Eichorn v. AT & T Corp.

I vote to deny rehearing en banc because I believe the panel decision correctly applies Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). As the panel concludes, the focus of those opinions — particularly Mertens and Great-West — is that any make-whole monetary relief that is not directly traceable to some wrongly held property is properly characterized as legal, not…