Plaintiff contracted with Aetna through a Master Services Agreement to provide third-party administrator services for self-funded health benefit plans that the plaintiff, Aramark, maintains. In its role as third-party administrator, Aetna serves as the intermediary between Aramark and health care providers who treat and care for Aramark employees and their family members. Aetna collects a monthly fee and in exchange provides access to its network of providers and adjudicates claims for payment that those providers submit. Aetna is also responsible for handling calls and other correspondence from Plan Participants, creating reports for Aramark, and aiding in the design of Aramark’s Plans.  Aramark filed suit against Aetna alleging that Aetna had engaged in prohibited transactions and otherwise breached its fiduciary duties as a third-party plan administrator. In particular, Aramark alleges that Aetna had approved improper or fraudulent claims for Aetna sub-contractors, provided inadequate subrogation services, made certain post-adjudication claims adjustments to Aramark’s detriment, and commingled Plan funds with Aetna’s.

The defendant moved to stay and compel arbitration. Looking to the MSA – which provided that “any controversy or claim arising out of or relating to this Agreement or the breach, termination, or validity thereof, except for temporary, preliminary, or permanent injunctive relief or any other form of equitable relief, shall be settled by binding arbitration” – the District Court found that: (1) the threshold question of arbitrability had not been delegated to the arbitrator in clear and unmistakable language, and hence was retained by the Court; and (2) the claims at issue were equitable, and, hence, excepted.  And the U.S. Fifth Circuit affirmed.

With respect to the question of whether the relief was equitable, the Fifth Circuit recounted the line of U.S. Supreme Court cases on the issue:  The Supreme Court’s decisions in Mertens, Great-West, and Sereboff explain that ERISA plaintiffs cannot recover money from non-fiduciaries.  But there was uncertainty as to the reach of these holdings. In Amschwand, the Fifth Circuit found that monetary remedies were unavailable against an ERISA fiduciary. But the Supreme Court’s later decision in Amara told us that Amschwand was wrong. The Amara Court discussed what to do with “a suit by a beneficiary against a plan fiduciary (whom ERISA typically treats as a trustee) about the terms of a plan (which ERISA typically treats as a trust).” As the Supreme Court noted, equity courts recognized that an errant trustee could cause distinct harms. Equity courts specifically “possessed the power to provide relief in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.” Different from the restitution remedies at issue in Mertens, Great-West, Sereboff, and Amschwand, “this kind of monetary remedy against a trustee, sometimes called a ‘surcharge,’ was ‘exclusively equitable.’” The Amara Court explained that “the types of remedies the district court entered here fall within the scope of the term ‘appropriate equitable relief’ in § 502(a)(3)” because they resembled equitable surcharge. And it clarified that “the fact that this relief takes the form of a money payment does not remove it from the category of traditionally equitable relief.” Finally, in Montanile, the Supreme Court turned again to issues of money damages against a nonfiduciary under ERISA. As in Great-West, the Court held “that, when a nonfiduciary participant dissipates a whole settlement on nontraceable items, the fiduciary cannot bring a suit to attach the participant’s general assets under § 502(a)(3) because the suit is not one for ‘appropriate equitable relief.’” Montanile also explained that Amara did not overrule Mertens and Great-West, and the Court reiterated that its “interpretation of ‘equitable relief’ in Mertens, Great–West, and Sereboff remains unchanged.” This came as no surprise: Amara, which treated fiduciary defendants, did not overrule Mertens and Great-West because those cases addressed a distinct issue (the remedy against non-fiduciary defendants). The Court in Amara explicitly reiterated that “the fact that the defendant in this case, unlike the defendant in Mertens, is analogous to a trustee makes a critical difference.”

In this case: “Aetna is an ERISA trustee accused of breaching its fiduciary duties. The district court thus found Aramark’s §§ 1132(a)(2) and (3) claims to be equitable under Amara and Gearlds. Following Gearlds, we find Aramark is seeking ‘make-whole relief’ for a ‘violation of a duty imposed upon that fiduciary.’ We therefore hold Aramark’s claims to lie in equity.”

 

Aramark Services Group Health Plan v. Aetna, No.24-40323, 2025 WL 3676864 (5th Cir. Dec. 18, 2025).