On Friday, the Sixth Circuit granted en banc review of Rochow v. Life Insurance Company of North America, 737 F.3d 415 (6th Cir. 2013), a controversial decision holding that a ERISA plaintiff that already recovered his benefit under Section 502(a)(1)(B) could also recover for unjust enrichment under Section 502(a)(3).  The benefit in this case was worth $900,000, but the disgorged profits were over $3.7 million.  Over a strong dissent by Judge McKeague, the panel affirmed the district court’s award of the insurance company’s profits from holding the delayed benefits, calculated based on the company’s return on average equity.

The American Council of Life Insurers filed an amicus brief in support of the petition, arguing that the disgorgement award was a windfall that would dramatically increase in litigation costs for ERISA plans.  Oral argument is set for June 18, 2014 at 1:30 p.m.