It may now be harder for plaintiffs to bring claims in a civil action under Section 502(a)(2) of ERISA in the U.S. Court of Appeals for the Fourth Circuit. That’s because, absent a denial of benefits or a showing that a plan is underfunded, the Fourth Circuit is unlikely to find the necessary injury and permit the lawsuit.

On January 14, 2013, in David v. Alphin, the Fourth Circuit affirmed a district court’s dismissal of plaintiffs’ breach of fiduciary duties claims, which were brought under Section 502(a)(2) of ERISA, against the Bank of America and members of its Corporate Benefits Committee relating to the Bank of America Pension Plan (“Plan”). The Fourth Circuit held that, although the plaintiffs clearly had standing under Section 502(a)(2) to recover benefits due or to enforce their statutory rights, they didn’t have standing under Article III of the U.S. Constitution because they couldn’t show that they were denied benefits and thus sustained an “injury in fact.” Additionally, the Fourth Circuit found that, because the Plan was overfunded when the case was brought, the plaintiffs also couldn’t prove that they were unlikely to receive benefits due in the future.

Because of the potentially stricter standing requirement for claims brought under Section 502(a)(2) of ERISA, we may see more claims brought under Section 502(a)(3) of ERISA instead. Bringing claims under Section 502(a)(3) may be easier for plaintiffs because courts have ruled that a violation of ERISA itself is a sufficient injury to establish Article III standing and money damages may be easier to get in light of the U.S. Supreme Court’s ruling in Cigna Corp. v. Amara, which we discuss here.