1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0036p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

T ODD R. R OCHOW and J OHN R OCHOW , personal representatives of the Estate of Daniel J. Rochow, Plaintiffs-Appellees ,

v

.

L IFE I NSURANCE C OMPANY OF N ORTH A MERICA , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ │ ┘ No. 12-2074

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit No. 2:04-cv-73628—Arthur J. Tarnow, District Judge. Argued: June 18, 2014 Decided and Filed: March 5, 2015 BEFORE: COLE, Chief Judge; KEITH, BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAG UE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.
McKEAGUE, J., delivered the opinion of the court in which BOGGS, BATCHELDER, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, and KETH LEDGE, JJ., joined, and WHITE, J., joined in part. GI BBONS, J. (pp. 16–18), delivered a separate concurring opinion in which BATCHELDER and COOK, JJ., joined. WH ITE, J. (pp. 19–24), delivered a separate opinion concurring in part and dissenting in part. STRANCH, J. (pp. 25–43), delivered a separate dissenting opinion in which COLE, C. J., KEITH, MOORE, CLAY, and DONALD, JJ., joined, and WHITE, J., joined in part.

_________________ COUNSEL

ARGUED: Jeremy P. Blumenfeld, MORGAN, LEWIS, BOCKIUS LLP, Philadelphia, Pennsylvania, for Appellant. Erik W. Scharf , SCHARF APPELLATE GROU P, Miami, Florida, for Appellees. ON BRIEF: Jeremy P. Blumenfeld, MORGAN, LEWIS, BOCKIUS LLP, Philadelphia, Pennsylvania, Brian T. Quinn, HONIGMAN MILLER SCHWARTZ & COHN, LLP, Lansing, Michigan, for Appellant. Er ik W. Scharf, SCHAR F APPELLAT E GROUP, 

### >No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 2

Miami, Florida, John J. Cooper, COOPER LA W FIRM, PLLC, Troy, Mich igan, for Appellees. Waldemar J. Pflepsen, Jr., CARLTON FIEL DS JORDEN BURT, P. A., Washington, D.C., Jerrold J. Ganzfried, HOLLAND & KNIGHT LLP, Washington, D. C., Julie Wilensky, LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C., Oa kland, California, Mary Ellen signorille, AARP, Washington, D.C., Mark D. DeBofs ky, DEBOFSKY & ASSOCIA TES, P.C., Chicago, Illinois, for Amici Curiae.

_________________ OPINION

_________________ McKEAGUE, Circuit Judge. This is the second time this case has been before the Sixth Circuit. The first time, we affirmed the district court’s determinati on that defendant Life Insurance Company of North America (“LINA”) act ed arbitrarily and ca priciously when it denied Daniel Rochow’s claim for long-term di sability benefits under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). Rochow v. LINA , 482 F.3d 860 (6th Cir. 2007) (“ Rochow I ”). Our second review comes after th e district court ordered that LINA disgorge profits flowing from its wrongful denial of benefits . A divided three-judge panel
affirmed the district court’s order. Rochow v. LINA , 737 F.3d 415 (6th Cir. 2013) (“Rochow II ”). We granted rehearing enbanc, thereby vacating Rochow II, in order to recons ider as a full court whether the disgorgement award was proper. For the reasons that follow, we vacate the disgorgement award and remand the case to the di strict court to determine whether prejudgment interest is appropriate.

I
The facts of this case are adequately summarized in Rochow II and are reproduced here:
In mid-2000, the late Daniel J. Rochow (“Rochow”), a principal of Universico Insurance Company (“Universico”), sold his interest in Universico to Arthur J. Gallagher & Co. (“Gallagher”) and becam e President of Gallagher. As an employee of Gallagher, Rochow was cove red under Life Insurance Company of North America (“LINA”) policy number LK 30214. LINA’s policy provided for disability benefits if an employee gave “satisfactory proof” that “solely because of Injury or Sickness [the employee is] unable to perform all material duties of [his or her] Regular Occupation or a Qualified Alternative[.]” See Rochow v. LINA (“ Rochow I ”), 482 F.3d 860, 863–64 (6th Cir. 2007).No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 3

In 2001, Rochow began to experience short term memory loss, occasional chills, sporadic sweating, and stress at work. Id. In July 2001, Gallagher demoted Rochow from President to Sales Execu tive-Account Manager because Rochow could no longer perform his duties as President. Id. Rochow continued to have difficulties, and as a result of his inabil ity to perform his job, Gallagher forced Rochow to resign effective January 2, 2002. Id. In February 2002, Rochow experienced periods of amnesia and was hospitalized. Id. During his February 2002 hospital stay, Rochow was diagnosed with HSV-Encephalitis, a rare and severely debilitating brain infection. Id. On or about December 31, 2002, Rochow file d a claim for long term disability benefits. LINA denied Rochow benefits st ating that Rochow’s employment ended before his disability began. Rochow I, 482 F.3d at 864. Rochow appealed LINA’s denial and included medical records from 2001 that stated Rochow was suffering short-te rm memory loss during 2001. In denying Rochow’s appeal, LINA noted that Ro chow experienced the effects of encephalitis during 2001 but de nied coverage because Ro chow continued to work and was not disabled until February 2002. Rochow I, 482 F.3d at 864. Rochow again appealed and included a report from Jack Tellerico, an area vice president for Gallagher, which identified th e material duties of Rochow’s position with Gallagher and stated that during 2001, Rochow was not able to perform all the material duties of those jobs due to his lack of memory. LINA again denied Rochow’s claims stating, “[s]ince, Mr. Rochow’s long-term disability claim was not filed until after his termination date; his claim was denied because of, ‘not considered actively working at time of disability.’ It a ppears no additional documentation was provided which would support that Mr. Rochow was actively working when he became disabled.’” (P age ID 4056) (Joint App’x) (sic). Rochow appealed the denial a third time. LINA denied his claim for the final time stating Rochow had not presented any medical records to support his inability to work prior to the date he was terminated. On September 17, 2004, Rochow filed a complaint against Cigna Group Insurance, LINA’s parent company, in th e United States District Court for the Eastern District of Michigan. Compl., ECF No. 1. The complaint states two claims under ERISA § 502(a)(3), 29 U.S. C. § 1132(a)(3): one to recover full benefits due to the failure to pay benefits in violation of the terms of the plan and one to remedy the alleged breach of fiduciary duty in ER ISA Section 404(a), 29 U.S.C. § 1104(a). Defendant moved for judgment on the r ecord and Plaintiff moved for summary judgment. On June 24, 2005, Judge Tarnow of the United States District Court for the Eastern District of Michigan heard or al arguments on the parties’ motions. At the conclusion of oral argument, Judge Tarnow stated on the record that LINA acted arbitrarily and capriciously in fi nding Rochow was not disabled while still employed and that Rochow had prevai led. In a one page order which incorporated the reasoning stated on th e record, the Court granted Rochow’sNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 4

motion and denied LINA’s motion. The same day, the district court clerk filed a judgment which purported to dismiss the ca se and was signed by the district court clerk and Judge Tarnow. LINA appealed the June 24, 2005 Or der denying Defendant’s motion and granting Plaintiff’s motion. Rochow moved to enfor ce judgment or require Defendant to post a supersedeas bond pursuan t to Federal Rule of Civil Procedure 62(d). Eventually this motion was withdrawn and Defendant deposited a supersedeas bond in the amount of $250,000. On April 3, 2007, a panel of this Court affirmed Judge Tarnow’s Order. Rochow I, 482 F.3d at 866. The Rochow I panel held the record supported the district court’s decision that LINA’s denial of Rochow’s claims was arbitrary and capricious, was not the result of a deliber ate, principled reasoning process, and did not appear to have been made “‘solelyin the interest of the participants and beneficiaries and [ ] for the exclusive purpose of [ ] provi ding benefits to participants and their beneficiaries’ as required by ERISA. 29 U.S.C. § 1104(A)(1).” Id. The opinion noted, “there is no ‘logical incompatibility between working full time and being disa bled from working full time’” and that the policy required only “satisfactory proof of disability, not medical evidence.” Id. (internal citations omitted). On the same day, the clerk for this Court entered judgment stating “the order of the district court is AFFIRMED.” The clerk of this Court issued the mandate on April 26, 2007, and it was filed May 3, 2007. On May 10, 2007, the parties file d a stipulation “to toll th e time for all parties and counsel to bring any post remand motions,” and the district court entered an Order tolling the filing deadlines for post-re mand motions until further order of the court. On April 3, 2008, the district court referred the remaining issues in dispute to United States Magistrate Judge Whal en. Over the next few months, Judge Whalen held several status conferences. On November 10, 2008, LINA filed a statemen t of resolved and unresolved issues and Plaintiff 1 filed motions for attorneys’ fees and costs and equitable accounting. LINA’s statement of issues represented that the parties still disputed several issues, including whether Plaintiff was en titled to a disgorgement of profits.
Plaintiff also filed a motion seeking anequitable accounting and a request for disgorgement. In that mo tion, Plaintiff argued Rochow’s estate was entitled to disgorgement of profits because LINA breached its fiduciary duties, and disgorgement was necessary to prevent LINA’s unjust enrichme nt resulting from

_________________ 1 Rochow died on October 16, 2008, and the representative of his estate, Patrick Rochow, was substituted as plaintiff in this action. Late r, Todd R. Rochow and John D. Rochow were substituted as administrators of Daniel Rochow’s estate and as plaintiffs in this case. For consistency, this opinion refers to all litigation actions taken on behalf of Rochow’s estate as actions by [Rochow].No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 5

profits it earned on the wr ongfully retained benefits . Plaintiff supported the motion with the report of his expert, Dr. David C. Crosen. Incalculating LINA’s “Return on (Average) Equity” (“ROE”), Dr. Crosen determined LINA used Rochow’s benefits to earn between 11 percent and 39 percent annually and, therefore, made approximately $2.8 million by retaining Rochow’s benefits. In June 2009, the district court grante d Plaintiff’s motion for an equitable accounting of profits and dis gorgement of the same. LINA then moved to strike Croson’s report and to preclude him from testifying as an e xpert on the ground that his principles and methods were unreliable under Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589 (1993). The motion was referred to the magistrate judge, who issued a report recommending that the motion be denied, no ting that the matter was being tried to the court rather than a jury and finding that many of LINA’s objections went to the weight of Croson’s opinions, not th eir admissibility. The district court adopted the magistrate judge’s recommendation over LINA’s objections. After the parties briefed the issue, the district court conducted an evidentiary hearing in November 2011 on the issue of calculation of profits for disgorgement. At the hearing, LINA offered the testimony of its expert, Timothy Holzli, who served as the Chief Accounting Officer fo r the group insurance division of Cigna. Holzli opined Rochow’s withheld bene fits earned LINA profits of $32,732. He arrived at that figure by treating the withhe ld benefits as though they were earning interest as part of LINA’s investment assets. On cross examination, Holzli acknowledged, however, that the account was not a separate or segregated account. He also conceded that LINA pa yed [sic] its operating expenses and benefits from the account, and the money in the account formed a basis for LINA to write insurance coverage. Following additional briefing and oral argum ent, the district court issued its decision on calculation of profits for disgorgement in March 2012. 2 The district court adopted Croson’s ROE metric as the basis for determining the profits LINA gained from the wrongfully withheld f unds, and it rejected Holzli’s retained investment margin metric. It did so, in part, based upon its factual finding that the subject money was not placed in a separate investment account, but rather was available for LINA to use for any business purpose. In the last paragraph of its decision, the district court stated:
Plaintiff will, within two weeks from this order, submit a final amount to be disgorged by De fendant based upon the Court’s rulings, above. Defendant may then submit a memorandum in

_________________ 2 The district court’s deci sion is reported at Rochow v. LINA , 851 F. Supp. 2d 1090 (E.D. Mich. 2012).No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 6

response within seven days. This memorandum is limited only to any objections regarding the accuracy of Plaintiff’s calculations based on this order, and is not an invitation to relitigate issues already decided by this Court. (Page ID 3576). On May 4, 2012, in its response brief to Plaintiff’s final calculation of disgorgement, LINA argued for the first time that permitting disgorgement was outside the scope of the mandate in the fi rst appeal. Nonethel ess, on July 24, 2012, the district court or dered disgorgement of $3,797,867.92. The court noted, “Defendant has, in response to a propos ed order submitted by Plaintiff, raised objections. To the extent that these objections do not simply repeat arguments already rejected by the Court, and ra ise new issues in Defendant’s argument concerning the ‘mandate rule,’ they ar e untimely and will not be considered.” (Page ID 3907). LINA timely appealed.

Rochow II, 737 F.3d at 417–20 (alteration in original).
On December 6, 2013, a panel of this cour t affirmed the disgorgement award, holding that disgorgement was properly ordered under ERISA § 502(a)(3) for LINA’s breach of fiduciary duty and that Rochow’s claim for such relief was not an impermissible repackaging of a claim for wrongful denial of benefits under § 502(a)(1)(B). Id. at 423. The Rochow II panel
stated that the successful result obtained by Rochow on his clai m for wrongful denial of benefits
in Rochow I did not preclude additional relief on Rochow’s breach -of-fiduciary-duty claim. Id. at 422–23. LINA’s petition for en banc rehear ing was granted on February 19, 2014, vacating the panel’s decision in Rochow II

.

II
There is essentially one issue before us: Is Rochow entitled to recover under both ERISA § 502(a)(1)(B) and § 502(a)(3) for LINA’s arbitrary and capricious denial of long-term disability benefits? As a result of our ruling in Rochow I, Rochow recovered all benefits that he had been wrongfully denied under § 502(a)(1)(B). We no w decide whether Rochow may also recover under § 502(a)(3), which makes “appropriate e quitable relief” availa ble to redress such violations as a breach of fiduciary duty. 1 The district court held that Rochow could recover

1 We assume, for present purposes, that the district court made a finding that LINA breached a fiduciary duty owed to Rochow. However, the district court’s various orders are devoid of any such express finding. When the case was before the district court on the issue of whether the plan administrator arbitrarily and capriciouslyNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 7

under both provisions because Rochow pleaded clai ms for two distinct kinds of relief, namely one claim to recover benefits arbitrarily and capriciously denied by LINA, and one claim for disgorgement of profits realized by LINA as a re sult of its breach of fiduciary duty consisting of the arbitrary and capricious denial of benefits. Contrary to Rochow’s arguments, Rochow is made whole under § 502(a)(1 )(B) through recovery of his disability benefits and attorney’s fees, and potential recovery of prejudgm ent interest, discussed below. Allowing Rochow to recover disgorged profits under § 502(a)(3 ), in addition to his recove ry under § 502(a)(1)(B), based on the claim that the wrongful denial of benefits also constituted a bre ach of fiduciary duty, would—absent a showing that the § 502(a)(1)( B) remedy is inade quate—result in an impermissible duplicative recovery, contrary to clear Supreme Court and Sixth Circuit precedent.
ERISA has six remedial provisions. The reme dial provisions relevant to this action are § 502(a)(1)(B) and § 502(a)(3), which state:

denied benefits, the court ruled from the bench in granting summary judgment for Rochow. The transcript of the hearing reveals no express finding of a breach of fiduciary duty. R. 19, Hearing Tr. at 24, Page ID 4095. Further, the one-page order that memorialized th e district court’s ruling includes the finding simply that “the denial of Plaintiff’s claim was arbitrary and capricious.” R. 16, Orde r at 1, Page ID 105. There is no mention of a breach of fiduciary duty. The judgment order th at issued the same day, apart from granting Rochow’s claim for benefits wrongfully denied, “dismissed” the case. That is, the district court appe ared to have dismissed the breach-offiduciary-duty claim as a claim pled in the alternative and rendered moot by Rochow’s success on the principal claim. R. 17, Judgment, Page ID 106.
In Rochow I , similarly, we did not address any claim for br each of fiduciary duty, or even use the terms “fiduciary,” “duty,” or “breach” in the opinion. Admittedly, one could infer from Rochow I that LINA’s fiduciary duty was alluded to in the observation that LINA’s decision did not appear to have been made “‘solely in the interest of the participants and beneficiaries and [ ] for the exclusive purpose of [ ] providing benefits to participants and their beneficiaries’ as required by ERISA. 29 U.S.C. § 1104(a)(1).” See Rochow I, 482 F.3d at 866. However, no ruling on a breach-of-fiduciary-duty claim was before the court and the opinion contains no analysis of the point. After the district court’s initial decision was affirmed and the district court took up the motion for equitable accounting, however, the court re jected LINA’s argument that it had not ma de the requisite finding of a breach of fiduciary duty to trigger the availability of equitable relief. Citing Varity , the court stated, “an ar bitrary or capricious denial of benefits can count as a breach of fiduciary duty.” R. 67, Order at 4, Page ID 935. Further, when the district court set the method of accounting for the disgorgement award, it stated “it has already been determined that Defendant owed Plaintiff a duty of loya lty and breached this dutythrough its arb itrary and capricious denial of disability benefits to Plaintiff.” R. 113, Order at 2, Page ID 3562. The distri ct court thus treated its finding of an arbitrary and capricious denial of benefits, in and of itself, as a breach of fiduciary duty. The district court never identified any other grounds for finding a breach of a fiduciary duty. In the district court’s ruling, it was one and the same injury that made out two distinct ERISA violations and justified both remedies. Though we are aware of no persuasive authority for the proposition that a wrongful denial of benefits in and of itself constitutes a breach of fiduciary duty reme diable under both § 502(a) (1)(B) and § 502(a)(3), we assume, without deciding, that the district court permissibly found a breach of fiduciary duty based on the administrator’s arbitrary and capricious denial of benefits. The dissenting opinion suggests other ways in which LINA might be deemed to have breached a fiduciary duty, but the district court’s judgment now under review clearly includes no such ruling. Careful review of the district court rulings cited in the dissent discloses that the asserted findings of other instances of misconduct by LINA were not identified by the district court as grounds for holding that LINA breached its fiduciary duty.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 8

(a) Persons empowered to bring a civil action A civil action may be brought— (1) by a participant or beneficiary—

. . . (B) to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights under the te rms of the plan;

. . . (3) by a participant, beneficiary, or fiduc iary (A) to enjoin any act or practice which violates any provision of this subchapt er or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress suchviolations or (ii) to enforce any provisions of this subc hapter or the te rms of the plan.
29 U.S.C. § 1132(a).
Unfortunately for Rochow, Supreme Court pr ecedent construing the interplay of these provisions dictates a result contrary to th at reached by the district court. In Varity Corp. v.
Howe , 516 U.S. 489 (1996), the Supreme Court allowe d a group of plaintiffs, who were unable to bring a claim under § 502(a)(1)(B), to br ing suit for breach of fiduciary duty under § 502(a)(3). As the Court explained, § 502(a)(3) “functions as a safety ne t, offering appropriate equitable relief for injuries caused by violatio ns that § 502 does not elsewhere adequately remedy.” Id. at 513. Importantly, however, the Varity Court limited this expansion of ERISA coverage by noting that “whe re Congress elsewhere provided adequate relief for a beneficiary’s injury , there will likely be no need for further equitable relief, in which case such relief normally
would not be appropriate .” Id. at 515 (emphasis added) (internal quotation marks omitted).

The Varity Court thus emphasized that ERISA reme dies are concerned with the adequacy of relief to redress the claimant’s injury, not the nature of the defendant’s wrongdoing. The district court’s use of equitabl e relief under § 502(a)(3) as the vehicle for its disgorgement award misses the mark. Instead of focusing on the relie f available to make Rochow whole, the award
reflects concern that LINA had wr ongfully gained something, a c onsideration beyond the ken of
ERISA make-whole remedies. Varity indicates that equitable relief is not ordinarily appropriate where Congress has elsewhere provided adequate m eans of redress for a claimant’s injury. In other words, a claimant cannot pursue a breach -of-fiduciary-duty claim under § 502(a)(3) basedNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 9

solely on an arbitrary and cap ricious denial of benefits wh ere the § 502(a)(1)(B) remedy is adequate to make the claimant whole. Here, th ere is no showing that th e benefits recovered by Rochow, plus the attorney’s fees awarded, plus the prejudgment interest that may be awarded on remand, are inadequate to make Rochow whole. Absent such a showing, there is no trigger for “further equitable relief” under Varity

. If an arbitrary and capricious denial of bene fits implicated a breach of fiduciary duty entitling the claimant to disgorgement of the defendant’s profits in addition to recovery of benefits, then equitable relief would be potentially available whenever a benefits denial is held to be arbitrary or capricious. Th is would be plainly beyond and in consistent with ERISA’s purpose to make claimants whole. Tellingly, the appell ate briefing contains ci tation to no case that allowed disgorgement of profits under § 502(a )(3) after the claimant recovered for wrongful
denial of benefits under § 502(a)(1)(B).

Here in the Sixth Circuit we have had occasion to apply Varity ’s teaching on the relationship between § 502(a)(1)(B) and § 502(a)(3) in Wilkins v. Baptist Healthcare System,
Inc. , 150 F.3d 609 (6th Cir. 1998). In Wilkins , Wilkins applied for long-term disability benefits and, after the plan administrator denied his cla im, sued for benefits under § 502(a)(1)(B) and for equitable relief under § 502(a)(3) based on breach of fiduciary duty. We denied relief under § 502(a)(3) stating:
Because [§ 502(a)(1)(B)] provides a remedy for Wilkins’s alleged injury that allows him to bring a lawsuit to challe nge the Plan Administrator’s denial of benefits to which he believes he is entitle d, he does not have a right to a cause of action for breach of fiduciary duty pursuant to [§ 502(a)(3)].

Id. at 615. Just like the plaintiff in Wilkins , Rochow is not entitled to relief under the catchall provision: such relief is unnece ssary and unavailable because he has an adequate remedy under § 502(a)(1)(B).

LINA thus contends the district co urt’s disgorgement award contravenes Wilkins and allows a claimant to improperly repackage a claim for benefits wr ongfully denied as a cause of action for breach of fiduciary duty. Rochow insists that Wilkins provided a way to ensure only that claimants do not attempt an “end run” around ERISA’s limitations by repackaging an unsuccessful claim for benefits as a claim for “appropriate relie f” based on an alleged breach ofNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 10

fiduciary duty. Rochow claims that Wilkins bars relief sought under § 502(a)(3) only if that same type of relief could have been obtained under § 502(a)(1)(B). Because he purportedly seeks a type of relief under § 502(a)(3) (i.e., disgorgement of LINA’s pr ofits) different from and in
addition to what is available to him unde r § 502(a)(1)(B), Rochow contends that Wilkins does not preclude his claim for this additiona l remedy to obtain complete relief.

Rochow mischaracterizes Wilkins . A claimant can pursue a breach-of-fiduciary-duty claim under § 502(a)(3), i rrespective of the degree of success obtained on a claim for recovery of benefits under § 502(a)(1)(B), only where the breach of fiduciary duty claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under § 502(a)(1)(B) is otherw ise shown to be inadequate. See Gore v. El Paso Energy Corp. Long Term Disability Plan , 477 F.3d 833, 840–42 (6th Cir. 2007). Wilkins simply affords no support for the argument that § 502(a)(3) equ itable relief may be appropriate to further redress a wrongful denial of benefits adequa tely remediable under § 502(a)(1)(B). Rather,
Wilkins makes clear that the availability of relief under § 502(a)(3) is contingent on a showing
that the claimant could not avail himself or herself of an adequate remedy pursuant to § 502(a)(1)(B). Wilkins , 150 F.3d at 615.

Rochow contends there is no legitimate concern about impermissible claim “repackaging” when a benefits-claimant prevails and seeks “ other appropriate equitable relief.” We disagree. Impermissible repackaging is imp licated whenever, in addition to the particular adequate remedy provided by Congress, a duplicativ e or redundant remedy is pursued to redress the same injury. Because Rochow was able to avail himself of an adequate remedy for LINA’s wrongful denial of benefits pursuant to § 502(a)(1 )(B), he cannot obtain a dditional relief for that same injury under § 502(a)(3).

In Hill v. Blue Cross and Blue Shield of Michigan , 409 F.3d 710 (6th Cir. 2005), we further clarified the interplay of § 502(a)(1)(B) and § 502(a)(3). In Hill , the plaintiffs brought a class-action lawsuit seeking indi vidual relief for wrongfully de nied benefits under § 502(a)(1)(B) and for plan-wide injunc tive relief under § 502(a)(3) based upon the defendant’s alleged breach of its fiduciary duty. The district court dism issed the § 502(a)(3) clai m, finding that “these claims were merely repackaged claims for in dividual benefits and did not constitute actualNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 11

fiduciary-duty claims.” Id. at 717. We reversed. Whereas Wilkins involved the rejection of fiduciary-duty claims on the basis that they were actually disguised indivi dual-benefits claims, in
Hill the need for relief under the catchall provision arose out of a defect in plan-wide claim handling procedures, implicating a different injury. “The award of benefits to a particular [plaintiff] based on an improperly denied claim for emer gency-medical-treatment expenses will not change the fact that [defendant] is using an allegedly improper methodology for handling . . .
claims.” Id. at 718. To remedy this separate and distinct injury, we permitted injunctive relief under § 502(a)(3), not an additional award of monetary damages for the same denial of benefits. Thus, Hill recognized an exception to Varity and Wilkins where “[o]nly injunctive relief of the type available under [§ 502(a)(3 ) would] provide the complete relief sought by Plaintiffs by requiring [Defendant] to alter the manner in which it administers all the Program’s claims . . . .”
Id. at 718 (emphasis added). In Hill , as in Varity , the primary purpose of ERISA was given effect—ensuring availability of an adequate remedy to make the plaintiffs whole.
The present case does not fall within the Hill exception to Varity and Wilkins

. Hill distinguished between the denial of individual claims and plan-w ide mishandling of claims as two distinct injuries. Section 502(a)(1)(B) provided relief for the denial of the Hill plaintiffs’ individual benefits, and § 502(a )(3) remedied the systemic pl an-wide problems that posed a potential for future injury. Contrast Hill with the present case, where the only asserted injury to Rochow is the denial of benefits and withholding of the same benefits. These are not distinct injuries; they are one and the same injury. Because Rochow has an adequate and effective remedy for this injury under § 502(a)(1)(B), he is not also entitled to relief under § 502(a)(3).

Rochow continues to claim that the di sgorgement award (“equitable accounting”) remedies an injury entirely distinct from the injuryremedied by recovery of his benefits, and that he has therefore suffered two distinct injuries. Ro chow contends that he suffered his first injury when LINA improperly denied hi s benefits, and he suffered his second “injury” when LINA used the funds it owed him to generate $3.7 million in profits for its own account without remitting the profits to him. Yet, in an action fo r wrongful denial of bene fits, like this one, the denial of benefits necessarily results in a cont inued withholding of benefits until the denial is
either finalized or rectified. The denial is th e injury and the withholdi ng is simply ancillaryNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 12

thereto, the continuing effect of the same denial. Together they comprise a single injury. By withholding payment of benefits until the denial was either finalized or rectified, LINA did not violate a second, distinct duty owed to Roc how and did not inflict a second injury.

Nor can it be said that Rochow suffered a second injury, or th at his injury was exacerbated, as a result of any gain realized by LINA before it paid the wrongfully withheld benefits. Rochow’s loss remained exactly the same irrespective of the use made by LINA of the withheld benefits. Despite Rochow’s creative use of semantics, the reality remains clear: Rochow suffered one injury, the denial of his be nefits. And neither Rochow nor the dissent has succeeded in identifying any way in which the remedy available under § 502(a)(1)(B)—i.e., recovery of benefits and attorn ey’s fees and, potentially, prejudgm ent interest—is inadequate to make Rochow whole. The remedy Congress chose to make available under § 502(a)(1)(B) having thus not been shown to be inadequate, it follows that permitting Rochow to obtain further equitable relief for the same injury under § 502 (a)(3) would contravene the scheme established by Congress as well as the Supreme Court’s teaching in Varity

. Rochow cites two cases to support his claim th at he is entitled to equitable relief under § 502(a)(3). He contends that Edmonson v. Lincoln Nat’l Life Ins. Co. , 725 F.3d 406 (3d Cir. 2013), stands for the proposition that disgorgement of profits may be an appropriate remedy for breach of fiduciary duty even in the absence of a showing of financial loss by the claimant. The
discussion in Edmonson on which Rochow relies is addresse d solely to the question whether an ERISA claimant had standing to bring a claim for disgorgement of profits notwithstanding a lack of showing of financial loss. Th e court answered this question in the affirmative, based on trust law principles. Id. at 415–17. However, the court ultimately denied relief for lack of a showing of a breach of fiduciary duty and lack of a showing that any su ch breach proximately caused injury to the claimant. Id. at 423–26. There was no claim in Edmonson for benefits wrongfully denied, but only a stand-alone claim for breach of fiduciary duty. Hence, the Edmonson court did not have occasion to address the interplay of § 502(a)(1)(B) and § 502(a)(3) or to consider whether the availability of other remedies under ERISA rendered equitable relief under § 502(a)(3) inappropriate. Edmonson ’s observations about standing, viewed in context, are of limited significance to the issue before us.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 13

Rochow also relies on CIGNA Corp. v. Amara , 131 S. Ct. 1866, 1881 (2011), to support his argument that the failure to show a second, dis tinct injury is not fatal to his disgorgement award under § 502(a)(3). In Amara , he contends, the Court recognized that in an action for equitable relief under § 502(a)(3), the requisite “act ual harm” may consist simp ly of “the loss of a right protected by ERISA or its trust-law antecedents.” Id. at 1881. Again, the argument misses the point. There is no dispute that “appr opriate equitable relief” may be obtained under § 502(a)(3) to redress an ERISA violation by a pl an fiduciary. The point, as detailed above, is that Rochow did not suffer an injury remediable under § 502(a)(3) in this case. Rochow suffered the wrongful denial of his benef its, an injury adequate ly remedied under § 502(a)(1)(B). Despite
Rochow’s insistence to the cont rary, his breach-of-fiduciary-duty claim for disgorgement of profits is nothing but a repackaged claim for be nefits wrongfully denied, a claim for which, per Varity , additional equitable relief is not appropriate because not necessary to make Rochow
whole. Rochow’s reliance on Amara is to no avail.

Rochow insists that Varity and Amara , read together, indicate that a plaintiff may obtain relief under both § 502(a)(1)(B) and § 502(a)(3) if “other approp riate equitable relief” is necessary to make the plaintiff whole for injury caused by the wrongf ul denial of benefits. He argues that Varity made clear that “other appropriate equitable relief” may be available under § 502(a)(3) when a party cannot obtain re lief under § 502(a)(1)(B). Further, Amara identified a range of equitable remedies potentially available under § 502( a)(3), including surcharge. 2 Reading Varity and Amara together thus supports the no tion, Rochow contends, that disgorgement of profits is available in the in stant case because recovery of benefits under § 502(a)(1)(B) did not make hi m whole for the injury caused by LINA’s breach of fiduciary duty.
Rochow’s reading misses a logical step: “o ther appropriate equi table relief” is not necessary to make him whole. While Varity certainly acknowledges the possibility of equitable

2 The statements made by the Supreme Court in Amara regarding the equitable remedies available to courts under § 502(a)(3) are merely dicta. The sole question before the Court in Amara was whether the district court applied the correct legal standard in determining whether CIGNA’s failure to inform its employees of changes to the benefits plan caused its employees sufficient injury to warrant legal relief. Amara , 131 S. Ct. at 1871. The Court also discussed whether § 502(a)(1)(B) aut horized the relief the district court awar ded. In finding that § 502(a)(1)(B) was not the appropriate remedy, the Court went on to acknowledge that § 502(a)(3) authorizes forms of relief similar to § 502(a)(1)(B). However, the Court did not decide what remedies were available, and did not conclusively decide which remedy was appropriate in the case before it. Id. at 1880.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 14

relief, and Amara outlines the scope of potential equitable relief, when appropriate, the Supreme
Court has never stated that r ecovery under both § 502(a)(3) and § 502(a)(1)(B) may be warranted for a single injury. Rochow clai ms two injuries—the arbitrary and capricious denial of benefits, and the breach of fiduciary duty consisting of the continue d withholding of the wrongfully denied benefits. These “injur ies,” however, as explained above , are indistinguishable. The
Court in Varity made clear that equitable relief is not ordinarily appropriate where Congress has provided adequate relief for a claimant’s injury. The purpose behind ERISA continues to be remedial, and Rochow’s injury was remedied when he was awarded the wrongfully denied benefits and attorney’s fees—as potentially s upplemented by award of prejudgment interest, still to be determined. Despite Rochow’s attempts to obtain equitable relief by repackaging the wrongful denial of benefits cl aim as a breach-of-fiduciary- duty claim, there is but one remediable injury and it is properly and adequa tely remedied under § 502(a)(1)(B). Rochow and our dissenting colleagues wholly fail to explain how his § 502(a)(1)(B) remedies are inadequate to remedy his injury

. Rochow’s final argument is that even if th e disgorgement relief is not available under § 502(a)(3), he is entitled to prejudgment intere st under § 502(a)(1)(B), a matter the district court failed to address. We acknowledge that prejudgme nt interest may be awarded in an appropriate case under ERISA. “Though ERISA does not addr ess the propriety of awarding prejudgment interest, prejudgment interest may be awarded in the discretion of the district court. Awards of prejudgment interest are compensatory , not punitive, and a finding of wrongdoing by the defendant is not a prerequisi te to such an award.” Tiemeyer v. Cmty. Mut. Ins. Co. , 8 F.3d 1094, 1103 (6th Cir. 1993), cert. denied, 511 U.S. 1005 (1993) (interna l quotations and citations omitted); see also Wells v. U.S. Steel , 76 F.3d 731, 737 (6th Cir. 1996) (holding that district court did not abuse its discretion in awarding prejud gment interest when pension fund wrongfully withheld benefits).
Prejudgment interest cannot be awarded, howev er, at a rate so high that the award amounts to punitive damages:
Although prejudgment interest is typically not punitive, an excessive prejudgment interest rate would overcompensate an ERISA plaint iff, thereby transforming the award of prejudgment interest from a co mpensatory damage award to a punitiveNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 15

one in contravention of ERISA’s remedial goal of simply placing the plaintiff in the position he or she would have occ upied but for the defendant’s wrongdoing.

Ford v. Uniroyal Pension Plan , 154 F.3d 613, 616 (6th Cir. 1998). An interest award should “simply compensate a beneficiary for the lost in terest value of money wr ongfully withheld from
him or her.” Rybarczyk v. TRW, Inc. , 235 F.3d 975, 985 (6th Cir. 2000) (quoting Ford , 154 F.3d at 618). An excessive prejudgm ent interest rate w ould “contravene ERISA’s remedial goal of simply placing the plaintiff in the position he or she would have occupied but for the defendant’s wrongdoing.” Schumacher v. AK Steel Corp. Retirement Accumulation Pension Plan , 711 F.3d 675, 686 (6th Cir. 2013). Conversely, an exceedingl y low award would fail to make the plaintiff
whole. Id.
Rochow’s request for prejudgment interest app ears to be a remedy the district court could have granted, though not at an excessive rate. In his initial complaint, Ro chow requested various forms of relief, including an “[o]rder compellin g Defendant to pay Plaintiff forthwith the full amount of employee benefits due him and to continue such payments for a pe riod set forth in the Plan, including interest on all unpa id benefits.” R. 1, Compl. at 6, Page ID 6. Rochow also requested “[r]easonable attorney fees and costs” and “[s]uch other relief as may be just and appropriate.” Id. When the case was remanded to the district court following Rochow I, the parties treated prejudgment interest as a live issue, fully briefing the issue in connection with the proceedings on equitable remedies. Yet when dis gorgement of profits was ordered, the question of prejudgment interest was given no further consideration. Rochowthus prayed for such relief in his complaint and has preserved his request throughout the proceedings . The issue having been thus far been pretermitted through no fault of the parties, we remand the case once more to
the district court for fresh consideration of Rochow’s entitlement to prejudgment interest.

III

For the reasons stated above, we VACATE the district court’s disgorgement award under § 502(a)(3) and REMAND the case to the district court for consideration of whether and, if so, to what extent, award of prej udgment interest is warranted under § 502(a)(1)(B) to make
Rochow whole.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 16

_________________

CONCURRENCE

_________________ JULIA SMITH GIBBONS, Circuit Judge, concurring. If one accepts the rather charitable assumptions made in footnote 1 of the majority opinion, its reasoning is entirely
correct. For that reason I concur in it. I write separately to not e, however, that if one does not make those assumptions, the district court’ s disgorgement order cannot stand for purely procedural reasons.
Rochow’s complaint stated two claims: He alleged that LINA wrongfully denied him benefits under 29 U.S.C. § 1132(a)(1)(B), and he alleged that in doing so, LINA breached its fiduciary duties under 29 U.S.C. § 1104(a). The second claim was styled as one arising under 29 U.S.C. § 1132(a)(3). In his pr ayer for relief, in addition to seeking an order compelling LINA to pay him the benefits he believed he was due, Rochow sought disgorgementof any profits that
LINA had obtained as a re sult of its conduct.
The parties filed cross-motions for summary j udgment. LINA requested that the district
court affirm its denial of Rochow’s claim for benefits. Rochow asserted only that LINA erroneously denied him benef its pursuant to § 1132(a)(1)(B). 1 He styled his summary judgment motion as a motion for partial summary judgment , did not argue his br each-of-fiduciary-duty claim under § 1104(a) and § 1132(a)(3 ), and did not mention disgor gement. When the district court issued an order memorializing its from-the-bench grant of Rochow’s motion, it granted summary judgment in full and made no mention of Rochow’s second claim.
Were there any doubt that Roc how’s § 1132(a)(3) claim no l onger remained in the suit, the district court’s judgment ordered the cas e “DISMISSED.” This was a final judgment, conferring upon the Rochow I panel appellate jurisdiction pursu ant to 28 U.S.C. § 1291. There was no other basis for appellate jurisdiction, as the district c ourt did not issue an injunction triggering the application of 28 U.S.C. § 1292(a), nor did it certi fy the case for interlocutory

1 Among the other relief he sought, Ro chow requested “[a] full and accur ate accounting by Defendant of all computations for Plaintiff’s disability benefits in sufficient detail so that Plaintiff may ascertain that his benefits are being paid in the proper amount.”No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 17

appeal pursuant to 28 U.S.C. § 1292(b). Rochow raised no issue on appeal regarding the district
court’s failure to address his brea ch of fiduciary duty claim. The Rochow I panel affirmed the district court’s grant of Rochow’s motion for summary judgment, thus ending the case. The
district court had ordered the cas e dismissed. A panel of this c ourt had affirmed. And the panel
did not remand the case to the district court.
Pursuant to the parties’ s tipulation, however, the districtcourt agreed to accept “postremand” motions. But the case had never been remanded, and, of course, the parties could not stipulate to the district court’s re tention of jurisdiction. Still, the district court permitted Rochow to resuscitate his abandoned disgorgement claim, after Rochow moved for the court “to supervise the equitable accounting granted with summary judg ment.” This motion was highly problematic. For starters, the district court never granted equitable accounting as part of its summary judgment order. And to the extent Rochow me ntioned “accounting” in his motion for summary judgment, he sought an accounting of the amount of benefits due so that he could ensure “that his benefits [we]re being paid in the proper am ount,” not equitable ac counting tantamount to disgorgement. LINA is not without fault either. It spent years litigating the case without bringing these procedural defects to the district court’s attention.
When the district court finally granted Rochow’s motion for equitable accounting and ordered LINA to disgorge profits, it violated the mandate rule. The mandate rule is a multifaceted “rule” governing the relationship between the courts of appeals and the district courts. Its fundamental principle is stra ightforward: A district court ma y not contravene an appellate
court’s mandate. United States v. Campbell , 168 F.3d 263, 265 (6th Cir. 1999). For instance, if a case is remanded, the mandate rule “foreclo ses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. O’Dell , 320 F.3d 674, 679 (6th Cir. 2004) (internal quotation marks omitted). And “where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone, the mandate rule generally prohibits the district court from reopening the issue on remand unless the mandate can reasonably be understood as permitting it to do so.” Id

. Here, the Rochow Ipanel did not remand the case to the district court, so any “postremand” litigation was contrary to this court’s mandate. See United States v. Hamilton , 440 F.3dNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 18

693, 697–98 (5th Cir. 2006); Green v. Nevers , 196 F.3d 627, 632 (6th Cir. 1999). Even if
Rochow I could be read as remanding th e case to the district court for the issuance of a remedy, a
district court violates the mandate rule when it orders an additional remedy beyond that contemplated by the appellate panel’s opinion. See Briggs v. Pa. R.R. Co. , 334 U.S. 304, 306 (1948); Schake v. Colt Indus. Operating Corp . Severance Plan for Salaried Emps. , 960 F.2d 1187, 1191 (3d Cir. 1992); Stiller v. Squeez-A-Purse Corp. , 296 F.2d 504, 506 (6th Cir. 1961).
Since Rochow had abandoned his claim for dis gorgement under § 1132(a)(3) by not seeking its
resolution in the district court after that court treated a motion for “partial” summary judgment as one warranting summary judgment on all issues and by not raising the distri ct court’s failure to resolve the breach of fiduciary duty claim on appeal , the district court violated the mandate rule when it ordered disgorgement.
Our mandate issued on May 3, 2007. Over seven years later this case is still being litigated. The majority’s charitable view of the case’s procedural history allows that unfortunate history to continue with some leg itimacy. In short, while I agree with the majority’s analysis if one accepts its accommodations in footnote 1 to reposition the case for en banc review, I am unable to refrain from presenting another take on the history of this case, one which would preclude the district c ourt’s jurisdiction to order any fu rther relief, except the prejudgment interest directed by the majority opinion.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 19

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I write separately because I do not entirely agre e or disagree with either the majority or dissenting opinion. I would vacate the judgment on the basis that the orde r of disgorgement is not adequately supported. I would, however, permit consideration of a refashioned disgorgement remedy on remand if properly supported. 1

There is less light between the two opinions than might appear on the surface. The majority understands Rochow’s fiduciary-duty cl aim as a repackaging of his benefits-denial claim, for which it believes Rochow obt ained adequate relief as a result of Rochow I , 482 F.3d 860 (6th Cir. 2007), and a potential award of pr ejudgment interest on remand. Operating under this conclusion, the majority holds the district court erred when it ordered LINA to disgorge its profits because ERISA, in its view, precludes “a duplicative or redundant remedy . . . to redress the same injury.” Maj. Op. 10. The majorityopinion does not, however , appear to foreclose disgorgement as an appropriate equitable reme dy under § 502(a)(3) in some cases. The dissent too interprets ERISA to authorize equitable relie f, including disgorgement of profits, to remedy distinct injuries, such as a plan administra tor’s breach of a fiduciary duty owed to plan participants and beneficiaries. Thus, all appear to agree disgorgement of profits is a potential remedy under ERISA. The two opinions part on whether Rochow’s fiduciary-duty claim is merely a repackaging of his benefits-denial cla im. This, I believe, is a false dichotomy that imposes a requirement not found in ERISA.
I do not agree that the dispositive inquiry gove rning the availability of equitable relief under § 502(a)(3) is whether the claim is a repackag ing of a benefits-denial claim. Rather, the governing inquiry under ERISA is whether othe r equitable relief is appropriate under the

1 This is not to say that such a remedy would be appropriate, only that it might be and that I would not foreclose it at this point.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 20

circumstances, and the extent to which the equ itable disgorgement claim duplicates the benefitsdenial claim is one factorto be considered in making that determination.
The statutory framework that authorizes “other appropriate equitable relief” confides the determination whether and what eq uitable relief is appropriate to judges, who presumably are well equipped to determine when a particular se t of circumstances warrants additional relief by focusing on ERISA’s objectives. This understanding of and respect for the discretionary role of the courts in evaluating claims for equitable relief is consis tent with the Supreme Court’s
statements in Varity Corp. v. Howe , 516 U.S. 489 (1996), which contemplate courts’ sound
exercise of their discretion in fash ioning appropriate equitable relief:
We should expect that courts, in fash ioning “appropriate” e quitable relief, will keep in mind the special nature and pur pose of employee benef it plans, and will respect the policy choices reflected in th e inclusion of certain remedies and the exclusion of others. Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, ther e will likely be no need for further equitable relief, in which cas e such relief normally would not be “appropriate.”

Id. at 515 (citations and intern al quotation marks omitted). Varity does not require a showing of a “separate and distinct” injury. Maj. Op. 10; cf. id. at 8 (recognizing that Varity “emphasized
that ERISA remedies are concerned with the adequacy of relief to redress the claimant’s injury”). Rather, it speaks of injury for which adequate relief has not been elsewhere provided, uses the qualifying terms “likely” and “normally,” and ultimately focuses on the governing word “appropriate.” We should, therefor e, address whether additional e quitable relief is appropriate here, even discuss the types of considerations that should guide the determinations whether and what equitable relief is appropr iate, but we should not preemptiv ely disallow equitable remedies in particular circumstances where ERISA has not done so.
Nevertheless, the majority fashions a bi furcated standard, holding that a breach-offiduciary-duty claim is actionable under § 502(a)(3) where the claim is based on “an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under § 502(a)(1)(B) is otherwise shown to be inadequate.” Id. at 10 (second emphasis added). I find this standard both confusing and unnecessary. If the remedy afforded by Congress under § 502(a)(1)(B) is adequate, it should not matter th at the beneficiary suffered an injury separateNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 21

and distinct from the denial of benefits; I doubt the majority inte nds otherwise. Conversely, if the remedy afforded by Congress under § 502(a)(1)(B ) is inadequate, it also should not matter whether the claimant suffered distinct injuries. Ultimately the question must rest on the majority’s second inquiry—whether the “reme dy afforded by Congre ss under § 502(a)(1)(B) is otherwise shown to be inadequate.” I have no doubt that whether the beneficiary suffered multiple injuries is a factor that is relevant to the ultimate question whether § 502(a)(1)(B) provides adequate relief. But the majority’s focu s on whether a fiduciary’s breach of its duties in denying benefits and then withholding them are “sep arate and distinct” injuri es or a single injury seems irrelevant in light of its conclusion that Rochow failed to show that the relief already received together with the relief that might be awarded on remand is inadequate. The majority implicitly acknowledges the dispositive inquiry w ith its conclusion that Rochow made “no showing that the benefits [he] recovered . . . , plus the attorney’s fees awarded, plus the prejudgment interest that may be awarded on remand, are inade quate to make [him] whole.” Id.
at 9.
Further undermining the separate-and-dist inct-injury requirement for relief under § 502(a)(3) is the majority’s ac knowledgement that a plainti ff who recovers benefits under § 502(a)(1)(B) can also obtain “other appropriate equitable relief” under § 502(a)(3) in the form of prejudgment interest, an equitable remedy. The majority allows an interest award even as it asserts that Rochow suffered only one inju ry that was “adequately remedied under § 502(a)(1)(B),” and that he “did not suffer [a separate and distinct] injury remediable under § 502(a)(3).” Id. at 13. Clearly, Rochow was not made whole by the award of benefits and attorney’s fees. Nearly seven years elapsed be tween the time he sought benefits and when LINA finally paid all benefits that were due. Furthe r equitable relief is n ecessary to compensate Rochow for LINA’s extraordinary delay in paying be nefits. The majority concedes as much in its remand order directing the dist rict court to consider the award of intere st, although it leaves
the ultimate determination to the district court. But, having acknowledged the po ssibility that delay in payment might require fu rther appropriate equitable relief , the majority does not explain why one equitable remedy (interest) may be appr opriate in a benefits-denial case, but another equitable remedy (disgorgement) is never appropriat e in such a case, except to say that there is only one injury.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 22

There is a valid distinction between the two equitable remedies that has nothing to do with whether there is an injury separate and dis tinct from the denial of benefits: Interest is generally compensatory, while disgorgement is generally geared toward deterring future
misconduct. See Drennan v. Gen. Motors Corp. , 977 F.2d 246, 253 (6th Cir. 1992); The Law of Trusts and Trustees § 484. I shar e the majority’s concer n that Congress did not intend to turn the
routine denial of benefits into th e basis for a recovery of benefits and also an array of equitable relief, but I would direct that co ncern to the question whether, in light of the historic distinction between the two equitable remedies, disgorgeme nt constitutes “other appropriate equitable relief” under the facts of a partic ular case, and would refrain from announcing what appears to be a blanket rule that bars equitable relief in a benefits-denial case.
Turning to the instant case, the district court did not find that disgorgement of profits is necessary to make Rochow whole, or that Rochowcould have earned the same rate of return had he been paid his benefits on time. 2 Rather, the court’s primary basis for awarding further equitable relief was LINA’s unjus t enrichment, Order, R. 67 at 5–6, and the disgorgement of profits was largely based on th e finding that LINA did not se gregate Rochow’s wrongfully
withheld benefits and instead le ft the amount in its general fund to be used for general operating

expenses, Rochow v. Life Ins. Co. of N. Am. , 851 F. Supp. 2d 1090, 1097–98 (E.D. Mich. 2012).
The district court reasoned that LINA earned a ra te of return on Rochow’s benefits that it would not have earned had it segregated the funds in an investment account, and that because Rochow’s money was inseparable from LINA’s money, he is en titled to a percentage of LINA’s return on its investments during this period. However, the district court did notfind that either the Plan or ERISA required that Rochow’s disp uted benefits be segregated pe nding resolution of the claim. Nor is it apparent on what basis the dissent co ncludes that LINA engaged in prohibited selfdealing under 29 U.S.C. § 1106(b). There has beenno finding that Rochow’s disputed benefits constituted “plan assets,” or that LINA’s actions in failing to segregate the disputed benefits and leaving them in the general fund constituted self-d ealing under ERISA. Without such findings or further explanation, I cannot agree that disgor gement is justified based only on the maxim

2 The circumstances might, however, support a finding that interest at the actual market rates during the period of delay would be inadequate compensation for the delay.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 23

emphasized by the district court—“if you take mymoney and make money with it, your profit belongs to me.” Rochow , 851 F. Supp. 2d at 1094 (internal quotation marks omitted).
In the absence of such justifications, disgorgement as an equitable remedy in a denial-ofbenefits case should be premised on a finding th at the decision to deny benefits was not only arbitrary and capricious but also based on impermissible consideratio ns that call for an equitable judicial response geared toward deterring similar decision making inthe future, as, for example, where the denial of benefits is not the produc t of particular claims evaluators’ misguided evaluations, but rather, an orga nizational policy to delay paying valid claims for as long as possible; or where repeated wron gful denials lead to the conclusion that disgorgement is necessary to assure proper claims processing in the future. See Hill v. Blue Cross & Blue Shield of Mich. , 409 F.3d 710, 718 (6th Cir. 2005); Parke v. First Reliance Standard Life Ins. Co. , 368 F.3d 999, 1008 (8th Cir. 2004) (quoting 1 Dobbs § 4.3(5), at 611 n.16); Restatement (Third) of Restitution and Unjust Enrichment § 51 ( 2011). Further, even when these types of considerations support disgorgement, the court s hould consider the effect of disgorgement on innocent participants in the plan and tailor the remedy accordingly.
To be clear, a finding that disgorgement is an appropriate remedy in such circumstances would be based on the totality of the circumstances of the denial, as well as the consequences of disgorgement, and would not depe nd on a finding of a separate and independent injury, which, although relevant, may or may not be present.
In sum, to the extent the majority’s bifur cated rule identifies two circumstances or considerations that might justif y an award of additional equita ble relief, I agree that those circumstances or considerations are relevant; how ever, to the extent the majority intends to
announce a rule that either dictates an award of additional equitable relief where either of those circumstances is present or prohibits such an award where neither is present, I disagree. Ultimately, the governing inquiry is whether additio nal equitable relief is appropriate, a decision normally left to the sound discretion of the district courts, to be exercised according to the totality of the circumstances surrounding the de nial, and subject to review for abuse of
discretion. See Tiemeyer v. Cmty. Mut. Ins. Co. , 8 F.3d 1094, 1103 (6th Cir. 1993). Addressing that question, I conclude that the record as it st ands does not support the district court’s exerciseNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 24

of its discretion in awarding the disgorgement ordered here. Thus , I agree that the order should be vacated. I would, however, pe rmit the district court to addre ss on remand the concerns raised here and in the majority opinion, and would not foreclose a disgorgement remedy as “other appropriate equitable relief” if properly supported on remand.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 25

_________________ DISSENT

_________________ STRANCH, Circuit Judge, diss enting. The issue before us arises under a remedial statute, fashioned on the precepts of equity, which empowers a plan participant to bring a civil
action to “recover benefits due” and “to obtain other appropriate equitable relief.” 29 U.S.C. §§ 1132(a)(1)(B) & (a)(3). In the parlance of ERISA and equity jurisprudence, the remedy is to “make whole” the injured. Here, Rochow—a co mpany president whose mental capacity was destroyed over time by a brain infection—sought di sability benefits from LINA starting in 2002. Over five years later, in October 2007, he receive d his first benefit payment (a lump sum of over $300,000), and monthly benefits began. In June 2009, almost seven years after the disability date and eight months after Rochow died in October 2008, LINA paid a second lump sum for underpayment of benefits approximating $420,000.
Rochow sought, and the district court aw arded, a make-whole remedy for two ERISA violations committed by LINA, failure to pay bene fits due and breach of fiduciary duty. Based on evidence presented, the district court found that LINA engaged in deliberate and willful wrongful acts, created non-existe nt insurance policy requirement s, concocted a knowingly false rationale for its second denial of benefits, closed the administrative reco rd without medical input or evidence, and acted in bad faith. R. 67, Order; Rochow v. Life Ins. Co. of N. Am. , 851 F. Supp. 2d 1090, 1101 (E.D. Mich. 2012). Proceedings in the district court confirmed that LINA also engaged in prohibite d self-dealing under 29 U.S.C. § 1106(b) in the course of delaying payment of Rochow’s di sability benefits for more th an seven years. During that lengthy period of delay, rather than segregating the disability bene fits it owed to Rochow in an interest-bearing account for his later use, LINA commingled Rochow’s benefits with company funds in a general equity account used in part for corporate investment. Because Rochow earned a high salary before the onset of his disabil ity, LINA’s intentional delay in paying Rochow’s substantial disability benefits for more than se ven years allowed LINA to earn millions of dollars in profit for its own gain, in breach of its fiduciary duty not to engage in self-dealing. 29 U.S.C. §§ 1104(a)(1), 1106(b). Based on expert evidence, the district court found that LINA’s averageNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 26

rate of return during the seven- year period was 26%. Rochow’s h ealth deteriorated during that
time and he was forced to meet the financia l demands of everyday living and serious illness without employment income or the disability benefits promised und er the Plan. LINA’s fiduciary wrongdoing and self-dealing warrant equitable remedies under § 1132(a)(3)—an accounting and disgorgement of the considerable profits LINA earne d on the benefits it withheld
from Rochow.
The majority avers that such equita ble remedies are prohibited under ERISA jurisprudence because obtaining a remedy under both § 1132(a)(1)(B) and § 1132(a)(3) amounts to double recovery. Its insistence that Rochow is not entitled to disgorgement of LINA’s profit under § 1132(a)(3) rests on a faulty premise—its assumption that Rochow suffered the single injury of LINA’s arbitrary and capricious denial of benefits. Maj. Op. at 6. The majority states that, “[a]llowing Rochow to recover disgorged profits under § 502(a)(3), in addition to his recovery under § 502(a)(1)(B), ba sed on the claim that the wrongful denial of benefits also
constituted a breach of fiduciary duty, would—absent a showi ng that the § 502(a)(1)(B) remedy is inadequate—result in an impe rmissible duplicative recovery, c ontrary to clear Supreme Court and Sixth Circuit precedent. Maj. Op. at 7. Relying primarily on Varity Corp. v. Howe , 516 U.S. 489 (1996), and Wilkins v. Baptist Healthcare System, Inc. , 150 F.3d 609 (6th Cir. 1998), the majority concludes that “Rochow is no t entitled to relief under the catchall provision” of § 1132(a)(3) because “such relief is unnecessa ry and unavailable” and “he has an adequate remedy under” § 1132(a)(1)(B). Maj. Op. at 10.

I will demonstrate below that Varity Corp. and numerous cases decided after it fully support Rochow’s recovery of benefits under § 1132(a)(1)(B) and the di sgorgement of LINA’s profit under § 1132(a)(3). Wilkins is inapplicable to the issues before us because it is legally and factually distinguishable. Wilkins sued for disa bility benefits under § 1132(a)(1)(B) and failed to prove that his medical condition warranted payment of plan benefits. Wilkins , 150 F.3d at 612– 13. Trying a second time to obtain plan benefits, he “repackaged” the benefits claim as a breach of fiduciary duty under § 1132(a)(3 ), but he sought a traditi onally legal remedy—compensatory damages. Id. at 613–14. We barred the “repackaging” of the claim because Wilkins had an adequate remedy to recover benefits under § 1132(a)(1)(B) and recovery of compensatoryNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 27

damages would not constitute “other appropri ate equitable relief” under § 1132(a)(3). Id. at
615–16. Wilkins thus insures that a plan participant cannot make an end-run around a denial of benefits under § 1132(a)(1)(B) by “repackaging” the claim and seeking compensatory damages under § 1132(a)(3).

In contrast to the facts of Wilkins , LINA injured Rochow in two distinct ways: by arbitrarily and capriciousl y denying his disability benefits claim and by breaching its fiduciary
duties to him. LINA’s denial of benefits breached the Plan terms; LINA’s breach of its fiduciary obligations violated ERISA statutes and added the element of wrongdoing to the contract breach. Equity has long recognized that “[ a] trustee (or a fiduciary) who gains a benefit by breaching his or her duty must return that benefit to the beneficiary.” Skinner v. Northrop Grumman
Retirement Plan B , 673 F.3d 1162, 1167 (9th Cir. 2012). Unlike Wilkins, Rochow sued under § 1132(a)(1)(B) to recover Plan benefits and under § 1132(a)(3) to obtain an accounting and disgorgement of profits wrongfully earned th rough LINA’s breach of its fiduciary duties—two separate remedies for two sepa rate injuries under two separate sections of § 1132. Unlike Wilkins, Rochow proved that his medical conditi on warranted payment of Plan benefits. And unlike Wilkins, Rochow sought his second reme dy to attain make-whole relief. These two remedies are not duplicative and neither repackages the other. Both remedies are necessary, working in tandem, to make Rochowwhole for LINA’s ERISA violations.
By falsely characterizing the wrongs Rochow suffered and by denying the availability of equitable remedies, the majority opinion stands at odds with governing law and with the facts before us. Supreme Court opinions, our precedent, and cases from our sister circuits support the availability of dual ERISA reme dies where two distinct injuri es exist and two remedies are necessary to make the plan participant or beneficiary whole. I would affirm the district court, but
I would remand the case for a recalculation of the amount of profit LINA must disgorge. Accordingly, I must respectfully dissent from the majority opinion.

I. ERISA DEFINES LINA’ S DUTIES AS A FIDUCIARY
“ERISA is a comprehensive statute designed to promote the interests of employees and
their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 90 (1983). Congress imposed fiduciary duties on ERIS A plan sponsors and administrators that areNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 28

the highest known to the law, Gregg v. Transp. Wo rkers of Am. Int’l , 343 F.3d 833, 841 (6th Cir. 2003), and in doing so, Congress drewmuch of ERISA’s content from the common law of trusts. Varity Corp. , 516 U.S. at 496. These fiduciary duties at tach to particular persons or entities engaged in the performance of specific ERISA functions. Edmonson v. Lincoln Nat’l Life. Ins.
Co. , 725 F.3d 406, 413 (3d Cir. 2013).
A fiduciary’s first obligation is to “discharge hi s duties with respect to a plan solely in the interest of the participants and beneficiaries. ” 29 U.S.C. § 1104(a)(1). This duty of loyalty extends to the individual plan participants and be neficiaries, not only to the ERISA plan itself. Varity Corp. , 516 U.S. at 507; Cent. States, S.E. & S.W. Areas Pension Fund v. Cent. Transp.,
Inc. , 472 U.S. 559, 571–72 (1985). A fiduciary has “an unwavering duty” to act as a prudent person would act in a similar situation and “for the exclusive purpose” of insuring that benefits are provided to plan participants and thei r beneficiaries. 29 U.S.C. § 1104(a); Hi-Lex Controls,
Inc. v. Blue Cross Blue Shield of Mich. , 751 F.3d 740, 751 (6th Cir. 2014); Gregg , 343 F.3d at 841; James v. Pirelli Armstrong Tire Corp. , 305 F.3d 439, 448–49 (6th Cir. 2002). ERISA expressly forbids a fiduciary from “deal[ing] with th e assets of the plan in his own interest or for his own account.” 29 U.S.C. § 1106(b)(1). The “ab solute bar against self dealing” prevents a fiduciary from “realizing a financial gain” at the expe nse of the plan participants or beneficiaries. Hi-Lex Controls, Inc. , 751 F.3d at 750 (quoting Brock v. Hendershott , 840 F.2d 339, 341 (6th Cir. 1988)); Pipefitters Local 636 Ins. Fund v. Bl ue Cross and Blue Shield of Mich. , 722 F.3d 861, 868 (6th Cir. 2013).

II. ERISA DEFINES REMEDIES FO R BREACH OF FIDUCIARY DUTY
A. Congress authorized equita ble remedies in § 1132(a)(3)
Congress designed ERISA to include equitabl e remedies that run directly to the individual plan participant or beneficiary who is injured by a fiduciary breach. The Supreme
Court tells us that the “words of [§ 1132(a)(3)]—‘appropriate equ itable relief’ to ‘redress’ any ‘act or practice which violates any provision of this title’—are broad enough to cover individual relief for breach of a fiduciary obligation.” Varity Corp. , 516 U.S. at 510. The structure of § 1132 reveals that one of the tw o catchall provisions providing ap propriate equitable relief for breaches of fiduciary duty that run to an injured beneficiary is § 1132(a)(3). Id. at 512. ThisNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 29

catchall remedial provision acts “as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Id.
In the majority’s view, Varity Corp. emphasizes “that ERISA remedies are concerned with the adequacy of relief to redress the claimant’s injury” and that “e quitable relief is not ordinarily appropriate where C ongress has elsewhere provided ad equate means of redress for a claimant’s injury. In other wo rds, a claimant cannot pursue a breach-of-fiduciary-duty claim under § [1132](a)(3) based solely on an arbitrary and capricious denial of benefits where the § [1132](a)(1)(B) remedy is adequate to make the claimant whole. ” Maj. Op. at 8–9. If that were the case, the majority worries, then any ar bitrary and capricious deni al of plan benefits would potentially subject a plan fiduciary to disgorgement of profits under § 1132(a)(3) “after the claimant recovered for wrongful denial of benefits” under § 1132(a)(1)(B ). Maj. Op. at 9.
This unfounded fear is allayed by a proper interpretation of Varity Corp. , the cases following it, and the Supreme Court’s recent decision in CIGNA Corp. v. Amara , 131 S. Ct. 1866 (2011). These cases demonstrate that a part icipant or beneficiar y may recover under § 1132(a)(1)(B) for an arbitrary an d capricious denial of plan be nefits and may recover further equitable relief under § 1132(a)(3) to redress a breach of fiduciary duty. Together these remedies provide the make-w hole relief Congress intended.

In Varity Corp. , the plaintiffs’ employer, serving al so as administrator of a self-funded employee welfare benefit plan, persuaded the plaintiffs by deception to transfer their employment to a newly-formed subsidiary, th ereby withdrawing voluntar ily from the welfare benefit plan and forfeiting benefits under it in ex change for the employer’s assurances that the plaintiffs would receive the same benefits follo wing transfer. 516 U.S. at 491–94. Just as Varity Corporation had planned, the insolvency of the new subsidiary stripped the employees of welfare
benefits. Id. at 494. The employees could not sue under § 1132(a)(1)(B) to recover benefits because the plan was defunct. They could, however, and did sue for and obtain “appropriate equitable relief” under § 1132(a) (3)—their reinstatement to a different employee plan. Id. at
495.
The Supreme Court affirmed the reinstatemen t, holding that indivi duals may sue under the catchall provision of § 1132(a) (3) to obtain “other appropriat e equitable relief” to remedy aNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 30

breach of fiduciary duty. Id. at 510–13. Given the objectives of the ERISA statute, the case explains, “it is hard to imagine why Congress would want to immunize breaches of fiduciary obligation that harm individuals by de nying injured beneficiaries a remedy.” Id. at 513.
Like the majority here, the amici in Varity Corp. worried that an individual would be able to “repackage” a denial of benefits claim th at is normally reviewed deferentially under the arbitrary and capricious standard of Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101 (1989), and transform it into a breach of fiduciary duty claim decided under the “rigid level of conduct” expected of fiduciaries. Id. at 513–14.
The Supreme Court dismissed thei r concern. “[C]har acterizing a denial of benefits as a breach of fiduciary duty does not necessarily ch ange the standard a court would apply when reviewing the administrator’s decision to deny benefits.” Id. at 514. “After all, Firestone

. . . based its decision upon the same common-law trust doctrines that govern st andards of fiduciary
conduct.” Id. at 514–15. Dismissing amici ’s concern that “lawyers will complicate ordinary benefit claims by dressing them up in ‘fiduciary duty’ clothing,” id. at 514, the Court explained “that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’” Id. at 515 (emphasis added).
The majority transforms the Supreme Court’s co nditional language into an absolute bar to Rochow’s claims, misconstruing th e Court’s instruction that ERISA authorizes “further equitable
relief” if relief available “elsewh ere” is inadequate. This may be the unusual case that entails two injuries, but Varity Corp. provides no basis for denying an equitable remedy necessary to accomplish make-whole relief. The repackaging fear s the majority expresses, like those raised by amici in Varity Corp. , should be met with the same re sponse: there is not “any ERISArelated purpose that denial of a remedy would serve. Rather, . . . granting a remedy is consistent with the literal language of th e statute, the Act’s purposes, an d pre-existing trust law.” Id.

B. Remedies under § 11 32(a)(3) were traditionall y available in equity
Section 1132(a)(3) “countenances only such relief as will enforce” ERISA’s provisions or the terms of the plan, and it “au thorizes the kinds of relief ‘typically available in equity’ in theNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 31

days of ‘the divided bench,’ before law and equity merged.” US Airways, Inc. v. McCutchen , 133 S. Ct. 1537, 1544, 1548 (2013) (quoting Mertens v. Hewitt Assoc. , 508 U.S. 248, 256 (1993)). The most definitive explanation of the types of equitable remedies available under § 1132(a)(3) is found in the S upreme Court’s pronouncement in Cigna Corp. v. Amara , 131 S. Ct. 1866 (2011). Because Congress specified that c ourts may grant “other appropriate equitable relief” under § 1132(a)(3), courts may employ reme dies that were traditionally available in equity, including reformation of contract, injunctions, mandamus, restitution, and surcharge, which is a monetary remedy agai nst a trustee or fiduciary. Id. at 1878–80. “[T]he fact that this relief takes the form of a money payment does not remove it from the category of traditionally equitable relief.” Id. at 1880. This is because courts sit ting in equity “po ssessed the power to provide relief in the form of monetary ‘compens ation’ for a loss resulti ng from a trustee’s breach of duty, or to prevent the trus tee’s unjust enrichment.” Id. (citing Restatement (Third) of Trusts § 95, and Comment a (Tent. Draft No. 5, Mar. 2, 2009)). The surcharge remedy extends “to a breach of trust committed by a fiduciary encompa ssing any violation of a duty imposed upon that fiduciary” and can be used to accomplish “make-whole relief.” Id. The equity courts did not require a showing of detrimental reliance in surcharge cases but “would ‘mold the relief to protect the rights of the beneficiary according to the situation involved.’” Id. at 1881 (quoting Bogert’s Trusts & Trustees § 861, at 4). A fiduciary may be surc harged under § 113 2(a)(3) if the plaintiff proves actual harm and causation by a preponderance of the evidence, and actual harm might “come from the loss of a right protected by ERISA or its trust-law antecedents.” Id.
In explaining the scope of equitable remedies available under § 1132(a)(3), Amara also clarified two previous Su preme Court cases, correcting lower c ourt decisions that had interpreted the cases as narrowing the scope of “other appropriate equitable re lief” available under § 1132(a)(3). Amara , 131 S. Ct. at 1878 (referring to Mertens v. Hewitt Assoc. , 508 U.S. 248 (1993), and Great-West Life & Annu ity Ins. Co. v. Knudson , 534 U.S. 204 (2002). Mertens does not foreclose equitable relief agai nst a plan fiduciary, as some c ourts had held, because in that case a plan beneficiary sought compensatory dama ges from a non-fiduciary, a private firm that provided actuarial servic es to a trustee. Id. (citing Mertens , 508 U.S. at 253, 255, 256). Relief was not available under § 1132(a)(3) because the beneficiary sought traditionally legal, not equitable relief, against a non-fiduciary. Id. In Great-West , the suit was brought by the fiduciaryNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 32

against the beneficiary. After the injured bene ficiary recovered compensatory damages from a tortfeasor, the fiduciary sought reimbursement for the medical expenses it had paid on the beneficiary’s behalf. Id. The fiduciary tried to place a lien on the money the beneficiary collected, but a lien is traditionally consider ed to be legal, not equitable, relief. Id. at 1878–79. Because the fiduciary did not seek an equitabl e remedy—the placement of a constructive trust on the particular money the tortfeasor paid to the beneficiary—the Court determined that equitable relief under § 1132(a)(3) was not available. Id. Mertens and Great-West thus do not present any obstacle to Rochow’s use of § 1132(a)(3) to re cover traditional equita ble relief from LINA, a breaching fiduciary, even if that remedy is formul ated to avoid the unju st enrichment of the fiduciary. See Amara , 131 S. Ct. at 1879–80.
Reading Amara and Varity Corp. together, we see that the re medies awarded to Rochow comport with the statute, its purposes, and trust law. The principle is clear that a plaintiff may pursue relief under both § 1132(a)(1 )(B) and (a)(3) if wr ongly denied benefits are recovered under (a)(1)(B) and “other approp riate equitable relief”—somethi ng in addition to the award of benefits—is necessary to make th e plaintiff whole for a breach of fiduciary duty. In this case, requiring LINA to disgorge its profits earned on wrongly withheld benefits, accomplished under (a)(3), was necessary to make Rochow whol e and to prevent LINA’s unjust enrichment.
Our sister circuits recognize that Amara corrects misunderstandings of the lower courts that have led to the denial of equitable remedies authorized by § 1132(a)(3). After Amara , the Fourth Circuit explained, it is cl ear “that Section § 1132(a)(3) allo ws for remedies traditionally available at equity and that those remedies in clude surcharge and estoppe l[,]” remedies “at the heart” of the appeal before that court. McCravy v. Metro. Life Ins. Co. , 690 F.3d 176, 177–78 (4th Cir. 2012). The Fi fth Circuit characterized Amara as stating “an expans ion of the kind of relief available” under § 1132(a)(3) “when the plaintiff is suing a plan fiduciary and the relief sought makes the plaintiff whole for losses cause d by the defendant’s breach of a fiduciary duty.” Gearlds v. Entergy Servs., Inc. , 709 F.3d 448, 450 (5th Cir. 2013). The Seventh Circuit pointed to Amara as “clarify[ing] that equi table relief may come in the form of money damages when the defendant is a trustee in breach of a fiduciary duty.” Kenseth v. Dean Health Plan,
Inc. , 722 F.3d 869, 878–79 (7th Cir. 2013). The Eighth Circuit observed that “ Amara changedNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 33

the legal landscape by clearly spelling out the possibility of an equitable remedy under [§ 1132(a)(3)] for breaches of fiduciary obligations by plan administrators.” Silva v. Metro. Life
Ins. Co. , 762 F.3d 711, 722 (8th Cir. 2014). And th e Ninth Circuit recently reversed and remanded an ERISA case in part so that the dist rict court could determine in the first instance under § 1132(a)(3) whether a trustee’s fiduciary br each injured the beneficiary and whether the surcharge remedy discussed in Amara is available to the beneficiary. Gabriel v. Alaska Elec.
Pension Fund , 773 F.3d 945, 962–63 (9th Cir. 2014).
Members in the majority here have read Amara to leave “open the possibility that ‘appropriate equitable relief’ could potentially be awar ded” under § 1132(a)(3). Lipker v. AK Steel Corp. , 698 F.3d 923, 931 n.4 (6th Cir. 2012). In this case, the majority agrees with Lipker and the other circuit cases cited above that eq uitable relief is available under § 1132(a)(3) “to redress an ERISA violation by a plan fiduciary.” Maj. Op. at 14. And two of our prior cases acknowledge the availability of dual ERISA claims and remedies under certain circumstances.
In Hill v. Blue Cross & Bl ue Shield of Michigan , 409 F.3d 710, 718 (6th Cir. 2005), we reversed the dismissal of a claim under § 113 2(a)(3), because that claim ch allenged defects in systemic, plan-wide claims-handling procedures, an injurydifferent from the denial of claims for individual benefits brought under § 1132(a)(1)(B). Similar reasoning is apparent in Gore v. El Paso Energy Corp. Long Term Disability Plan , 477 F.3d 833, 840–41 (6th Cir. 2007), where we determined that the plaintiff asserted two dis tinct injuries permitting claims and recovery under both § 1132(a)(1)(B) and (a)(3). We thus learn from our own cases that ERISA’s remedy provisions are not mutually exclusive.

III. LINA BREACHED ITS FI DUCIARY DUTY TO ROCHOW
The majority nonetheless denies relief on the ground that “Rochow did not suffer an injury remediable” under § 1132(a)(3). Maj. Op. at 14. That statement is plainly contrary to the factual record and extensive case law concerning th e types of injuries that plan participants or beneficiaries may redress th rough equitable remedies av ailable under § 1132(a)(3).
We previously recognized that LINA breached its fiduciary duties, Rochow v. Life Ins. Co. of N. Am. , 482 F.3d 860, 866 (6th Cir. 2007) (“ Rochow I ”), and the majority acknowledges as much. Maj. Op. at 3. We ruled in the ear lier appeal that LINA’s decision to deny RochowNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 34

disability benefits was not made solely in Roch ow’s interest—in other words, LINA breached its duty of loyalty to Rochow—and LINA’s decisi on to deny benefits wa s not made for the exclusive purpose of providing benefits to Rochow as requir ed by § 1104(a)(1). Rochow I, 482
F.3d at 866.
The majority opinion and the concurrence point out that this case comes to us with a complex procedural history, pockmarked by irregularities. While I don ’t disagree that the case is procedurally complex, I do disagree with the conc lusion that the district court reached a final judgment prior to our decision in Rochow I and that it violated the mandate rule by permitting the parties to litigate the disgorgement remedy for the breach of fiduciary duty claim after
Rochow I . To be sure, the district court clerk do cketed a separate document entitled “Judgment” on the same day that the district court entered the summary judgment order later affirmed in
Rochow I, but the “record demonstrates . . . that [t his] document was not a judgment but a mere
clerical error.” Philhall Corp. v. United States , 546 F.2d 210, 213 (6th Cir. 1976). The court had ruled on LINA’s liability in the context of Roch ow’s motion for partial summary judgment and LINA’s cross-motion for summary judgment. The court had not made the requisite determination of the remedy. With this importantissue outstanding, certai nly the district court did not “intend[] the document to be a final judgment.” Id. ; 15B Charles Alan Wright, Arthur R. Miller, et al., Federal Practice & Procedure § 3914.28 (2d ed.) (“[A] su mmary judgment that determines liability but leaves damages or other re lief open for further proceedings is not final.”)
Moreover, the document purporting to be a fina l judgment “was not legally sufficient to constitute a final judgment.” Philhall Corp. , 546 F.2d at 213. The Suprem e Court has instructed that “it is necessary to determine whether the language . . . (of any purported judgment) embodies the essential elements of a judgment for money and clearly evidences the judge’s
intention that it shall be his fina l act in the case. If it does so, it constitutes his final judgment.”
Id. (quoting United States v. F. & M. Schaefer Brewing Co. , 356 U.S. 227, 232 (1958)). “[A] final judgment for money must, at least, determ ine or specify the means for determining, the
amount.” F. & M. Schaefer Brewing Co. , 356 U.S. at 233. As in Philhall Corp. , 546 F.2d at 213, the document entered by the clerk below “did not have the indicia of a final judgment” because it failed to state that Rochow had prev ailed and it did not memorialize any monetaryNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 35

award. Instead, the document erroneously “dismissed” the case, clearly contradicting the district court’s summary judgment order fi nding in favor of Rochow on liab ility. LINA filed a notice of appeal, effectively divesting the district court of jurisdiction to proceed with the litigation pending resolution of the appeal.

After our mandate issued in Rochow I, the concurrence posits, the district court lacked jurisdiction to take any further action in th e case by operation of th e mandate rule. The Hamilton case cited in the concurrence points out that the mandate rule is “discretionary, rather than jurisdictional,” United States v. Hamilton , 440 F.3d 693, 697 (5th Cir. 2006), and we have said the same thing, albeit in an unpublished case. Mylant v. United States , 48 F. App’x 509, 512 (6th Cir. 2002) (observing that the mandate rule is one of “polic y and practice, not a jurisdictional limitation”). “The basic tenet of the mandate rule is that a distri ct court is bound to the scope of the remand issued by the court of appeals.” United States v. Campbell , 168 F.3d 263, 265 (6th Cir. 1999). The concurrence recognizes that the Rochow I panel affirmed the district court’s summary judgment order on liability and did not issu e any type of remand to the district court. Although the district court was bound to honor our Rochow I decision in completing the litigation, as “with all applicatio ns of the law of the case doctr ine,” the district court could
“consider those issues not de cided expressly or impliedl y by the appellate court.” Jones v.
Lewis , 957 F.2d 260, 262 (6th Cir. 1992). Ta king up the case again after the Rochow I appeal, the district court determined with finality a monetary award for Rochow that included disgorgement for LINA’s fiduciary breach. The c ourt’s final decision in no way conflicted with
the Rochow I mandate. In this second appeal, a panel of our court affirmed the district court’s final decision, Rochow v. LINA , 737 F.3d 415 (6th Cir. 2013) (“ Rochow II ”), and that same final decision is presently before us for en banc review. Consequently, any procedural missteps that
occurred earlier in the case are ultima tely immaterial for purposes of our en banc decision.
Contrary to the majority’s asse rtion that the district court fa iled to identify any grounds to support a breach of fiduciary duty cl aim, Rochow asks us to affirm the district court’s findings
that LINA’s conduct involved a number of delib erate and willful wrongful acts, including requiring Rochow to meet insurance policy requirements that di d not exist, devising a knowingly false rationale for denying his benefits appeal, and acting without appropriate medical input orNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 36

evidence. R. 67, Order; Rochow , 851 F. Supp. 2d at 1101. On the record before us, these findings are not clearly erroneous. See Cultrona v. Nationwide Life Ins. Co. , 748 F.3d 698, 706 (6th Cir. 2014). LINA’s fiduciary wrongdoing, separa te from its arbitrary and capricious denial of plan benefits, warrants an equitable remedy under § 1132(a)(3).

IV. BREACH OF FIDUCIARY DUTY REQUIRES A REMEDY
Persisting in the fiction that Rochow seeks to recover twice for the same injury, the majority incorrectly posits that “the district court thus treated its fi nding of an arbitrary and capricious denial of benefits, in and of itself, as a breach of fiduciary duty,” and claims to be unaware of any “persuasive authority for the propos ition that a wrongful denial of benefits in and
of itself constitutes a breach of fi duciary duty.” Maj. Op. at 7 n.1. Even if that were the issue— and it is not because LINA engaged in fiduciary misconduct in addition to denying Rochow’s
benefits—at least four circu its besides our own (the Sec ond, Third, Seventh, and Eighth) recognize that a fiduciary’s arbi trary and capricious delay in pa ying benefits due under a plan in itself can constitute a breach of fiduciary duty. I begin with our own precedent.
More than twenty years ago we stated the we ll-established principle that “ERISA requires that a retirement plan be operated for the exclusive benefit of the employees and beneficiaries.” Sweet v. Consol. Aluminum Corp. , 913 F.2d 268, 270 (6th Cir. 1990). Although we assumed there that a trustee acted prudently in withholding pension funds until a certain date, we nonetheless held that the delay in paymen t conferred a benef it on the trustee. Id. “Any additional time one gains, rightfully or wrongful ly, in not having to submit payment of a sum of money owed another is without dou bt a benefit. Moreover, the pa yee . . . has been deprived of the benefit of those payments.” Id. We expressly held that “[t] o allow the Fund to retain the interest it earned on funds wrongfully withheld fr om a beneficiary would be to approve of an unjust enrichment. Further, th e relief granted would fall short of making the beneficiary whole
because he has been denied the use of money which was his.” Id. (internal quotation marks omitted).
Ten years after Sweet we upheld a district court’s deci sion requiring an ERISA fiduciary to pay to the plan participant class certain bene fits along with the rate of return the fiduciary actually realized on the use of that withheld money. Rybarczyk v. TRW, Inc. , 235 F.3d 975, 977–No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 37

78, 986 (6th Cir. 2000). TRW argued that im posing the actual rate of return was “unprecedented,” id. at 986, but we disagreed, pointing to the Seventh Circ uit’s decision in Lorenzen v. Employees Retirement Plan of Sperry & Hutchinson Co. , 896 F.2d 228 (7th Cir. 1990). In that case an employee’s widow contended that the administrator of a retirement plan violated its fiduciary duties to her and to he r deceased husband causing a loss in retirement
benefits. Id. at 230. The Seventh Circuit held that § 1132(a)(3) authorizes a civil action by a participant or beneficiary to obtai n “appropriate equitable relief” for a violati on of plan terms and that equitable relief to remedy a breach of fi duciary duty can include a payment of money. Id. (citing Mass. Mut. Life Ins. Co. v. Russell , 473 U.S. 134, 154 n.10 (1985)). Because the retirement plan had held money that belonged to the widow, the Seventh Circuit stated: “Now that the collateral dispute is over, the plan must return [t he money] to her together with the fruits that it has gleaned by holding on to it .” Id. at 236–37 (emphasis added). Relying on this passage
from Lorenzen and our own prior opinion on unjust enrichment, Sweet , 913 F.2d at 270, we held that using the rate of return “actually re alized by TRW on the relevant funds seems an appropriate way of avoidi ng unjust enrichment.” Rybarczyk , 235 F.3d at 986. Importantly, we said that requiring TRW to pay the actual rate of return “ merely deprives TRW of its profit on the wrongfully denied benefits .” Id. (emphasis added). We decided this approach was equitable, not punitive, and appropriate under the circumstances where TRW “would arguably receive a windfall” if we permitted TRW to pay compensation for the delayed payment of benefits to the plaintiff that was lower than TRW’s actual rate of return. Id. at 987.

Sweet and Rybarcyzk align closely with the law of our sister circuits. The Second Circuit
considered a case in which MetLif e denied benefits for nearly fi ve years after submission of a claim, but then reversed its prior denials without explanation and paid re troactive benefits in a lump sum without compensating the clai mant for the delay in payment. Dunnigan v. Metro. Life
Ins. Co. , 277 F.3d 223, 226 (2d Cir. 2002). Having receive d disability payments after almost five years of delay, Dunnigan filed suit under § 1132(a)(3) alleging that MetLife breached its fiduciary duties by delaying payment and MetL ife was unjustly enriched through its breach. Id. at 226–27. Dunnigan asked for a constructive trus t on the amount MetLife earned by failing to pay the delayed benefits when due or, alternatively, restituti on equal to the amount MetLife earned on the late payment and/or dis gorgement of MetLife’s profits. Id. at 227. The SecondNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 38

Circuit ruled that MetLife’s delay in paying bene fits long after Dunnigan was entitled to receive them constituted a breach of fiduciary duty because the “delay enriche[d] the fiduciary at the expense of the beneficiary.” Id. at 230. The court further concluded that no showing of bad faith by MetLife was required in orde r for Dunnigan to prevail, id. at 229–30, and she was entitled to an “equitable make-whole remedy” under § 1132(a)(3) for MetLife’s breach of fiduciary duty.
Id. at 229. The court vacated th e dismissal of Dunnigan’s suit and remanded for further proceedings. Id. at 232.

The Seventh Circuit reached similar decisions in two cases, Clair v. Harris Trust & Savings Bank , 190 F.3d 495 (7th Cir. 1999), and May Department Stores Co. v. Federal
Insurance Co. , 305 F.3d 597 (7th Cir. 2002), both involving § 1132(a)(3) claims for equitable remedies in addition to pa yment of benefits. In Clair , participants in a defined-contribution retirement plan sued for breach of fiduciary duty b ecause their benefits were not paid to them in a timely fashion and no compensation for the delay was offered. Clair , 190 F.3d at 496–97. The participants characterize d their remedy as “restitution of the wrongful gain that the plan obtained by having the interest-free use of money rightfully theirs under the terms of the plan.” Id. at 498. Explaining that restitution can be either legal or equitable, the court noted that restitution is equitable when the person seeking the remedy complains of a breach of trust, as the plaintiffs
did. Id. Constructive trust “is an equitable remedy commonly sought and granted in cases of unjust enrichment. It operates much like rest itution—indeed it is sometimes referred to as a restitutionary remedy, but it is securely equ itable because it is never a legal remedy.” Id. (citing 1 Dan B. Dobbs, Law of Remedies § 4.3, at 587 (2d ed. 1993)). According to the Seventh Circuit, “such relief is squarely within the scope of” § 1132(a)(3). Id. at 499. Although the plaintiffs in Clair did not prevail on the merits, the court de termined that they were “entitled to maintain this suit” under § 1132(a)(3). Id.

In May Department Stores Co. , 305 F.3d at 603, the Seventh Circuit followed Clair and
the Second Circuit’s Dunnigan opinion to conclude that the “w rongful withholding of benefits due can entitle the beneficiary to impose a constructive trust on inte rest on the withheld benefits, an equitable remedy that results in a money payment to the plaintiff” under § 1132(a)(3). The court explained:No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 39

By withholding benefits, a plan can obtai n interest that would otherwise be obtained by the beneficiary. That intere st is not itself a benefit, and so the beneficiary cannot bring a su it under (a)(1)(B) to recove r it. But he can sue to recover it under (a)(3), because it is an amount by which the plan has unjustly enriched itself, and unjust enrichment is a basis, indeed the usual basis, for imposing a constructive tr ust on a sum of money.

Id. at 603 (citing Wsol v. Fiduciary Mgt. Assoc., Inc. , 266 F.3d 654, 656 (7 th Cir. 2001), and
Fisher v. Trainor , 242 F.3d 24, 31 (1st Cir. 2001)).
The same principles govern in the Third Circuit. In Fotta v. Trustees of United Mine Workers of America , 165 F.3d 209, 211 (3d Cir. 1998), a plan participant invoked § 1132(a)(1)(B) and § 1132(a)(3) to recover compensation for delayed payment of benefits where the benefits ultimately were paid without litigation. The Third Circuit determined that §1132(a)(3) was “the appropriate vehicle” to recover monetary compensation for delayed benefits because such an award “serves to prevent unjust enrichment. Restitution—the traditional remedy for unjust enrichment—is widely, if not universally, regarded as a tool of equity.” Id. at 213 (citing Chauffeurs, Teamsters & Help ers, Local No. 391 v. Terry , 494 U.S. 558, 570 (1990) (“Money damages are considered equ itable when ‘they are restitutionary.’”). The court rejected the notion that it was engraf ting a remedy on a statute that Congress did not intend to provide. Id. at 214. Rather, the court determined that it “effectuate[d] ERISA’s objectives by recognizing, under principles of e quity, that beneficiaries should be fully compensated and that any unjust enrichment of plans at beneficiarie s’ expense should be
avoided.” Id. Accordingly, relying on § 1132(a)(3), the court held “that a beneficiary of an ERISA plan may bring an action for interest on delayed benefits payments . . . irrespective of whether the beneficiary also seek s to recover unpaid benefits. Because the remedy we recognize here is equitable in nature, its award invol ves an exercise of judicial discretion.” Id.
Significantly, Supreme Court Justice Alito, th en a circuit judge on the Third Circuit,
concurred in the Fotta opinion, observing:
If the plaintiff in this case can establis h that the trustees violated the plan by failing to pay his benefits on time, an award of interest would constitute “appropriate equitable relief.” Such anaward is recognized as appropriate equitable relief in comparable circ umstances under the law of trusts. See Restatement (2d) of Trusts § 207 at 470 (1959); 3 Austin Wakeman Scott andNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 40

William Franklin Fratcher , The Law of Trusts § 207.1 at 262–63 (4th ed. 1987); Nedd v. United Mine Workers of America , 556 F.2d 190, 207 (3d Cir. 1977); Toombs v. Daniels , 361 N.W.2d 801, 810 (Minn. 1985). Thus, this is not a case like Massachusetts Mutual L ife Ins. Co. v. Russell , 473 U.S. 134 (1985), in which we were asked to supplement the remedies specified in the statute.

Id. at 215.

In addition to the Second, Third and Seventh Circuits, the Eighth Circuit also adheres to the proposition that a fiduciary’s delay in paying benefits due under a plan constitutes a breach of fiduciary duty that may be rectif ied through an action filed under § 1132(a)(3). “I t is undisputed that an accounting for profits—the remedy that allows for the di sgorgement of profits awarded by the district court—is a type of relief that wa s typically available in equity and therefore is appropriate under § 1132(a)(3)(B).” Parke v. First Reliance Standard Life Ins. Co. , 368 F.3d 999, 1008 (8th Cir. 2004). “An accounting for prof its is one of a category of traditionally restitutionary remedies in equity, and is often invoked in conjunction with a constructive trust.”
Id. The court explained that “[a]n accounting is imposed whenthe property subject to the constructive trust produces profits while in the de fendant’s possession. The defendant is forced to disgorge those profits, although it is not necessary for the plaint iff to identify any particular

res or fund of money holding the profits.” Id.
Significantly, “[u]nder traditiona l rules of equity, a defendant who owes a fiduciary duty to a plaintiff may be forced to disgorge any profits made by breaching that duty, even if the defendant’s breach was simply a failure to perform its obligations under a contract

. Id. (emphasis added). If a fiduciary breaches a c ontract and also breaches a fiduciary duty, that fiduciary can be forced to disgorge the pr ofits he earned as a result of his wrong. Id. (quoting 1 Dobbs § 4.3(5), at 611 n.16). “The important ingredient added by the fiduciary status, however, is not that status in itself; what is added is wrongdoi ng as distinct from contract
breach.” Id. at 1008–09 (quoting 1 Dobbs § 4.3(5), at 611 n.16; Valdes v. Larrinaga , 233 U.S. 705, 709 (1914) (“holding that a ‘proper case for e quitable relief’ existed where the defendant breached a fiduciary duty to the plaintiff by fa iling to pay money owi ng under the contract”). Based on these principles, the Eighth Circuit held that First Reliance owed a fiduciary duty to Parke, First Reliance breached that duty, and First Reliance could be forced under § 1132(a)(3) to disgorge its profits earned as a result of the breach. Id. at 1009. See also Skretvedt v. E.I.No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 41

DuPont De Nemours , 372 F.3d 193, 212–14 (3d Cir. 2004) (following Fotta and Parke to hold that an ERISA beneficiary could fo rce disgorgement of profits earned on withheld benefits). As do several other circuits, the Eighth Circuit author izes the remedy that the district court below
awarded to Rochow.
Thus, our own cases and a litany of others fromfour of our sister circuits undermine the majority’s premise that no legal basis exists to conclude that LINA’s delay in payment of
benefits to Rochow constituted both an arbitrar y and capricious denial of plan benefits under § 1132(a)(1)(B) and a breach of LINA’s fiduciary duties remediable under § 1132(a)(3). The majority ignores these cases because they correc t the majority’s mistaken impression that the
district court’s “awar d reflects concern that LINA had wrongfully gained something, a consideration beyond the ken of ERISA make-whole remedies.” Maj. Op. at 9. Not only does the district court’s award appropr iately address LINA’s wrongful gain at Rochow’s expense, but the relief for the wrongful gain falls squarely within ERISA’s e quitable remedies, as recognized by the Supreme Court, our court, and other circu its. “ERISA’s duty of loyalty bars a fiduciary from profiting even if no loss to the plan occurs ,” and the remedy of disgorgement exists to deprive “wrongdoers of ill- gotten gains,” not “to compensate for a loss.” Edmondson , 725 F.3d at 415 (internal quotation marks omitted); Leigh v. Engle , 727 F.2d 113, 122 (7th Cir. 1984) (“ERISA clearly contemplates actions against fi duciaries who profit by using trust assets, even where the plan beneficiaries do not suffer direct financial loss.”). According to the majority, the payment of benefits, attorney’s fees, and prej udgment interest are sufficient to compensate Rochow for his injuries. But only the disgorgement of ill- gotten profits can wholly remedy
LINA’s breach of its fiduciary duties.
The court below got it exactly right. Byarbitrarily and capriciously failing to pay Rochow benefits owed under the terms of the pl an and by delaying the payment of full benefits for more than seven years to enrich itself, LI NA violated both the plan terms and its fiduciary duties under ERISA. LINA’s wrongful gain of pr ofit, earned through breach of its fiduciary duties, can be equitably remedied under § 1132(a )(3) by ordering an accounting and by directing LINA to disgorge the profit and pay it directly to Rochow. See Great-West Life & Annuity Ins.
Co. , 534 U.S. at 214 n.2 (recognizing “an accounting for profits, a form of equitable restitution”).No. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 42

“The elementary rule of restitution is that if you take my m oney and make money with it, your profit belongs to me.” Nickel v. Bank of Am. Nat’l Trust & Sav. Ass’n , 290 F.3d 1134, 1138 (9th Cir. 2002).

V. THE DISGORGEMENT AWARD MUST BE RECALCULATED

I would return the case to the district court, however, for a recalculation of the award to Rochow. The figure awarded by the district c ourt seems to derive from the total shown on Rochow’s corrected Exhibit A filed on May 25, 2012, plus daily interest the court added until July 24, 2012, when the court filed its Order Requiring Disgorgement . R.121-2 Page ID 3712.
LINA objected below to the corrected Exhibit A, pointing out several significant errors in it. The most conspicuous problem is that full profits are calculated through March 2012, R. 121- 2 Page ID 3725 (and by the cour t through July 2012), even though Exhibit A confirms that LINA made all required payments to Rochow or his estate by September 2009, with the exception of $2,065.52. R. 121-2 Page ID 3722. The additional er rors LINA identified inits June 2012 filing with the district court, R. 122, may warrant further reductions in the am ount of profits ordered disgorged by the district court. I would therefore reverse the aw ard as calculated and remand the
case to the district court for reconsideration.

VI. CONCLUSION

We do not create new, double re medies out of whole cloth if we affirm the district court’s decision to require LINA to disgorge the profit it earned by breaching its fiduciary duties to Rochow. Nor will the sky fa ll if we affirm this remedy, as the Supreme Court aptly pointed out in response to the concerns of amici in Varity Corp ., 516 U.S. at 513–14. By recognizing that some few cases may include claims a nd remedies for injuri es incurred under both § 1132(a)(1)(B) and § 1132(a)(3), we simply join the mainstream view of our sister circuits acknowledging the trust law principles that undergird ERISA’s equ ity jurisprudence.
In this case, the disgorgement remedy is appropriate based on th e evidence and the district court’s findings con cerning LINA’s malfeasance, the length of the delay in paying benefits due, and the extraord inary profit LINA reaped from its malfeasance. Practical considerations abound. Allowing LINA to retain its profit creates an incentive for claimsNo. 12-2074 Rochow v. Life Ins. Co. of N. Am. Page 43

administrators to delay paying much-needed benefits to participants and beneficiaries while investing that money for their own gain. LINA’ s conduct undercompensates the participant or beneficiary by forcing him to absorb expenses incurred as a result of the delay in the payment of benefits while LINA gains from delaying the cl aims process as long as possible. Permitting LINA to keep its profit also encourages fiduc iaries to commingle plan assets with company
funds.

The courts will not often come across a case as troubling as th is one. I recognize, as will district courts, that disgorgeme nt of profit should be used sparingly and only when equity requires it. In the ordinary benefits case—wher e there is a wrongful denial of benefits but no breach of fiduciary duties like the ones here—a n award of prejudgment interest might be sufficient to compensate the beneficiar y for the lost time value of money. See, e.g. , Schumacher v. AK Steel Corp. Retirement Accumulation Pension Plan , 711 F.3d 675, 679, 686 (6th Cir. 2013); Ford v. Uniroyal Pension Plan , 154 F.3d 613, 616 (6th Cir. 1998). But where an arbitrary and capricious denial of benefits is coup led with a breach of fiducia ry duty, as it is here, ERISA provides a make-whole remedy that in cludes appropriate e quitable relief under § 1132(a)(3).
Because the majority holds that ERISA bars the make-whole remedy awarded to Rochow, I respectfully dissent.