Todd Rochow v. Life Ins. Co. of North America

If one accepts the rather charitable assumptions made in footnote 1 of the major*377ity opinion, its reasoning is entirely correct. For that reason I concur in it. I write separately to note, however, that if one does not make those assumptions, the district court’s disgorgement order cannot stand for purely procedural reasons.

Rochow’s complaint stated two claims: He alleged that LINA wrongfully denied him benefits under 29 U.S.C. § 1132(a)(1)(B), and he alleged that in doing so, LINA breached its fiduciary duties under 29 U.S.C. § 1104(a). The second claim was styled as one arising under 29…