The U.S. Supreme Court recently declined to review a decision by the U.S. Court of Appeals for the Second Circuit in Thurber v. Aetna Life Insurance Co., 712 F.3d 654 (2d Cir. 2013), which held that a plan fiduciary was entitled under Section 502(a)(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) to recover overpayments made to a participant from a short term disability (“STD”) plan subject to ERISA, even though the participant had already spent the overpayments she received from the plan. The overpayments in Thurber arose when the participant received “other income,” which the STD plan document provided could reduce the amount payable from the plan. The Second Circuit specifically rejected the reasoning of the Ninth Circuit inBilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083, 1093–95 (9th Cir. 2012), which held that overpayments from a disability plan could not be recovered under ERISA § 502(a)(3) because “fiduciar[ies] must recover from specifically identified funds in the beneficiary’s possession.” The Supreme Court’s decision not to reviewThurber means that a plan fiduciary’s right to recover overpayments under ERISA § 502(a)(3) will likely depend on the location where the lawsuit is filed.