ERISA UPDATE, AETNA Health Inc. v. Davila, pg. 3
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The Concurrence - The Usual Call for Reform, and a Surprise:

There was a concurrence by Justice Ginsburg, joined by Justice Breyer. Initially, Ginsburg agreed that ERISA mandated preemption of the state law claims, but noted the injustice of this result.

I therefore join the Court’s opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), I also join "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime."

Justice Ginsburg also noted that the government’s brief had suggested that "make -whole" relief might be available under ERISA Section 503(a)(3):

Recognizing that "this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary," the Government suggests that the Act, as currently written and interpreted, may "allo[w] at least some forms of ‘make-whole’ relief against a breaching fiduciaryin light of the general availability of such relief in equity at the time of the divided bench."

This same point had been addressed by Justice Thomas in the Court’s opinion in a footnote (no. 7). He noted that argument had been made, but also noted that plaintiffs had declined, at the District Court level, to attempt to state causes of action under ERISA. As such, he held, the issue was not before the Court.

"Make-whole" relief is, of course, the equitable equivalent of consequential damages. It appears, therefore, that the Court is suggesting that it would entertain an ERISA claim along these lines.