Employer Recapture of ERISA Contributions Made by Mistake: A Federal Common Law Remedy To Prevent Unjust Enrichment

This Note investigates more fully the policies animating ERISA in order to ascribe an appropriate construction to the mistaken contribution section. Part I analyzes the Ninth Circuit’s anomalous implied cause of action theory. Searching the legislative history as well as ERISA’s language and structure, this Part finds lacking the requisite expression of congressional intent to support a statutorily implied remedy. As an alternative, Part II explores the appropriateness of common law relief. Part II defends the creation of common law relief by the federal courts as consistent with the direct and indirect evidence suggesting that Congress envisioned judicial supplementation of BRISA. BRISA generally seeks the protection of employees’ interests. Part III identifies two subcomponents that comprise this goal: expansion of private pension coverage and protection of pension fund assets. Recognizing the potential tensions between these considerations, Part III argues that letting employers recoup overpayments optimizes achievement of both goals. Part IV contends that this remedy should be typed an unjust enrichment action. This Note embraces an equitable model for the recovery of mistaken payments, capturing both statutory and traditional equitable concerns. Each of the circuits which permit recovery, whether under the statute or common law, make equitable balancing the touchstone of their analysis. Part IV canvasses a range of considerations that bear on the refund decision and assesses their comparative weight.