Simon

I. FACTS AND PROCEEDINGS4

liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equi- table or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title. (Emphasis added). 3 29 U.S.C. § 1132(a)(2) provides: (a) Persons empowered to bring a civil action A civil action may be brought— *** (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title; *** 4 Simon filed a previous ERISA lawsuit wherein he asserted claims on his own behalf under 29 U.S.C. §§§ 1024(b)(4), 1132(a)(1)(B), and 1132(c). Simon sought individual recovery of plan benefits. A critical dis- tinction between the previous lawsuit and the current lawsuit is that none of the claims asserted in the previous lawsuit were alleged under 29 U.S.C. §§ 1109(a) and 1132(a)(2). With the assistance of a magistrate judge, the parties were able to reach a…