PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`No. 19-2085
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`SANDRA M. PETERS, on behalf of herself and all others similarly situated,
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`Plaintiff – Appellant,
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`v.
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`AETNA INC.; AETNA LIFE INSURANCE COMPANY; OPTUMHEALTH CARE
`SOLUTIONS, INC.,
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`Defendants – Appellees.
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`------------------------------
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`AMERICAN MEDICAL ASSOCIATION; MARYLAND STATE MEDICAL SOCIETY;
`MEDICAL SOCIETY OF VIRGINIA; NORTH CAROLINA MEDICAL SOCIETY;
`SOUTH CAROLINA MEDICAL ASSOCIATION,
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` Amici Supporting Appellant.
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`Appeal from the United States District Court for the Western District of North Carolina, at
`Asheville. Martin K. Reidinger, District Judge. (1:15-cv-00109-MR)
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`Argued: October 26, 2020
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` June 22, 2021
`Decided:
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`Before AGEE, FLOYD and THACKER, Circuit Judges.
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`Affirmed in part, reversed in part, vacated in part, and remanded by published opinion.
`Judge Agee wrote the opinion, in which Judge Floyd and Judge Thacker joined.
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`ARGUED: D. Brian Hufford, ZUCKERMAN SPAEDER LLP, New York, New York,
`for Appellant. Earl B. Austin, III, BAKER BOTTS L.L.P., New York, New York; Brian
`D. Boone, ALSTON & BIRD, LLP, Charlotte, North Carolina, for Appellees. ON BRIEF:
`Jason M. Knott, Washington, D.C., Jason S. Cowart, Nell Z. Peyser, ZUCKERMAN
`SPAEDER LLP, New York, New York; Larry S. McDevitt, David Wilkerson, THE VAN
`WINKLE LAW FIRM, Asheville, North Carolina, for Appellant. Michael R. Hoernlein,
`Rebecca L. Gauthier, ALSTON & BIRD LLP, Charlotte, North Carolina; E. Thomison
`Holman, HOLMAN LAW, PLLC, Asheville, North Carolina; Jessica F. Rosenbaum,
`BAKER BOTTS L.L.P., New York, New York, for Appellees. Leonard A. Nelson, Kyle
`A. Palazzolo, AMERICAN MEDICAL ASSOCIATION, Chicago, Illinois, for Amici
`American Medical Association, North Carolina Medical Society, Maryland State Medical
`Society, South Carolina Medical Association, and Medical Society of Virginia.
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`2
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`AGEE, Circuit Judge:
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`
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`Sandra Peters appeals the district court’s grant of summary judgment in favor of
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`Aetna Inc., Aetna Life Insurance Company, and Optumhealth Care Solutions, Inc.
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`(individually, “Aetna” and “Optum”; collectively, “Appellees”), as well as the denial of
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`her motion for class certification. For the reasons discussed below, we affirm in part,
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`reverse in part, vacate in part, and remand for further proceedings consistent with this
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`opinion.
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`I.
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`Mars, Inc. (“Mars”) operated a self-funded health care plan (“the Plan”) and hired
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`Aetna as a claims administrator of the Plan pursuant to a Master Services Agreement
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`(“MSA”).1 Under the MSA, Aetna’s obligations included processing the participants’
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`claims for the Plan and providing a cost-effective network of health care providers. The
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`MSA contained a “Service and Fee Schedule” (“the Fee Schedule”), explaining that “[a]ll
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`Administrative Fees from this [Statement of Available Services] are summarized in the
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`following Service and Fee Schedule.” J.A. 6025. The Fee Schedule notes that
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` J.A. 6026, 6028. Aetna’s compensation, in return for providing all
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`of the agreed services under the MSA, was set at
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`, meaning
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`1 Mindful of the standard on summary judgment, we recite the facts herein in the light most
`favorable to the non-moving party, Peters. Garofolo v. Donald B. Heslep Assocs., Inc., 405
`F.3d 194, 198 (4th Cir. 2005).
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`3
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`

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`that
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`
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` J.A. 3142.
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`The Aetna-Optum Relationship
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`The MSA permitted Aetna to subcontract “[t]he work to be performed by Aetna”
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`for the Plan. J.A. 5999. Aetna subsequently executed such subcontracts with Optum for
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`Optum to provide chiropractic and physical therapy services to the Plan participants for
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`more cost-effective prices than Aetna alone could provide. Optum’s “downstream
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`providers” offered in-network services to Aetna insureds (including the Plan participants)
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`at competitive rates. In exchange for Optum’s services, it was to be paid a fee.
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`Section 20(B) of the MSA specified that “Aetna shall be solely responsible for
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`payments due such subcontractors.” J.A. 5999. However, Aetna did not wish to pay Optum
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`out of the fees it received from Mars through the Plan. Instead, Aetna requested that Optum
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`“bury” its fee within the claims submitted by Optum’s downstream providers. J.A. 2692.
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`By doing so, the Plan and its participants effectively would pay part or all of Optum’s
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`administrative fee notwithstanding the contrary terms of the MSA.
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`As a result, the fee breakdown for health care services provided to Plan participants
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`through Optum operated as follows: After treatment, the health care provider submitted its
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`claim to Optum for the services rendered. Optum then added a “dummy code” to the claim
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`from the Current Procedural Terminology (“CPT”)2 to reflect a bundled rate fee, consisting
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`2 The CPT is “a uniform coding used in ‘identifying, describing, and coding medical,
`surgical, and diagnostic services performed by practicing physicians.’” Newport News
`Shipbuilding & Dry Dock Co. v. Loxley, 934 F.2d 511, 513 n.2 (4th Cir. 1991) (citation
`
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`4
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`of Optum’s administrative fee and the cost of the health care provider’s services. Optum
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`would then forward the bundled rate fee claim to Aetna for its approval. In turn, this
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`bundled rate fee would be paid based on the Plan’s responsibility framework, depending
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`on the coinsurance required and whether a patient-paid deductible had been reached.
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`Appellees sought to keep this fee breakdown from being known by Mars or the Plan
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`participants. As one Aetna employee explained, “We need to ensure that the members are
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`not being relayed this information about wrap or administration fees as they are feeling
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`they are absorbing costs, which in turn makes most of them unhappy.” J.A. 2699.
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`Nonetheless, some Aetna and Optum employees exhibited concern over the fee “bumping”
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`arrangement, stating, for instance:
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`The scenario where the co-insurance amount is calculated based on Aetna’s
`payment to us is very problematic – the essence of the [Department of
`Insurance (“DOI”)] complaint on this will be patients are being forced to pay
`a % of our fee, this is not going to viewed favorably by the DOI.
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`J.A. 2647.
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`The Terms of the Plan
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`Plan Participants received a Summary Plan Description (“SPD”), which set out their
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`rights and benefits under the Plan, including the charges for health care services and their
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`participant responsibility. And in the circumstances of this case, the SPD represents the
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`omitted). It is “the most widely accepted” system of coding “under government and private
`health insurance programs.” Id. (citation omitted).
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`5
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`terms3 of the Plan.4 Relevant to this appeal, the SPD, as also reflected in the subcontract
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`provision of the MSA, did not authorize the Plan or its participants to be charged Optum’s
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`administrative fee. This is evident when considering the SPD’s definitions of appropriate
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`charges. The SPD defines “Negotiated Charge” as “the maximum charge a Network
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`Provider has agreed to make as to any service or supply for the purpose of the benefits
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`under this Plan.” J.A. 3067. Critically, “[t]he Plan does not cover expenses that are not
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`considered Medically Necessary or appropriately provided.” J.A. 3030. “Charges for a
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`service or supply furnished by a Network Provider in excess of the Negotiated Charge” are
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`not covered. J.A. 3032.
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`Under the Plan, a “Network Provider” does not encompass an entity such as Optum,
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`as that is defined to be “[a] health care provider or pharmacy that has contracted to furnish
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`3 The Supreme Court has indicated that “the summary documents, important as they are,
`provide communication with beneficiaries about the plan, but that their statements do not
`themselves constitute the terms of the plan.” CIGNA Corp. v. Amara, 563 U.S. 421, 438
`(2011) (emphasis omitted). Indeed, the SPD directs the parties to the Mars Plan for the
`actual substance of the agreement: “The complete terms and conditions of the Plan are
`described in a comprehensive legal Plan document. This SPD is not intended to cover every
`circumstance contained in the Plan document.” J.A. 3001. But the actual Plan document is
`not in the record and neither the parties nor the district court appear to have addressed or
`relied on it during this litigation, instead referencing the SPD as fully representative of the
`Plan. Nor has any claim been made that the SPD varies in any material way from the Plan.
`We therefore accept the SPD as representative of the Plan as “it was [the parties’] burden
`to place that evidence before the court. [The parties] failed to do so, and we are confined
`to the record before us.” Prichard v. Metro. Life Ins. Co., 783 F.3d 1166, 1171 (9th Cir.
`2015); see, e.g., MBI Energy Servs. v. Hoch, 929 F.3d 506, 511 (8th Cir.), cert. denied, 140
`S. Ct. 541 (2019) (“Amara does not prevent a summary plan description from functioning
`as the plan in the absence of a formal plan document.”). Therefore, we proceed with the
`understanding that the SPD operates as the terms of the Plan.
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` We use the terms “Plan” and “SPD” interchangeably except where specifically identified
`otherwise.
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` 4
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`6
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`services or supplies for this Plan, but only if the provider is, with Aetna’s consent, included
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`in the directory as a Network Provider.” J.A. 3067. In contrast, an “Out-of-Network
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`Provider” is “[a] health care provider or pharmacy that has not contracted with Aetna, an
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`affiliate or a third-party vendor to furnish services or supplies for this Plan.” J.A. 3067. As
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`explained below, Optum is not a health care provider or pharmacy.
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`The SPD further explains the payment responsibility framework for Plan benefits,
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`reflecting that the “Annual Deductible” is “[t]he part of [the Plan participant’s] Covered
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`Expenses [they] pay each calendar year before the Plan starts to pay benefits.” J.A. 3063.
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`And “Coinsurance” is “[t]he amount [the Plan participant] pay[s] for Covered Expenses
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`after [they] have met the annual deductible.” J.A. 3064. Finally, “Annual Coinsurance
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`Maximum” is “[t]he amount of Coinsurance [the Plan participant] pay[s] each year before
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`the Plan pays 100% of the Negotiated Charge (for in-network services).” J.A. 3063. As
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`these definitions provide, each calendar year stands on its own, so that a Plan participant
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`begins anew the process of accruing her Annual Deductible and Annual Coinsurance
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`Maximum each year.
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`In application, the Plan required Peters, who participated in the Plan through her
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`husband’s employment with Mars, to pay 100% of covered expenses until she met her
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`annual deductible of $250. After reaching the deductible, she was responsible for paying
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`20% of the covered expenses for claims as coinsurance, and the Plan paid the other 80%
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`of those claims. However, once Peters paid the annual coinsurance maximum of $1,650,
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`the Plan paid 100% of covered expenses for the rest of the year.
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`7
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`Peters’ Claims
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`From 2013 to 2015, in addition to obtaining other non-Optum medical services,
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`Peters received treatment from chiropractors and physical therapists provided by Optum
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`under its contract with Aetna. Based on her comparison of the Explanation of Benefits
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`(“EOBs”) documents she received to the remittance advice forms that Optum sent her
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`health care providers, Peters determined that she made payments in excess of her health
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`care provider’s Negotiated Charge, which was the amount owed according to the terms of
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`the Plan.
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`For instance, Peters received treatment from a provider in Optum’s network on July
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`16, 2014. The health care provider submitted a claim to Optum for $40, but the provider’s
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`Negotiated Charge with Optum was limited to $34. When Optum received the health care
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`provider’s claim, it added the dummy CPT code to cover its administrative fee of $36.89,
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`resulting in a bundled rate fee of $70.89 ($34.00 + $36.89). When the claim reached Aetna,
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`it then applied the Plan’s responsibility framework, determining that Peters owed her
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`coinsurance of 20% so that she paid $14.18 of the $70.89 bundled rate fee, while the Plan
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`owed the balance ($56.71). Because Peters had paid her coinsurance charge of $14.18 and
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`the Negotiated Charge between the provider and Optum was for $34, Optum paid the
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`balance due of $19.82 to the provider and kept the remaining $36.89 that it received from
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`Aetna on behalf of the Plan.
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`Conversely, had the Plan’s responsibility framework been applied based on the
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`health care provider’s Negotiated Charge of $34 alone, and not the bundled rate fee, Peters
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`would have owed only 20% of $34 ($6.80) and the Plan would have owed 80% ($27.20).
`8
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`Accordingly, Peters alleged that Appellees had overcharged her and the Plan, although she
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`did not take into account the cumulative impact of her annual deductible and coinsurance
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`payments, as well as the effect of her other non-Optum medical services.
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`The Lawsuit
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`In June 2015, Peters filed a class action complaint against Appellees, alleging
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`violations of the Employee Retirement Income Security Act (“ERISA”).5 Pursuant to
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`ERISA § 404, 29 U.S.C. § 1104; and ERISA § 502(a)(1)–(3), 29 U.S.C. § 1132(a)(1)–(3),6
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`Peters alleged that Appellees breached their fiduciary duties to her and the Plan based on
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`Aetna’s arrangement to have the Plan and its participants pay Optum’s administrative fee
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`via the bundled rate. Accordingly, Peters brought suit not only to redress the harm she
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`suffered due to Appellees’ actions, but also “for breach of fiduciary duty under ERISA on
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`behalf of the Mars, Inc. Health Care Plan.” J.A. 49.
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`Peters also alleged that Appellees engaged in comparable violations in their dealings
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`with similarly situated plans and their participants, so she requested to represent two classes
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`of such similarly situated plans and their participants: (1) “[a]ll participants or beneficiaries
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`of self-insured ERISA health insurance plans administered by Aetna for which plan
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`responsibility for a claim was assessed using an agreed rate between Optum and Aetna that
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`5 Peters also alleged violations of the Racketeer Influenced and Corrupt Organizations Act
`(“RICO”). The district court granted Appellees’ motion to dismiss these claims, and Peters
`does not challenge the disposition of those claims.
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` 6
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` To prevent confusion between citations to the sections of ERISA itself and citations to
`the sections of the United States Code in which ERISA is codified, all in-text references to
`ERISA provisions will be made to the sections of ERISA itself.
`9
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`exceeded the provider’s contracted rate with Optum for the treatment provided”; and (2)
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`“[a]ll participants or beneficiaries of ERISA health insurance plans insured or administered
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`by Aetna for whom coinsurance responsibility for a claim was assessed using an agreed
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`rate between Optum and Aetna that exceeded the provider’s contracted rate with Optum
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`for the treatment provided.” J.A. 1183. Peters sought equitable relief on behalf of herself,
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`the Plan, and the class members in the form of restitution, surcharge, disgorgement, and
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`declaratory and injunctive relief.
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`The district court denied class certification because it determined that the
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`ascertainability and commonality requirements of Rule 23(a) of the Federal Rules of Civil
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`Procedure were not met. As to ascertainability, the district court discounted Peters’ theory
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`of financial injury, which led it to conclude that she “failed to demonstrate that there exists
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`a class of participants who have actually been harmed by the Aetna-Optum arrangement.”
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`J.A. 2724–29. Regarding commonality, the district court underscored the advantages it
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`perceived that participants received through an expanded network of providers based on
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`the Aetna-Optum relationship. The district court found that “[a] proposed class challenging
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`conduct that did not harm – and in fact benefitted – some proposed class members fails to
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`establish the commonality required for certification.” J.A. 2735.
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`Subsequently, the district court concluded that neither Aetna nor Optum could be
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`held liable under ERISA, as they were not operating as fiduciaries when engaging in the
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`actions at the heart of Peters’ complaint, and granted Appellees’ motions for summary
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`judgment:
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`10
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`[T]he Court notes that it has already recognized that Aetna served only as a
`limited fiduciary with respect to the Plaintiff and the Mars Plan. As the Court
`previously concluded, Aetna was not serving in a fiduciary capacity when it
`negotiated “with Optum to establish and maintain a provider network that
`benefitted a broad range of health-care consumers . . . .” Aetna contracted
`with Optum in order to lower physical therapy and chiropractic costs for
`Aetna plan sponsors and members generally, and this contractual relationship
`has proven to be successful, saving millions of dollars for both plan sponsors
`and members.
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`J.A. 3233 (alteration in original) (internal citations omitted).
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`Relatedly, the district court determined that Aetna did not breach any fiduciary duty
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`and that neither Peters nor the Plan suffered a loss due to any of the alleged ERISA
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`violations. Specifically, the district court concluded that Peters failed to “demonstrate[]
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`how she could have possibly suffered any injury from EOB statements documenting health
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`care transactions that, on balance, saved her money.” J.A. 3235. In this vein, the district
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`court characterized Peters’ theory of financial injury as “premised on the assertion that
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`[Peters] would have paid less for her physical therapy and chiropractic benefits without the
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`Aetna-Optum relationship in place, i.e., that Aetna somehow should have provided her
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`access to the Optum network of providers directly, without Optum’s participation.” J.A.
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`3238. In doing so, the district court utilized a hypothetical construct in which the Aetna-
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`Optum contractual relationship did not exist, crediting the Aetna-Optum relationship as
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`saving “both Aetna plan sponsors and members millions of dollars,” and determining that
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`Peters “suffered no financial loss” and “did not actually pay such inflated co-insurance
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`amounts.” J.A. 3238, 3242.
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`Finally, the district court held that Optum could not be held liable as either a
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`fiduciary or party in interest under ERISA. The district court reasoned that Optum did not
`11
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`qualify as a fiduciary because Aetna retained the reigns in the Aetna-Optum contracts,
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`which were negotiated at arm’s length and involved Optum conducting purely
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`administrative services. It further indicated that Optum could not be properly characterized
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`as a party in interest because Optum had no preexisting relationships with either the Plan
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`or Aetna.
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`Peters timely appealed, and this Court has jurisdiction under 28 U.S.C. § 1291. We
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`review the district court’s order granting summary judgment de novo. Garofolo, 405 F.3d
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`at 198. “Summary judgment is appropriate when there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Jones v.
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`Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (citation and internal quotation marks
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`omitted).
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`On appeal, Peters raises several claims of error, including challenges to the district
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`II.
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`court’s view of Aetna and Optum as neither fiduciaries nor parties in interest under ERISA,
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`their breach of fiduciary duty, and the viability of her class certification claims. Before
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`considering these questions, we first address the relevant ERISA provisions and Peters’
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`claims under them, her standing to proceed,7 and the merits of her financial injury theory.
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`7 Although Appellees do not expressly raise a question of Article III standing, “federal
`courts have an independent obligation to ensure that they do not exceed the scope of their
`jurisdiction, and therefore they must raise and decide jurisdictional questions that the
`parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562
`U.S. 428, 434 (2011).
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`12
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`A.
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`
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`We begin with an overview of the ERISA provisions relevant to Peters’ claims,
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`explaining their significance in the ERISA context and framing the related discussions of
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`standing and the merits of Peters’ claims.
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`“ERISA is a comprehensive statute designed to promote the interests of employees
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`and their beneficiaries in employee benefit plans.” Ingersoll–Rand Co. v. McClendon, 498
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`U.S. 133, 137 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983)). To
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`protect participants in employee benefit plans, ERISA “establish[es] standards of conduct,
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`responsibility, and obligation[s] for fiduciaries of employee benefit plans.” Pilot Life Ins.
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`Co. v. Dedeaux, 481 U.S. 41, 44 (1987) (quoting 29 U.S.C. § 1001(b)). Trust law “serves
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`as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U.S. 96, 101 (2007); Firestone Tire
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`& Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989) (“ERISA abounds with the language and
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`terminology of trust law.”).
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`ERISA authorizes a broad range of remedies for cognizable violations, including
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`recovery of “plan benefits, attorney’s fees and other statutory relief.” 10 Vincent E.
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`Morgan, Business and Commercial Litigation in Federal Courts § 106:45 (4th ed. Dec.
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`2020 update). At issue here is Peters’ request for “other statutory relief” on behalf of
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`herself, the Plan, and the class members. In her complaint, Peters requested that the district
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`court:
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`Issue equitable and injunctive relief under ERISA to remedy [Appellees’]
`past and ongoing violations of ERISA and breaches of fiduciary duty,
`including but not limited to enjoin further misconduct, requiring [Appellees]
`to issue accurate EOBs, restoring of monetary losses to self-insured plans
`and insureds, including interest, imposing a surcharge for the improper gains
`13
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`obtained in breach of [Appellees’] duties, and removal of [Appellees] as
`administrators of the plans[.]
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`J.A. 58
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`Under ERISA’s civil enforcement scheme in § 502, Peters requests “declaratory
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`relief, surcharge, restitution, and disgorgement, relief for the plans that were victimized,
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`and other equitable remedies.” Appellant’s Br. 55. Peters characterizes these claims as
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`seeking (1) “to enforce her rights under the terms of the plan” under § 502(a)(1)(B); (2)
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`“appropriate equitable relief on behalf of the Mars Plan” under § 502(a)(2); and (3)
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`“appropriate equitable relief to redress violations of ERISA and the terms of the plan, and
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`to enforce any provisions of ERISA and the terms of the plan” under § 502(a)(3).
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`Appellant’s Br. 11.
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`Section 502(a)(1) generally involves “wrongful denial of benefits and information,”
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`Varity Corp. v. Howe, 516 U.S. 489, 512 (1996), and authorizes a civil action by a
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`participant or beneficiary “to recover benefits due to him under the terms of his plan, to
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`enforce his rights under the terms of the plan, or to clarify his rights for future benefits
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`under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
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`Separately, § 502(a)(2) specifically “allow[s] for a derivative action to be brought
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`by a . . . ‘participant’ on behalf of the plan to obtain recovery for losses [under § 4098]
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`8 Section 409 establishes liability for breaches of fiduciary duties, stating,
`Any person who is a fiduciary with respect to a plan who breaches any of the
`responsibilities, obligations, or duties imposed upon fiduciaries by this
`subchapter shall be personally liable to make good to such plan any losses to
`the plan resulting from each such breach, and to restore to such plan any
`profits of such fiduciary which have been made through use of assets of the
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`14
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`sustained by the plan because of breaches of fiduciary duties.” In re Mut. Funds Inv. Litig.,
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`529 F.3d 207, 210 (4th Cir. 2008). Any recovery under § 502(a)(2) would go to the Plan,
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`as “a plan participant may not sue under ERISA § 502(a)(2) unless [s]he seeks recovery on
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`behalf of the plan.” Wilmington Shipping Co. v. New Engl. Life Ins. Co., 496 F.3d 326,
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`334 (4th Cir. 2007); see Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140 (1985)
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`(holding that a participant’s action filed pursuant to ERISA § 502(a)(2) must seek remedies
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`that provide a “benefit [to] the plan as a whole”).
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`Finally, § 502(a)(3) permits a civil action
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`by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice
`which violates any provision of this subchapter or the terms of the plan, or
`(B) to obtain other appropriate equitable relief (i) to redress such violations
`or (ii) to enforce any provisions of this subchapter or the terms of the plan.
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`29 U.S.C. § 1132(a)(3). This “catchall” provision “act[s] as a safety net, offering
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`appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere
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`adequately remedy.” Varity Corp., 516 U.S. at 512.
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`Pursuant to § 502’s provisions, Peters makes four primary claims for herself, the
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`Plan, and the class members: restitution, surcharge, disgorgement, and declaratory and
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`injunctive relief. In her request for restitution, which is a “remedy traditionally viewed as
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`‘equitable,’” Mertens v. Hewitt Assocs., 508 U.S. 248, 252, 255 (1993), Peters asks for the
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`“restor[ation] of . . . monetary losses to self-insured plans and insureds,” J.A. 58. We have
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`plan by the fiduciary, and shall be subject to such other equitable or remedial
`relief as the court may deem appropriate, including removal of such
`fiduciary.
`29 U.S.C. § 1109(a).
`
`
`
`15
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`held that “[t]o establish a right to equitable restitution under ERISA, claimants must show
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`that they seek to recover property that (1) is specifically identifiable, (2) belongs in good
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`conscience to the plan, and (3) is within the possession and control of the defendant.” Ret.
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`Comm. of DAK Ams. LLC v. Brewer, 867 F.3d 471, 479 (4th Cir. 2017) (citing Sereboff v.
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`Mid Atl. Med. Servs., Inc., 547 U.S. 356, 362–63 (2006)).
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`Peters also petitions for surcharge of the Appellees. The Supreme Court has
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`recognized surcharge as a form of “appropriate equitable relief” available under § 502(a)(3)
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`because it was “typically available in equity.” CIGNA Corp. v. Amara, 563 U.S. 421, 439,
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`441–42 (2011) (quoting Sereboff, 547 U.S. at 361). Specifically, courts of equity utilized
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`this remedy “to provide relief in the form of monetary ‘compensation’ for a loss resulting
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`from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.” Id. at 441–
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`42. Here, Peters requests the “impos[ition] [of] a surcharge for the improper gains obtained
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`in breach of [Appellees’] duties,” J.A. 58, presumably in the amount that the Plan and she
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`(or other participants) expended as a result of Appellees’ alleged breach of fiduciary duties,
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`see McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 181 (4th Cir. 2012) (“[The plaintiff]
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`contends that she, as the beneficiary of a trust, is rightfully seeking to surcharge the trustee
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`[MetLife] in the amount of life insurance proceeds lost because of that trustee’s breach of
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`fiduciary duty.” (citation and internal quotation marks omitted)).
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`
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`Next, Peters asks that Appellees be made to disgorge any improper gains obtained
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`from their breach of fiduciary duties. J.A. 58. Unlike restitution’s focus on making the
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`victim whole, “[d]isgorgement wrests ill-gotten gains from the hands of a wrongdoer. It is
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`an equitable remedy meant to prevent the wrongdoer from enriching himself by his wrongs.
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`Disgorgement does not aim to compensate the victims of the wrongful acts[.]” S.E.C. v.
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`Huffman, 996 F.2d 800, 802 (5th Cir. 1993) (internal citations omitted). And looking to
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`trust law, which provides valuable context to the ERISA scheme, disgorgement may be
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`proper even if the breach of fiduciary duty is inadvertent or caused no loss to the trust
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`beneficiary. Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 416 n.5 (3d Cir. 2013);
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`George G. Bogert et al., The Law of Trusts and Trustees § 862 (rev. 2d ed. June 2020
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`update) (“[A] rule of damages provides that a trustee is liable for any profit he has made
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`through his breach of trust even though the trust has suffered no loss.”).
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`
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`Finally, as to declaratory and injunctive relief, Peters requests “injunctive relief
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`under ERISA to remedy [Appellees’] past and ongoing violations of ERISA and breaches
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`of fiduciary duty, including but not limited to enjoin further misconduct, [and] requiring
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`[Appellees] to issue accurate EOBs.” J.A. 58. Trust law recognizes that an injunction may
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`be proper “[i]f the beneficiary can show that an act contemplated by the trustee or a third
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`person would amount to a breach of trust or otherwise prejudice the beneficiary.” Bogert
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`et al., supra, § 861. On this basis, ERISA authorizes the issuance of injunctions in order to
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`grant “appropriate equitable relief” to aggrieved plaintiffs. Pell v. E.I. DuPont de Nemours
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`& Co. Inc., 539 F.3d 292, 306 (3d Cir. 2008); see Mertens, 508 U.S. at 256 (identifying
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`injunctions as a “categor[y] of relief that w[as] typically available in equity”). Accordingly,
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`if an injunction request is found to be equitable and not legal in nature, a court may enjoin
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`a practice that constitutes an ERISA violation. Great-W. Life & Annuity Ins. Co. v.
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`Knudson, 534 U.S. 204, 210–11 (2002) (distinguishing between equitable and legal
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`injunctive relief in the ERISA context).
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`17
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`B.
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`
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`With this ERISA foundation in mind, we first consider Peters’ Article III standing.
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`Although only facially contesting the merits of Peters’ claims when challenging the
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`legitimacy of any financial injury, Appellees cite Pender v. Bank of America Corp., 788
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`F.3d 354 (4th Cir. 2015), a case that expressly considered the injury-in-fact requirement of
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`standing. The parties make no particular attempts to distinguish between their arguments
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`on financial injury in the context of standing as opposed to on the merits.
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`We are cognizant of the close connectedness of Peters’ theory of financial injury to
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`her Article III standing and the merits of some of her claims. But these inquiries remain
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`separate and distinct even if the evaluations overlap under similar facts. Green v. City of
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`Raleigh, 523 F.3d 293, 299 (4th Cir. 2008) (“[A] plaintiff’s standing to bring a case does
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`not depend upon his ultimate success on the merits underlying his case[.]” (citation
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`omitted)); see also Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1280
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`(11th Cir. 2001) (“[Standing] is a threshold determination that is conceptually distinct from
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`whether the plaintiff is entitled to prevail on the merits.”). Only if Peters has standing do
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`we address her claims on the merits.
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`Addressing the injury-in-fact requirement of Article III standing,9 Appellees assert
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`that Peters did not suffer a financial loss and therefore cannot show injury to pursue the
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`relief requested. However, we are satisfied that, at a minimum, Peters demonstrates a
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`financial injury sufficient to establish standing so as to proceed with her restitution claim.
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`9 The other requirements for Article III standing—causation and redressability—are not at
`issue. See Pender, 788 F.3d at 367.
`
`
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`18
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`And even assuming arguendo that she could not show such an injury for standing purposes
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`for those claims, she could still seek surcharge, disgorgement, and declaratory and
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`injunctive relief.
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`1.
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`Restitution is a form of relief to “make-whole” the plaintiff. Perelman v. Perelman,
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`793 F.3d 368, 373 (3d Cir. 2015). While generally equitable in nature, it is directly tied to
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`remedying a financial injury. Here, Peters requests restitution to “restor[e] . . . monetary
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`losses to self-insured plans and insureds.” J.A. 58. In simple terms, Peters seeks return of
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`amounts she contends that she and the Plan paid by reason of Appellees’ alleged breach of
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`a fiduciary duty.
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`To demonstrate financial injury, Peters argues that she suffered an economic loss
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`due to Appellees’ breach of various fiduciary duties because she was required to pay in
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`excess of her participant responsibility according to the terms of the Plan. That is, Peters
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`contends that she paid more than the health care provider’s Negotiated Charge as set by
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`the Plan because she also paid Optum’s administrative fee contained in the bundled rate.
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`Appellees respo