15-2866-cv 

Severstal Wheeling, Inc. Retirement Committee v. WHX Corporation 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

30th day of August, two thousand sixteen. 

Present: ROSEMARY S. POOLER, 

 GERARD E. LYNCH, 

 SUSAN L. CARNEY, 

 Circuit Judges. 

_____________________________________________________ 

SEVERSTAL WHEELING, INC. RETIREMENT COMMITTEE, 

TIMOTHY S. ROGERS, WILLIAM DREW LANDON, RICHARD 

CARUSO, THE WHEELING CORRUGATING COMPANY RETIREMENT 

SECURITY PLAN, THE SALARIED EMPLOYEES’ PENSION 

PLAN OF SEVERSTAL WHEELING, 

 Plaintiffs-Appellants,

 v. 15-2866 

WHX CORPORATION, 

 Defendant-Appellee.1

_____________________________________________________ 

 

Appearing for Appellants: Robert Joseph Barton (Matthew A. Smith, on the brief), Cohen 

Milstein Sellers & Toll PLLC, Washington, D.C. 

Appearing for Appellee: Lisa C. Solbakken, (Deana Davidian, on the brief), Arkin 

Solbakken LLP, New York, NY. 

 

1

 The Clerk of Court is respectfully directed to amend the caption as above. 
2

 Appeal from the United States District Court for the Southern District of New York 

(Gorenstein, M.J.). 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

 Appellants appeal from the August 12, 2015 judgment of the District Court for the 

Southern District of New York (Gorenstein, M.J.), dismissing their complaint against WHX 

Corporation for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 

12(b)(6). We assume the parties’ familiarity with the underlying facts, procedural history, and 

specification of issues for review. 

 Appellant Severstal Wheeling, Inc. Retirement Committee (the “Committee”) is a named 

fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”) of two 

defined contribution plans sponsored for the employees of Severstal Wheeling, Inc. (collectively, 

the “Plans”). Until late 2008, the Plans were funded and maintained through a trust sponsored by 

the WHX Corporation (“Combined Trust”). The Combined Trust pooled the Plans’ assets with 

assets from other employee benefit plans sponsored by WHX. After Severstal Wheeling, Inc. 

separated from WHX, a portion of the assets was transferred from the Combined Trust to a 

separate trust holding the Plans’ assets (the “Severstal Trust”). Before and after the transfer, the 

Plans were managed by the WPN Corporation, whose sole employee was Ronald LaBow. The 

Committee, along with other named fiduciaries of the Plans and the Plans’ individual members, 

sued WHX, WPN and LaBow on behalf of the Plans. The Appellants brought claims against 

WHX under Section 502(a)(2) and (a)(3) of ERISA, 29 U.S.C. § 1132(a)(2), (a)(3), for breach of 

its own fiduciary duty and knowing participation in WPN’s breach of fiduciary duty. The district 

court granted WHX’s motion to dismiss the complaint on the ground that the complaint failed to 

allege that WHX exercised authority and control over, and thus was a fiduciary of, the Severstal 

Trust, and because the Complaint did not sufficiently allege an entitlement to equitable relief, 

which is the only relief available for knowing participation in a fiduciary breach by a nonfiduciary. 

We “review a District Court’s grant of a motion to dismiss under Rule 12(b)(6) for failure 

to state a claim de novo, ‘accepting the complaint’s factual allegations as true and drawing all 

reasonable inferences in the plaintiff’s favor.’” Carpenters Pension Tr. Fund of St. Louis v. 

Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014) (quoting Steginsky v. Xcelera Inc., 741 F.3d 

365, 368 (2d Cir. 2014)). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has 

facial plausibility when the plaintiff pleaded factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). 

The district court dismissed Counts I and II of the Complaint on the basis that the 

Complaint failed to adequately allege WHX’s fiduciary status. The term “fiduciary” is defined in 

Section 3(21)(A) of ERISA as follows: 
3

[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any 

discretionary authority or discretionary control respecting management of such plan or 

exercises any authority or control respecting management or disposition of its assets, (ii) 

he renders investment advice for a fee or other compensation, direct or indirect, with 

respect to any moneys or other property of such plan, or has any authority or 

responsibility to do so, or (iii) he has any discretionary authority or discretionary 

responsibility in the administration of such plan. 

29 U.S.C. § 1002(21)(A). “[W]hether or not an individual or entity is an ERISA fiduciary must 

be determined by focusing on the function performed, rather than on the title held.” Blatt v. 

Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987). “An entity need not have absolute 

discretion with respect to a benefit plan in order to be considered a fiduciary; rather, fiduciary 

status exists with respect to any activity enumerated in the statute over which the entity exercises 

discretion or control.” Id. (citations omitted). 

The Committee alleges that a reasonable inference can be drawn from its complaint that 

WHX is a fiduciary in regard to the November 3 transfer because it “exercised actual control 

over the disposition of plan assets.” Appellants’ Br. at 28. But the Second Amended Complaint 

alleged no facts to support a claim that WHX had a role in determining which assets to transfer 

to the Severstal Trust, nor any facts that support a claim that they “conspired” with WPN or 

Ronald Labow in the transfer at issue. Appellants contend that WHX’s contract with WPN 

allowed WHX unilaterally to withdraw assets from the Combined Trust, and that WHX 

exercised that power. There are no allegations in the Complaint, however, linking the retained 

right to withdraw assets with the selection and transfer of assets to the Severstal Trust. Indeed, 

the Complaint itself alleges that WPN and LaBow – not WHX – directed the transfer of the 

assets. Thus, the allegations of the Complaint are clear that WHX did not “exercise authority or 

control regarding the disposition of plan assets[,] . . . [and] [c]onsequently, because [WHX] does 

not come within the statutory definition of ERISA, the district court correctly held that [WHX] is 

not . . . liable for breach of fiduciary duty.”2 LoPresti v. Terwilliger, 126 F.3d 34, 41 (2d Cir. 

1997). 

Although conceding that the Complaint did not request equitable relief for WHX’s alleged 

participation in WPN’s fiduciary breach, the Committee argues, for the first time on appeal, that 

equitable relief is available in the form of restitution and disgorgement and the district court 

should not have dismissed its claim simply because it sought the wrong form of relief. Although 

it may be error to dismiss a complaint simply because it names the wrong form of relief, see 

Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 86 (2d Cir. 2004), the Complaint did not 

contain sufficient allegations to suggest any entitlement to equitable relief. Even if we construed 

the Complaint to seek “restitution,” that would not render the requested relief equitable in nature. 

Whether relief is legal or equitable depends on “the basis for [the plaintiff’s] claim and the nature 

of the underlying remedies sought.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 

204, 213 (2002) (alterations in original) (internal quotation marks omitted). The“key factor” in 

 

2

 At oral argument, Appellants argued, for the first time, that WHX had a fiduciary duty with 

respect to the transfer of assets to the Severstal Trust due to an agreement between the 

Committee and WHX to transfer 10% of each asset held in the Combined Trust. That argument 

was not raised below and is accordingly waived. 
4

determining whether “restitution” is legal or equitable “is whether a claimant was seeking 

restitution from a defendant’s general funds, in which case the claim was legal, or whether a 

claimant was seeking to recover money that could be traced to . . . particular [property] held by a 

defendant, in which case the claim was equitable.” Cent. States, Se. & Sw. Areas Health & 

Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150, 155 (2d Cir. 2014); see also Great-West, 

534 U.S. at 213. Here, Appellants do not seek in the Complaint “money that can be traced to” a 

particular fund or particular property held byWHX. Notwithstanding Appellants’ arguments to 

the contrary, the Complaint alleges only an interest in 10% “of the total assets” held in the 

Combined Trust rather than a 10% stake in any particular asset. App’x at 65 (emphasis added). 

Thus, the district court correctly held that Count III failed to state a claim upon which relief can 

be granted. 

 We have considered the remainder of Appellants’ arguments and find them to be without 

merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk