EXHIBIT A 

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21-2891-cv 

Cedeno v. Sasson 

In the

United States Court of Appeals

For the Second Circuit

August Term 2022 

No. 21-2891-cv

RAMON DEJESUS CEDENO, 

Plaintiff-Appellee,

v. 

RYAN SASSON, ARGENT TRUST CO., DANIEL BLUMKIN, IAN BEHAR, STRATEGIC 

FINANCIAL SOLUTIONS, LLC, DUKE ENTERPRISES LLC, TWIST FINANCIAL LLC,

BLAISE INVESTMENTS LLC, 

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of New York

No. 20-cv-9987-JGK

John G. Koeltl, District Judge, Presiding.

(Argued February 2, 2023; Decided May 1, 2024) 

Before: LOHIER, MENASHI, and ROBINSON, Circuit Judges. 

Defendants-Appellants Argent Trust Company, Ryan Sasson, Daniel 

Blumkin, Ian Behar, Strategic Financial Solutions, LLC, Duke Enterprises LLC, 

Twist Financial LLC, and Blaise Investments LLC appeal from an order of the 

District Court denying their motion to compel arbitration. 

Plaintiff Ramon Dejesus Cedeno was an employee of Strategic Financial 

Solutions, LLC, and a participant in its Strategic Employee Stock Ownership 

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Plan, a defined contribution retirement plan. Argent, the trustee for the Plan,

represented the Plan in the purchase of Strategic Family, Inc. from selling 

shareholders Sasson, Blumkin, Behar, and their wholly owned LLCs. Cedeno 

sued in the United States District Court for the Southern District of New York 

under the Employee Retirement Income Security Act (ERISA), alleging the 

transaction caused the Plan to incur substantial losses and that Argent breached 

fiduciary duties owed to Plan participants and beneficiaries under ERISA. 

Cedeno brought claims under ERISA Section 502(a)(2) on behalf of the Plan, and 

sought relief including restoration of Plan-wide losses, a surcharge, accounting, 

constructive trust on wrongfully held funds, disgorgement of profits from the 

transaction, and further equitable relief as the court deemed just. 

Defendants moved to compel arbitration under the Federal Arbitration Act 

(FAA), pointing to a provision in the Plan’s governing document that required 

Plan participants to resolve any claims related to the Plan in arbitration, and 

specifically limiting the relief available in the arbitration proceeding to remedies

impacting the participant’s own account and forbidding any relief that would 

benefit any other employee, participant, or beneficiary. The District Court 

(Koeltl, J.) denied the motion, reasoning that the agreement was unenforceable 

because it would prevent Cedeno from effectuating rights guaranteed by 

Congress through ERISA, namely, the plan-wide relief available under Section 

502(a)(2) to enforce the rights established in ERISA Section 409(a). We agree that 

the arbitration provision is unenforceable because it would prevent Cedeno from 

pursuing the Plan-wide remedies Sections 409(a) and 502(a)(2) unequivocally 

provide. Accordingly, we AFFIRM the decision of the district court. 

Judge Menashi dissents in a separate opinion. 

PETER K. STRIS (Rachana A. Pathak, 

Douglas D. Geyser, John Stokes, Tillman 

J. Breckenridge, on the brief), Stris & 

Maher LLP, Los Angeles, CA and 

Washington, D.C., for Plaintiff-Appellee. 

ALYSSA C. GEORGE (Seema Nanda, G. 

William Scott, Jeffrey M. Hahn, on the 

brief), U.S. Department of Labor, Office 

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of the Solicitor, Washington, D.C., as 

Amicus Curiae in support of PlaintiffAppellee.

SARAH M. ADAMS (Lars C. Golumbic, 

Michael J. Prame, Paul J. Rinefierd, on 

the brief), Groom Law Group, Chartered, 

Washington, D.C., for DefendantAppellant Argent Trust Co. 

Jeremy P. Blumenfeld, Margaret M. 

McDowell, Jared R. Killeen, Antonia M. 

Moran, Michael E. Kenneally, Morgan, 

Lewis & Bockius LLP, Philadelphia, PA 

and Washington, D.C., for DefendantsAppellants Ryan Sasson, Daniel Blumkin, 

Ian Behar, Duke Enterprises LLC, Twist 

Financial LLC, Blaise Investments LLC, and 

Strategic Financial Solutions, LLC. 

Jennifer B. Dickey, U.S. Chamber 

Litigation Center, Washington, D.C., 

Andrew J. Pincus, Archis A. 

Parasharami, Daniel E. Jones, Erica A. 

White, Nancy G. Ross, Jed W. 

Glickstein, Washington, D.C. and 

Chicago, IL.

Mark D. Taticchi, Elizabeth M. Casey, 

Richard J. Pearl, Faegre Drinker Biddle 

& Reath LLP, Philadelphia, PA and 

Chicago, IL, for Amici Curiae the ESOP 

Association and the American Benefits 

Council in support of DefendantsAppellants.

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ROBINSON, Circuit Judge:

This case requires us to consider the enforceability under the Federal 

Arbitration Act (FAA) of certain provisions in an arbitration agreement that limit 

the remedies an employee benefit plan participant or beneficiary can pursue

under Section 502(a)(2) of the Employee Retirement Income Security Act 

(ERISA), 29 U.S.C. § 1132(a)(2). Sections 502(a)(2) and 409(a) of ERISA, 29 U.S.C. 

§ 1109(a), allow employee benefit plan participants and beneficiaries to seek 

equitable relief on behalf of the plan against plan fiduciaries for various statutory 

violations and breaches of fiduciary duties, and do not include a distinct set of 

remedies directed solely at individuals. The provisions within the parties’ 

arbitration agreement at issue here, on the other hand, purport to limit

participants or beneficiaries to seeking relief in arbitration solely for the benefit 

of their own individual plan accounts, and preclude relief that would benefit 

other account holders. At issue is whether those provisions are enforceable 

under the FAA. 

Plaintiff-Appellee Ramon Dejesus Cedeno sued his former employer, 

Defendant-Appellant Strategic Financial Solutions, LLC, along with DefendantAppellant Argent Trust Company—the trustee of his Strategic Employee Stock 

Ownership Plan (the “Plan”)—and the selling shareholders of Strategic Family, 

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Inc.: Defendants-Appellants Ryan Sasson, Daniel Blumkin, Ian Behar, and their 

wholly owned LLCs Duke Enterprises LLC, Twist Financial LLC, and Blaise 

Investments LLC (collectively “Defendants”). Cedeno’s primary allegation is 

that Argent breached fiduciary duties owed to the Plan in connection with the 

Plan’s purchase of shares of Strategic Family for more than fair market value. 

Cedeno’s complaint seeks several forms of relief under Section 502(a)(2) of 

ERISA, including restoration of Plan-wide losses, surcharge, accounting, 

constructive trust on wrongfully held funds, disgorgement of profits gained from 

the transaction, and further equitable relief as the court deems necessary. 

Defendants moved to compel arbitration, citing a provision in the Plan’s 

governing document that required Plan participants to resolve any legal claims 

arising out of or relating to the Plan in individualized arbitration. Two 

provisions within the arbitration agreement explicitly limited any relief sought 

under Section 502(a)(2) of ERISA to the restoration of losses within the 

participant’s individual account, and they prohibited any relief that would 

benefit any other employee, participant, or beneficiary, or otherwise bind the 

Plan, its trustee, or administrators. 

The United States District Court for the Southern District of New York 

(Koeltl, J.) denied the motion. See Cedeno v. Argent Trust Co., No. 20-cv-9987, 2021 

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WL 5087898 (S.D.N.Y. Nov. 2, 2021). The district court concluded that the 

agreement was unenforceable because it would prevent Cedeno from pursuing 

remedies under Section 502(a)(2) that were, by their nature, Plan-wide. For the 

reasons explained below, we agree with the district court that the contested 

provisions within the arbitration agreement are unenforceable because they 

amount to prospective waivers of participants’ substantive statutory rights and 

remedies under ERISA. Accordingly, we AFFIRM the district court’s denial of 

the Defendants’ motion to compel arbitration. 

BACKGROUND 

I. Facts1

Ramon Dejesus Cedeno worked as a senior customer service 

representative at Strategic Financial Solutions, LLC—a financial services firm—

from 2016 to 2019. He has participated in the Plan since May 1, 2017, the date the 

Plan was adopted. An employee stock ownership plan is “a type of pension plan 

that invests primarily in the stock of the company that employs the plan 

1 The facts are drawn from the record before the district court when it adjudicated the 

Defendants’ motion to compel arbitration, chiefly Cedeno’s complaint and the exhibits to the 

Defendants’ motion. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (“In 

deciding motions to compel, courts . . . consider all relevant, admissible, evidence submitted by 

the parties and contained in pleadings, depositions, answers to interrogatories, and admissions 

on file, together with . . . affidavits.”) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 155 

(2d Cir. 2002)) (internal quotation marks omitted). Although the truth of Cedeno’s allegations 

may be disputed, the content of his allegations and most relevant facts are not. 

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participants.” Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 412 (2014). The 

Plan is subject to ERISA, a federal statute that sets certain minimum standards, 

including fiduciary duties, for voluntarily established retirement plans in private 

industry. See 29 U.S.C. § 1001. 

 This case arises from Defendants’ alleged violations of ERISA in 

connection with the management of the Plan and implicates several specific Plan 

provisions. 

A. Defendants’ Alleged Breaches 

Because the details of Defendants’ alleged breaches are ancillary to the 

issues in this appeal, we include only a general overview. Cedeno’s primary 

allegations under Sections 409(a) and 502(a)(2) are that Argent violated its 

fiduciary obligations under ERISA in connection with the Plan’s purchase of 

shares in Strategic Family (the “Transaction”). 

The Transaction involved the following players. As noted above, 

Defendant Strategic Financial, LLC is a financial services firm that employed 

Cedeno and the Plan’s administrator. Strategic Family, Inc. is Strategic 

Financial’s parent company. It is a private company with no public market for 

its stock. Defendant Argent Trust Company is an investment management firm 

that was the trustee of the Plan through October 31, 2019, when it was replaced 

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as trustee. As trustee, it had “exclusive authority to manage and control the 

assets of the Plan and had sole and exclusive discretion to authorize and 

negotiate the . . . Transaction on the Plan’s behalf.” App’x 17. Defendants Ryan 

Sasson, Daniel Blumkin, and Ian Behar were selling shareholders in the 

Transaction via their wholly owned LLCs, Defendants Duke Enterprises LLC, 

Twist Financial LLC, and Blaise Investments LLC. These selling shareholders, 

who controlled Strategic Family at the time of the Transaction, retained control 

afterward by controlling the board of directors and holding leadership positions, 

including CEO, President, and Chief Sales Officer. 

 The Plan’s purchase of the Strategic Family shares was financed through 

notes payable by the Plan to the selling shareholders. Cedeno alleges that the 

Plan overpaid for the shares by well over one hundred million dollars, allowing

the selling shareholders to “unload their interests in Strategic Family above fair 

market value . . . and saddle the Plan with tens of millions of dollars of debt.” 

App’x 14-15. As a result, the value of the Plan to its beneficiaries and 

participants, including Cedeno, suffered “substantial[ly].” App’x 31. 

Argent, as trustee of the Plan, negotiated the Transaction. Cedeno alleges 

that Argent violated its fiduciary duties to Plan participants like him by causing 

the Plan to overpay for the Strategic Family shares. Argent allegedly accepted

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unreasonably optimistic financial projections by Strategic Family; conducted

poor due diligence; improperly included a control premium in valuing the shares 

rather than applying a control discount, even though the Plan did not assume 

control of Strategic Family upon its purchase of the company; and improperly 

approved a term that caused the Plan, subsequent to the initial purchase, to 

assume an additional obligation of over $100 million for the Strategic Family

stock. Cedeno further alleges that Argent received fees from and an 

indemnification agreement with Strategic Family and Strategic Financial, and 

that these benefits provided a motive for Argent to accept an inflated value for

Strategic Family’s shares. 

B. The Plan 

Several features of the Plan are relevant to the issues in this case.

First, the Plan is a “defined contribution plan,” with a separate individual 

account for each participant. App’x 21. A defined contribution plan “promises 

the participant the value of an individual account at retirement, which is largely 

a function of the amounts contributed to that account and the investment 

performance of those contributions.” LaRue v. DeWolff, Boberg & Assocs., Inc., 552 

U.S. 248, 250 n.1 (2008). In contrast, a “defined benefit plan” “generally promises 

the participant a fixed level of retirement income, which is typically based on the 

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employee’s years of service and compensation.” Id. The defined contribution 

framework has overtaken the defined benefit paradigm as the more common 

type of employee retirement plan. See, e.g., James F. Parker, Revival of Substantive 

Equity: Increased Household Risk, Safety Valve Litigation, and Availability of the Stock 

Drop Jury, 21 WASH. & LEE J. OF C.R. & SOC. JUST. 425, 433 (2015) (citing Edward 

A. Zelinsky, The Defined Contribution Paradigm, 114 YALE L.J. 451, 471 (2004)). 

The Plan, adopted in 2017, is governed by the terms of the Plan Document, 

subject to the requirements of ERISA. Section 17.10 of the Plan Document is 

titled “Mandatory and Binding Arbitration.” App’x 105. The relevant provisions 

of Section 17.10 are as follows: 

(b) Any claim by a Claimant2 (i) that arises out of, concerns or relates 

to the Plan or the Trust, including without limitation, any claim for 

benefits, (ii) asserting a breach of, or failure to follow, the Plan or 

Trust; or (iii) asserting a breach of, or failure to follow, any provision 

of ERISA . . . including without limitation claims for breach of 

fiduciary duty. . . (collectively, “Covered Claims”), shall be settled by 

binding arbitration . . . . 

(f) All Covered Claims must be brought solely in the Claimant’s 

individual capacity and not in a representative capacity or on a class, 

collective, or group basis. Each arbitration shall be limited solely to 

one Claimant’s Covered Claims and that Claimant may not seek or 

receive any remedy that has the purpose or effect of providing 

2 A “claimant” under the Plan is defined as a “Participant, Beneficiary, or any other person” who 

claims entitlement to benefits under the Plan or has unresolved questions about benefits under 

the Plan. App’x 104. 

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additional benefits or monetary or other relief to any Employee, 

Participant or Beneficiary other than the Claimant. 

(g) If a Covered Claim is brought under ERISA section 502(a)(2) to 

seek relief under ERISA section 409, the Claimant’s remedy, if any, 

shall be limited to (i) the alleged losses to the Claimant’s Accounts 

resulting from the alleged breach of fiduciary duty, (ii) a pro-rated

portion of any profits allegedly made by a fiduciary through the use 

of Plan assets where such pro-rated amount is intended to provide a 

remedy solely for the benefit of the Claimant’s accounts, or (iii) such 

other remedial or equitable relief as the arbitrator deems proper so 

long as such remedial or equitable relief does not include or result in 

the provision of additional benefits or monetary relief to any 

Employee, Participant or Beneficiary other than the Claimant, and is 

not binding on the Administrator or the Trustee with respect to any 

Employee, Participant or Beneficiary other than the Claimant.

App’x 105-06. 

 Additionally, Section 17.10(h) includes a non-severability clause which 

provides that if a court finds the requirements of Sections 17.10(f) or 17.10(g) 

“unenforceable or invalid, then the entire Arbitration Procedure shall be 

rendered null and void in all respects.” App’x 106. 

II. District Court Proceedings 

In 2020, Cedeno filed a class action complaint. In it, he alleged that Argent 

breached its fiduciary duties by causing the Plan to enter into the Transaction 

and pay more than fair market value for the Strategic Family shares. Among 

other provisions of ERISA, Cedeno brought claims for relief under Sections 409 

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and 502(a)(2) based on Argent’s alleged breach of its fiduciary duties. He sought

various forms of relief, including: 

• A declaration that Argent breached its fiduciary duties to the Plan under 

ERISA; 

• An order requiring that each Defendant found to have violated ERISA 

make good to the Plan the losses resulting from the breaches of ERISA and 

restore any profits made through use of the Plan assets; 

• An order requiring Defendants to provide “other appropriate equitable 

relief to the Plan and its participants and beneficiaries, including but not 

limited to surcharge, providing an accounting for profits, and imposing a 

constructive trust and/or equitable lien on any funds wrongfully held by 

Defendants;” 

• An order requiring that Argent “disgorge any fees it received in 

conjunction with its services as Trustee for the Plan” in the Transaction in 

addition to any earnings or profits made; and 

• “[S]uch other and further relief as the Court deems equitable and just.” 

App’x 41-42. 

 Defendants moved to compel arbitration pursuant to the FAA. They

asserted that Cedeno was bound by the mandatory arbitration provision in 

Section 17.10 of the Plan Document. Defendants specifically requested that the 

district court compel arbitration “on an individual basis, rather than in a 

representative capacity or class, collective, or group basis.” D. Ct. Dkt. No. 60 

(Memorandum in Support of Motion to Compel) at 2. Defendants argued that 

compelling individual arbitration would “not affect the remedy that [Cedeno] 

could personally achieve under ERISA section 502(a)(2),” asserting that Cedeno 

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could, in any event, recover losses only within his individual plan account. See 

id. at 18-19 (citing LaRue, 552 U.S. at 256). 

 The district court denied the Defendants’ motion to compel arbitration. 

See Cedeno v. Argent Trust Co., No. 20-cv-9987, 2021 WL 5087898 (S.D.N.Y. Nov. 2, 

2021). The court concluded that the arbitration provision acted as a “prospective 

waiver[] of [a] statutory right[],” and thus was unenforceable. Id. at *5. The 

district court explained that ERISA Section 409(a) provides for restitution to the 

entire plan and ERISA Section 502(a)(2) authorizes a plan participant to bring a 

civil action to obtain “restitution of the entirety of the loss to the plan.” Id. at *3. 

Because the arbitration provision limited Cedeno to recovering losses within his 

individual plan account, the provision would impermissibly limit the availability 

of Plan-wide remedies explicitly authorized by ERISA, and thus was 

unenforceable. Id. at *3-5. The district court further concluded that because the 

Plan Document provided that the remedy section of the arbitration provision 

was non-severable, the entire arbitration provision was unenforceable. Id. at *6. 

Accordingly, the district court denied the Defendants’ motion. Defendants 

appealed. 

DISCUSSION 

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We have appellate jurisdiction because the FAA “permits interlocutory 

appeals from the denial of a motion to compel arbitration.” Meyer v. Uber Techs., 

Inc., 868 F.3d 66, 72 (2d Cir. 2017) (citing 9 U.S.C. § 16). We review the district 

court’s denial of Defendants’ motion to compel arbitration without deference. 

See, e.g., id. And the proper interpretation of ERISA and the FAA are questions of 

law that we also review without deference. Coan v. Kaufman, 457 F.3d 250, 254 

(2d Cir. 2006) (ERISA); Wash. Nat’l Ins. Co. v. OBEX Group LLC, 958 F.3d 126, 136 

(2d Cir. 2020) (FAA). 

On appeal, Defendants argue that the district court erred by not enforcing 

the arbitration agreement. Specifically, they argue that the FAA “requires courts 

to enforce arbitration agreements rigorously according to their terms,” including 

agreements for individualized arbitration, and that the district court erred in 

applying a “theoretical exception to the FAA” in concluding the arbitration 

provision here would result in a prospective waiver of participants’ statutory 

rights under ERISA. Appellant’s Br. at 16 (citing Epic Sys. Corp. v. Lewis, 138 S. 

Ct. 1612, 1623 (2018)). They further argue that the district court “manufactured 

a . . . conflict by misreading ERISA [Sections] 502(a)(2) and 409(a) as giving 

participants an unwaivable right to pursue recovery on behalf of all other plan 

participants as well as themselves,” and that because Section 502(a)(2) claims can 

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be pursued on a “purely individualized basis,” a plan participant’s right to “seek 

remedies on behalf of other participants’ accounts . . . is waivable.” Id. at 16-17 

(citing LaRue, 552 U.S. at 250). 

We disagree. Because Cedeno’s avenue for relief under ERISA is to seek a 

plan-wide remedy, and the specific terms of the arbitration agreement seek to 

prevent Cedeno from doing so, the agreement is unenforceable.3 To explain our 

conclusion, we consider the Supreme Court’s guidance and our own caselaw 

concerning the reach of the FAA, controlling Supreme Court caselaw establishing 

the framework that applies to claims under Sections 409(a) and 502(a)(2) of 

3 We briefly note what is not in dispute on this appeal. Defendants do not dispute the Plan is 

subject to ERISA, that Argent is a plan fiduciary under ERISA, and that Cedeno is a plan 

participant for purposes of ERISA and therefore can properly bring a Section 502(a)(2) claim. 

Nor do Defendants dispute that the relief Cedeno seeks is available under Section 502(a)(2). 

Cedeno does not dispute that the arbitration agreement applies to the claims he brings against 

the Defendants. He contends only that the challenged provisions are unenforceable. Nor does 

Cedeno contend that mandatory binding arbitration provisions cannot be enforced with respect 

to ERISA claims in general; this Court has long held that ERISA claims for breach of fiduciary 

duty may be remanded to arbitration. See Bird v. Shearson Lehman/Am. Exp., Inc., 926 F.3d 116, 

119 (2d Cir. 1991). Cedeno challenges the enforceability of Sections 17.10(f) and 17.10(g) of the 

Plan, not the arbitration requirement itself. And finally, neither party disputes that if this Court 

concludes that either Section 17.10(f) or 17.10(g) is unenforceable, the entire arbitration 

provision would be unenforceable due to the non-severability clause. 

Additionally, we note that Cedeno presents an alternate ground for affirmance, namely, that the 

arbitration provision is unenforceable because he did not consent to arbitration. See Appellee’s 

Br. at 44-49. Because we affirm on the basis that the arbitration provision is unenforceable 

insofar as it would prevent Cedeno from vindicating certain statutory remedies under ERISA, 

we do not reach this argument. 

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ERISA, and the application of these legal principles to the arbitration provisions 

at issue in this case. 

I. The Federal Arbitration Act 

Under the FAA, “[a] written provision in any . . . contract evidencing a 

transaction involving commerce to settle by arbitration a controversy thereafter 

arising out of such contract or transaction . . . shall be valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.” 9 U.S.C. § 2. The statute was enacted “in response 

to widespread judicial hostility to arbitration.” American Express Co. v. Italian 

Colors Restaurant, 570 U.S. 228, 232 (2013). To correct this impulse, “courts must 

rigorously enforce arbitration agreements according to their terms, including 

terms that specify with whom the parties choose to arbitrate their disputes and 

the rules under which that arbitration will be conducted.” Id. at 233 (internal 

citations, quotation marks, and alterations omitted). 

A core concern of the FAA is protecting the enforceability of agreements to 

vindicate substantive rights through an arbitral forum using arbitral procedures. 

See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974). But the FAA does 

not purport to reach agreements to waive substantive rights and remedies, and 

courts will invalidate provisions that prevent parties from effectively vindicating 

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their statutory rights. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 

Inc., 473 U.S. 614, 637 n.19 (1985); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273-74 

(2009). 

The Supreme Court recently reemphasized that the FAA “does not require 

courts to enforce contractual waivers of substantive rights and remedies” in 

Viking River Cruises, Inc. v. Moriana. 596 U.S. 639, 653 (2022). The Court 

explained:

The FAA’s mandate is to enforce arbitration agreements. And as we have 

described it, an arbitration agreement is a specialized kind of forumselection clause that posits not only the situs of suit but also the procedure 

to be used in resolving the dispute. An arbitration agreement thus does 

not alter or abridge substantive rights; it merely changes how those rights 

will be processed. And so we have said that by agreeing to arbitrate a 

statutory claim, a party does not forego the substantive rights afforded by 

the statute; it only submits to their resolution in an arbitral ... forum. 

Id. (internal quotation marks, brackets, and citations omitted) (emphasis and 

alterations in original). 

 The Court also made it clear that the policy favoring enforcement of 

agreements to arbitrate does not automatically extend to enforcement of any

provision within an arbitration agreement. Id. at 1919 n.5. The Court explained 

that the basis of the principle that the FAA does not mandate enforcement of 

waivers of substantive rights is “that the FAA requires only the enforcement of 

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‘provisions’ to settle a controversy ‘by arbitration,’ and not any provision that 

happens to appear in a contract that features an arbitration clause.” Id. (internal 

citation omitted); see also Mitsubishi Motors, 473 U.S. at 628 (“By agreeing to 

arbitrate a statutory claim, a party does not forgo the substantive rights afforded 

by the statute; it only submits to their resolution in an arbitral, rather than a 

judicial, forum.”). 

For that reason, terms in an arbitration agreement that have the effect of 

prospectively waiving a party’s statutory remedies are not enforceable. As the 

Court noted in considering an arbitration agreement in Mitsubishi, “[I]n the event 

the choice-of-forum and choice-of-law clauses operated in tandem as a 

prospective waiver of a party’s right to pursue statutory remedies for antitrust 

violations, we would have little hesitation in condemning the agreement as 

against public policy.” 473 U.S. at 637 n.19. 

Although the Supreme Court has never invalidated a provision in an 

arbitration agreement on this basis, it has repeatedly recognized the general 

principle that provisions within an arbitration agreement that prevent a party 

from effectively vindicating statutory rights are not enforceable. See, e.g., Italian 

Colors, 570 U.S. at 235-36, 238 (declining to apply “effective-vindication 

exception” to invalidate contractual waiver of class arbitration merely because 

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plaintiff’s cost of individually arbitrating a federal statutory claim exceeded the 

potential recovery); 14 Penn Plaza LLC, 556 U.S. at 273-74 (“[A]lthough a 

substantive waiver of federally protected civil rights will not be upheld, we are 

not positioned to resolve in the first instance whether the [collective bargaining 

agreement] allows the Union to prevent respondents from ‘effectively 

vindicating’ their ‘federal statutory rights in the arbitral forum.’” (internal 

citations omitted)); Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 90 

(2000) (“[E]ven claims arising under a statute designed to further important 

social policies may be arbitrated because so long as the prospective litigant 

effectively may vindicate his or her statutory cause of action in the arbitral 

forum, the statute serves its functions.” (internal quotation marks and brackets 

omitted)); Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 28 (1991) (“So 

long as the prospective litigant effectively may vindicate his or her statutory 

cause of action in the arbitral forum, the statute will continue to serve both its 

remedial and deterrent function.” (citing Mitsubishi, 473 U.S. at 637) (internal 

quotation marks and brackets omitted)). 

This Court has recognized the effective vindication doctrine and applied it 

to invalidate arbitration agreements that purport to waive enforcement of federal 

statutory rights. See, e.g., Gingras v. Think Finance, Inc., 922 F.3d 112, 127 (2d Cir. 

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2019), cert. denied, 140 S. Ct. 856 (2020). In Gingras, we considered an arbitration 

provision in a “payday loan” agreement that provided for application of 

Chippewa Cree tribal law to any disputes and that disclaimed the applicability of 

any state or federal laws. Id. at 126-27. We noted that “the Supreme Court has 

made clear that arbitration agreements that waive a party’s right to pursue 

federal statutory remedies are prohibited.” Id. at 127. Recognizing that the 

provisions appeared wholly to foreclose the borrowers from vindicating rights 

granted by federal and state law, we held that “the just and efficient system of 

arbitration intended by Congress when it passed the FAA may not play host to 

this sort of farce.” Id. (citing Hayes v. Delbert Servs. Corp., 811 F.3d 666, 674 (4th

Cir. 2016)) (internal quotation marks and brackets omitted). We accordingly 

declined to enforce the arbitration agreements because they sought to prevent 

borrowers from “pursu[ing], much less vindicat[ing],” federal and state statutory 

rights provided by consumer protection laws. Id. 

The lesson from these binding decisions—that courts will not enforce 

provisions in arbitration agreements that prevent a party from effectively 

vindicating their statutory rights and securing their statutory remedies—

critically informs our analysis here.

II. ERISA Section 502(a)(2) Claims 

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At issue in this case is how this lesson applies to Cedeno’s claims under 

ERISA Section 502(a)(2). The text of the statute and two Supreme Court 

decisions establish a framework for our analysis and inform our conclusion that 

ERISA contemplates plan-wide remedies, and only plan-wide remedies, to 

address certain breaches of fiduciary duties by plan fiduciaries. 

A. ERISA

ERISA Sections 409(a) and 502(a)(2) work in tandem to allow plan 

participants to bring civil actions against plan fiduciaries who breach their duties 

to the plan. Section 409(a), titled “Liability for breach of fiduciary duty,” 

provides: 

Any person who is a fiduciary with respect to a plan who breaches 

any of the responsibilities, obligations, or duties imposed upon 

fiduciaries by this subchapter shall be personally liable to make good 

to such plan any losses to the plan resulting from each such breach, 

and to restore to such plan any profits of such fiduciary which have 

been made through use of assets of the plan by the fiduciary, and shall 

be subject to such other equitable or remedial relief as the court may 

deem appropriate, including removal of such fiduciary. 

29 U.S.C. § 1109(a) (emphases added). Section 502(a)(2), titled “Civil 

enforcement,” is essentially the enforcement mechanism of Section 409(a). It 

enables the Secretary of Labor or participants, beneficiaries, or fiduciaries of a 

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plan to bring civil actions to seek “appropriate relief” under Section 409. 29 

U.S.C. § 1132(a)(2). 

These two provisions together establish the vehicle for individual plan 

participants to pursue claims based on a plan fiduciary’s breach of its duties 

pursuant to Section 409(a). ERISA provides avenues for individual participants

to pursue claims for other kinds of violations by plan fiduciaries. See, e.g., 29 

U.S.C. § 1132(a)(1) (allowing civil actions by a participant or beneficiary to 

recover benefits due under the plan, to enforce rights under terms of plan, to 

clarify rights to future benefits under the plan, or to address plan administrator’s 

refusal to supply certain information); id. § 1132(a)(4) (allowing civil actions for 

appropriate relief by the Secretary or a participant or beneficiary arising from 

violations of plan’s statutory reporting obligations). But the Supreme Court has 

repeatedly recognized that Section 502(a)(2) is the enforcement mechanism for 

violations of Section 409(a). See, e.g., LaRue, 552 U.S. at 253 (explaining that 

statutory duties imposed on fiduciaries pursuant to Section 409(a) relating to 

“the proper management, administration, and investment of fund assets” are 

enforceable through Section 502(a)(2) (citation and internal quotation marks 

omitted)); see also Varity Corp. v. Howe, 516 U.S. 489, 511 (1996) (suggesting that 

Section 409(a), which is enforceable by participants and beneficiaries through 

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Section 502(a)(2), reflects “a special congressional concern about plan asset 

management”). 

B. Massachusetts Mutual Life Insurance Company v. Russell 

The foundational case for purposes of the issue here is Massachusetts 

Mutual Life Insurance Company v. Russell. 473 U.S. 134 (1985). In Russell, the 

Supreme Court concluded that Section 502(a)(2) claims can only be brought to 

pursue relief on behalf of a plan, and cannot be used as a mechanism to seek 

individual equitable relief for losses arising from the mismanagement of a plan. 

Russell, a beneficiary of an ERISA-backed insurance plan, sought to recoup 

damages arising from the delayed processing of a medical claim via a Section 

502(a)(2) claim. Id. at 136. She specifically argued that the defendants had 

violated the fiduciary duties outlined in Section 409(a) when they failed to timely 

process her claim, giving her an individual cause of action under Section 

502(a)(2). Id. at 138. 

The Supreme Court disagreed, holding that although Section 502(a)(2) 

authorized a beneficiary to bring an action against a fiduciary who violated 

Section 409, any recovery for such an action “inures to the benefit of the plan as a 

whole.” Id. at 140. Justice Stevens, writing for the Court, explained that the text 

of Section 409 emphasized that the fiduciary was liable “to make good to such 

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plan any losses to the plan . . . and to restore to such plan any profits of such 

fiduciary which have been made through use of assets of the plan.” Id. at 140 

(quoting 29 U.S.C. § 1109(a)) (alterations and emphases in original). Justice 

Stevens continued, “[a] fair contextual reading of the statute makes it abundantly 

clear that its [drafters] were primarily concerned with the possible misuse of plan 

assets, and with remedies that would protect the entire plan, rather than with the 

rights of an individual beneficiary.” Id. at 142. Thus, Russell could not use 

Section 502(a)(2) to recoup her personal losses caused by the delayed processing 

of her claim, because such losses would benefit her individually, and not the 

entire plan. See also Coan, 457 F.3d at 259 (recognizing that section 502(a)(2) 

contemplates litigation in a “representative capacity on behalf of the plan,” and 

requiring a plaintiff take adequate steps to properly act in such a representative 

capacity (quoting Russell, 473 U.S. at 142 n.9)). 

C. LaRue v. DeWolff, Boberg & Associates, Inc. 

One issue in this case is whether and to what extent the Supreme Court’s 

subsequent decision in LaRue casts doubt on the Court’s conclusion that Sections 

502(a)(2) and 409(a) together establish a framework pursuant to which a plan 

participant aggrieved by a breach of duty by a plan fiduciary may seek remedies 

only on behalf of and for the plan. 

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In LaRue, the Supreme Court allowed a plaintiff to use a Section 502(a)(2) 

claim to recover for losses sustained in his individual account within a defined 

contribution plan. 552 U.S. at 250. The plaintiff was a participant in a defined 

contribution plan that allowed him to “direct the investment of [his] 

contributions.” Id. LaRue alleged that defendants failed to make certain changes 

to his investments as he directed and that, as a result, his interest in the plan was 

depleted by approximately $150,000. Id. at 251. He sought to recoup those losses 

through a Section 502(a)(2) claim. Id. The question was whether he could do so. 

Justice Stevens—again writing for the Court—held that he could, and that 

this result directly flowed from the rationale of Russell. Id. at 250. The Court 

explained that the misconduct LaRue alleged fell “squarely” within the category 

of breached fiduciary obligations to the plan addressed in Section 409(a), and 

thus that LaRue could pursue his claim under Section 502(a)(2). Id. at 253. The 

Court distinguished Russell, explaining that the plaintiff there had “received all 

the benefits to which she was contractually entitled, but sought consequential 

damages arising from a delay in the processing of her claim”—a remedy 

unavailable under Section 409(a) because such relief would not benefit the plan. 

Id. at 254. In short, a critical distinction between Russell and LaRue was that 

Russell did not allege a breach of fiduciary duties as defined in Section 409(a)—

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that is, fiduciary duties “with respect to a plan”—but LaRue did. 29 U.S.C. § 

1109(a) (emphasis added). Consequently, LaRue could pursue a claim through 

Section 502(a)(2), whereas Russell could not. 

In its discussion, the LaRue court walked back some of the broad language 

in Russell that suggested that the only violations cognizable under Section 409(a) 

are those that impact the “entire plan.” LaRue, 552 U.S. at 254-55. The Court 

explained that “Russell’s emphasis on protecting the ‘entire plan’ from fiduciary 

misconduct reflects the former landscape of employee benefit plans.” Id. at 254. 

By the time of LaRue, the “landscape [had] changed,” as defined contribution 

plans had come to “dominate the retirement plan scene.” Id. at 254-55. “Unlike 

the defined contribution plan in this case, the disability plan at issue in Russell

did not have individual accounts; it paid a fixed benefit based on a percentage of 

the employee’s salary.” Id. at 255 (citing Russell v. Mass. Mut. Life Ins. Co., 722 

F.2d 482, 486 (9th Cir. 1983)). The Court recognized that in contrast to defined 

benefit plans, where mismanagement by plan administrators affects an 

individual’s entitlement to a defined benefit only if it creates or enhances the risk 

of default by the entire plan, in the context of defined contribution plans, 

mismanagement of plan assets by plan administrators can injure participants at 

the individual account level. Id. The Court continued:

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Whether a fiduciary breach diminishes plan assets payable to all 

participants and beneficiaries, or only to persons tied to particular 

individual accounts, it creates the kind of harms that concerned the 

[drafters] of § 409. Consequently, our references to the “entire plan” 

in Russell, which accurately reflect the operation of § 409 in the 

defined benefit context, are beside the point in the defined 

contribution context. 

Id. at 256. The Court reinforced its conclusion by pointing to other provisions of 

ERISA that indicate that fiduciaries can be liable for losses experienced only at 

the individual account level. Id. The Court then concluded: “We therefore hold 

that although § 502(a)(2) does not provide a remedy for individual injuries distinct from 

plan injuries, that provision does authorize recovery for fiduciary breaches that 

impair the value of plan assets in a participant’s individual account.” Id.

(emphasis added). 

 The LaRue Court thus recognized that Section 409(a) protects against 

breaches of fiduciary duty involving the management of assets within defined 

contribution plans, whether the injury is felt at the plan level or directly at the 

individual account level, and that such breaches are thus actionable under Section 

502(a)(2). But the Court also held firm to its conclusion in Russell that even in 

such cases, Section 502(a)(2) provides no remedy for “individual injuries distinct 

from plan injuries.” Id. 

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The dissent’s suggestion that LaRue in any way abrogated Russell’s holding

that section 502(a)(2) provides a remedy only for injuries to the plan, dissent at 8 

and 15 n.14, is thus squarely at odds with the Supreme Court’s own holding. At 

most, LaRue recognized that Section 502(a)(2) provides a remedy for injuries to 

the plan that are felt only at an individual account level; the Court did not 

suggest that Section 502(a)(2) allows individualized relief for injuries that are felt 

at the plan level.4 

We recently affirmed this view in a post-LaRue decision, explaining,

“Sections 502(a)(2) and 409, read together, mean that a plaintiff suing for breach 

of fiduciary duty under [Section] 502(a)(2) . . . may seek recovery only for injury done 

to the wronged plan.” Cooper v. Ruane Cunniff & Goldfarb Inc., 990 F.3d 173, 180 (2d 

Cir. 2021) (citing LaRue, 552 U.S. at 256) (emphasis added); see also Munro v. Univ. 

of Southern Cal., 896 F.3d 1088, 1093 (9th Cir. 2018) (“[In LaRue], the [Supreme] 

Court made clear that it had not reconsidered its longstanding recognition that it 

is the plan, and not the individual beneficiaries and participants, that benefit 

4 Defendants’ alleged breach of fiduciary duties here had plan-wide impact; in contrast 

to LaRue, the impact of the breach was not felt only at the individual account level. The 

Plan’s purchase of Strategic Family shares at above-market rates, saddling the Plan with 

millions of dollars of debt, allegedly undermined the value of the Plan “to the substantial 

detriment of the Plan and its participants and beneficiaries,” including Cedeno. App’x 

31. 

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from a winning claim for breach of fiduciary duty, even when the plan is a 

defined contribution plan.”). In sum, nothing about LaRue alters Russell’s

holding that remedies under Section 502(a)(2) are limited to providing relief to 

the plan. 

III. Application 

In light of this legal framework, we conclude that Sections 17.10(f) and (g) 

of the arbitration agreement, which waive Cedeno’s statutory remedies under 

Sections 409(a) and 502(a)(2), are unenforceable. We are not swayed by 

Defendants’ arguments to the contrary, and find support for our view in the 

persuasive decisions of sister circuits. Because these provisions within the 

arbitration agreement are unenforceable, and in light of the non-severability 

provision, we conclude that the arbitration agreement itself is unenforceable.

A. Enforceability of Sections 17.10(f) and (g) 

On their face, Sections 17.10(f) and (g) prevent claimants like Cedeno from 

pursuing the substantive statutory remedies available to them under Sections

409(a) and 502(a)(2) of ERISA, leaving them without effective avenues for 

vindicating their substantive rights under Section 409(a). Because the provisions 

operate as a prospective waiver of claimants’ statutory rights and remedies, they 

are unenforceable. 

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Sections 17.10(f) and (g) prevent Cedeno from pursuing remedies on 

behalf of the Plan. In particular, Section 17.10(f) requires claimants like Cedeno 

to bring their claims solely in their “individual capacity and not in a 

representative capacity,” and prohibits them from seeking or receiving “any 

remedy that has the purpose or effect of providing additional benefits or 

monetary or other relief to any Employee, Participant or Beneficiary other than 

the Claimant.” App’x 105. Section 17.10(g) limits a claimant’s remedy to 

recovering for the alleged losses to the claimant’s accounts, a pro-rated portion of 

the profits allegedly made by a fiduciary through the use of Plan assets, and 

other remedial or equitable relief as long as it “does not include or result in the 

provision of additional benefits or monetary relief to any Employee, Participant, 

or Beneficiary other than the Claimant, and is not binding on the Administrator 

or the Trustee with respect to any Employee, Participant or Beneficiary other 

than the Claimant.” Id. at 105-06. 

These restrictions effectively preclude Cedeno from pursuing the remedies 

available to him under Section 502(a)(2) for Defendants’ violations of their 

obligations under Section 409(a). As explained above, this Court recognized in 

Russell, and reaffirmed in LaRue, that the statutory remedies available to 

claimants like Cedeno under Section 502(a)(2) run only to the Plan. See Section II, 

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above. Though Section 409(a) codifies fiduciary duties that protect a plan as a 

whole, as well as holders of individual accounts within the plan, the Section

502(a)(2) vehicle for enforcing Section 409(a) provides for only plan-wide 

remedies. Russell, 473 U.S. at 142; LaRue, 552 U.S. at 256. If Sections 17.10(f) and 

(g) prevent Cedeno from pursuing the statutory plan-wide remedies available 

under Section 502(a)(2), then they effectively prevent him from vindicating his 

substantive statutory rights under Section 409(a) and remedies under Section 

502(a)(2). 

And, for the reasons set forth above, if the provisions within the arbitration 

agreement operate as a “prospective waiver of [Cedeno’s] right to pursue 

statutory remedies” under Sections 409(a) and 502(a)(2), then it follows that they 

are unenforceable. Mitsubishi, 473 U.S. at 637 n.19. 

B. Response to Defendants’ Arguments 

Relying on a line of cases upholding provisions requiring individualized 

arbitration rather than proceedings in which claims are aggregated, Defendants 

argue that Cedeno has no unwaivable statutory right to pursue collective, as 

opposed to individualized, arbitration. They contend that ERISA contains no 

“clearly expressed congressional intention” to displace the FAA and create a 

right to engage in legal proceedings on a group basis. Appellant’s Br. at 26-35. 

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And they argue that, like the plaintiff in LaRue, Cedeno can effectively vindicate 

his statutory rights by pursuing individualized claims for relief that make him 

whole without impacting the rights of other participants and beneficiaries. 

Defendants’ arguments are unavailing. 

1. Waivers of Collective-Action Procedures

Defendants argue that “[a] long series of Supreme Court rulings, involving 

a variety of statutory rights, recognizes that agreements to waive the ability to 

pursue claims in an aggregated manner—such as through a representative, class 

or collective action—must be enforced under the FAA.” Appellant’s Br. at 24 

(citing Epic Systems v. Lewis, 138 S. Ct. 1612, 1627-28 (2018); Italian Colors, 570 U.S. 

at 233; AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011); Gilmer, 500 U.S. 

at 35). They contend that the same result is warranted here, as there is no 

unwaivable right to proceed through collective action. 

This argument misses the mark for at least two reasons. For one thing,

Cedeno is not asserting a free-floating right to proceed through collective action 

for its own sake; he is asserting a right to pursue the full range of statutory 

remedies to enforce his substantive statutory rights under Section 409(a). Sections 

17.10(f) and (g) do not simply take off the table the means to secure a claimant’s 

statutory rights and remedies through collective action, while leaving intact an 

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alternative path through individual arbitration. As we’ve explained, these 

provisions, if enforced, would leave claimants like Cedeno without any means of 

securing the full range of statutory remedies available to him. 

That fact distinguishes this case from the line of authority Defendants rely 

upon. For example, in Epic Systems, in the context of claims against employers 

under the Fair Labor Standards Act, the Supreme Court upheld an arbitration 

agreement that required “individualized arbitration.” 138 S. Ct. at 1620. 

Nothing in the Epic Systems decision suggests that the “individualized 

arbitration” provision had the effect of waiving any party’s substantive statutory 

rights and remedies. Id. at 1628. Similarly, in Italian Colors, the Court enforced a 

contractual waiver of class arbitration in the context of a merchant’s antitrust 

action against American Express. 570 U.S. at 239. The merchant argued that the 

high cost of pursuing such a claim on an individualized basis precluded it from 

vindicating its rights. Id. at 231. The Supreme Court disagreed, emphasizing 

that the class-action waiver “no more eliminates [the] parties’ right[s] to pursue 

their statutory remedy than did federal law before its adoption of the class action 

for legal relief in 1938.” Id. at 236 (citations omitted). As in Epic Systems and the 

other cases Defendants rely on, in Italian Colors the restrictive arbitration 

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provisions did not effectively eliminate the merchant’s substantive rights and 

remedies.

Defendants’ argument misses a second critical point: in considering the 

enforceability of provisions in arbitration agreements that prohibit 

“representational” arbitration of various sorts, the Supreme Court has not 

adopted a one-size-fits-all approach because not all “representational” 

arbitration is the same. The Court has recognized a qualitative difference 

between waivers of collective-action procedures like class actions, and waivers 

that preclude a party from arbitrating in a representational capacity on behalf of a 

single absent principal, a point it recently drove home in Viking River. See 596 U.S. 

at 656-58. 

In Viking River, the Court considered whether, and to what extent, the FAA 

preempts a California law that invalidates contractual waivers of the right to 

assert representative claims as provided for in California’s Labor Code Private 

Attorneys General Act of 2004 (PAGA). Id. at 643. In doing so, the Court 

distinguished between two kinds of “representational” claims: those in which a 

plaintiff is authorized by statute to act as an agent or proxy of a single 

principal—the State, in the case of PAGA—and those in which a representative 

plaintiff’s individual claims are a basis to “adjudicate claims of multiple parties 

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at once, instead of in separate suits.” Id. at 654 (quoting Shady Grove Orthopedic 

Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010)) (internal quotation 

marks omitted). 

The Court explained that in the latter category of representative claims, 

including class-action claims, “the changes brought about by the shift from 

bilateral arbitration to class-action arbitration are too fundamental to be imposed 

on parties without their consent.” Id. at 657 (citation and internal quotation 

marks omitted) (emphasis in original). But claims in which a single agent 

arbitrates in a representative capacity on behalf of a single principal are a 

different matter. The Court explained, 

Nothing in the FAA establishes a categorical rule mandating 

enforcement of waivers of standing to assert claims on behalf of 

absent principals. Non-class representative actions in which a single 

agent litigates on behalf of a single principal are part of the basic 

architecture of much of substantive law. Familiar examples include 

shareholder-derivative suits, wrongful-death actions, trustee actions, 

and suits on behalf of infants or incompetent persons. Single-agent, 

single-principal suits of this kind necessarily deviate from the strict 

ideal of bilateral dispute resolution posited by Viking [River Cruises]. 

But we have never held that the FAA imposes a duty on States to 

render all forms of representative standing waivable by contract. Nor 

have we suggested that single-agent, single-principal representative 

suits are inconsistent [with] the norm of bilateral arbitration as our 

precedents conceive of it.

Id. at 641. 

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The Court explained that in contrast to class-action arbitration, arbitration 

between one party and a single agent acting in a representative capacity on 

behalf of an absent principal does not involve a “degree of deviation from 

bilateral norms” that is “alien to traditional arbitral practice.” Id. at 658. Thus, 

PAGA’s restriction on the enforceability of waivers of representative capacity 

litigation on behalf of a single principal—namely, the State of California—was 

not preempted by the FAA. Id. at 662-63.

The aspect of PAGA that did run afoul of the FAA was the statute’s built-in 

mechanism of claim joinder, which allowed an aggrieved employee to use the 

Labor Code violations the employee personally suffered as a basis to join to the 

action any claims that could have been raised by the State in an enforcement 

proceeding, whether or not those claims were related to the aggrieved 

employee’s own grievances. Id. at 659. The Court reasoned that such a rule

would leave parties to choose between an arbitration “in which the range of 

issues under consideration is determined by coercion rather than consent” and 

forgoing arbitration altogether. Id. at 661. To the extent that California law 

provided that PAGA actions could not be divided into individual and nonindividual claims, the Court concluded that rule was preempted and Viking 

River Cruises was entitled to compel arbitration of the plaintiff’s individual 

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claims. Id. at 662. Having so concluded, and because PAGA provided no 

mechanism to enable a court to adjudicate non-individual claims once the 

individual claim has been sent to arbitration, the Court concluded that the nonindividual claims should be dismissed. Id. at 663. 

Although Viking River explored the reach of the FAA’s preemption of state 

laws prohibiting parties from waiving representational arbitration—a context 

distinct from this case—its core insight that from the perspective of the FAA 

there is a qualitative difference between arbitrating on behalf of an absent 

principal and arbitrating on behalf of a class of individuals is instructive. The 

line of cases upholding “individualized arbitration” provisions all deal with the 

latter scenario. This case involves the former. 

The dissent’s challenges to the analogy between a plaintiff seeking relief 

for the plan under Section 502(a)(2) for fiduciary breaches that violate Section 

409(a) and specific other kinds of representative litigants miss the point. Dissent 

at 10-11. The common thread is that, as in those other cases, a plaintiff seeking 

relief under Section 502(a)(2) acts in a representative capacity seeking relief for a 

single entity—the plan—as opposed to a collection of individuals. That an 

individual must have a personal stake in the relief sought on behalf of the plan to 

have Article III standing for a suit under Section 502(a)(2) does not mean the 

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plaintiff therefore litigates in an individual capacity to recover for the plaintiff’s 

own individual injuries rather than in a representative capacity to secure relief 

for the plan. Dissent at 8-9 (citing Thole v. U.S. Bank, 590 U.S. 538, 543 (2020)). 

Neither Thole nor logic suggests otherwise. See id.; 590 U.S. at 546 (noting that 

plaintiff participants in a defined-benefit plan did not assert that 

mismanagement of the plan put their future pension benefits at risk). 

Moreover, the fact that this Court requires that a participant seeking relief 

under Section 502(a)(2) “take adequate steps under the circumstances properly to 

act in a ‘representative capacity on behalf of the plan,’” reinforces that a Section 

502(a)(2) claim is inherently representational. Coan, 457 F.3d at 261 (citation 

omitted). It thus makes sense that Cedeno invoked Federal Rule of Civil 

Procedure 23 in his complaint even though this is not actually a class action; we 

recognized in Coan that compliance with the requirements of Rule 23 is likely 

sufficient to properly act in a representative capacity for purposes of a Section 

502(a)(2) claims. Id. The dissent asserts that Coan’s holding that a participant 

bringing a Section 502(a)(2) claim acts in a representative capacity did not 

survive LaRue. Dissent at 15, n.14. That assertion is flatly contradicted by the 

Supreme Court’s own holding in LaRue. See pages 27-28, above. 

2. Clear Statement of Congressional Intent 

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In arguing that ERISA contains no “clearly expressed Congressional 

intention” to prohibit agreements to engage in individualized arbitration, 

Appellant’s Br. at 29, Defendants likewise respond to an argument Cedeno has 

not made. 

In Epic Systems, the Supreme Court considered an argument that the 

National Labor Relations Act (NLRA) overrides the FAA’s ordinary guidance

that provisions in arbitration agreements, including provisions requiring 

individualized arbitration, should be enforced according to their terms. 138 S. 

Ct. at 1623-30. The Court explained that a party suggesting that two statutes 

cannot be harmonized, and that one displaces the other, “bears the heavy burden 

of showing a clearly expressed congressional intention that such a result should 

follow.” Id. at 1624 (internal quotation marks omitted). It discerned no such 

clearly expressed intent in the NLRA. Id. at 1624-27. Rather, the Court explained 

the NLRA was silent about any class or collective action procedures required in 

litigation or arbitration. Id. at 1628. 

The problem for Defendants, and for the dissent, is that Cedeno does not 

argue that ERISA and the FAA conflict such that ERISA overrides the FAA. 

Instead, he argues that specific provisions in the arbitration agreement prevent 

him from vindicating statutory remedies provided by ERISA, making those 

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provisions unenforceable. See Appellee’s Br. at 13-15 (summarizing argument). 

As the Supreme Court explained in Italian Colors, after considering whether any 

clear congressional command required it to reject the contested waiver of class 

arbitration, “Our finding of no ‘contrary congressional command’ does not end 

the case.” Id. at 235. The Court went on to consider separately whether the 

waiver at issue prevented the aggrieved merchant from effectively vindicating its 

statutory rights. Id. at 235-38. 

In short, Defendants’ contention that ERISA reflects “no clear 

congressional intent” to displace the FAA with respect to matters involving 

individualized arbitration is inapposite to Cedeno’s arguments and our analysis.

3. Cedeno’s Individualized Rights and Remedies 

Finally, with respect to Defendants’ argument that LaRue suggests that 

Cedeno can effectively vindicate his substantive rights if Sections 17.10(f) and (g) 

are enforceable, we reiterate that LaRue reinforced, rather than undermined, the 

Supreme Court’s holding in Russell that the remedies available under Section 

502(a)(2) for fiduciary breaches that violate Section 409(a) inure to the benefit of

the plan, thereby providing only indirect relief to individual plan participants and 

beneficiaries. See Section II.C, above. In LaRue, the defendant’s alleged breach 

under Section 409(a) caused a loss solely within LaRue’s individual account. 

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Accordingly, the remedy available to him, while directed at the plan, impacted 

only LaRue’s individual account within the plan. 552 U.S. at 256. But nothing in 

LaRue suggests that an individual claimant like Cedeno who is aggrieved by a 

breach of fiduciary duty that has a plan-wide impact can seek a remedy under 

Section 502(a)(2) that benefits solely that individual’s account. That notion is 

inconsistent with the plain language of Section 409(a), which speaks solely of 

injuries to the plan, and flies in the face of the Supreme Court’s reading of the 

statute in Russell and LaRue. See 29 U.S.C. § 1109(a); Russell, 473 U.S. at 140-42; 

LaRue, 552 U.S. at 256 (“[Section] 502(a)(2) does not provide a remedy for 

individual injuries distinct from plan injuries.”). 

Moreover, contrary to Defendants’ argument, Cedeno cannot vindicate his 

substantive statutory rights if Sections 17.10(f) and (g) are enforceable. Those 

provisions take the only available statutory vehicle for vindicating Cedeno’s 

rights under Section 409(a)—a suit under Section 502(a)(2) seeking remedies 

directed at the Plan—off the table. The alternative enforcement framework 

spelled out in the arbitration agreement, which contemplates relief directed 

solely at Cedeno’s account within the plan and allows recovery only of Cedeno’s 

pro rata shares of a fiduciary’s misbegotten gains, implicitly rests on the fiction

that such a statutory enforcement mechanism exists. It doesn’t. Nothing in 

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Section 409(a) or 502(a)(2) allows a court or arbitral forum to slice and dice 

individual plan participants’ and beneficiaries’ injuries resulting from 

mismanagement by fiduciaries in the way Sections 17.10(g) and (f) suggest. 

And even if there were a mechanism for making Cedeno financially whole 

through adjustments only to his individual account within the Plan, contrary to 

Defendants’ claims, there is no legal way to provide many of the equitable 

remedies allowed by statute and sought by Cedeno without impacting the 

accounts of other plan participants and beneficiaries or binding the Plan 

Administrator and Trustee vis-à-vis other participants. In addition to seeking 

restoration of plan-wide losses, Cedeno is also seeking relief that is by definition 

plan-wide, including a surcharge, accounting for profits, the imposition of a 

constructive trust on any funds wrongfully held by Defendants, and 

disgorgement of fees, earnings, or profits Argent received from the Transaction. 

These are plan-wide remedies that fall squarely within the scope of the relief 

Sections 409(a) and 502(a)(2) make available to plan participants. See 29 U.S.C. § 

1109(a); see also Munro, 896 F.3d at 1093-94 (holding LaRue could not allow 

defendants to limit plan participant plaintiffs to individualized relief in 

arbitration because “claims brought by the [plaintiffs] arise from alleged 

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fiduciary misconduct as to the Plans in their entireties and are not, as in LaRue, 

limited to mismanagement of individual accounts.”). 

The dissent’s suggestion that Cedeno could, in fact, secure these kinds of 

plan-wide equitable relief in an individualized arbitration makes no sense. 

Dissent at 16-17. Echoing the Defendants, the dissent suggests that a plan 

participant like Cedeno could secure equitable relief such as replacement of the 

plan administrator (relief Cedeno does not seek in this case). But the Defendants 

argue (and the dissent suggests) that even an arbitral order for that relief would 

not be binding on the administrator or trustee “with respect to someone other 

than him.” Oral Argument Transcript at 4; see dissent at 17-18. Whether 

Defendants would be precluded from declining to replace the plan administrator 

in the context of challenges by other participants would be another question for 

another court on another day. Oral Argument Transcript at 7. But ERISA 

doesn’t contemplate different plan administrators for different participants 

within the same group; “plan administrator” is a unitary position. See 29 U.S.C. § 

1002(16)(A) (defining the term “administrator” to mean “the person” specifically 

designated by the plan, “the plan sponsor” if no administrator is designated, or 

“such other person as the Secretary may by regulation prescribe”). Defendants’ 

position that Cedeno could secure through individual arbitration equitable relief 

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that is plan-wide in nature, but that is not binding on any other participant, is 

thus incoherent. 

C. Sister Circuit Decisions 

Our conclusion that the challenged provisions in the arbitration agreement

operate as an impermissible prospective waiver of Cedeno’s substantive 

statutory rights is bolstered by three decisions from our sister circuits in closely 

analogous cases. Each case involved provisions in arbitration agreements 

seeking to compel individualized arbitration of Section 502(a)(2) claims and 

limiting the remedies available in such arbitrations. Two of those cases involved 

language nearly identical to the contested arbitration provisions here.

First, in Smith v. Board of Directors of Triad Manufacturing, Inc., the Seventh 

Circuit held that a nearly identical individual arbitration provision could not be 

enforced because it would prevent a plaintiff from vindicating statutory rights 

guaranteed by ERISA under Section 502(a)(2). 13 F.4th 613, 615 (7th Cir. 2021). 

The provision restricted each arbitration solely to a claimant’s claims, and 

prohibited claimants from seeking or receiving “any remedy which has the 

purpose or effect of providing additional benefits or monetary or other relief to 

any Eligible Employee, Participant or Beneficiary other than the Claimant.” Id. at 

616. Smith, an employee and beneficiary of his employer’s benefit plan who 

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alleged fiduciary violations, sought “wide-ranging” relief under Section 

502(a)(2), including removal of the plan’s trustee, appointment of an 

independent fiduciary, and “such other and further relief . . . that is equitable 

and just.” Id. at 617 (internal quotation marks omitted). 

The Smith court, noting that the effective vindication doctrine applies 

where “a provision in an arbitration provision forbid[s] the assertion of certain 

statutory rights,” concluded that the arbitration provision at issue had done just 

that. Id. at 621 (quoting Italian Colors, 570 U.S. at 236) (internal quotation marks 

omitted). The court explained: 

Recall that Smith invokes § [502](a)(2)’s cause of action to seek relief 

for (alleged) fiduciary breaches under § [409](a). That relief, by statute, 

includes “such other equitable or remedial relief as the court may 

deem appropriate, including removal of such fiduciary.” Yet the 

plan’s arbitration provision, which also contains a class action waiver, 

precludes a participant from seeking or receiving relief that “has the 

purpose or effect of providing additional benefits or monetary or 

other relief to any Eligible Employee, Participant or Beneficiary other 

than the Claimant.” Removal of a fiduciary—a remedy expressly 

contemplated by § [409](a)—would go beyond just Smith and extend 

to the entire plan, falling exactly within the ambit of relief forbidden 

under the plan.

Id. at 621 (quoting 29 U.S.C. § 1109(a)). Thus, the arbitration provision acted as a 

waiver of Smith’s right to pursue statutory remedies, and the provision could not 

be enforced. Id. The Seventh Circuit rejected the defendants’ suggestion that it 

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must “harmonize” the FAA and ERISA in light of the strong federal policy 

favoring arbitration, observing, “the conflict in need of harmonization is not 

between the FAA and ERISA; it is between ERISA and the plan’s arbitration 

provision, which precludes certain remedies that [Sections 502(a)(2) and 409(a)] 

expressly permit.” Id. at 622-23. 

It is true that Smith is distinguishable insofar as Cedeno does not seek 

removal of the plan fiduciary—Argent has already been replaced as the Plan’s 

trustee. But Cedeno seeks other forms of plan-wide relief that would either 

benefit other participants or bind the Plan’s administrator and trustee as to other 

participants, see App’x 41-42, so the reasoning in Smith is on point.

Similarly, in Harrison v. Envision Management Holding, Inc., the Tenth 

Circuit held a nearly identical provision within an arbitration agreement was 

unenforceable when applied to a Section 502(a)(2) claim. 59 F.4th 1090, 1094 

(10th Cir. 2023).5 Harrison, like Cedeno, was a participant in a defined 

contribution retirement plan established by his former employer, for which 

Argent also served as trustee. Id. at 1093-94. Harrison alleged that the

defendants, assisted by Argent, financially benefitted from the sale of their 

5 Harrison was issued after briefing and argument in this case, but the parties addressed its impact 

in Rule 28(j) letters before this Court. 

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company to their employee benefit plan for “significantly more than it was 

worth, while at the same time leaving the [plan] with a $154.4 million debt.” Id.

at 1095. Harrison sued under Section 502(a)(2), seeking “plan-wide relief on 

behalf of the [plan].” Id. at 1095. He specifically sought, among other things, to 

enjoin the defendants from future violations of their fiduciary duties, to require 

them to disgorge their profits, and to remove Argent and appoint a new trustee. 

Id. at 1102. The defendants moved to compel arbitration, again on the basis of a 

nearly identical set of arbitration provisions. See id. at 1104-05. 

The Tenth Circuit upheld the district court’s denial of the defendants’ 

motion to compel arbitration. The court explained that the arbitration 

provision’s “prohibition on class or collective actions” standing alone did not 

invalidate the arbitration agreement, id. at 1106, but it concluded that the 

contested arbitration provision effectively prevented Harrison from vindicating 

many of the statutory remedies that he sought under [Section] 502(a)(2). Id. at 

1101. The court further observed that it was “not clear what remedies Harrison 

would be left with” if the arbitration provision was enforced as written. Id. at 

1107. 

Finally, in Henry on behalf of BSC Ventures Holdings, Inc. Emp. Stock 

Ownership Plan v. Wilmington Tr. NA, the Third Circuit likewise declined to 

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enforce a provision in an arbitration agreement requiring individual arbitration 

where a plan participant sought plan-wide remedies under Section 502(a)(2). 72 

F.4th 499, 505-07 (3d Cir. 2023). 

These decisions of our sister circuits reinforce our conclusion that Sections 

17.10(f) and (g) are unenforceable with respect to Cedeno’s Section 502(a)(2) 

claims.6 

6 The parties spend much time in their briefing sparring over the significance of a pair of Ninth 

Circuit cases—one published, one not—that seem to point in opposite directions as to the 

arbitrability of Section 502(a)(2) claims. Neither case relies on the principle that provisions 

preventing a party from effectively vindicating statutory rights and remedies are unenforceable, 

but the reasoning in these cases also supports our holding. 

In Munro v. University of Southern California, the Ninth Circuit concluded that an 

arbitration agreement could not be enforced as to a Section 502(a)(2) claim brought by plaintiffs 

seeking to recover plan losses caused by alleged mismanagement of retirement savings plans. 

896 F.3d at 1090. The employer-defendant, USC, moved to compel arbitration on an individual 

basis, arguing among other things that its employee agreements—not, as here, the plan 

document—barred employees from litigating claims on behalf of the plan. Id. at 1091. The 

Munro court, analogizing to qui tam suits brought on behalf of the government, held that the 

employment agreement limiting employees to arbitrating their own individual claims did not 

cover the Section 502(a)(2) claims, which are brought for recovery “only for injury done for the 

plan.” 896 F.3d at 1093. Accordingly, it held the arbitration agreement did not apply to the 

claims at issue. See also Hawkins v. Cintas Corp., 32 F.4th 625, 634 (6th Cir. 2022), cert. denied, 143 

S. Ct. 564 (2023) (employee agreement containing individualized arbitration agreement did not 

apply to Section 502(a)(2) claims brought on behalf of employee benefit plan). To the extent 

Munro recognizes that Section 502(a)(2) claims brought on behalf of the plan as a whole cannot be 

remanded to individualized arbitration, we find it persuasive but not as closely analogous as 

Smith, Harrison, and Henry. 

In contrast, in Dorman v. Charles Schwab Corporation, the Ninth Circuit concluded that a 

district court erred in refusing to compel arbitration of a Section 502(a)(2) claim. 780 F. App’x 

510, 512 (9th Cir. 2019). The arbitration provision at issue was within a plan document, and the 

Dorman court did not consider an argument invoking the effective vindication doctrine. See 780 

F. App’x at 513-14 (finding arbitration agreement enforceable under the FAA because plan 

consented to arbitration based on plan document). Because it does not address the primary 

argument at issue here, Dorman is not persuasive. 

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CONCLUSION 

 For the reasons stated above, we conclude that Sections 17.10(f) and (g) are 

unenforceable. Section 17.10(h) of the Plan contains a non-severability clause 

providing that if a court finds the requirements of Sections 17.10(f) or 17.10(g) 

“unenforceable or invalid, then the entire Arbitration Procedure shall be 

rendered null and void in all respects.” App’x 106. Accordingly, we conclude 

the entire arbitration provision is null and void, and we AFFIRM the district 

court’s order denying the motion to compel arbitration. 

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