In Jensen, pension plan participants brought a putative class action against Solvay (the “Company”) arising from the Company’s decision to convert the pension plan from a “fixed-benefit” to “cash-balance formula.” Though ERISA did not prohibit Solvay (both the plan’s sponsor and its administrator) from making this move, ERISA did require the Company to provide its employees with detailed notice of the changes. See ERISA § 204(h), 29 U.S.C. § 1054(h). The employees brought suit, and after the District Court ruled in favor of the Company, the Tenth Circuit reversed, holding that the conversion notice violated ERISA. Jensen v. Solvay Chemicals, Inc., 625 F.3d 641 (10th Cir. 2010). However, the Tenth Circuit remanded for a determination as whether there was “egregious failure” in compliance that would authorize award of benefits to participants. Id.

On remand, the United States District Court for the District of Wyoming determined that the notice failure was not “egregious.” Jensen v. Solvay Chemicals, Inc., 788 F. Supp. 2d 1278 (D. Wyo. 2011.)  Under ERISA, a company’s failure may be said to be “egregious” if the failure was “within [its] control” and was “intentional.” 29 U.S.C. § 1054(h)(6)(B)(i). Alternatively, a company’s failure may be deemed “egregious” if the failure was “within [its] control” and the company failed “to promptly provide the required notice or information after [it] discover[ed] an unintentional failure to meet the requirements of” § 204(h). Id.

The District Court found Solvay’s failure was not “egregious” under either of these meanings. Jensen, 2013 WL 3306356, at * 1. “Far from intentionally failing to disclose information on early-retirement benefits,” the District Court found that “Solvay did its best to comply with” § 204(h). Id. The District Court further found that “the earliest time Solvay discovered its failure was after the filing of this case” and that the Company “sought the advice of its ERISA counsel to ensure it remained compliant” as soon as it discovered the problem. Id.

The participants appealed again to the Tenth Circuit. The Tenth Circuit affirmed the District Court’s determination that the notice violation was not “egregious.” Jensen, 2013 WL 3306356, at * 3. Without a successful claim under § 204(h), the participants then claimed, post-Amara, that they were entitled to recover “appropriate equitable relief.” However, the Tenth Circuit rejected this belated and vague attempt to seek “equitable relief,” because plaintiffs failed to specific “which” other forms of equitable relief, if any, they sought, leaving their argument “inadequately developed.” Jensen, 2013 WL 3306356, at * 4.

In short, the Tenth Circuit held that ““employees may secretly harbor a wish for some form of equitable relief not foreclosed by the district court’s findings, but they have yet to identify it to anyone else after six-and-a-half years of litigation and to know that much is to know it is time to call this matter to a close.” Id.

Jensen begins to put some limits on a participant’s ability to assert amorphous claims for “appropriate equitable relief” post-Amara. A vague assertion of entitlement to “equitable relief” will not be sufficient; rather, participants must be specific in the form of relief sought. ERISA provides specific paths to relief, and participants simply cannot claim entitlement to “equitable relief” every time they feel wronged in some way.