November 13, 2015

In this article, Jenner & Block Partners Amanda S. Amert and Craig C. Martin examine the Fourth Circuit’s recent decision in Pender v. Bank of Am. Corp.   In Pender, the court held that plaintiffs who elected to transfer their 401(k) plan balances to the Bank of America pension plan had constitutional and statutory standing to challenge the Bank’s retention of investment gains attributable to plaintiff’s 401(k)dollars.  The court held that the Bank’s actions violated ERISA’s anti-cutback provision, and that as a result, plaintiffs could seek the equitable remedy of “an accounting for profits” without showing that the Plan at issue had suffered a loss, so long as they could plead the existence of a profit based on wrongdoing that would otherwise not be recoverable.   “The decision, which is in accord with some courts’ holding and in tension with some others, sets up an interesting series of questions about the boundaries of equitable relief under ERISA,” the authors observe.  They give background of the case and explore its implications.