 that
had not been segregated from Lincoln’s general asset pool
and over which Lincoln had complete control). More
importantly, whether Edmonson could have asserted a
constructive trust over the retained assets goes to the merits of
her claim, not to statutory standing.




                               22
       We now turn to the merits of Edmonson’s claim that
Lincoln breached its ERISA duty of loyalty. The trial court
concluded Lincoln was not acting as a fiduciary when it took
the actions subject to complaint and granted Lincoln’s motion
for summary judgment.12

       To recapitulate, Edmonson contends Lincoln violated
ERISA when it selected the SecureLine Account as the
method of payment and again when it invested the retained
assets for its own profit. She argues both of these acts
triggered ERISA fiduciary duties because they involved the
management or administration of the plan, or alternatively, an
exercise of authority or control over plan assets. Lincoln
acted as a fiduciary if either of the two challenged actions
involved either type of conduct.

       Whether the use of retained asset accounts runs afoul
of ERISA is a question of first impression in this circuit. Two
of our sister circuits have considered this question, but have
come to different conclusions. See Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 107 (2d Cir. 2011) (concluding the use of a
retained asset account did not violate ERISA when the
insurance policy provided for it); Mogel v. UNUM Life Ins.
Co., 547 F.3d 23, 26-27 (1st Cir. 2008) (concluding the use of
a retained asset account did violate ERISA when the
insurance policy required a lump sum payment). The parties

12
   “We review a district court’s grant of summary judgment
de novo, applying the same standard the district court
applied.” Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413
(3d Cir. 2011). Summary judgment is appropriate when there
is no genuine dispute of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).




                              23
rely heavily on these two cases, so we will begin with a
synopsis of them. But there is a key factual distinction
between these cases and our case: the plan and policy in our
case are silent as to how Lincoln is to pay Edmonson.

        In Mogel, the policies at issue provided that “‘all
benefits payable . . . will be paid as soon as the Insurance
Company receives proof of claim acceptable to it’ and
‘[u]nless otherwise elected, payment for loss of life will be
made in one lump sum.’” 547 F.3d at 25 (alterations in
original). The Court of Appeals for the First Circuit held the
plaintiffs had alleged a breach of fiduciary duties because
payment via a retained asset account did not satisfy the
requirement that payment be made in a lump sum. Id. at 26-
27. The court rejected the defendant’s argument that the
selection of the retained asset account method of payment
occurred after it had fulfilled its fiduciary duties, which the
defendant apparently contended involved merely processing
and approving the claim. Id. at 26. The court stated that the
defendant’s contention “rests on quicksand,” because “it
obscures reality” to argue the plaintiffs had received the
required lump sum payment when the defendant set up the
retained asset account. Id. The court concluded the defendant
had not “completed its fiduciary functions under the plan,”
and thus the plaintiffs had alleged a breach of fiduciary duty.
Id.

       In Faber, the plan documents for one of the policies at
issue stated, “[p]ayment of a death benefit of $7,500 or more
is made under MetLife’s Total Control Account [i.e., a
retained asset account]. The death benefit amount is deposited
in an interest bearing money market account and your
beneficiary is provided with a checkbook to use for writing




                              24
checks to withdraw funds.” 648 F.3d at 100-01. The plan
documents for the other policies at issue similarly provided,
“[i]f the benefit from a single claim is $6,000, or more, your
beneficiary may receive basic life insurance benefits under
one of the several options available under the Beneficiary’s
Total Control Account (TCA) Program.” Id. at 101. The
Court of Appeals for the Second Circuit held the insurance
company did not violate ERISA when paying the benefits via
a retained asset account, in part because the plan documents
expressly allowed it to do so. Id. at 107. The court concluded

      MetLife discharged its fiduciary obligations as a
      claims administrator and ceased to be an ERISA
      fiduciary when, in accordance with the Plans, it
      created Plaintiffs’ [retained asset accounts],
      credited them with the amount of benefits due,
      and issued checkbooks enabling Plaintiffs to
      withdraw their proceeds at any time. Thus,
      MetLife was not acting in a fiduciary capacity
      when it invested the funds backing Plaintiffs’
      [retained asset accounts].

Id. at 104. The court then determined that the retained assets
were not plan assets, because the plan had no ownership
interest in them at the time defendant invested them. Id. at
106. Accordingly, the defendant was not acting in a fiduciary
capacity when it invested the retained assets, and plaintiffs’
ERISA claim failed.

              A. Selection of the Method of Payment

      Edmonson argues Lincoln breached its fiduciary duty
when it selected the SecureLine Account as the method of




                             25
paying her benefits. She argues Lincoln was acting as a
fiduciary when it took this action because this act involved
the management or administration of the plan or,
alternatively, because this act involved exercising authority or
control over plan assets. See 29 U.S.C. § 1002(21)(A). We
hold that Lincoln was acting as a fiduciary when it chose to
pay her via the SecureLine Account and, to this extent, we
depart from the thoughtful analysis of the trial court. We
conclude, however, as we later explain, that Lincoln did not
breach its fiduciary duty when it selected this form of
payment.

                                1.

       Edmonson contends that the selection of the
SecureLine Account as the method of payment triggered
ERISA fiduciary duties because it involved the
“management” or “administration” of the plan. 29 U.S.C. §
1002(21)(A) (“[A] person is a fiduciary with respect to a plan
to the extent . . . he exercises any discretionary authority or
discretionary control respecting management of such plan or .
. . has any discretionary authority or discretionary
responsibility in the administration of such plan . . . .”). Only
discretionary acts of plan administration or management
trigger fiduciary duties. “Since discretionary authority,
responsibility or control is a prerequisite to fiduciary status, it
follows that persons who perform purely ministerial tasks,
such as claims processing and calculation, cannot be
fiduciaries because they do not have discretionary roles.”
Confer v. Custom Eng’g Co., 952 F.2d 34, 39 (3d Cir. 1991).
Accordingly, when a plan or policy requires the performance
of an act of plan management or administration in a specific
manner, then ERISA’s fiduciary duties are not implicated.




                                26
But when the plan or policy permits some leeway in how an
act is performed, then the discretionary choice on how to
perform that act is cabined by ERISA’s fiduciary duties.

        To define the terms “management” and
“administration” of a plan under ERISA, we “look to the
common law, which, over the years, has given to terms such
as ‘fiduciary’ and trust ‘administration’ a legal meaning to
which, we normally presume, Congress meant to refer.”
Varity Corp., 516 U.S. at 502. “The ordinary trust law
understanding of fiduciary ‘administration’ of a trust is that to
act as an administrator is to perform the duties imposed, or
exercise the powers conferred, by the trust documents.” Id.
(citing Restatement (Second) of Trusts § 164 (1957)). “At
common law, fiduciary duties characteristically attach to
decisions about managing assets and distributing property to
beneficiaries.” Pegram v. Herdrich, 530 U.S. 211, 231
(2000).

       Although Lincoln initially contended the selection of
the method of payment was neither discretionary nor an act of
plan administration or management, it conceded at oral
argument that this act was governed by ERISA’s fiduciary
duties.13 Lincoln had the choice whether to pay Edmonson
with the SecureLine Account or with some other form of
payment. This is the definition of discretion. Cf. Faber, 648
F.3d at 104-05 (emphasizing that the plan at issue provided
for the insurance company to pay the benefits using a retained
asset account). The choice of how to pay Edmonson also

13
   The able District Court did not have the benefit of this
concession when ruling on the motions for summary
judgment.




                               27
stands in clear contrast with those activities the Department of
Labor has given as examples of ministerial acts. See 29
C.F.R. § 2509.75-8 (listing, for example, the application of
rules determining eligibility for participation or benefits,
calculation of services and compensation credits for benefits,
preparation of employee communications material,
calculation of benefits, advising participants of their rights,
collection of contributions, and processing of claims).

       Lincoln’s selection of the method of payment was an
act of plan administration or management. Lincoln’s
“disposition to the beneficiaries of benefits under the plan
falls comfortably within the scope of ERISA’s definition of
fiduciary duties with respect to plan administration.” Mogel,
547 F.3d at 27 (citing Varity Corp., 516 U.S. at 502); see
Pegram, 530 U.S. at 231 (“At common law, fiduciary duties
characteristically attach to decisions about managing assets
and distributing property to beneficiaries.”). Accordingly,
Lincoln’s decision to pay Edmonson via the SecureLine
Account constituted a discretionary act of plan management
or administration, and Lincoln was subject to ERISA’s
fiduciary duties when it performed this act.

        Lincoln’s selection of the method of payment also
involved exercising authority or control over plan assets, and
triggered fiduciary duties for this independent and alternative
reason. See 29 U.S.C. § 1002(21)(A) (“[A] person is a
fiduciary with respect to a plan to the extent . . . [he] exercises
any authority or control respecting management or disposition
of its assets . . . .”). It is undisputed that the policy is a plan
asset. Under ERISA’s guaranteed benefit exemption
provision, when “a plan to which a guaranteed benefit policy
is issued by an insurer,” as here, “the assets of such plan shall




                                28
be deemed to include such policy.” Id. § 1101(b)(2). Lincoln
exercised authority and control over the policy when it
selected the method of payment because Lincoln had
discretion to determine the type of payment. Therefore, we
conclude Lincoln acted as a fiduciary when it chose to pay
Edmonson using the SecureLine Account for the alternative
reason that this action involved exercising authority and
control over plan assets.

                                    2.

       We now address whether the selection of the
SecureLine Account as the method of payment was a breach
of Lincoln’s fiduciary duty. Edmonson contends the selection
of the SecureLine Account as the method of payment
breached Lincoln’s duty of loyalty. ERISA provides that “a
fiduciary shall discharge his duties with respect to a plan
solely in the interest of the participants and beneficiaries and
– (A) for the exclusive purpose of: (i) providing benefits to
participants and their beneficiaries; and (ii) defraying
reasonable expenses of administering the plan.” 29 U.S.C. §
1104(a)(1). ERISA also prohibits a fiduciary from “deal[ing]
with the assets of the plan in his own interest or for his own
account.” Id. § 1106(b)(1).

       Lincoln and the amicus present several arguments for
why payment via a retained asset account advances the
interests of the beneficiary. For example, they argue some
beneficiaries are grieving the loss of a close relative, and thus
not in an ideal position to determine what to do with a large
lump sum of money. But these arguments miss the mark. The
issue is not whether the retained asset account is in the
interest of the beneficiary; rather, the issue is whether




                               29
Lincoln’s selection of the retained asset account was “solely
in the interest” of Edmonson and “for the exclusive purpose”
of providing benefits to her. See id. § 1104(a)(1)(A).

        The purpose of establishing the SecureLine Account
was to pay Edmonson benefits. Lincoln did not directly gain
any financial benefit from this decision. Nevertheless,
Edmonson contends this decision was not solely in her
interest because it put Lincoln in a position where it might
profit by investing the retained assets. When compared to
payment via a check, Edmonson asserts, payment via a
retained asset account was better for Lincoln because it
created the potential for profit. This increased potential for
profit, a potential that is wholly dependent on Edmonson’s
actions, is insufficient to result in a breach of Lincoln’s
fiduciary duties.

        “‘ERISA does not mandate any specific mode of
payment for . . . benefits.’” Woolsey v. Marion Labs., Inc.,
934 F.2d 1452, 1457 (10th Cir. 1991) (quoting Oster v. Barco
of Cal. Emps.’ Ret. Plan, 869 F.2d 1215, 1218 (9th Cir.
1988)); see Pompano v. Michael Schiavone & Sons, Inc., 680
F.2d 911, 916 (2d Cir. 1982) (“Neither [ERISA] nor its
legislative history comments on the mode or manner in which
benefits should be paid.”). “[T]he retained-asset account
method of payment is not in itself necessarily inconsistent
with ERISA,” Vander Luitgaren v. Sun Life Assurance Co. of
Canada, No. 09-11410, 2012 WL 5875526, at *11 (D. Mass.
Nov. 19, 2012), and it “is inconsistent with ERISA’s goals to
prohibit this type of arrangement.” Merrimon v. Unum Life
Ins. Co. of Am., 845 F. Supp. 2d 310, 320 (D. Me. 2012).
Accordingly, we conclude Lincoln did not breach its fiduciary




                             30
duties when it exercised its discretion to pay Edmonson with
a retained asset account.14

       Finally, even assuming there was a breach, Edmonson
is not entitled to relief because the breach did not directly
cause the injury for which she seeks relief, Lincoln’s
investment for its own profit. ERISA requires a plaintiff to
show that the injury was a proximate cause of the breach of
duty. Willett v. Blue Cross and Blue Shield of Ala., 953 F.2d
1335, 1343 (11th Cir. 1992). Had Lincoln never invested the
retained assets, or given Edmonson all the profit it earned, she
would have suffered no injury. Payment via the retained asset

14
    Edmonson also challenged the amount of interest
ultimately paid to her, but we do not consider this challenge
to relate to Lincoln’s initial decision to create and set the
terms for the SecureLine Account. The minimum interest rate
Lincoln would pay, as set forth in the SecureLine Account’s
Terms and Conditions, was 1% above the average rate
published by Bloomberg for interest-bearing checking
accounts. Edmonson does not argue that this initial decision
on what minimum interest rate to pay her violated ERISA.
        Rather, Edmonson argues that Lincoln chose not to
pay her above that minimum rate, thereby profiting from its
investment of the retained assets. Axiomatically, Lincoln’s
decision not to pay her a higher interest rate allowed it to
profit from the investment of the retained assets. Accordingly,
we do not consider Lincoln’s decision on the interest
ultimately paid to Edmonson to constitute an independent
discretionary act. Instead, we treat Lincoln’s decision not to
pay Edmonson more interest as identical to its decision to
profit from the investment of the retained assets.




                              31
account, by itself, caused her no injury. The establishment of
the account neither guaranteed or commanded that Lincoln
take the later act of investing the assets for its own profit.
And, importantly, Edmonson could have prevented Lincoln
from investing the retained assets by withdrawing them from
the SecureLine Account.15 Accordingly, we conclude
Edmonson is not entitled to the disgorgement of Lincoln’s
profit based on its decision to establish the SecureLine
Account.

                B. Investment of the Retained Assets

       Edmonson also argues that Lincoln breached its
fiduciary duties when it invested the retained assets for its
own benefit. She contends this act is governed by ERISA
because it involved the management or administration of a
plan or, alternatively, the exercise of authority or control over


15
    This conclusion does not conflict with our earlier
conclusion that the decision to invest the retained assets was
“fairly traceable” to the establishment of the SecureLine
Account for purposes of Article III standing. The “fairly
traceable” requirement for constitutional standing sets a lower
bar than the showing of causation required on the merits. See
The Pitt News, 215 F.3d at 360-61 (treating constitutional
causation as akin to but-for causation); Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005) (“As other
courts have noted, Article III’s causation requirement
demands ‘something less than the concept of proximate
cause.’” (quoting Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003))).




                               32
plan assets. She argues Lincoln’s decision to invest the
retained assets for its own profit violated its duty of loyalty.

                               1.

       As noted, Edmonson contends the investment of the
retained assets involved the management or administration of
the plan. Lincoln argues that it was no longer managing or
administering the plan once it set up the SecureLine Account,
but rather was in a creditor-debtor relationship with
Edmonson when it invested the retained assets. See Faber,
648 F.3d at 105 (holding the insurance company discharged
its fiduciary duty when it established the retained asset
account in accordance with the insurance policy). Lincoln
analogizes its relationship with Edmonson at that time to that
of a customer and a bank, as the bank will invest a customer’s
deposited assets for its own profit, and pay interest to the
customer in an amount less than the profit it earns.

       Nothing in the plan or policy provides that Lincoln had
any duty with respect to managing or administering the plan
beyond its payment of benefits to Edmonson. Nor has
Edmonson argued that anything in the plan or policy required
Lincoln to perform any act of plan management or
administration once it paid her the benefits. Rather, she
contends Lincoln failed to “pay” her as required under the
policy, arguing that the establishment of the SecureLine
Account did not constitute payment of the benefits.

        Edmonson directs our attention to Mogel, in which the
court stated “when UNUM says that plaintiffs had been paid,
referring to the sums already deemed to belong to Plaintiffs, it
obscures reality.” 547 F.3d at 26 (quotation omitted). The




                              33
court concluded “the euphemistically named ‘Security
Account,’ accompanied with a checkbook, was no more than
an IOU which did not transfer the funds to which the
beneficiaries were entitled out of the plan assets and hence
UNUM remained a fiduciary with respect to those funds.” Id.
at 27. Accordingly, the court held UNUM was still subject to
fiduciary duties even after it set up the retained asset account.

        Edmonson contends that, like in Mogel, Lincoln failed
to fulfill its obligation to “pay” her, and thus was still
managing or administering the plan when it invested the
retained assets. But the terms of the policy in Mogel required
an immediate lump sum payment upon receipt of proof of a
claim. Because the policy here is silent as to the form of
payment, Lincoln had discretion as to how to comply with its
requirements, under its contractual obligations and, as we
concluded above, under ERISA. Accordingly, Lincoln
fulfilled its obligation to pay Edmonson when it established
the SecureLine Account.16

        Lincoln, relying on Faber, argues that once it satisfied
its obligation to pay the benefits, it was no longer managing
or administering the plan. In Faber, the Court of Appeals for
the Second Circuit held

16
   Edmonson cites to several authorities for the proposition
that debts must be paid in cash or check unless otherwise
agreed upon, and thus Lincoln violated the plain terms of the
plan by not paying her with a check. But these cases are
inapposite. They only hold that forms of payment such as a
security or a mortgage cannot be used to pay a debt. See, e.g.,
In re WestPoint Stevens, Inc., 600 F.3d 231, 259 (2d Cir.
2010).




                               34
       MetLife discharged its fiduciary obligations as a
       claims administrator and ceased to be an ERISA
       fiduciary when, in accordance with the Plans, it
       created Plaintiffs’ [retained asset accounts],
       credited them with the amount of benefits due,
       and issued checkbooks enabling Plaintiffs to
       withdraw their proceeds at any time. Thus,
       MetLife was not acting in a fiduciary capacity
       when it invested the funds backing Plaintiffs’
       [retained asset accounts].

Faber, 648 F.3d at 104. The court continued, “[n]othing in
the [plans], or in the complaint, provides any indication that
after the [retained asset accounts] were established either
Plaintiffs or MetLife contemplated an indefinite fiduciary
relationship.” Id. at 105. “To the extent MetLife remained
obligated to honor the account holder’s ‘checks’ and pay
interest at a guaranteed rate, we believe that this arrangement
constituted a straightforward creditor-debtor relationship
governed by the Customer Agreements and state law, not
ERISA.” Id. We agree.

        Nonetheless, Edmonson contends Lincoln’s fiduciary
duties over management and administration of the plan
continued after it established the SecureLine Account even if
Lincoln had fulfilled its obligations to her under the plan. She
relies largely on the following quote from Varity Corp. v.
Howe:

       There is more to plan (or trust) administration
       than simply complying with the specific duties
       imposed by the plan documents or statutory




                              35
       regime; it also includes the activities that are
       ‘ordinary and natural means’ of achieving the
       ‘objective’ of the plan. Indeed, the primary
       function of the fiduciary duty is to constrain the
       exercise of discretionary powers which are
       controlled by no other specific duty imposed by
       the trust instrument or the legal regime. If the
       fiduciary duty applied to nothing more than
       activities already controlled by other specific
       legal duties, it would serve no purpose.

516 U.S. at 504 (emphasis omitted) (quoting G. Bogert & G.
Bogert, Law of Trusts and Trustees § 551, at 41-52). Based
on this quote, Edmonson contends whether Lincoln was
acting as a fiduciary when it invested the retained assets
requires us to go beyond the question of whether Lincoln had
satisfied its duties under the plan.

       Edmonson takes the Supreme Court’s quotation from
Varity Corp. out of context. In Varity Corp., the relevant
issue was whether Varity, who acted as both the employer
and the benefits plan administrator, was managing or
administering the plan when it made misrepresentations to the
employees about the viability of the plan. Id. at 494-95. The
defendant asserted that because its representations were not
required by the plan, it acted in its role as employer, and not
as plan administrator. Id. at 495. The Court rejected this
argument with the rationale quoted above. Accordingly, the
Court stated that even if an act is not required by the plan, it
may implicate fiduciary duties.

      Varity Corp. does not suggest that Lincoln’s fiduciary
duty to administer the plan continued after it satisfied its




                              36
contractual duty to pay Edmonson her benefits, nor did it
implicate a fiduciary’s obligation to manage or administer a
plan. We find Faber’s rationale persuasive and conclude
Lincoln had completed its obligations with respect to
managing or administering the plan once it established the
SecureLine Account. Accordingly, Lincoln was not managing
or administering the plan when it invested the retained assets.

                               2.

        Edmonson alternatively argues that Lincoln was acting
as a fiduciary when it invested the retained assets because that
act involved exercising authority or control over plan assets.
See 29 U.S.C. § 1002(21)(A) (“[A] person is a fiduciary with
respect to a plan to the extent (i) he . . . exercises any
authority or control respecting management or disposition of
its assets . . . .”). Lincoln contends the retained assets were
not plan assets. We agree.17

       “[I]n the absence of specific statutory or regulatory
guidance,” as here, “the term ‘plan assets’ should be given its
ordinary meaning, and therefore should be construed to refer
to property owned by an ERISA plan.” Sec’y of Labor v.
Doyle, 675 F.3d 187, 203 (3d Cir. 2012) (citing In re Luna,
406 F.3d 1192, 1199 (10th Cir. 2005)). “This approach is also
consistent with guidance provided by the Secretary [of Labor]

17
  Lincoln also argues that it did not have authority or control
over the retained assets because Edmonson had the ability to
withdraw the entire balance from her retained asset account at
any time. Based on our conclusion that the retained assets
were not plan assets, we do not reach this argument.




                              37
on the meaning of ‘plan assets,’ which states that ‘the assets
of a plan generally are to be identified on the basis of
ordinary notions of property rights under non-ERISA law. In
general, the assets of a welfare plan would include any
property, tangible or intangible, in which the plan has a
beneficial ownership interest.’” Id. (quoting Dep’t of Labor,
Advisory Op. No. 93-14A, 1993 WL 188473, at *4 (May 5,
1993)).18

       The Faber court applied this approach and concluded
the “‘retained assets’ are not ‘plan assets’ because the Plans
do not have an ownership interest—beneficial or otherwise—
in them.” Faber, 648 F.3d at 106. The court explained that
once the retained asset accounts were created, the insurance
company’s “remaining obligations are to honor checks drawn
on the [retained asset accounts] and to pay interest at the
stipulated rate.” Id. It concluded that “under ordinary notions

18
    The parties agree the assets held by Lincoln before
Edmonson submitted her claim were not plan assets, under
the guaranteed benefit policy exemption of ERISA. This
provision provides, “[i]n the case of a plan to which a
guaranteed benefit policy is issued by an insurer, the assets of
such plan shall be deemed to include such policy, but shall
not, solely by reason of the issuance of such policy, be
deemed to include any assets of such insurer.” 29 U.S.C. §
1101(b)(2). The parties also appear to agree that this
exemption no longer applied once Lincoln established the
retained asset account for Edmonson. While the amicus finds
the guaranteed benefit exemption to be significant, arguing
that the assets would not “suddenly” turn into plan assets, we,
like the parties, do not place much emphasis on it.




                              38
of property rights, this relationship involves MetLife simply
as a debtor and the beneficiary-turned-account holder simply
as a creditor—a relationship fundamentally different from an
ERISA fiduciary relationship with its panoply of
discretionary authority and responsibility.” Id.

        In reaching its conclusion, the Faber court relied in
part on an amicus brief/opinion letter submitted by the
Secretary of Labor, in which the Secretary argued, inter alia,
that the retained assets were not plan assets. The Secretary
posited that the ordinary notions of property rights determine
whether an asset is a plan asset, and considered whether
anything in the plan documents or elsewhere gave the plans
an ownership interest in the retained assets, noting that
“whether a particular asset is a ‘plan asset’ requires a factual
inquiry into the parties’ representations and understandings.”
Brief of U.S. Dep’t of Labor at 12, Faber v. Metro. Life Ins.
Co., 648 F.3d 98 (2d Cir. 2011). The Secretary concluded
there was no evidence the plan had an ownership interest in
the retained asset, and thus the retained assets were not plan
assets. The Faber court adopted this conclusion.

       Lincoln urges us to pay deference to the Secretary’s
opinion under Skidmore v. Swift & Co., 323 U.S. 134 (1944).
Under Skidmore, we defer to the Secretary’s opinion letter
based on “the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade.” Id. at 140. We see no reason to disagree with the
Secretary’s legal argument that the ordinary notions of
property rights determine whether an asset is a plan asset, and
that we should look to the plan and the plan documents in
making this determination. Furthermore, Doyle suggests this




                               39
already is the law in our circuit. See Doyle, 675 F.3d at 203.
But as the Secretary states, whether specific assets are plan
assets is ultimately a factual inquiry, so we must turn to the
specific facts here to make this determination.19

        Edmonson has not identified anything in the plan or
policy documents that supports a conclusion the plan retained
an ownership interest in the retained assets after Lincoln
established the SecureLine Account. Edmonson argues the
plan had an ownership interest in the retained assets because
Lincoln kept the money in its general account until a draft
was presented for payment, rather than depositing the funds
in the bank backing the SecureLine Account, and if Lincoln
failed to pay them over to her, the plan would be liable. But
Edmonson cites to no authority for this proposition, and does
not point to any provision in the plan or policy to support it.
Even if the plan could be compelled to enforce its rights
against Lincoln, that right is not equivalent to an ownership
stake in Lincoln’s general account funds.

      Edmonson contends we should follow Mogel and
conclude the retained assets were plan assets because
payment via a retained asset account failed to satisfy
Lincoln’s duty to pay her. As discussed, we disagree that

19
   Edmonson urges us to disregard the analysis in the letter
brief because the recent decision in Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156 (2012), casts doubt on
paying deference to such briefs. The Christopher opinion,
however, focused primarily on whether the briefs in that case
were persuasive, so Edmonson’s argument that Christopher
generally casts doubt on the legitimacy of amicus briefs from
the Secretary is unavailing. See id. at 2169-70.




                              40
Lincoln failed to fulfill its obligation to pay Edmonson.
Moreover, we do not read Mogel as holding the retained
assets were plan assets. The Mogel court, after finding the
insurance company had not discharged its contractual duties
under the policy to pay a lump sum, concluded “the sums due
plaintiffs remain plan assets subject to UNUM’s fiduciary
obligations until actual payment.” Mogel, 547 F.3d at 26. The
Mogel court, however, did not mention that plan assets are to
be determined based on the ordinary notions of property
rights, nor it did consider the definition of plan assets. Rather,
as the Faber court stated, “Mogel is better understood as
predicated on the fact, not present here, that the insurer failed
to abide by plan terms requiring it to distribute benefits in
lump sums,” and thus was still managing or administering the
plan. Faber, 648 F.3d at 106-07; see also Merrimon, 845 F.
Supp. 2d at 318-19 (explaining that Mogel’s “core holding”
“did not require the First Circuit to find that the sums due to
those plaintiffs were plan assets,” and opining that “if the
First Circuit were required to address the issue squarely, it
would not hold that the funds backing the [retained asset
accounts] in this case are plan assets”); Vander Luitgaren,
2012 WL 5875526, at *8 (similarly finding Mogel should not
be interpreted as holding the retained assets were plan assets).
Accordingly, Mogel provides little support for Edmonson’s
argument that the retained assets were plan assets.

       Alternatively, Edmonson urges us to apply the
“functional approach” to determining whether an asset is a
plan asset, as set forth by the Court of Appeals for the Ninth
Circuit in Acosta v. Pacific Enterprises, 950 F.2d 611 (9th
Cir. 1991). Under Acosta, an asset is a plan asset when “the
item in question may be used to the benefit (financial or
otherwise) of the fiduciary at the expense of plan participants




                               41
or beneficiaries.” Id. at 620. We recently stated, albeit in
dicta, that “this approach may be helpful when considering
whether items other than cash or financial instruments are
properly considered assets of an ERISA plan.” Doyle, 675
F.3d at 203 n.33. In a later footnote in that opinion, we stated
the “Supreme Court has also strongly suggested that [the
approach based on ordinary notions of property rights] is the
proper approach to defining ‘plan assets.’” Id. at 204 n.34
(citing Jackson v. United States, 555 U.S. 1163 (2009)).20

        Doyle suggests that we should not apply the Acosta
approach, as the assets in question are cash or financial
instruments. Cf. Acosta, 950 F.2d at 620 (considering whether
a participant-shareholder list was a plan asset). In any event,
the assets at issue are not plan assets under Acosta. Although
Lincoln used the assets for its own benefit, it did not use them
“at the expense of plan participants or beneficiaries.” Id.

       We conclude the retained assets were not plan assets.
In short, once Lincoln set up the SecureLine Account, the
plan no longer had an interest in the assets and, under
ordinary notions of property rights, Lincoln and Edmonson
were in a creditor-debtor relationship. Accordingly, Lincoln’s
conduct was not constrained by ERISA’s duty of loyalty.

                        VI. Conclusion



20
   In Jackson, the Court vacated the lower court’s decision in
light of the Solicitor General’s brief, which argued for the
application of the ordinary notions of property rights
approach. See Doyle, 675 F.3d at 204 n.34.




                              42
        We conclude Lincoln did not breach its fiduciary
duties under ERISA when it chose to pay Edmonson with a
retained asset account and then invested the retained assets
for its own profit. The decision to pay Edmonson with the
retained asset account did not breach Lincoln’s duty of
loyalty to her. And when Lincoln then invested the retained
assets, it was not acting in a fiduciary capacity. Accordingly,
we will affirm the judgment of the District Court.




                               43
Edmonson v. Lincoln Nat’l Life Ins. Co., No. 12-1581 (appeal
from E.D. Pa. Case No. 10-4919, Baylson, J.)
JORDAN, Circuit Judge, Dissenting.

       I agree with the Majority and the District Court that
Lincoln should win this case, but I would vacate and remand
for dismissal of the complaint because Edmonson lacks both
constitutional and statutory standing, since she abandoned her
claim for injunctive relief under ERISA and seeks only the
payment of funds she claims that Lincoln wrongfully
retained. I would not reach the issue of the alleged breach of
Lincoln’s fiduciary duty under ERISA.

        “To bring a civil action under ERISA, a plaintiff must
have constitutional, prudential, and statutory standing.”
Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d
120, 125 (3d Cir. 2006). Constitutional standing, as the
Majority points out, requires three elements: injury-in-fact, a
causal connection between that injury and the complained-of
conduct, and the likelihood that the injury can be redressed by
court action. As to the first element, it is well-established that
“[a]n injury-in-fact must be a palpable and distinct harm
that[] ... affect[s] the plaintiff in a personal and individual
way.” Freeman v. Corzine, 629 F.3d 146, 153 (3d Cir. 2010)
(internal quotation marks omitted).

        The Majority seems to treat a plaintiff demanding
disgorgement as a special case for purposes of the injury-in-
fact requirement of Article III standing. It suggests that a
plaintiff seeking that remedy need not demonstrate an actual
injury because “[a] requirement of a net financial loss would
allow fiduciaries to retain ill-gotten profit – exactly what
disgorgement claims are designed to prevent – so long as the



                                1
breaches of fiduciary duty do not harm the plan or
beneficiaries.” (Majority Op. at 12-13.) Thus, the Majority
concludes that “the nature of disgorgement claims suggest[s]
that a financial loss is not required for standing, as a loss is
not an element of a disgorgement claim.” (Id. at 13)1

       That conclusion, however, runs counter to our holding
in Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450
(3d Cir. 2003). In that case, an ERISA plan participant
alleged that a fiduciary had violated an ERISA requirement
that a fiduciary disclose “all material facts relating to the
insurance benefits it provides.” Id. at 453 (internal quotation
marks omitted). In particular, the plaintiff said that the
fiduciary had failed to disclose certain physician incentives
that had the potential to decrease the overall quality of care
provided. Id. Although the plaintiff did not allege that she
had been personally affected by the existence of the
incentives or that the care that she received under the plan
was in any way deficient, she sought both injunctive relief as
well as restitution or disgorgement of the amount by which

       1
         The Majority finds support for that conclusion in the
“principles of ERISA” whose “duty of loyalty bars a fiduciary
from profiting even if no loss to the plan occurs.” (Majority
Op. at 13.) That approach conflates constitutional and
statutory standing in a manner that is particularly inapt in this
case. Although “[t]he actual or threatened injury required by
Art. III may exist solely by virtue of statutes creating legal
rights, the invasion of which creates standing,” that is only
true “with regard to injunctive relief.” Horvath v. Keystone
Health Plan East, Inc., 333 F.3d 450, 456 (3d Cir. 2003)
(citation and internal quotation marks omitted). But that is
not the relief that Edmonson is seeking.



                               2
she and other members of the putative class had supposedly
overpaid as a result of the fiduciary’s failure to make the
required disclosures. We decided that a plaintiff claiming a
fiduciary breach under ERISA “need not demonstrate actual
harm in order to have standing to seek injunctive relief” to
require a fiduciary to comply with ERISA, but that “requests
for restitution and disgorgement, both of which are individual
in nature[,] ... require her to demonstrate individual loss.” Id.
at 456.

       It is true, as the Majority insists, that Horvath is
different from the present case. The plaintiff’s claim there
was “premised on her argument that her firm overpaid for the
healthcare she received,” id., and there was no other evidence
of individual harm. In this case, by contrast, as the District
Court observed, “Plaintiff alleged that she suffered an
individual loss, measured as the ‘spread’ or difference
between the interest that Defendant allegedly earned on the
benefits in Plaintiff’s SecureLine account, and the interest
that Defendant paid to Plaintiff.” Edmonson v. Lincoln Nat’l
Life Ins. Co., 777 F. Supp. 2d 869, 881 (E.D. Pa. 2011).2

       2
          The District Court concluded that that was “a
sufficient allegation of injury in fact, caused by defendant’s
conduct” to establish Article III standing. Edmonson v.
Lincoln Nat’l Life Ins. Co., 777 F. Supp. 2d 869, 881 (E.D.
Pa. 2011). The Court, however, considered standing only in
response to Lincoln’s motion to dismiss. The Court declined
to follow a case cited by Lincoln in support of its argument
that Edmonson lacked standing because, in the Court’s view,
it “imposed too high a burden on a plaintiff with respect to
the jurisdictional allegations on a Rule 12(b)(1) motion,” id.,
but the Court did not revisit the issue at the summary



                               3
        But in an important and dispositive respect the cases
are the same: just as the plaintiff in Horvath “concede[d] that
the care and coverage she received as a member of [her
employer’s] HMO was never affected by the existence of
physician incentives,” 333 F.3d at 456, Edmonson effectively
concedes that she received everything to which she was
entitled under her husband’s employer’s plan.              See
Edmonson, 777 F. Supp. 2d at 875 (noting that Edmonson
agreed at oral argument that she had received both her
“claimed benefit, in the amount of $10,000.00[,] plus $138.08
interest” by check shortly after she decided to close her
SecureLine Account). Moreover, Edmonson has adduced no
evidence that, if she had been paid in a lump sum rather than
through a retained asset account, she would have invested her
death benefit and generated the same profit or “spread” that
she now seeks to reclaim from Lincoln. She has merely
hypothesized a greater benefit, had Lincoln administered the
plan in a different way than it did. That ought not be enough.
See Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112,
119 (2d Cir. 2009) (finding that an ERISA plan participant’s
lost opportunity to receive higher benefits did not constitute
an injury-in-fact); Drutis v. Rand McNally & Co., 499 F.3d
608, 611 (6th Cir. 2007) (holding that plaintiffs who claimed
damage based on “what they would have received if the[ir]
[employer’s] plan were re-formed to meet the requirements of
ERISA” failed to allege an injury-in-fact). Thus, although
Edmonson may have attempted to individualize her claim by
basing it on the lost spread, her injury remains “entirely
speculative” and “hypothetical at best,” and she accordingly

judgment stage, even though Edmonson had provided no
further evidence of an injury-in-fact.



                              4
lacks the “irreducible constitutional minimum of standing,”
which is “an injury in fact that is … actual or imminent, not
conjectural or hypothetical.” Drutis, 499 F.3d at 611 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))
(internal quotation marks omitted).3

        The Majority correctly observes that “[o]ur decision in
Horvath did not revolve around whether the plaintiff suffered
a financial loss.” (Majority Op. at 15.) It did, however, turn
on the question of whether the plaintiff had demonstrated an
individual loss, i.e., an actual injury to that particular plaintiff.
That showing is required when a plaintiff is seeking
individual relief under ERISA. See In re Unisys Sav. Plan
Litig., 173 F.3d 145, 159 (3d Cir. 1999) (holding that a
plaintiff seeking individual relief under ERISA § 502(a)(3), in

       3
          That is also the conclusion that the United States
District Court for the Southern District of New York reached
in Faber v. Metro. Life Ins. Co., No. 10588(HB), 2009 WL
3415369 (S.D.N.Y. Oct. 23, 2009), aff’d, 648 F.3d 98 (2d Cir.
2011), on identical facts. See id. at *5 (noting that “this pool
of funds to which [Plaintiffs] claim entitlement is not
‘identifiable and quantifiable;’ rather, to identify and quantify
any measure of relief for the Plaintiffs would require an
accounting to determine what amount of funds allegedly
should be reclaimed by the Plaintiffs and the putative class”);
id. (noting that “Plaintiffs do not – and cannot – deny that
they have received the full amount of benefits to which they
were entitled”). Edmonson’s claim for disgorgement is
similarly based not on a particular amount of interest due to
her, but rather on an unidentified amount of investment profit
that Lincoln allegedly earned while her SecureLine assets
were in its possession.



                                 5
contrast to §502(a)(2), which allows relief on behalf of a plan,
is required to prove an individual loss). Yet the Majority
appears to conclude, as one other court has, that Horvath
requires only that an ERISA plaintiff demonstrate that she,
rather than the plan, was “personally affected by the alleged
breach.” Central States Se. & Sw. Areas Health & Welfare
Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181,
200 (2d Cir. 2005) (interpreting Horvath’s “individual loss”
requirement).     That unduly lax formulation effectively
eliminates the injury-in-fact requirement, as virtually any
breach of fiduciary duty to a plan can be said to “personally
affect” a plan participant through its impact on the plan itself.

        The Majority believes the meaning of Horvath to be
that either “a plan has the right to the profit, [and] the
individual plaintiff has not suffered a constitutional injury,”
or else the plaintiff “has an individual right to the defendant’s
profit” and she has suffered an injury-in-fact. (Majority Op.
at 16-17.) That, however, presupposes that there are only two
possibilities when a breach of an ERISA fiduciary duty is
alleged. There is, however, a third possibility: that neither the
plan nor the individual is entitled to the defendant’s profit.
That would be the case when a plan permitted the fiduciary to
retain and invest funds pending the payment of a benefit, and
the plaintiff received the fixed amount to which she was
entitled, as is argued to be the case here. And in such a case,
neither the plan nor the individual can rightly allege an
injury-in-fact based on not having received something to
which neither was entitled, regardless of whether the
defendant breached its fiduciary duty.4

       4
         As discussed infra, the remedy for a fiduciary breach
in such circumstances is not damages, but rather an injunction



                               6
        In other words, any right to the profit generated with
plan assets, the loss of which is now said to be an injury-in-
fact, does not automatically follow from the alleged breach, at
least not in a defined benefit plan of the type at issue here.
Cf. Harley v. Minn. Min. & Mfg. Co., 284 F.3d 901, 905-06
(8th Cir. 2002) (discussing the “proper focus” of the standing
inquiry in an action “to seek relief …for [a] particular breach
of duty, given the unique features of a defined benefit plan”).
As the term implies, a defined benefit plan entitles a
participant to no more than her benefit as defined. “[T]he
employee, upon retirement, is entitled to a fixed periodic
payment.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
439 (1999) (citation and internal quotation marks omitted).
As a result, “the employer typically bears the entire
investment risk and ... must cover any underfunding as the
result of a shortfall that may occur from the plan’s
investments.” Id. But, “[s]ince a decline in the value of a
plan’s assets does not alter accrued benefits, members
similarly have no entitlement to share in a plan’s surplus ... .”
Id. at 440.

       In this case, the defined amount to which Edmonson
was entitled was her $10,000 death benefit – a fixed
entitlement that remained in place after her SecureLine
Account was established, even if Lincoln had lost money
investing the funds backing that account. Having no claim on
the profits, she cannot claim an individual loss – or even that
she was “personally affected” – by not receiving a share of
those profits. And “the limits on judicial power imposed by

or “other appropriate equitable relief,” i.e., the remedy
provided under ERISA § 502(a)(3).



                               7
Article III counsel against permitting participants or
beneficiaries who have suffered no injury in fact from suing
to enforce ERISA fiduciary duties on behalf of the Plan.”
Harley, 284 F.3d at 906.

       Notwithstanding the requirements of Article III, and
worried that imposing a loss requirement would mean that
fiduciaries could “retain ill-gotten profit … so long as the
breaches of fiduciary duty do not harm the plan or
beneficiaries” (Majority Op. at 13), the Majority treats an
action for disgorgement as sui generis. The Majority says
that an ERISA plaintiff seeking disgorgement of profits to
which she claims entitlement need only plead that there has
been a breach and that the plan itself is not entitled to recover.
But our decision in Horvath states quite plainly that a
fiduciary duty breach is sufficient to confer standing on an
ERISA plaintiff only “with regard to injunctive relief.” 333
F.3d at 456. That is not the relief that Edmonson is seeking,
so, per our own binding precedent, she does not have
constitutional standing to press her claim.5

       5
          Relying on our reasoning in Horvath, the Second
Circuit has come to the same standing conclusion in two
cases closely resembling this one. First, in Kendall v.
Employees Retirement Plan of Avon Products, 561 F.3d 112
(2d Cir. 2009), an ERISA plan participant took issue with a
provision that partially offset social security payments against
plan benefits based on a formula that penalized certain
retirees. The plaintiff claimed injury on the grounds that “the
Offset under the Plan prevents her from realizing higher
benefits,” id. at 119, and argued that her employer could
either adjust the formula to spread it more evenly or eliminate
the offset altogether, id. at 119 n.14. The Court observed that



                                8
the plaintiff “concedes that her future benefits under a
modified Plan that conforms to ERISA are not yet
determined” and held that her “claim, that she would receive
more in benefits were the Offset to be eliminated or the Plan
modified to conform to ERISA, is not an injury-in-fact.” Id.
at 122. The Court also noted that “the best [plaintiff] offers
the court is a calculation of how a hypothetical Plan
participant would be injured” by the offset provision of the
plan. Id. Edmonson has not even provided such a
hypothetical calculation of her lost “spread.”
       Second, in Faber v. Metropolitan Life Insurance Co.,
648 F.3d 98 (2d Cir. 2011), as in this case, an ERISA plan
beneficiary complained that her benefit had been paid in the
form of a retained asset account rather than in a lump sum.
The Court noted that “[i]n the ERISA context, we have drawn
a distinction between constitutional standing to seek
injunctive relief and constitutional standing to seek
disgorgement.” Id. at 102. The Court concluded that
“[plaintiff] need not demonstrate actual harm in order to have
standing to seek injunctive relief requiring that [defendant]
satisfy its statutorily-created … fiduciary responsibilities,”
but that “[o]btaining restitution or disgorgement under ERISA
requires that a plaintiff satisfy the strictures of constitutional
standing by demonstrating individual loss; to wit, that they
have suffered an injury-in-fact.” Id. (alterations and emphasis
in original) (quoting and citing Horvath, 333 F.3d at 456-57)
(internal quotation marks omitted). The only reason that the
Faber Court did not dismiss the action based on standing was
that that plaintiff was seeking injunctive relief against the
insurer as well. See id. at 103 (agreeing with the district court
“insofar as it concluded that Faber has constitutional standing



                                9
       In addition to constitutional standing,“[t]o bring a civil
action under ERISA, a plaintiff must have … statutory
standing.” Leuthner, 454 F.3d at 125. The inquiry into
statutory standing requires a court to determine “whether
Congress has accorded this injured plaintiff the right to sue
the defendant to redress [her] injury.” Graden v. Conexant
Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007) (emphasis in
original). Under ERISA § 502(a)(3)(B), “[a] civil action may
be brought … by a participant, beneficiary, or fiduciary … to
obtain ... 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)(3).6 Thus,
“the statute authorizes appropriate equitable relief[,] [and]
[w]e should expect that courts, in fashioning appropriate
equitable relief, will keep in mind the special nature and
purpose of employee benefit plans, and will respect the policy


to seek injunctive relief”). Again, that is not the relief that
Edmonson seeks in this case.
       6
           In its analysis of statutory standing, the District
Court focused only on whether Edmonson was a
“beneficiary” within the meaning of ERISA § 502(a)(3) when
she commenced this lawsuit, given that her claim had already
been paid in full. The Court concluded that she was, because
“plaintiff’s status [is] measured at the time the breach of
fiduciary duty occurred, rather than the time of the appeal.”
Edmonson, 777 F. Supp. 2d at 882 (citing Daniels v. Thomas
& Betts Corp., 263 F.3d 66, 78 (3d Cir. 2001)). The Court
did not consider whether she lacks statutory standing based
on the relief that she seeks.




                               10
choices reflected in the inclusion of certain remedies and the
exclusion of others.” Varity Corp. v. Howe, 516 U.S. 489, 515
(1996) (emphasis in original) (quoting Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 54 (1987)) (internal quotation marks
omitted); see also id. at 497 (noting Congress’s “desire not to
create a system that is so complex that administrative costs, or
litigation expenses, unduly discourage employers from
offering welfare benefit plans in the first place”).

        The statutory standing problem for Edmonson is that,
as we said in Horvath, “claims for restitution and
disgorgement [under ERISA 502(a)(3)] are likely barred by
the Supreme Court’s ... decision in Great-West [Life &
Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002)].”
Horvath, 333 F.3d at 457 n.3. In Great-West Life, the Court
pointed out that ERISA § 502(a)(3) provides only equitable
relief, see 534 U.S. at 209-10, and then said that whether
relief for an ERISA fiduciary breach is cognizable as
equitable relief under that section “depends on the basis for
[the plaintiff’s] claim and the nature of the underlying
remedies sought,” id. at 213 (quoting Reich v. Cont’l Cas.
Co., 33 F.3d 754, 756 (7th Cir. 1994)) (internal quotation
marks omitted). The Court noted that “[a]lmost invariably ...
suits seeking (whether by judgment, injunction, or
declaration) to compel the defendant to pay a sum of money
to the plaintiff are suits for ‘money damages,’ as that phrase
has traditionally been applied, since they seek no more than
compensation for a loss resulting from the defendant’s breach
of legal duty.” Id. at 210 (citation and internal quotation
marks omitted). It concluded that, “[i]n cases in which the
plaintiff could not assert title or right to possession of
particular property, but in which nevertheless he might be
able to show just grounds for recovering money to pay for




                              11
some benefit the defendant had received from him, the
plaintiff had a right to restitution at law … .” Id. at 213
(internal quotation marks omitted).          By contrast, “for
restitution to lie in equity, the action generally must seek not
to impose personal liability on the defendant, but to restore to
the plaintiff particular funds or property in the defendant’s
possession.” Id. at 214.

        The “disgorgement” Edmonson seeks is nothing more
than compensation for an alleged loss allegedly caused by an
alleged breach of Lincoln’s fiduciary duty. In other words, it
is precisely the type of relief that Great-West Life said was
legal, not equitable.        The Majority’s discussion of
disgorgement in support of its conclusion that Edmonson has
constitutional standing makes that clear. The Majority says
that the purpose of an action seeking disgorgement, at least in
the ERISA context, is “to deter the fiduciary from engaging in
disloyal conduct by denying him the profits of his breach”
(Majority Op. at 13), and that the fiduciary “is liable for any
profits he has made through his breach of trust,” (id. at 14 n.5
(internal quotation marks omitted)). If that is the case, then it
is difficult to see how Edmonson’s claim for “disgorgement”
is anything other than an attempt to “impose personal liability
on the defendant,” Great-West Life, 534 U.S. at 214, for “the
defendant’s breach of legal duty,” id. at 210. That certainly
has all the marks of legal relief that is unavailable under
§ 502(a)(3). See Mertens v. Hewitt Assocs., 508 U.S. 248,
255 (1993) (“Although they often dance around the word,
what petitioners seek is nothing other than compensatory
damages – monetary relief for all losses [they] sustained as a
result of the alleged breach of fiduciary duties. Money
damages are, of course, the classic form of legal relief.”
(emphasis in original)).




                               12
        Perhaps in an effort the avoid that problem, the
Majority recasts disgorgement as an “accounting for profits”
for purposes of statutory standing, so that it falls within an
exception to Great-West Life’s bar on § 502(a)(3) actions that
seek to impose personal liability on a defendant. See Great-
West Life, 534 U.S. at 214 n.2 (recognizing a “limited
exception for an accounting for profits, a form of equitable
restitution”).7 There are two problems with that rhetorical
shift. First, an accounting is only proper when “a plaintiff is
entitled to a constructive trust on particular property held by
the defendant, [so that] he may also recover profits produced
by the defendant’s use of that property.” Id.; see also Unisys
Corp. Retiree Med. Benefits ERISA Litig. v. Unisys Corp.,
579 F.3d 200, 238 (3d Cir. 2009) (“[T]he question here is not
whether disgorgement of profits or accounting for profits is
an equitable remedy, but rather whether the plaintiffs have
demonstrated that their claims for relief meet the
requirements for applying this type of remedy.”).8

      7
         We recognized an equitable restitution claim under
ERISA in Plucinski v. I.A.M. National Pension Fund, 875
F.2d 1052 (3d Cir. 1989), holding that “there is an equitable
cause of action by employers for the recovery of contributions
erroneously paid to pension funds due to a mistake of fact or
law.” Id. at 1057. However, we characterized restitution as
an equitable remedy only to the extent that the plan sponsor
had made an “honest mistake” and limited its recovery to the
specific amount erroneously paid into the pension fund. Id. at
1058. But we held that equitable restitution does not include
an award of interest on that amount for the time it was held by
the fund. Id. at 1058 n.6. That is, in essence, the remedy that
Edmonson seeks in this case.
      8
           The Supreme Court explicitly characterized an



                              13
Entitlement to a constructive trust in turn, requires that “the
defendant (i) has been unjustly enriched (ii) by acquiring
legal title to specifically identifiable property (iii) at the
expense of the claimant or in violation of the claimant’s rights
... .”    Restatement (Third) of Restitution and Unjust
Enrichment § 55 cmt. a (2011). Thus, a “[c]onstructive trust
is the principal device for vindicating equitable ownership
against conflicting legal title ... .” Id. This case presents
exactly the opposite situation. Here, legal title passed to
Edmonson when Lincoln established her SecureLine
Account. Lincoln had no legal title to the funds, nor was
Edmonson left with a mere equitable claim, during the period
for which she contends that she is entitled to the excess
spread. So this case does not present the circumstances in
which a plaintiff would be entitled to the remedy of a
constructive trust or an accounting for the profits on that trust.
See Unisys, 579 F.3d at 238 (concluding that plaintiffs could
not recover under § 502(a)(3) where the requirements for an
accounting for profits were not met).9

accounting for profits, requiring entitlement to a constructive
trust, as a “limited exception” to what it concluded was
ERISA’s bar on standing to seek certain types of
restitutionary relief. Great-West Life, 534 U.S. at 214 n.2. I
therefore fail to see how Edmonson’s ability to assert a
constructive trust over the assets securing her SecureLine
Account “goes to the merits of her claim, not statutory
standing,” as the Majority contends. (Majority Op. at 22
n.11.)
       9
          The Majority cites Skretvedt v. E.I. DuPont De
Nemours, 372 F.3d 193 (3d Cir. 2004) for the proposition that
“[t]he disgorgement remedy is equitable even though Lincoln
no longer ha[d] possession of the retained assets, making a



                               14
        Second, according to § 51(4) of the Restatement of
Restitution, the purpose of the restitutionary remedy of an
accounting is to “eliminate profit from wrongdoing while
avoiding, so far as possible, the imposition of a penalty.”
Thus, “[t]he profit for which the wrongdoer is liable by the
rule of § 51(4) is the net increase in assets of the wrongdoer,
to the extent that this increase is attributable to the underlying
wrong.” Id. § 51 cmt. e. In this case, the profit that Lincoln
may (or may not) have generated is attributable to
Edmonson’s decision not to withdraw the funds from her
SecureLine Account when she could have. The Majority
itself acknowledges that. (See Majority Op. at 30 (“This
increased potential for profit[] ... is wholly dependent on
Edmonson’s actions ... .”).) There is thus no basis for an
accounting for profits, and the limited exception that the
Great-West Life Court recognized to its general rule that
compensation for breach of a legal duty is unavailable under
ERISA § 502(a)(3) does not apply to Edmonson’s claim.

claim for a constructive trust unnecessary.” (Majority Op. at
22.) In that case, we held that a beneficiary had an equitable
claim for interest during the period that payment of a benefit
was delayed, see Skretvedt, 372 F.3d at 209, the contrary
conclusion that we reached in Plucinski, see supra note 7.
But that equitable claim was limited to the period during
which the plan wrongly retained legal title to the funds, i.e., a
period during which the requirements of a constructive trust
were satisfied. See Skretvedt, 372 F.3d at 209 (analogizing
the claimed interest to “prejudgment interest” on a claim that
had already been adjudicated). Thus, we did not hold in
Skretvedt that disgorgement is an equitable remedy where the
defendant no longer had legal title to the beneficiary’s funds,
as in this case.



                               15
       As the Supreme Court has explained, in the context of
claims arising under ERISA § 502(a)(3), “[e]quitable relief
must mean something less than all relief.” Mertens, 508 U.S.
at 258 & n.8 (internal quotation marks omitted). “Respecting
Congress’s choice to limit the relief available under
§ 502(a)(3) to ‘equitable relief’ requires us to recognize the
difference between legal and equitable forms of restitution.
[When] petitioners seek only the former, their suit is not
authorized by § 502(a)(3).” Great-West Life, 534 U.S. at 218.
Because what Edmonson seeks under the label of
“disgorgement” is in reality a claim for damages and is the
only relief she seeks, she lacks both statutory standing and
constitutional standing.

      With all respect to my colleagues in the Majority, I
would vacate the summary judgment for Lincoln and remand
to the District Court with instructions to dismiss the
complaint, based on Edmonson’s lack of standing.10

       10
           Although I would not reach the merits of
Edmonson’s appeal, it strikes me that the Majority’s merits
decision is at odds with its conclusions as to her constitutional
and statutory standing. Constitutional standing requires, in
addition to an injury-in-fact, “a causal connection between the
injury and the conduct complained of – the injury has to be
fairly … trace[able] to the challenged action of the defendant,
and not … th[e] result [of] the independent action of some
third party ... .” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (alterations in original) (citation and internal
quotation marks omitted). The Majority concludes that
Lincoln’s ability to generate a profit using the funds backing
her SecureLine Account was “wholly dependent on
Edmonson’s actions,” i.e., her decision not to withdraw all of



                               16
her funds as soon as the account was established, and that that
“is insufficient to result in a breach of Lincoln’s fiduciary
duties.” (Majority Op. at 30.) That suggests that Edmonson’s
claimed injury was “fairly traceable” to her own inaction,
rather than to Lincoln’s payment of her death benefit using a
SecureLine Account, and that she has failed to plead
causation for purposes of Article III standing.
       Similarly, in order to claim statutory standing based on
Great-West Life’s exception for an accounting for profits,
Edmonson must demonstrate that those profits are
“attributable to the underlying wrong.” Restatement of
Restitution § 51 cmt. e. Because the majority concludes that
Lincoln has not breached its fiduciary duty, there is no
“underlying wrong” that can be the subject of a restitutionary
remedy. That further undercuts the Majority’s conclusion
that her claim for disgorgement is really an equitable claim
for an accounting, and suggests that she lacks standing under
ERISA § 502(a)(3).



                              17
