Duke v. Luxottica U.S. Holdings Corp.

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24-3207
Duke v. Luxottica U.S. Holdings Corp.
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: January 13, 2026
Decided: February 5, 2026
No. 24-3207
J ANET D UKE , on behalf of herself and all others similarly situated,
Plaintiff-Appellee,
v.
LUXOTTICA U.S. H OLDINGS C ORP., O AKLEY INC., L UXOTTICA GROUP
ERISA PLANS C OMPLIANCE AND INVESTMENT C OMMITTEE , L UXOTTICA
GROUP PENSION PLAN,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of New York
No. 21-cv-6072, Choudhury, Judge.
Before: R OBINSON, N ATHAN, and KAHN, Circuit Judges.

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Plaintiff seeks to represent a class of participants in a defined benefit
retirement plan under the Employee Retirement Income Security Act
(ERISA), alleging that the plan systematically violates ERISA by using
outdated actuarial assumptions in calculating benefits. The plaintiff
invokes two of ERISA’s remedial provisions: relief on behalf of the
plan (in the form of plan reformation and monetary repayment to the
plan) through a Section 502(a)(2) representative action and relief for
herself and other participants under Section 502(a)(3). Pursuant to an
agreement between the plaintiff and her former employer, the district
court compelled individual arbitration of the Section 502(a)(3) claim.
We hold that the plaintiff has standing to seek, on behalf of the plan
under Section 502(a)(2), plan reformation but not monetary payments
to the plan; that the effective vindication doctrine precludes
mandatory arbitration of that claim; and that the district court did not
err in denying a motion for a mandatory stay of litigation. Given the
posture of this appeal, we do not consider whether the plan
reformation the plaintiff seeks is, in fact, available as a remedy under
Section 502(a)(2). AFFIRMED in part and REVERSED in part.
RACHANA PATHAK , Stris &
Maher LLP, Cerritos, CA,
(Peter K. Stris, Jeff Hahn, Stris
& Maher LLP, Cerritos, CA,
Michelle C. Yau, Ryan A.
Wheeler, Cohen Milstein
Sellers & Toll PLLC,
Washington, DC, Kai Richter,
Cohen Milstein Sellers & Toll
PLLC, Minneapolis, MN, on
the brief), for Plaintiff-Appellee.

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J EREMY P. B LUMENFELD,
Morgan, Lewis & Bockius,
LLP, Philadelphia, PA, Keri L.
Engelman, Morgan, Lewis &
Bockius LLP, Boston, MA,
(Michael E. Kenneally,
Morgan, Lewis, & Bockius
LLP, Washington, DC, on the
brief), for Defendants-
Appellants.
NATHAN, Circuit Judge:
When Janet Duke retired, she elected to receive retirement
benefits for herself and any surviving spouse. Federal law, pursuant
to the Employee Retirement Income Security Act (ERISA), requires
those benefits to be equivalent to what Duke would receive if she were
unmarried. She also signed a dispute resolution agreement with her
former employer subjecting various disputes between them to
individual arbitration. Duke now seeks to represent herself and a class
of similarly situated retirees, arguing that her pension plan calculated
her benefits using unreasonably outdated actuarial assumptions,
decreasing her monthly payments relative to what she would have
received if she were unmarried at the time of her retirement in
violation of ERISA. She also seeks, on behalf of her pension plan,
reformation of the plan and repayment from its fiduciaries. Below, the
district court held Duke has standing to assert these claims, compelled
arbitration of Duke’s individual claims, and concluded that the

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“effective vindication” doctrine precludes individual arbitration of her
claims on behalf of the pension plan. The district court also denied
Defendants’ motion for a mandatory stay of litigation while Duke’s
individual claims proceed in arbitration. We hold that Duke has
standing to seek reformation of the pension plan but not monetary
payments to it, that her representative claim is not subject to individual
arbitration, and that the district court properly exercised its discretion
to deny Defendants’ motion for a stay.
BACKGROUND
A. Factual Background
Janet Duke worked as a regional manager for Luxottica U.S.
Holdings Corp. (Luxottica) for nearly 21 years.1 That job entitled her
to a pension upon retirement, to be paid out of the Luxottica Group
Pension Plan (the Plan), managed by the Luxottica Group ERISA
Plans Compliance and Investment Committee (the Committee).
Because the Plan pays a fixed retirement benefit to participants
regardless of the market value of the Plan’s assets, it is a “defined
benefit plan.” See 29 U.S.C. § 1002(34)–(35); see also Hirt v. Equitable
Ret. Plan for Emps., Managers, & Agents, 533 F.3d 102, 104–05 (2d Cir.
2008).
When Duke retired, she had the choice of two types of pension
benefits. The first, a single life annuity (SLA), would entitle her—and
only her—to a fixed monthly benefit for the rest of her life. The
alternative, a joint and survivor annuity (JSA), would entitle her to a
fixed monthly benefit for the rest of her life, plus a monthly fraction
1 The facts are drawn from Duke’s complaint and presumed true for
purposes of resolving this interlocutory appeal.

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(i.e., 50% to 100%) of that benefit paid to any surviving spouse for the
rest of the spouse’s life. The JSA option is the default form of pension
benefit for married retirees, and ERISA requires it be the “actuarial
equivalent” of a hypothetical SLA that the employee would receive
instead. See 29 U.S.C. § 1055(d)(1)(B). To comply with ERISA’s JSA
actuarial equivalence requirement, the Committee employs “actuarial
assumptions” to convert the SLA benefit into a JSA benefit. Those
assumptions include an interest rate—to measure the changing value
of monetary benefits over time—and the anticipated longevity of a
plan participant and her spouse.
On November 1, 2016, Duke elected to receive a JSA that would
pay 100% of her monthly benefit to any surviving spouse. At the time,
the Committee (as fiduciary of the Plan) converted SLAs into JSAs
using a 7% annual interest rate and life expectancy values published
in 1971. On April 1, 2021, the Committee updated the longevity
assumptions it used to perform SLA-JSA conversions.2 But for JSA
participants like Duke whose benefits were calculated before April 1,
2021, the Committee continues to pay benefits based on the SLA-JSA
conversion that assumed life expectancy values published in 1971.
According to Duke, these outdated assumptions decrease her
monthly benefit by roughly $54. She contends, also, that using the
outdated assumptions means the Plan is perpetually out of
2 The Committee made this change by guaranteeing to participants whose
benefits were calculated after April 1, 2021 that they would receive no less
than if the SLA-JSA conversion were performed using updated actuarial
assumptions published at 26 U.S.C. § 417.

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compliance with ERISA and may suffer follow-on tax consequences
as a result.
B. Procedural History
On November 1, 2021, Duke filed a putative class action
complaint against Luxottica, Oakley, Inc. (a subsidiary of Luxottica),
the Committee, and the Plan (collectively, Defendants or Appellants),
seeking to represent herself and other Plan participants and
beneficiaries receiving JSA benefits calculated before April 1, 2021.
The complaint asserts four claims: first, a violation of ERISA’s JSA
equivalence requirement, 29 U.S.C. § 1055(a)–(d); second, a violation
of ERISA’s equivalence requirement for accrued benefits, id.
§ 1054(c)(3); third, a violation of ERISA’s rules prohibiting forfeiture
of retirement benefits, id. § 1053(a); and fourth, a breach of ERISA’s
fiduciary duty obligations, id. § 1104(a)(1)(A), (B), (D). The purported
violation underlying all claims is the same—the Committee’s use,
before April 1, 2021, of allegedly outdated actuarial assumptions in
converting SLAs into JSAs. And for all claims, Duke seeks relief
under two of ERISA’s remedial provisions—relief on behalf of the
Plan, under Section 502(a)(2), codified at 29 U.S.C. § 1132(a)(2); and
relief on behalf of herself and other Plan participants, under Section
502(a)(3), codified at 29 U.S.C. § 1132(a)(3). Most important for present
purposes, Duke seeks both reformation of the Plan to update its
actuarial assumptions used to convert SLAs into JSAs, as well as
monetary restitution to the Plan in the form of loss restoration and
disgorgement of profits.3
3 The complaint seeks 15 categories of relief, including declaratory relief,
injunctive relief, plan reformation, restitution, attorney’s fees, and “any

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Defendants moved to compel arbitration, citing a provision of
a Dispute Resolution Agreement (the Agreement) that Duke signed
in 2015. In relevant part, the Agreement purports to require
arbitration of “disputes . . . arising out of or related to the
employment relationship or the termination of that relationship
(including post-employment defamation or retaliation), trade
secrets, . . . discrimination or harassment and claims arising under
the . . . Employee Retirement Income Security Act []except for claims
for employee benefits under any benefit plan[.]” Joint App’x 144–45.
In particular, Defendants moved to compel individual arbitration of
Duke’s claims, citing the Agreement’s class action waiver, which
requires that Duke “bring any dispute in arbitration on an individual
basis only, and not on a class, collective or private attorney general
representative basis on behalf of others.” Id. 145. Defendants also
moved in the alternative to dismiss Duke’s claims for lack of standing
and for failure to state a claim.
The district court originally granted Defendants’ motions in
part, concluding that Duke lacks standing to seek relief on behalf of
the Plan under Section 502(a)(2), pursuant to Thole v. U.S. Bank N.A.,
590 U.S. 538 (2020), and that the parties’ Agreement requires
individual arbitration of her claims for relief under Section 502(a)(3).
Duke v. Luxottica U.S. Holdings Corp. (Duke I), No. 21-cv-6072, 2023 WL
other appropriate equitable relief[.]” Joint App’x 53. On appeal, the parties
categorize Duke’s requested remedies under Section 502(a)(2) as either plan
reformation (via injunction) or repayment to the plan (via restoration of
losses or disgorgement of profits). We adopt these conventions in this
opinion.

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6385389, at *5–6, 11 (E.D.N.Y. Sept. 30, 2023).4 But after the case was
reassigned to a different district court judge and Duke moved for
reconsideration, the district court issued a new opinion concluding
that Duke has standing to press a claim under Section 502(a)(2) on
behalf of the Plan for both reformation and monetary payments to the
Plan, and further that the “effective vindication” doctrine precludes
mandatory individual arbitration of that claim. Duke v. Luxottica U.S.
Holdings Corp. (Duke II), No. 21-cv-6072, 2024 WL 4904509, at *1, *16
(E.D.N.Y. Nov. 27, 2024). The district court also denied Defendants’
alternative request to stay litigation of the claims under Section
502(a)(2) pending arbitration of the claims under Section 502(a)(3),
rejecting the argument that such a stay is mandatory under the
Federal Arbitration Act (FAA) and finding that its discretion
counseled in favor of permitting the claims to proceed
simultaneously. See id. at *20–22. Defendants timely filed a notice of
interlocutory appeal of the denial of the motion to compel arbitration
and of the motion to stay. Cf. 9 U.S.C. § 16(a)(1)(A)–(B).
DISCUSSION
We review de novo facial challenges to a plaintiff’s standing—
i.e., challenges “based solely on the allegations of the complaint and
4 The district court deferred ruling on Defendants’ argument that Duke
lacks standing because, as a factual matter, she stands to lose benefits if the
Committee updates the Plan’s actuarial assumptions for pre-April 1, 2021
SLA-JSA conversions. See Duke I, 2023 WL 6385389, at *7. No party asks us
to review this decision, nor must we, in part because a district court “has
leeway as to the procedure it wishes to follow” to adjudicate a factual issue
underlying a plaintiff’s standing. All. For Env. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006).

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exhibits attached to it.” Sonterra Cap. Master Fund Ltd. v. UBS AG, 954
F.3d 529, 533 (2d Cir. 2020) (cleaned up). We also review de novo the
district court’s disposition of the motions to compel arbitration and
for a mandatory stay under the FAA. See Katz v. Cellco P’Ship, 794
F.3d 341, 344 n.4 (2d Cir. 2015).
A. Appellate Jurisdiction
We must begin by assuring ourselves of the Court’s jurisdiction
over this appeal. See Marquez v. Silver, 96 F.4th 579, 582 (2d Cir. 2024).
In general, our appellate jurisdiction is limited to reviewing final
judgments. See 28 U.S.C. § 1291. Limited exceptions to this rule,
however, permit review of certain interlocutory orders, including a
district court’s denial of motions to compel arbitration and to stay
litigation under the FAA. See 9 U.S.C. § 16(a)(1)(A)–(B). Our
jurisdiction to review those aspects of the district court’s order is thus
plain. But Appellants ask us to review also the district court’s
determination that Duke has standing under Article III to seek relief
on behalf of the Plan under Section 502(a)(2)—a determination of the
district court’s subject matter jurisdiction that is not ordinarily
immediately appealable. Cf. Ashmore v. CGI Grp., Inc., 860 F.3d 80, 85
(2d Cir. 2017). They argue that the FAA’s grant of interlocutory
appellate jurisdiction extends to this issue, as well.
In general, interlocutory appellate review is limited to the
particular decision of the district court that forms the basis for
immediate appeal. See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35,
38 (1995). That requires we assess the scope of an “order” denying a
motion to compel arbitration or for a stay. Cf. 9 U.SC. § 16(a)(1)(A)–
(B). We hold today that such an order includes a district court’s

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determination that it has subject matter jurisdiction over the
controversy to be litigated rather than stayed or arbitrated—
including a plaintiff’s Article III standing.
Several of our precedents support this result. To begin, it is
routine practice to review a district court’s exercise of subject matter
jurisdiction on interlocutory appeal, as “[t]he existence of subject
matter jurisdiction goes to the very power of the district court to issue
the rulings now under consideration.” Merritt v. Shuttle, Inc., 187 F.3d
263, 269 (2d Cir. 1999). Such is the case for interlocutory appeals of
grants or denials of preliminary injunctions, San Filippo v. United Bhd.
of Carpenters & Joiners of Am., 525 F.2d 508, 512–13 (1975); of denials of
sovereign and qualified immunity defenses, Merritt, 187 F.3d at 268–
69; In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liability Litig., 488
F.3d 112, 121–24 (2d Cir. 2007); and of adjudications of civil contempt,
U.S. Cath. Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76
(1998).
We discern no reason that FAA appeals should work any
differently, especially because “a district court must determine if
there exists a case or controversy in order for it to exercise its
jurisdiction over [a] motion to compel [arbitration].” Doe v. Trump
Corp., 6 F.4th 400, 416 (2d Cir. 2021) (quoting Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1110 n.19 (11th Cir. 2004)). The same
is true for a district court’s denial of a motion for a stay of litigation,
which is necessarily premised upon its having jurisdiction to preside
over the litigation in the first place. Indeed, we have before reviewed
a district court’s exercise of subject matter jurisdiction in a Section
16(a)(1) appeal of the denial of a motion for an FAA stay, though

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concededly without stopping to ask whether such an approach
comported with Swint. See Adams v. Suozzi, 433 F.3d 220, 223–26 (2d
Cir. 2005).5
The crux of Duke’s response is that standing is different. We
are unpersuaded. A plaintiff’s standing, just like the existence of
diversity among the parties or a federal-law issue, bears directly on
the district court’s subject matter jurisdiction. That is because “Article
III . . . limits the subject-matter jurisdiction of the federal courts to
‘Cases’ and ‘Controversies.’” SM Kids, LLC v. Google LLC, 963 F.3d
206, 211 (2d Cir. 2020). No principled reason exists for treating these
two limitations on a district court’s power to entertain an action
differently in the context of an interlocutory appeal. A defect in either
would have required the district court to dismiss the action, and thus
5 The courts of appeals appear divided on this question. The Fifth, Seventh,
Eighth, and Ninth Circuits permit reviewing (at least) subject matter
jurisdiction on Section 16(a)(1) appeal. See Hines v. Stamos, 111 F.4th 551,
558–62 (5th Cir. 2024) (personal jurisdiction); Nettles v. Midland Funding
LLC, 983 F.3d 896, 899 (7th Cir. 2020) (Article III standing); Benchmark Ins.
Co. v. SUNZ Ins. Co., 36 F.4th 766, 770 (8th Cir. 2022) (subject matter
jurisdiction); Namisnak v. Uber Techs., Inc., 971 F.3d 1088, 1091–92 (9th Cir.
2020) (Article III standing). The Third Circuit permits interlocutory review
of a district court’s statutory basis for exercising subject matter jurisdiction
but not of a plaintiff’s Article III standing. See O’Hanlon v. Uber Techs., Inc.,
990 F.3d 757, 762–66 (3d Cir. 2021). The Sixth Circuit has not formally
weighed in but has cited O’Hanlon’s rule with approval. See Schnatter v. 247
Grp., LLC, 155 F.4th 543, 553 (6th Cir. 2025). For the reasons given above,
we respectfully disagree with the Third Circuit’s approach and hold instead
that we may review a plaintiff’s standing to assert a claim at issue in a
Section 16(a)(1) interlocutory appeal.

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“we have an obligation to determine whether the district court has
subject matter jurisdiction to go forward.” MTBE, 488 F.3d at 124.
Finally, were we unsure whether a plaintiff’s standing is
always reviewable on a Section 16(a)(1) interlocutory appeal, we
would nevertheless hold in this case that such review is appropriate
because it concerns an issue “inextricably intertwined” with an
appealable order. Cf. Swint, 514 U.S. at 51. We sometimes refer to this
as the doctrine of pendent appellate jurisdiction. See Freeman v.
Complex Computing Co., Inc., 119 F.3d 1044, 1049–50 (2d Cir. 1997). We
have thus already suggested that, in an interlocutory FAA appeal, we
may review a decision that falls outside of Section 16(a)(1) so long it
is “inextricably intertwined” with a decision that falls within Section
16(a)(1). See Milligan v. CCC Info. Servs. Inc., 920 F.3d 146, 152 n.5 (2d
Cir. 2019). Though the exercise of pendent appellate jurisdiction is
discretionary and reserved for “exceptional circumstances,” Atlantica
Holdings v. Sovereign Wealth Fund Samruk-Kazyna JSC, 813 F.3d 98, 117
(2d Cir. 2016) (quotation marks omitted), it is warranted here. Duke’s
standing to seek Section 502(a)(2) remedies bears directly on the
arbitrability of her claim under that provision. This is because the
district court based its denial of the motion to compel arbitration on
the effective vindication doctrine, which precludes enforcing
arbitration clauses that “operate as a prospective waiver of a party’s
right to pursue statutory remedies.” Am. Exp. Co. v. Ital. Colors Rest.,
570 U.S. 228, 235 (2013) (cleaned up and emphasis altered). To
determine whether the district court properly applied that doctrine—
as we will have to in reviewing its interlocutory decision denying the
motion to compel—we must ask which statutory remedies Duke

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could hope to pursue in federal court. As her Article III standing is
central to that inquiry, it is “inextricably intertwined”—even more so
than in the typical case—with the district court’s immediately
appealable order denying the motion to compel arbitration. Cf.
MTBE, 488 F.3d at 123.
Assured that our jurisdiction permits review of Duke’s
standing to seek Section 502(a)(2) remedies on behalf of the Plan, we
turn next to the requirements of Article III.
B. Article III Standing
As we have already intimated, Article III “limits the jurisdiction
of federal courts to ‘Cases’ and ‘Controversies,’” and by extension
requires a plaintiff to satisfy “the irreducible constitutional minimum
of standing[.]” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992).
Accordingly, a “plaintiff must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robbins, 578 U.S. 330, 338 (2016). Though a plaintiff’s
claimed injury must be redressable, a plaintiff need not state a
meritorious or even plausible claim for relief under existing law in
order to have standing to pursue a claim. See Soule v. Conn. Ass’n of
Schools, Inc., 90 F.4th 34, 45 (2d Cir. 2023). Indeed, unless a requested
form of relief that would redress a plaintiff’s injury “is so
insubstantial, implausible, foreclosed by prior decisions . . . , or
otherwise completely devoid of merit as not to involve a federal
controversy,” Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 89 (1998)
(quotation marks omitted), that it may be legally unavailable is
irrelevant for assessing a plaintiff’s Article III standing, Soule, 90 F.4th

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at 51. That said, “standing is not dispensed in gross; rather, plaintiffs
must demonstrate standing for each claim that they press and for each
form of relief that they seek (for example, injunctive relief and
damages).” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021).
The Supreme Court distilled the application of these
requirements to ERISA actions in Thole. There, two vested
participants in a retirement plan sued the plan’s fiduciaries under
Sections 502(a)(2) and (a)(3), alleging mismanagement and seeking
repayment to the plan, injunctive relief, and removal of the
fiduciaries. 590 U.S. at 540–41. Like Duke, the Thole plaintiffs were
participants in a defined benefit plan, meaning their legal entitlement
to monthly benefits did not vary based on the plan’s performance or
assets; indeed, neither plaintiff alleged that he had received a dollar
less than he was owed. See id. at 540. The Supreme Court, applying
traditional Article III principles, held that the plaintiffs lacked
standing to represent the plan, as they suffered no injury that would
be redressed by any form of relief they sought on behalf of the plan.
See id. at 541. The Court rejected various theories of trust-specific
standing, holding instead that an ERISA plaintiff—just like any
other—must stand to personally benefit from the litigation in order to
have standing. See id. at 542–43. The Court left open, however, the
possibility of standing for plaintiffs who allege mismanagement that
“substantially increase[s] the risk that the plan and the employer
[will] fail and be unable to pay the participants’ future . . . benefits,”
thereby generating a redressable injury. See id. at 546. But the Thole
plaintiffs made no such allegation, and so they faced no credible
chance of future injury. Id. Nor did they possess a credible chance at

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a future benefit, since any surplus in a defined benefit plan’s assets
return to the employer rather than the participants. See id. at 543.
Without any hope of financial gain from a successful lawsuit on
behalf of the plan, the plaintiffs lacked Article III standing to represent
it. Id. at 547.
Armed with these principles, Appellants argue that Duke lacks
standing to pursue any remedy on behalf of the plan under Section
502(a)(2). We agree in part.
1. Standing to Seek Plan Reformation
First, Appellants argue that Duke lacks standing to pursue plan
reformation under Section 502(a)(2). They do not contest, nor could
they, that Duke’s receipt of decreased benefits constitutes a “classic
pocketbook injury” cognizable under Article III. See Tyler v. Hennepin
County, 598 U.S. 631, 636 (2023); see also Thole, 590 U.S. at 542.
Appellants also acknowledge that this injury is at least plausibly
caused by the Committee’s use of allegedly outdated actuarial
assumptions, and that it would be remedied by an order requiring the
Committee to update those assumptions. See Appellants’ Br. 24
(“[S]he can seek to change the terms of the Plan and order Defendants
to pay Plaintiff higher benefits in accordance with those changed
terms.”). Instead, Appellants argue that such a remedy is
categorically unavailable under Section 502(a)(2)—which authorizes
relief only to a plan—and thus Duke’s injury is not redressable under
that provision. But this argument targets the merits of Duke’s claims,
not her standing to pursue them. Without deciding whether the
reformation Duke seeks is an available remedy under Section

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502(a)(2), we hold that Duke has standing to seek plan reformation
under the provision.
Appellants are generally correct that Section 502(a)(2)
authorizes relief to a plan, rather than to participants themselves. See
L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm’n of
Nassau Cnty., Inc., 710 F.3d 57, 65–66 (2d Cir. 2013). That limitation
flows from the text of ERISA Section 409—incorporated into Section
502(a)(2)—which imposes personal liability on fiduciaries to restore
“to the plan” losses caused by and profits made from breaches of
fiduciary duty. See 29 U.S.C. § 1109(a). And though the same
provision also authorizes “other equitable or remedial relief as the
court may deem appropriate,” id., the Supreme Court soon
interpreted that phrase to require the relief sought “protect the entire
plan, rather than . . . the rights of an individual beneficiary,” Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 141 (1985). The Supreme
Court has since walked back the “entire plan” requirement,
permitting Section 502(a)(2) claims that are likely to benefit even a
single participant, so long as the relief sought would remedy a “plan
injur[y],” rather than a purely “individual injur[y].” See LaRue v.
DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 256 (2008). But as we have
explained, though LaRue clarified that the availability of Section
502(a)(2) relief does not turn on how widespread a plan injury is, it
must nevertheless be to the plan itself. See Cedeno v. Sasson, 100 F.4th
386, 399 (2d Cir. 2024); see also Cooper v. Ruane Cunniff & Goldfarb Inc.,
990 F.3d 173, 180 (2d Cir. 2021). For relief from genuinely personal
injuries, participants must instead turn to Section 502(a)(3), which
authorizes individual equitable relief regardless of the whether the

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plan has also suffered. See Varity Corp. v. Howe, 516 U.S. 489, 515
(1996).
Appellants take these requirements to mean that Section
502(a)(2) offers Duke no remedy, as her Article III injury—reduced
benefits—does not harm the Plan. But Duke does not contend that
her receipt of reduced benefits harms the Plan. Instead, she argues
that the Plan is harmed because its use of allegedly outdated actuarial
assumptions renders the Plan in constant noncompliance with ERISA
and jeopardizes its favorable tax status as a result.6 And though the
reformation she seeks will allegedly increase her benefits—which is
why she has Article III standing—“[i]t is of no moment that recovery
inuring to the Plan may ultimately benefit particular participants.”
L.I. Head Start, 710 F.3d at 66. Nor does it matter that “a desire to
ensure a defendant’s compliance with regulatory law is an
insufficient injury for Article III standing,” Appellants’ Br. 32
(quotation marks omitted), because the Plan’s alleged noncompliance
is its own injury that Duke seeks to remedy with Section 502(a)(2),
rather than her receipt of decreased benefits, which is sufficient for
standing, see Thole, 590 U.S. at 542.
6 At argument, Appellants suggested that this type of plan harm is not
cognizable because Duke did not allege it in her complaint. The complaint,
however, contains several allegations suggesting that the Plan jeopardizes
its favorable tax status by failing to comply with ERISA’s actuarial
equivalence requirement and parallel requirements in the Tax Code. See
Joint App’x 30–31 ¶¶ 33, 37, 41. Nonetheless, the Court may resolve
contested jurisdictional issues by referencing materials outside the
pleadings, including the parties’ briefs. See Licci v. Lebanese Canadian Bank,
SAL, 834 F.3d 201, 211 (2d Cir. 2016).

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Stepping back, whether ERISA noncompliance and attendant
tax consequences really do constitute “plan injuries” within Section
502(a)(2)’s remedial scope is an undecided question properly
reserved for the merits. We know this in part because Appellants
muster no authority foreclosing remedying plan-compliance injuries
of this sort under Section 502(a)(2). Instead, Appellants lament that
permitting such a remedy “would remove any limit on the relief
available under this part of ERISA’s carefully crafted enforcement
provision.” Reply Br. 14. Maybe, but that does not render Duke’s
position “so insubstantial, implausible, foreclosed by prior
decisions . . . , or otherwise completely devoid of merit as not to
involve a federal controversy.” Cf. Steel Co., 523 U.S. at 89 (quotation
marks omitted). Instead, this back-and-forth demonstrates merely
that both parties have arguments to make about “the legal
availability” of Section 502(a)(2) relief in this case—a dispute that
“goes to the merits, not jurisdiction.” Soule, 90 F.4th at 51. Today, we
do not decide whether Duke has adequately alleged a Plan injury that
falls within the remedial scope of Section 502(a)(2). We hold only that
she has Article III standing to try.
2. Standing to Seek Monetary Payments
Appellants argue next that, whether or not Duke has standing
to seek reformation of the Plan, she lacks standing to seek monetary
payments to the Plan. Specifically, she seeks repayment of losses to
the Plan and disgorgement of profits (which would also go to the
Plan). Appellants argue that Duke does not have standing to seek
those remedies because only the Plan would benefit from such relief,
and Duke herself would not. They argue that Thole precludes

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participants from seeking general monetary recoveries on behalf of a
defined benefit plan, so long as the participants have not plausibly
alleged a substantial risk of plan and employer failure. Cf. 590 U.S. at
546. Here, we agree with Appellants.
Duke attempts to distinguish Thole along two lines. First, she
argues that the case is different because, unlike her, the Thole plaintiffs
had received all of their previous benefits. See 590 U.S. at 540. But the
Supreme Court also explained that, because the plaintiffs were
participants in a defined benefit plan, they possessed “no equitable or
property interest” in the plan’s assets, and so monetary repayment to
the plan would not benefit the plaintiffs personally. See id. at 543.
And though Duke claims to have received decreased benefits in the
past, her benefits were allegedly decreased not for a lack of Plan
funds, but because of the Plan’s use of outdated actuarial
assumptions. “Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence of the
redressability requirement.” Steel Co., 523 U.S. at 107.
Second, Duke argues that the forms of relief she seeks will
“work in tandem” by increasing Plan funding commensurate with the
reformation she hopes to obtain. See Appellee’s Br. 35. But here again,
her argument is foreclosed by Thole. Because Duke is a participant in
a defined benefit plan, “the employer . . . is on the hook for plan
shortfalls.” Thole, 590 U.S. at 543. Likewise, “the employer, not plan
participants, receives any surplus left over after all of the benefits are
paid[.]” Id. So it may be that the forms of relief she seeks will work
together, but nothing suggests monetary payments to the Plan will be
necessary to effectuate any eventual reformation. In other words, if

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Duke is successful in seeking reformation, she will be made whole
regardless of whether the Plan receives additional funds; and if Duke
is unsuccessful in seeking reformation, she will not be made whole
regardless of whether the Plan receives those funds. A “favorable
decision” on this form of relief will thus not “relieve a discrete injury,”
Larson v. Valente, 456 U.S. 228, 243 n.15 (1982), and therefore fails
Article III’s redressability requirement.7 We accordingly reverse the
district court’s determination that Duke has standing to pursue
monetary remedies on behalf of the Plan.
C. Arbitrability Under the Effective-Vindication Doctrine
Appellants’ fallback position is that Duke’s Section 502(a)(2)
claim belongs in individual arbitration pursuant to the Dispute
Resolution Agreement Duke signed. Duke responds that the effective
vindication doctrine precludes mandatory individual arbitration of
her Section 502(a)(2) claim, and even if it did not, the Agreement does
not cover her ERISA claims. We agree with Duke’s first argument
and do not reach her second.
The FAA provides that “a contract . . . to settle by arbitration a
controversy thereafter arising out of such contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law
or in equity for the revocation of any contract[.]” 9 U.S.C. § 2.
7 Duke offered a new theory at argument: that a judgment ordering
monetary payments would compel the Committee to adjust its actuarial
assumptions on its own. But that would be true of any judgment, and the
Supreme Court has made clear that “plaintiffs must demonstrate
standing . . . for each form of relief that they seek[.]” TransUnion, 594 U.S.
at 431.

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“Section 2 is a congressional declaration of a liberal federal policy
favoring arbitration agreements[.]” Moses H. Cone Mem. Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24 (1983). But it is not absolute.
Instead, courts may, under the “effective vindication exception” to
Section 2, “invalidate, on public policy grounds, arbitration
agreements that operate as a prospective waiver of a party’s right to
pursue statutory remedies.” Am. Exp., 570 U.S. at 235 (cleaned up).
We have thus held that arbitration provisions requiring individual
litigation of Section 502(a)(2) claims are unenforceable because they
prospectively waive a plaintiff’s right under that provision to bring a
representative action to secure remedies on behalf of an ERISA plan.
See Cedeno, 100 F.4th at 400. This is so in part because Section 502(a)(2)
actions must be brought in some form of representative capacity
because the claim “is inherently representational.” Id. at 403; see also
Coan v. Kaufman, 457 F.3d 250, 262 (2d Cir. 2006). To require such
claims be brought solely in an individual capacity is to prohibit them
altogether. See Cooper, 990 F.3d at 184. Our cases, especially Cedeno,
have straightforward application to this case: Duke may not be
compelled to individually arbitrate her Section 502(a)(2) claim on
behalf of the Plan.
Appellants strain for ways around these cases. None succeed.
First, Appellants return to Article III standing to argue that
Cedeno precludes Duke’s quest to remedy her supposedly “individual
injuries” under Section 502(a)(2). Appellants’ Br. 42. Not so. Though
we reaffirmed in Cedeno the rule that Section 502(a)(2) actions are
available only to remedy plan injuries, here Duke has alleged one:
systematic noncompliance with ERISA and follow-on tax

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consequences. Cedeno said nothing about whether that theory of plan
injury is actionable or not under ERISA, and neither do we on this
preliminary posture. Instead, the arbitration provision in that case
was unenforceable because it would have, if enforced, deprived the
plaintiff of even her “right to pursue statutory remedies.” Cedeno, 100
F.4th at 401 (emphasis added) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985)). Because
individual arbitration would “materially interfere with [Duke’s]
ability to seek relief under” Section 502(a)(2), the effective vindication
doctrine precludes its enforcement. Cf. State Farm Mut. Auto. Ins. Co.
v. Tri-Borough NY Med. Prac. P.C., 120 F.4th 59, 91 (2d Cir. 2024).
Next, Appellants suggest that Cedeno is different because the
plaintiff in that case was a participant in a defined contribution plan,
rather than defined benefit plan. According to Appellants, this
distinction matters because the alleged fiduciary mismanagement in
Cedeno would harm “both participants and the plan itself by ‘saddling
the Plan with millions of dollars of debt to the substantial detriment
of the Plan and its participants[.]’” Appellants’ Br. 43 (alteration
adopted). But again, Duke has alleged the same problem—that the
Plan’s use of outdated actuarial assumptions harms the Plan (through
systemic ERISA noncompliance and jeopardy of its favorable tax
status) as well as participants (through underpayment of benefits).
And Duke will not be able to remedy the Plan’s harm on her own, as
only a representative action can resolve the allegedly detrimental
effects of widespread violations of federal law. “It is of no moment
that recovery inuring to the Plan may ultimately benefit particular
participants.” L.I. Head Start, 710 F.3d at 66.

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Finally, Appellants argue that reading Cedeno to protect Duke’s
statutory right to pursue a representative Section 502(a)(2) action
would run afoul of Supreme Court cases invalidating state laws that
provide “a free-floating right to proceed through collective action for
its own sake[.]” Appellants’ Br. 46 (quoting Cedeno, 100 F.4th at 401).
It is true that, as a general matter, the mere availability of a
representative or class-action procedure is not a substantive right that
a plaintiff may invoke to avoid individual arbitration. See Estle v. Int’l
Bus. Machs. Corp., 23 F.4th 210, 213–14 (2d Cir. 2022). Accordingly,
even if a state purports to require genuinely individual claims be
brought in a representative capacity, the Supreme Court has held that
such a scheme is a procedural device overridden by the FAA’s policy
favoring the enforcement of arbitration agreements. See, e.g., Viking
River Cruises, Inc. v. Moriana, 596 U.S. 639, 659–62 (2022). But as we
explained in Cedeno, the Supreme Court in that case “recognized a
qualitative difference between waivers of collective-action
procedures like class actions, and waivers that preclude a party from
arbitrating in a representational capacity on behalf of a single absent
principal[.]” 100 F.4th at 402 (citing Viking River, 596 U.S. at 656–58).
Thus, Appellants’ argument that Duke seeks to escape individual
arbitration through the invocation of a representative procedure, like
their other arguments, proceeds on the flawed assumption that Duke
seeks a personal remedy under Section 502(a)(2). She does not.
Instead, she seeks relief for an “absent principal,” Cedeno, 100 F.4th at
402, that “may ultimately benefit” her, as well, L.I. Head Start, 710 F.3d
at 66. Whether she succeeds, including whether the alleged systemic
ERISA noncompliance and jeopardy to its favorable tax status are

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plan injuries that can be remedied through Section 502(a)(2), are
merits questions beyond the scope of this appeal.
Because Appellants present no persuasive reason for
distinguishing Cedeno, we hold that it precludes compelling Duke to
individually arbitrate her claims under Section 502(a)(2). We do not
reach the question whether the Section 502(a)(3) claim falls within the
Agreement’s arbitration provision, as the FAA removes from our
appellate jurisdiction review of a district court’s interlocutory order
compelling arbitration. See 9 U.S.C. § 16(b)(2).
D. Section 3 Stay of Litigation
Appellants’ final challenge is to the district court’s denial of
their motion to stay litigation on Section 502(a)(2) pending the parties’
arbitration. The district court exercised its discretion to deny the
motion, reasoning that Appellants had not demonstrated the extent
of factual overlap between arbitrable and nonarbitrable claims or that
substantial prejudice would result absent a stay. Appellants do not
now contest these conclusions. Instead, they argue only that the
district court was without discretion to deny the motion because the
stay they sought was mandatory under Section 3 of the FAA. We
disagree.
Section 3 of the FAA provides in relevant part:
If any suit or proceeding be brought in any of the courts
of the United States upon any issue referable to
arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon
being satisfied that the issue involved in such suit or
proceeding is referable to arbitration under such an

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agreement, shall on application of one of the parties stay
the trial of the action until such arbitration has been had
in accordance with the terms of the agreement[.]
9 U.S.C. § 3.
Section 3 stays are mandatory, not discretionary. Smith v.
Spizzirri, 601 U.S. 472, 478 (2024). But Section 3 does not extend to
claims not subject to arbitration; whether a district court stays those
is “a matter of its discretion to control its docket.” Moses H. Cone, 460
U.S. at 20 n.23. That is so even for “claims arising out of the same
series of events[.]” Chang v. Lin, 824 F.2d 219, 222 (2d Cir. 1987),
overruled on other grounds, Rodriguez de Quijas v. Shearson/Am. Exp.,
Inc., 490 U.S. 477 (1989). True enough, “stay orders are particularly
appropriate if the arbitrable claims predominate the lawsuit and the
nonarbitrable claims are of questionable merit.” Genesco, Inc. v. T.
Kakiuchi & Co., Ltd., 815 F.2d 840, 856 (2d Cir. 1987) (citing NPS
Commc’ns v. Cont’l Grp., Inc., 760 F.2d 463, 465 (2d Cir. 1985)). But
weighing those considerations is still “within the district court’s
discretion to control its docket.” Id.
For their part, Appellants offer McCowan v. Sears, Roebuck & Co.,
which concerned consolidated actions asserting federal and state
securities claims against a brokerage firm (Dean Witter) and a
“controlling person” under Viriginia law (Sears). 908 F.2d 1099, 1100–
01 (2d Cir. 1990). Dean Witter and the plaintiffs had formed an
arbitration agreement; Sears and the plaintiffs had not. Id. at 1105.
After the federal claims were either referred to arbitration or
dismissed, Dean Witter and Sears both moved for Section 3 stays of
the remaining state law claims, arguing that they fell within the scope

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of the plaintiffs’ arbitration agreement with Dean Witter and that
Sears was a third-party beneficiary of that agreement. Id. at 1101–02.
We held that Dean Witter enjoyed a right to a mandatory stay because
the claims against it were within the scope of the parties’ agreement.
Id. at 1107. But we explained that we did “need not determine
whether Sears also [had] such a right,” because “[t]he practical effect
of the stay as to Dean Witter, an indispensable party . . . , [was] that
the suit against Sears, which [was] wholly dependent on the claim
against Dean Witter, [could not] proceed.” Id. at 1108.
Unlike Appellants, we do not read McCowan to compel a
Section 3 stay any time arbitrable and nonarbitrable claims share
issues of law or fact. For one thing, it was decided after Genesco and
Chang, which the McCowan panel had no authority to overrule. For
another, McCowan’s holding stemmed from the fact that Dean Witter
was an indispensable party in the litigation against Sears but also
entitled to a mandatory stay of litigation. Id. at 1101. The litigation
could thus “[not] proceed” because Dean Witter enjoyed a mandatory
right to await the conclusion of arbitration before continuing, and it
was indispensable to the litigation going forward. The result had
nothing to do with the scope of Section 3. But even if it did, any lesson
from that case is confined to its narrow context of a nonarbitrable
claim that is entirely derivative of an arbitrable one and is stayed as a
result. Whatever McCowan says about that situation, it would not
mandate a stay here, as Duke’s requested relief under Section
502(a)(2) is much broader than, and therefore not derivative of, her
request under Section 502(a)(3).

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Finally, Appellants ask us to overlook Chang and Genesco and
rely instead on the word “issue” in Section 3 to hold that the provision
mandates a stay any time a litigated claim shares a question of law or
fact with a claim to be arbitrated. Even on its own terms, the textual
argument faces problems. First, Section 3 says more than the word
“issue”; it mandates a stay of an “issue referable to arbitration.” See 9
U.S.C. § 3 (emphasis added). In context, that plainly refers to the
claims that the district court orders arbitrated, rather than any discrete
legal or factual issues that may one day arise in arbitration. Second,
as we have already explained, the issue referred to arbitration in this
case was Duke’s individual entitlement to Section 502(a)(3) relief, not
the distinct question whether the Plan suffered a qualifying injury
redressable under Section 502(a)(2). So even if we could overrule our
precedents—which we cannot, see Garcia Pinach v. Bondi, 147 F.4th
117, 129 (2d Cir. 2025)—we would not be inclined to adopt
Appellants’ drastic reading of Section 3.
Because Appellants do not make any other argument that the
district court abused its discretion, we affirm its denial of the stay
motion.
CONCLUSION
The district court’s November 27, 2024 order is REVERSED as
to Duke’s Article III standing to seek monetary payments on behalf of
the Plan and AFFIRMED in all other respects.

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