Gabriel Revisited

SEAN T. STRAUSS, December 2014

In our June 2014 newsletter, we discussed the Ninth Circuit’s decision in Gabriel v. Alaska Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014). Following a petition for rehearing, the Ninth Circuit recently withdrew its earlier opinion and issued a new decision. See, Gabriel v. Alaska Electrical Pension Fund, — F.3d —-, 2014 WL 7139686 (9th Cir. Dec. 16, 2014). While the Ninth Circuit left intact the earlier holding that equitable estoppel and reformation were not “appropriate equitable remedies” under ERISA § 502(a)(3) for the harm alleged by Gabriel, the Court reversed course regarding the unavailability of a surcharge remedy to Gabriel. The new opinion withdrew guidance regarding the specific factual circumstances under which a surcharge remedy would be “appropriate,” and remanded the issue to the district court to be considered in the first instance by the court below.