Lenai Mull v. Motion Picture Industry Health

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIELLE MULL, appointed No. 20-56315
Guardian Ad Litem for Carson Mull;
NORMAN MULL; CARSON MULL, D.C. No.
Plaintiffs-Appellees, 2:12-cv-06693-
VBF-MAN
v.

MOTION PICTURE INDUSTRY HEALTH OPINION
PLAN; BOARD OF DIRECTORS OF
MOTION PICTURE INDUSTRY HEALTH
PLAN,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted January 11, 2022
Pasadena, California

Filed July 25, 2022

Before: Richard R. Clifton, Milan D. Smith, Jr., and
Paul J. Watford, Circuit Judges.

Opinion by Judge Clifton
2 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

SUMMARY *

Employee Retirement Income Security Act

The panel reversed the district court’s summary
judgment in favor of plaintiffs in an action against the
Motion Picture Industry Health Plan and the Plan’s Board of
Directors, alleging violation of the Employee Retirement
Income Security Act of 1974, and remanded with
instructions for the district court to enter summary judgment
in favor of the Plan.

Plaintiff Norman Mull was a participant in the Plan.
After his daughter, a covered dependent, was injured in a car
accident, the Plan paid benefits to cover a portion of her
medical expenses. Under the Plan’s terms, Mull was liable
to the Plan for the reimbursement of these benefits if the
daughter recovered money from the third party who caused
her injuries. Although the daughter obtained such a
recovery, she dissipated her settlement funds without
reimbursing the Plan, and Mull did not pay the
reimbursement amount himself. Invoking a self-help
provision in the Plan’s terms, the Plan stopped making
benefit payments to Mull and his covered dependents to
recoup its unreimbursed payments. Plaintiffs brought this
action to recover the benefits withheld by the Plan and to
force the Plan to make benefit payments for covered services
in the future. The district court granted summary judgment
in favor of plaintiffs, concluding that the Plan could not
enforce its self-help remedy.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 3

Reversing, the panel concluded that contractual defenses
could not defeat the clear and unambiguous terms setting
forth the Plan’s self-help remedy. Assuming without
deciding that plaintiffs could invoke the equitable doctrines
of illegality, impossibility of performance, and
unconscionability, the panel concluded that these defenses
could not override the terms of the Plan under the facts in
this case.

The panel held the requirements for establishing a
fiduciary’s claim for equitable relief under ERISA
§ 502(a)(3), including the existence of an identifiable fund
in the possession and control of the person from whom
recovery is sought, did not bar the Plan from exercising its
self-help remedy as an alternative means of recouping its
overpaid benefits. The panel explained that the Plan was not
prosecuting an action for equitable relief under § 502(a)(3),
but rather was a defendant in an action that plaintiffs
themselves had brought to recover benefits and was using a
self-help remedy that required no judicial enforcement.

Agreeing with other courts, the panel held that the Plan’s
self-help remedy did not undermine ERISA’s civil
enforcement scheme. Rather, ERISA plan fiduciaries may
bargain for and implement self-help remedies that do not
require judicial enforcement.

Finally, the panel held that res judicata did not bar the
Plan’s use of its self-help remedy.
4 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

COUNSEL

Kathryn J. Halford (argued) and Elizabeth Rosenfeld,
Wohlner Kaplon Cutler Halford & Rosenfeld, Encino,
California, for Defendants-Appellants.

Donald M. de Camara (argued), Law Office of Donald M.
de Camara, Carlsbad, California; Daniel E. Wilcoxen and
Drew M. Widders, Wilcoxen Callahan LLP, Sacramento,
California; for Plaintiffs-Appellees.

OPINION

CLIFTON, Circuit Judge:

Plaintiffs brought this action against the Motion Picture
Industry Health Plan (the “Plan”) and the Plan’s Board of
Directors under § 502(a)(1)(B) and § 502(a)(3) of the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. Plaintiff Norman Mull
(“Norman”) is a participant in the Plan. 1 The remaining
Plaintiffs are covered dependents of Norman. Norman’s
daughter, Lenai Mull (“Lenai”), who is no longer a party to
this action, was formerly a covered dependent of Norman.

After Lenai was injured in a car accident, the Plan paid
benefits to cover a portion of her medical expenses. Under
the Plan’s terms, Norman was liable to the Plan for the
reimbursement of these benefits if Lenai recovered money
from the third party who caused her injuries. Although
Lenai obtained such a recovery, she dissipated her settlement

1
Because Plaintiffs share the same last name, we refer to them
individually by their first names.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 5

funds without reimbursing the Plan, and Norman did not pay
the reimbursement amount himself. Invoking a self-help
provision in the Plan’s terms, the Plan stopped making
benefit payments to Plaintiffs to recoup its un-reimbursed
payments.

Plaintiffs brought this action to recover the benefits
withheld by the Plan and to force the Plan to make benefit
payments for covered services in the future. The district
court ultimately granted summary judgment in favor of
Plaintiffs, concluding that the Plan could not enforce its self-
help remedy.

This conclusion was in error. Contrary to the district
court, we conclude that contractual defenses cannot defeat
the clear and unambiguous terms of the Plan, at least not in
this instance. We also conclude that the Plan’s self-help
remedy does not violate ERISA § 502(a)(3), does not
undermine ERISA’s civil enforcement scheme, and is not
barred by res judicata. We reverse and remand with
instructions for the district court to enter summary judgment
in favor of the Plan.

I. Background

Norman worked for more than 21 years as a wrangler in
the motion picture industry, caring for livestock used in the
production of movies. Through his employment and his
membership in the Teamsters Union, Norman is entitled to
receive healthcare benefits as a participant in the Plan.
Norman’s wife, Plaintiff Danielle Mull (“Danielle”), and
their younger daughter, Plaintiff Carson Mull (“Carson”),
are entitled to receive benefits as covered dependents of
Norman. When the events giving rise to this action occurred,
6 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

Norman and Danielle’s older daughter, Lenai, was also a
covered dependent of Norman. 2

A. The Motion Picture Industry Health Plan

The Plan is a self-funded, multi-employer health and
welfare benefit plan as defined in ERISA. See 29 U.S.C.
§ 1002. A Board of Directors (the “Board”) administers the
Plan and determines “all questions” regarding the “nature,
amount, and duration” of benefits provided under the Plan.

The terms of the Plan itself are set forth in two
documents. The first document, the Motion Picture Industry
Plan Agreement and Declaration of Trust (the “Trust
Agreement”), outlines procedures for funding, operating,
and amending the Plan. The second document, the Motion
Picture Industry Health Plan Summary Plan Description for
Active Participants (the “Plan Description”), sets forth the
benefits available under the Plan and the conditions for
receiving those benefits. The dispute in this case stems from
two provisions in the Plan Description. These provisions
take effect if and when the Plan pays benefits related to an
injury for which a third party is legally responsible—for
example, when a beneficiary is injured in a car accident
caused by someone else.

The first provision (the “Reimbursement Clause”) states
that if a Plan participant or eligible dependent suffers such
an injury, the Plan will pay benefits only if the participant

2
Lenai remained a covered dependent of Norman until January
2015, after which she obtained healthcare coverage through her
employer. Although Lenai continued to participate in this action after
she was no longer covered under the Plan, she has not participated in this
appeal. Throughout this opinion, “the Mulls” may refer either to the
current Plaintiffs or the Mull family as a whole, including Lenai.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 7

agrees to reimburse the Plan from any amount he or his
eligible dependent subsequently recovers from or on behalf
of the third party. The Plan Description establishes several
corollary requirements to ensure that the participant
complies with this provision. For example, before the Plan
will pay benefits related to a third-party injury, the
participant must execute a lien in favor of the Plan on the
amount of any potential third-party recovery. The Plan
Description also requires that any such recovery be kept
separate from other funds and be held in trust until conveyed
to the Plan. Even if the third-party recovery was received by
a dependent, the Plan Description specifies that
reimbursement “is the liability of the [p]articipant.”

The second provision (the “Recoupment Clause”)
establishes a self-help remedy that may be used if the
participant fails to comply with the Reimbursement Clause.
Under this provision, if the participant fails to reimburse the
Plan from a third-party recovery, the amount of un-
reimbursed benefit payments that were made to treat the
injury “will be deducted from all future benefit payments to
or on behalf of the [p]articipant and/or any dependent, until
the overpayment is resolved.” 3 If the amount paid by the
Plan is not reimbursed from the third-party recovery as
required, “the [p]articipant (and eligible dependent, if
applicable) shall continue to owe to the Plan such unpaid
amount, up to the full amount of the [third-party]
[r]ecovery.”

3
The Plan Description uses the term “overpayment” to refer to the
amount of benefit payments that have not been reimbursed from a third-
party recovery.
8 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

B Lenai Mull’s Injury and Third-Party Recovery

Lenai suffered serious injuries in February 2010 after the
driver of the vehicle in which she was a passenger lost
control and drove the vehicle off a 20-foot embankment. As
a result of the accident, Lenai had to undergo multiple
surgeries. The following month, the Plan sent a letter to
Norman indicating that it had received a claim for treatment
of Lenai’s injuries. In its letter, the Plan noted that Lenai’s
injury appeared to have been caused by a third party.
Consistent with the terms of the Plan Description, the Plan
stated that it would not pay benefits to cover Lenai’s
treatment unless Norman executed a lien in favor of the Plan
on any potential third-party recovery. The letter also advised
Norman to “take time to review” the Plan Description
section pertaining to claims involving third-party liability.

To ensure the payment of benefits, Norman was required
to complete and return a “Third Party Liability Statement
Form” attached to the letter. Section 9 of the form, labeled
“THIRD PARTY LIEN,” included the following statement:

[I]f any amounts are received by me or by any
person acting on my behalf as a result of court
judgment, arbitration award, settlement or
any other arrangement from any third party
or any third party insurer or from my
uninsured or underinsured motorist coverage
related to any illness or injury, I agree to pay
such amounts or have such amounts paid to
the Plan to the extent necessary to reimburse
the Plan for any benefits paid with respect to
such illness or injury with applicable interest
on such amounts.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 9

I hereby grant a lien in favor of the Plan for
the amount to which the Plan is entitled in
accordance with the prior paragraphs from
the proceeds from any such court judgment,
arbitration award, settlement or any other
arrangement or from any amount received
under uninsured or underinsured motorist
coverage.

Norman and Lenai both signed the statement on April 20,
2010, and returned the form. In signing the form and
accepting the Plan’s payment of benefits, Norman, as the
Plan participant, acknowledged responsibility for
reimbursing the Plan in the event that Lenai recovered
money from a third party. The Plan subsequently paid
$147,948.38 in benefits to cover treatment of Lenai’s
injuries.

In April 2011, Lenai received a $100,000 settlement
from the insurance carrier of the driver who caused her
injuries. Because Lenai was over 18 at the time of her injury
and subsequent settlement, the proceeds of the settlement
were paid directly to her. Consistent with the
Reimbursement Clause, the Plan requested that Lenai
reimburse it for the benefit payments she had received. 4 The

4
Although the Plan initially requested reimbursement of its lien in
the amount of $147,948.38 (the amount in benefits it had paid in relation
to Lenai’s injury), it subsequently reduced its lien and reimbursement
request to $100,000, the actual amount Lenai had received through her
third-party recovery. The Plan Description provides that where, as here,
“the benefits paid by the [Plan] in connection with the illness or injury
exceeds the amount of the [third-party] [r]ecovery, neither the
[p]articipant nor his or her eligible dependents shall be responsible for
any benefits paid in excess of the amount of [such] [r]ecovery, other than
interest as described [in the Plan Description].” Thus, under the Plan’s
10 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

Plan also stated that if Lenai failed to respond within
30 days, it would begin deducting the un-reimbursed amount
from future benefit payments pursuant to the Recoupment
Clause.

Through counsel, Lenai declined to pay the full amount
of her recovery and instead offered to pay an “equitably
apportioned share” of $8,454. The Plan rejected this offer
and began to apply its recoupment procedures. Thus, as the
Plan received claims for Norman and his dependents, it
would verify the claimant’s eligibility and process the claim.
But instead of making payments to the service provider, the
Plan would apply its share of covered expenses as a credit
against Norman’s reimbursement obligation. Although
Lenai’s counsel submitted an appeal to the Plan’s
Benefits/Appeals Committee, which is authorized to
interpret Plan provisions, the Committee denied the appeal
in February 2012, and the Plan continued applying its
recoupment procedures.

C. The Mulls Bring This Action

The Mulls sued the Plan in August 2012 and filed their
First Amended Complaint (“FAC”) in February 2013. The
FAC asserts a claim for injunctive relief under ERISA
§ 502(a)(3), which authorizes a “participant, beneficiary, or
fiduciary” to bring a civil action “to enjoin any act or practice
which violates” ERISA, or “to obtain other appropriate
equitable relief.” 29 U.S.C. § 1132(a)(3). The Mulls allege
that the Plan’s “self-help” recoupment procedures have
“effectively terminated” their health insurance, and that its
“refus[al] to pay for physicals, cancer screenings and other

reimbursement provisions, Norman was liable to the Plan only for
$100,000, plus interest.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 11

preventive[-]type care” is causing them irreparable harm.
The FAC also asserts a claim for the recovery of withheld
benefits under ERISA § 502(a)(1)(B), which authorizes a
participant or beneficiary to bring a civil action “to recover
benefits due to him under the terms of his plan, to enforce
his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B).

After the Plan filed its Answer in March 2013, the
Supreme Court decided US Airways, Inc. v. McCutchen,
569 U.S. 88 (2013). In US Airways, the Court held that when
the administrator of an ERISA plan sues a beneficiary under
§ 502(a)(3) to enforce a reimbursement provision like the
one in this case, the terms of the plan are controlling, and a
beneficiary cannot invoke certain equitable defenses to
“override the clear terms of a plan.” Id. at 91.

The Plan sought leave to amend its Answer to assert a
counterclaim against Norman and Lenai in view of US
Airways. In their opposition to the Plan’s application, the
Mulls conceded that Lenai had dissipated “much of her
personal injury recovery” and argued that if the Plan were
allowed to bring a counterclaim, Lenai would be forced to
seek bankruptcy protection. Nevertheless, the district court
granted the application in February 2014, and the Plan
asserted a counterclaim against Norman and Lenai under
§ 502(a)(3), seeking to impose a constructive trust or
equitable lien upon the proceeds of Lenai’s third-party
recovery.

Lenai filed for Chapter 7 bankruptcy in the U.S.
Bankruptcy Court for the Eastern District of California in
February 2014, automatically staying the Plan’s
counterclaim against her. See 11 U.S.C. § 362(a). The
bankruptcy court ordered Lenai’s discharge in August 2014,
12 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

and the bankruptcy court issued its final decree in January
2015. The district court accordingly granted Lenai judgment
on the Plan’s counterclaim.

Meanwhile, as Lenai’s bankruptcy case was proceeding,
the district court granted Norman’s Rule 12(b)(6) motion to
dismiss the Plan’s counterclaim against him. As discussed
in greater depth below, the court concluded that the Plan had
made conflicting statements to the court and was judicially
estopped from establishing an essential element of its claim.

Four months after dismissing the Plan’s counterclaim
against Norman, the district court granted the Mulls’ motion
for summary judgment on the FAC. The court reasoned that
the Plan Description did not constitute a formal part of the
Plan itself, and thus, any provision in the Plan Description,
such as the Reimbursement or Recoupment Clause, was
unenforceable. 5

The Plan appealed the district court’s final judgment to
this court, which vacated and remanded. Mull ex rel. Mull
v. Motion Picture Indus. Health Plan, 865 F.3d 1207, 1210
(9th Cir. 2017). 6 We concluded that “by clear design
reflected in provisions” of both the Trust Agreement and the

5
After Lenai emerged from bankruptcy and the automatic stay had
been lifted, the district court resolved Lenai’s outstanding claims under
the FAC, concluding that her claims were largely moot or, to the extent
they relied on the Plan Description, barred by judicial estoppel.
Consistent with its summary judgment decision, however, the court held
that Lenai was entitled to judgment on her claim that the Reimbursement
and Recoupment Clauses fell outside the Plan and were therefore
unenforceable.
6
The Plan did not appeal (or, in the case of Norman, abandoned its
appeal of) the district court’s rulings dismissing the Plan’s counterclaim
against Norman and Lenai.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 13

Plan Description, “the two documents together constitute”
an employee benefit plan under ERISA. Id. at 1210. Thus,
we explained, the Plan is comprised of the “Trust Agreement
plus the [Plan Description].” Id.

On remand, the district court initially granted summary
judgment for the Plan, explaining that, because the Plan
Description constitutes a Plan document with enforceable
terms, the Mulls are “effectively seeking benefits to which
they are expressly not entitled under the terms of the [P]lan.”
Declining to enforce these terms on the basis that they are
“unfair,” the court added, would violate the Supreme Court’s
conclusion in US Airways that equitable principles cannot
override the clear terms of an ERISA plan.

Eight months later, however, the district court reversed
course. After the Mulls filed a motion for reconsideration,
the court vacated its prior judgment and granted summary
judgment for the Mulls. The court’s ruling rested on four
conclusions: first, that because the Plan could not prevail in
an action for equitable relief under ERISA § 502(a)(3), it
may not use a self-help measure to recoup overpaid benefits;
second, that this measure constitutes an “extra-judicial
remedy” that violates ERISA’s “exclusive” civil
enforcement scheme; third, that this measure runs afoul of
equitable principles by imposing obligations on family
members “who recovered nothing” and cannot pay back the
recovery; and fourth, that the Plan’s “claim” to un-
reimbursed benefit payments is barred by res judicata given
(i) the two final judgments dismissing the Plan’s
counterclaim against Norman and Lenai, and (ii) the Plan’s
failure to name Danielle and Carson as defendants in its
counterclaim.

This appeal followed.
14 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

II. Discussion

We have jurisdiction to review the district court’s grant
of summary judgment under 28 U.S.C. § 1291. Nationstar
Mortg. LLC v. Saticoy Bay LLC, Series 9229 Millikan Ave.,
996 F.3d 950, 954 (9th Cir. 2021). We review findings of
fact for clear error, Metro. Life Ins. Co. v. Parker, 436 F.3d
1109, 1113 (9th Cir. 2006), and conclusions of law de novo,
Conestoga Servs. Corp. v. Exec. Risk Indem., Inc., 312 F.3d
976, 981 (9th Cir. 2002).

On appeal, the Plan challenges each of the four grounds
on which the district court relied in granting summary
judgment for the Mulls. We address each argument in turn.

A. Contractual Defenses Cannot Defeat the Plan’s Self-
Help Remedy

Under the terms of the Plan Description, if a beneficiary
receives a third-party recovery following the Plan’s payment
of benefits, “[r]eimbursement of [those] benefits . . . is the
liability of the [p]articipant.” (Emphasis added.) Thus, by
signing the Third Party Liability Statement Form and
accepting the Plan’s payment of benefits, Norman
acknowledged liability for the repayment of those benefits.
Plaintiffs do not dispute this fact. Nor do they dispute that
the Plan Description authorizes the Plan to institute its
recoupment procedures and suspend the payment of benefits
as it has done in this case. They argue, however, that we
should decline to enforce this Plan provision under basic
principles of equity.

Although the district court’s decision relied in part on
various aspects of the ERISA statute (discussed below), the
court appeared to invoke equitable considerations as an
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 15

additional basis for its conclusion. In particular, the court
said that the Plan should not be permitted to use “self-help
measures” to “terminate plan benefits of family members
who recovered nothing” and now “have no way to pay the
[P]lan back.” Repackaging this conclusion in doctrinal
terms, Plaintiffs argue that even if the Plan’s recoupment
provision is permissible under ERISA, this provision should
still be “subject to all contractual defenses.” In particular,
they invoke the doctrines of illegality, impossibility of
performance, and unconscionability. 7

There was a time in this circuit when parties could assert
a range of equitable defenses to defeat the terms of an ERISA
plan. In CGI Technologies & Solutions Inc. v. Rose,
683 F.3d 1113 (9th Cir. 2012), vacated, 569 U.S. 945
(2013), we held that a district court, “in granting
‘appropriate equitable relief,’ may consider traditional
equitable defenses notwithstanding express terms
disclaiming their application.” Id. at 1123 (citation omitted).
Thus, we “disagree[d] with . . . other circuits to the extent
that they ha[d] held that § 502(a)(3) categorically excludes

7
One peculiarity of Plaintiffs’ argument stems from the fact that
illegality, impossibility of performance, and unconscionability are
typically raised as affirmative defenses by the party being sued on a
contract. Here, however, the Mulls are asserting these doctrines in their
capacity as plaintiffs. Though Plaintiffs do not address this wrinkle, we
note that under § 502(a)(1)(B), “[r]elief may take the form of . . . a
declaratory judgment on entitlement to benefits,” Pilot Life Insurance
Co. v. Dedeaux, 481 U.S. 41, 53 (1987), and, in the analogous context of
an action under the Declaratory Judgment Act, it is clear a plaintiff may
seek to have a contractual provision declared unenforceable based on a
doctrine such as illegality, see United Food & Com. Workers Local
Union Nos. 137, 324, 770, 899, 905, 1167, 1222, 1428, & 1442 v. Food
Emps. Council, Inc., 827 F.2d 519, 520–21, 525 (9th Cir. 1987). We
assume without deciding that a plaintiff seeking declaratory relief under
§ 502(a)(1)(B) may do the same.
16 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

the application of traditional equitable defenses where the
plan disclaims their application and requires reimbursement
as set by the plan.” Id. Although CGI Technologies
involved a fiduciary’s claim against a beneficiary, our
reasoning broadly suggested that courts may consider
equitable principles when interpreting the terms of an
ERISA plan, even where a beneficiary has sought relief
against the plan fiduciary. But the Supreme Court vacated
our court’s decision in CGI Technologies. See 569 U.S. 945.
Our panel subsequently remanded the case to the district
court in light of US Airways, so our prior opinion is no longer
good law. CGI Techs., 727 F.3d 950 (9th Cir. 2013) (mem.).

US Airways held that in an action to enforce the terms of
a medical benefits plan, the defendant could not rely on two
specific equitable defenses deriving from principles of
unjust enrichment to “override the clear terms” of a plan’s
reimbursement provision. 569 U.S. at 91. Where a court is
asked to “hold[] the parties to their mutual promises,” the
Supreme Court explained, it must “declin[e] to apply rules—
even if they would be ‘equitable’ in a contract’s absence—
at odds with the parties’ expressed commitments.” Id. at 98.
Principles of unjust enrichment “are ‘beside the point’ when
parties demand what they bargained for in a valid
agreement.” Id. Thus, the Court concluded, “[n]either
general principles of unjust enrichment nor specific
doctrines reflecting those principles,” including the “double-
recovery” or “common-fund rules” invoked by the
defendant, “[could] override the applicable contract. Id.
at 106.

After US Airways, it is clear that a party may not invoke
principles of unjust enrichment to defeat the terms of a “valid
agreement.” Id. at 98. Although the Supreme Court did not
clearly address whether contractual defenses such as
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 17

unconscionability, illegality, or impossibility of
performance can defeat the clear terms of an ERISA plan,
we need not decide that issue to resolve this appeal.
Assuming without deciding that these defenses survive US
Airways, we conclude that they still cannot override the
terms of the Plan under the facts in this case.

Plaintiffs first argue that the Plan’s recoupment
provision constitutes an illegal undertaking. Although
“[t]here is no statutory code of federal contract law,” the
Supreme Court’s case law “leave[s] no doubt that illegal
promises will not be enforced in cases controlled by the
federal law.” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77
(1982) (gathering cases). 8 “Illegal bargains have been

8
Although Plaintiffs’ contractual arguments rely on California state
law, “claims brought under [§] 502 of ERISA are federal claims, not state
contract law claims.” Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1439
(9th Cir. 1990). In a case such as this, Congress has “empowered courts
to ‘develop a federal common law of rights and obligations under
ERISA-regulated plans.’” Salyers v. Metro. Life Ins. Co., 871 F.3d 934,
939 (9th Cir. 2017) (citation omitted). Thus, although we are “directed
to formulate federal common law by considering both state law and
governing federal policies,” Sec. Life Ins. Co. of Am. v. Meyling,
146 F.3d 1184, 1191 (9th Cir. 1998), “the interpretation of ERISA
insurance policies is governed by a uniform federal common law,” not
state law, Evans, 916 F.2d at 1439.

This feature of ERISA jurisprudence raises a threshold question
neither party has addressed—specifically, “whether the body of federal
common law contract principles Congress left to judicial development
permissibly encompasses” the contractual defenses Plaintiffs raise here.
Nash v. Trs. of Bos. Univ., 946 F.2d 960, 964 (1st Cir. 1991). The
Supreme Court has implicitly incorporated the doctrine of illegality into
this body of federal common law already. See Kaiser Steel, 455 U.S.
at 77–79. Because we conclude that neither unconscionability nor
impossibility of performance may defeat the challenged Plan provisions
under the facts of this case, we simply assume without deciding that both
18 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

classified both by the common law and in statutory
enactments as those opposed to positive law, those which are
contrary to morality and those which offend public policy.”
5 Williston on Contracts § 12:1 (4th ed. 2021) (gathering
cases). Here, Plaintiffs argue that the Plan’s recoupment
provision is illegal because it circumvents § 502(a)(3) of
ERISA, which they claim is the sole mechanism for
obtaining relief against beneficiaries. But this assertion
simply duplicates their separate argument that the
recoupment provision violates ERISA’s “exclusive” civil
enforcement scheme. As we discuss at length in Part II.C,
below at 28–34, plan fiduciaries may bargain for and
implement self-help remedies that do not require a civil
action under § 502(a)(3) to enforce. That the recoupment
provision eschews reliance on § 502(a)(3) does not render it
an illegal undertaking. Plaintiffs identify no other reason
why we should decline to enforce the provision on grounds
of illegality, and we have found none.

Plaintiffs next invoke the doctrine of impossibility of
performance, arguing that the recoupment provision is
unenforceable because the family lacks the means to satisfy
Norman’s reimbursement obligation, which now exceeds
$200,000. They also argue that it was legally impossible for
Norman to comply with this obligation in the first place
because Lenai had sole control over her settlement funds. 9

doctrines, like illegality, are also incorporated into the federal common
law of ERISA contract interpretation.
9
Plaintiffs briefly suggest that an additional “impossibility” arises
from the fact that “Lenai’s recovery was legally discharged by the federal
bankruptcy court.” As discussed in Part II.D, below at 34–39, the fact
that the Plan’s separate claim against Lenai was discharged in
bankruptcy court has no bearing on Norman’s liability to the Plan or the
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 19

The common-law doctrine of impossibility “excuses
what would otherwise be a breach of contract under very
limited and narrowly defined circumstances.” 30 Williston
on Contracts § 77:1 (4th ed. 2021). 10 The doctrine provides
that

[w]here, after a contract is made, a party’s
performance is made impracticable without
his fault by the occurrence of an event the
non-occurrence of which was a basic
assumption on which the contract was made,
his duty to render that performance is
discharged, unless the language or the
circumstances indicate the contrary.

United States v. Winstar Corp., 518 U.S. 839, 904 (1996)
(quoting Restatement (Second) of Contracts § 261). “The
ultimate inquiry for purposes of the impossibility defense is
whether the intervening changes of circumstance were so
unforeseeable that the risk of increased difficulty or expense
should not properly be borne by the promisor.” Taylor-
Edwards Warehouse & Transfer Co. v. Burlington N., Inc.,
715 F.2d 1330, 1336 (9th Cir. 1983).

In this case, Lenai’s decision to dissipate her settlement
funds (rather than repay the Plan) is the supervening event
on which Plaintiffs’ impossibility arguments rests. But it

enforceability of the recoupment provision. Likewise, this fact has no
relevance for determining whether changed circumstances have excused
Norman’s reimbursement obligation under the impossibility-of-
performance doctrine.
10
The doctrine of impossibility is now more commonly known as
the doctrine of “impracticability.” 30 Williston on Contracts § 77:1 (4th
ed. 2021).
20 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

cannot be said that the “non-occurrence” of this event “was
a basic assumption on which the contract was made,”
Winstar Corp., 518 U.S. at 904, for the Plan itself anticipates
the possibility of such an event when it specifies that
reimbursement of benefits “is the liability of the
[p]articipant” (Norman), even if the third-party recovery “is
directly received” by a dependent (Lenai). Impossibility is
not available as a defense where, as here, the contract
provided for the contingency in question. See id. at 905–06.
Moreover, this provision undermines any notion that Lenai’s
receipt and dissipation of her recovery was “so
unforeseeable” as to warrant application of the impossibility
defense. Taylor-Edwards, 715 F.2d at 1336. Tellingly,
Plaintiffs do not attempt to argue that Lenai’s dissipation of
her settlement was unforeseeable at the time Norman
acknowledged his reimbursement obligation and accepted
the Plan’s payment of benefits. 11 Under the facts of this
case, the doctrine of impossibility cannot discharge
Norman’s reimbursement obligation.

Finally, Plaintiffs argue that the Plan’s recoupment
provision is unconscionable. “Unconscionability refers to
‘an absence of meaningful choice on the part of one of the
parties together with contract terms which are unreasonably
favorable to the other party.’” Ingle v. Circuit City Stores,
Inc., 328 F.3d 1165, 1170 (9th Cir. 2003) (citation omitted).
To determine whether a contractual provision is

11
Though Plaintiffs argue they had no control over Lenai’s
disposition of her settlement funds, they do not suggest this fact was
unforeseeable. In any event, the fact “a promisor is unable to control the
actions of a third person whose consent or cooperation is needed for
performance of an undertaking ordinarily is not regarded as impossibility
such as would avoid an obligation or excuse liability, unless the terms or
nature of the contract indicate that this risk was not assumed.”
30 Williston on Contracts § 77:1 (4th ed. 2021).
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 21

unconscionable, most courts today focus on both procedural
and substantive aspects of the provision. See 8 Williston on
Contracts § 18:9 (4th ed. 2021) (gathering cases).

Procedural unconscionability “focus[es] on ‘oppression’
or ‘surprise’ due to unequal bargaining power.” AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 340 (2011)
(applying California law). The only argument Plaintiffs
appear to offer with respect to procedural unconscionability
is that “plan members . . . have zero input into what
provisions” go into the Plan. But Plaintiffs have not
provided any evidence regarding “the manner in which the
contract was negotiated and the circumstances of the parties
at that time,” information that is vital to a determination of
procedural unconscionability. Ingle, 328 F.3d at 1171
(citation omitted). Moreover, we learn from a review of the
record that the Plan was the product of collective bargaining
negotiations, a fact that undermines Plaintiffs’ claim of
procedural unconscionability. See Rogers v. Royal
Caribbean Cruise Line, 547 F.3d 1148, 1158 (9th Cir. 2008).

Substantive unconscionability “is concerned not with a
simple old-fashioned bad bargain but with terms that are
unreasonably favorable to the more powerful party.”
Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1261 (9th Cir.
2017) (citation omitted). Thus, we have most commonly
concluded that a provision is substantively unconscionable
in the context of arbitration provisions in employment
agreements, where employers have significantly more
bargaining power than employees. For example, in Lim v.
TForce Logistics, LLC, 8 F.4th 992 (9th Cir. 2021), we
invalidated a set of cost-splitting, fee-shifting, and venue
provisions that were so “prohibitively costly” as to
“deprive[] [the employee] of any proceeding to vindicate his
rights.” Id. at 1001–05. Likewise, in Chavarria v. Ralphs
22 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

Grocery Co., 733 F.3d 916 (9th Cir. 2013), we invalidated a
provision that apportioned large arbitration fees between an
employer and employee up front, regardless of the claim’s
merits, and simultaneously limited the arbitrator’s authority
to allocate costs in the arbitration award. Id. at 925–26.

But the Plan’s recoupment provision does not contain the
kind of “unduly oppressive” terms we have recognized as
substantively unconscionable in the past. Lim, 8 F.4th
at 1002. For example, Plaintiffs overlook the fact that
Norman agreed to the provision in exchange for medical
benefits that his daughter subsequently received. Although
the Plan authorizes a harsh remedy, the recoupment
provision is predicated on an exchange that is not so “one-
sided” as to “shock[] the conscience.” Chavarria, 733 F.3d
at 923 (citation omitted). Moreover, as we discuss in Part
II.C, below at 28–34, numerous courts have upheld similar
recoupment provisions.

Because the Mulls’ contractual defenses would not
render the recoupment provision unenforceable, we must
return to the clear and unambiguous language of the Plan
Description, which enables the Plan to recoup its overpaid
benefits just as it has done. We must also confront the fact
that Norman, having been urged to review the Plan
Description provisions regarding third-party liability,
acknowledged liability for the reimbursement of benefits.
As noted, the Plan Description makes clear that
reimbursement “is the liability of the [p]articipant,” i.e.,
Norman, even if the third-party recovery is “directly
received by” an “eligible dependent,” i.e., Lenai. Thus,
Norman knew (or should have known) that he would be
responsible for reimbursing the Plan even if he had no
control over Lenai’s disposal of the third-party recovery. He
signed the reimbursement agreement and accepted the Plan’s
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 23

payment of benefits. Having done so, he is bound by the
Plan terms.

B. The Requirements for Establishing a Claim for
Equitable Relief Under § 502(a)(3) Do Not Bar the
Plan from Exercising Its Self-Help Remedy

The district court also reasoned that because the Plan
could not prevail against the Mulls in an action for equitable
relief under § 502(a)(3), it may not use a self-help measure
as an alternative means of recouping its overpaid benefits.
This conclusion was incorrect.

Section 502(a)(3) of ERISA authorizes plan fiduciaries
to bring a civil action “to obtain . . . appropriate equitable
relief . . . to enforce . . . the terms of the plan.” 29 U.S.C.
§ 1132(a)(3). The term “equitable relief,” the Supreme
Court has explained, refers only to “those categories of relief
that were typically available in equity” during the era of the
divided bench. Mertens v. Hewitt Assocs., 508 U.S. 248, 256
(1993). Under the Court’s precedents, whether a remedy is
equitable or legal depends on (1) the basis for the plaintiff’s
claim and (2) the nature of the underlying remedy.
Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health
Benefit Plan, 577 U.S. 136, 142 (2016). Applying these
principles in a line of cases over the last two decades, the
Court has clarified the circumstances in which a plan
fiduciary may (and may not) secure relief under § 502(a)(3).

The Court has established, for example, that fiduciaries
cannot use § 502(a)(3) to impose personal liability on a
beneficiary based on a contractual obligation to pay money.
In Great-West Life & Annuity Insurance Co. v. Knudson,
534 U.S. 204 (2002), an ERISA plan covered a beneficiary’s
medical expenses subject to a reimbursement provision like
the one in this case. Id. at 207. After the beneficiary and her
24 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

then-husband recovered money from the third party who
caused her injuries, the plan’s insurer sued the couple under
§ 502(a)(3) to enforce the terms of the reimbursement
provision. Id. at 207–08. The Supreme Court held that the
suit was not authorized because the “nature of the underlying
remed[y]” sought by the insurer was not equitable in nature.
Id. at 213. As the Court explained, suits “seeking . . . to
compel the defendant to pay a sum of money to the plaintiff
are suits for money damages,” and money damages are “the
classic form of legal relief.” Id. at 210 (citations and internal
quotation marks omitted).

Although the insurer in Great-West tried to characterize
its action as equitable under two different theories, the Court
found neither persuasive. First, the insurer argued that it was
seeking to enjoin a particular act that violated the terms of
the plan, that is, the beneficiaries’ failure to make
reimbursement payments. Id. at 210. But as the Court
observed, an injunction to enforce a monetary obligation in
a contract was not typically available in equity. Id. at 210–
11. Second, the insurer described its requested remedy as
restitution, characterizing this as a type of equitable relief.
Id. at 212. The Court rejected this argument, explaining that
“for restitution to lie in equity, the action generally must seek
not to impose personal liability on the defendant, but to
restore to the plaintiff particular funds . . . in the defendant’s
possession.” Id. at 214. In Great-West, the funds sought by
the insurer were not in the beneficiaries’ possession, and
thus, the restitution it sought was not equitable in nature. Id.

In Sereboff v. Mid Atlantic Medical Services, Inc.,
547 U.S. 356 (2006), by contrast, the Supreme Court held
that the basis for the plaintiff’s claim and the remedy it
sought were both equitable. In that case, the beneficiaries
secured a recovery from the third party responsible for
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 25

causing their injuries but then failed to reimburse their plan
for benefits it had previously paid, thus violating the plan’s
reimbursement provision. Id. at 359–60. The plan sued the
beneficiaries under § 502(a)(3), seeking to collect a portion
of their third-party recovery that was preserved in certain
investment accounts. Id. at 360.

The Court held that the basis for the claim was equitable
because the plan sought to enforce an equitable lien “by
agreement,” a type of lien that arose through an agreement
to convey a “particular fund” to another party. Id. at 363–
65. The plan’s requested remedy was also equitable in
nature, for unlike the plaintiff in Great-West, the plaintiff in
Sereboff “sought specifically identifiable funds that were
within the possession and control of the [beneficiaries],” and
thus, it did not seek to recover from the beneficiaries’ “assets
generally, as would be the case with a contract action at law.”
Id. at 362–63 (citation and internal quotation marks omitted).

The Court invoked Sereboff seven years later when
deciding US Airways, in which it again concluded that a plan
fiduciary sought an equitable remedy because it pursued
“specifically identifiable funds” in the beneficiaries’ control,
namely “a portion of the settlement they had gotten.”
569 U.S. at 95 (citing Sereboff, 547 U.S. at 362–63).

Finally, in Montanile, the Supreme Court considered
whether a plan fiduciary can use § 502(a)(3) to attach a
participant’s general assets after the participant dissipates his
settlement funds on nontraceable items. 577 U.S. at 139. In
Montanile, as in the preceding cases, the plan required
participants to reimburse it for medical expenses if they
subsequently recovered money from a third party
responsible for their injuries. Id. Though the participant
secured such a recovery, he then dissipated nearly all of his
settlement funds without honoring his reimbursement
26 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

obligation, thereby thwarting the plan’s ability to pursue a
specifically identifiable fund. Id. at 140–41. Accordingly,
when the plan brought an action under § 502(a)(3), it could
seek recovery only out of the participant’s general assets. Id.
at 141.

The Court held that although the basis for the plaintiff’s
claim—an equitable lien by agreement—was equitable in
nature, its requested remedy was not. Id. at 144–46. At
equity, the Court explained, a plaintiff could not enforce an
equitable lien if the “separate, identifiable fund to which the
lien attached” was entirely dissipated on nontraceable items.
Id. at 146. Although such conduct by the defendant may
have been “wrongful,” the plaintiff “could not attach the
defendant’s general assets instead.” Id. at 145. Thus, even
if a defendant flouts a plan’s reimbursement requirement and
dissipates his settlement funds, a plan fiduciary cannot use
§ 502(a)(3) to seek recovery from the defendant’s general
assets. See id.

Invoking the Supreme Court’s decisions in Great-West,
Sereboff, US Airways, and Montanile, the district court
observed that the Plan cannot seize specifically identifiable
funds in the possession or control of the Mulls. As
discussed, Lenai had dissipated her settlement funds by
sometime in 2013. Because the Plan could not enforce its
claim to reimbursement through an action for equitable relief
under § 502(a)(3), the district court concluded that the Plan’s
recoupment remedy constitutes “an unlawful attempt to
impose personal liability on the Mulls.” Pursuing this line
of reasoning on appeal, the Mulls argue that the Plan’s
recoupment remedy “circumvent[s]” the “clear intent” of
Great-West and subsequent cases, which require “that there
. . . be an identifiable fund in the possession and control of
the person from whom recovery is sought.”
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 27

Though facially plausible, this argument does not hold
up to closer scrutiny. It is true that under Great-West and
subsequent cases, the Plan could not enforce its
reimbursement provision through an action for equitable
relief under § 502(a)(3), for there is no longer a specifically
identifiable settlement fund from which it could seek
recovery. See, e.g., Montanile, 577 U.S. at 145–46. The
Plan itself concedes as much. In this case, however, the Plan
is not prosecuting an action for equitable relief under
§ 502(a)(3). Rather, it is a defendant in an action the Mulls
themselves have brought to recover benefits.

Like the district court, the Mulls fail to distinguish (i) a
fiduciary’s action for equitable relief under § 502(a)(3) from
(ii) a fiduciary’s self-help remedy that can be implemented
without legal action. Great-West, Sereboff, US Airways, and
Montanile speak only to the former type of relief; they say
nothing of the latter. Consequently, while these cases
impose strict criteria for securing relief under § 502(a)(3),
they do not limit, or even address, the types of self-help
measures that may appear in an ERISA plan. In short, the
Great-West line of cases does not govern this case, and the
requirements those cases impose under § 502(a)(3) do not
prevent the Plan from enforcing a clear term such as the one
in this case.

The Mulls’ reliance on Bilyeu v. Morgan Stanley Long
Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012), is
misplaced for the same reasons. In Bilyeu, as in the cases
just discussed, a plan fiduciary brought a claim under
§ 502(a)(3) to enforce a reimbursement provision in the plan.
Id. at 1087–88. We therefore subjected the claim to the
requirements discussed in Great-West and Sereboff,
including the requirement that a fiduciary must seek
recovery from “specifically identified funds in the
28 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

beneficiary’s possession”—a condition that was not satisfied
in Bilyeu. Id. at 1095 (emphasis omitted). Like the cases on
which it relied, however, Bilyeu was concerned with actions
brought by fiduciaries under § 502(a)(3). It did not address
the scenario here, where a fiduciary has used a self-help
measure that requires no judicial enforcement.

Because the Plan does not seek to enforce its recoupment
provision through an action under § 502(a)(3), the Great-
West line of cases is inapposite. These cases do not
preclude—or say anything about—a fiduciary’s ability to
enforce a self-help provision like the one in this case. Nor
do these cases address the permissible scope of such
provisions. Thus, while the Plan could not enforce its
reimbursement claim through an action under § 502(a)(3),
that limitation does not bar it from enforcing its recoupment
provision here.

C. The Plan’s Self-Help Remedy Does Not Violate
ERISA’s Civil Enforcement Scheme

The district court further concluded that the Plan’s self-
help remedy violates ERISA’s “exclusive” civil
enforcement scheme. According to the court, the remedies
Congress provided in ERISA § 502 are meant to be
exclusive, and thus, the Plan may not impose an extra-
judicial remedy not set forth in the statute. The Mulls press
the same theory here, arguing that if a plan fiduciary wishes
to enforce the terms of a plan, it can do so only by bringing
an action for equitable relief under § 502(a)(3).

The Mulls support their argument with a pair of passages
from two Supreme Court cases, Massachusetts Mutual Life
Insurance Co. v. Russell, 473 U.S. 134 (1985), and Pilot Life
Insurance Co. v. Dedeaux, 481 U.S. 41 (1987). When the
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 29

passages are restored to context, however, it is clear that
neither case supports the Mulls’ argument.

First, the Mulls cite Massachusetts Mutual for the
proposition that “[t]he six carefully integrated civil
enforcement provisions found in § 502(a) of [ERISA] . . .
provide strong evidence that Congress did not intend to
authorize other remedies that it simply forgot to incorporate
expressly.” 473 U.S. at 146. But by “other remedies,” the
Supreme Court was referring to other causes of action. See
473 U.S. at 145–48. In Massachusetts Mutual, a beneficiary
sued her benefits plan for extracontractual compensatory or
punitive damages based on the plan’s temporary termination
of benefits, despite the fact that the plan had subsequently
restored benefits and paid all retroactive benefits to which
the beneficiary was entitled. Id. at 136–37. The Court
observed that “when Congress has enacted a comprehensive
legislative scheme including an integrated system of
procedures for enforcement,” the Court is “reluctant to
tamper with” such a scheme by supplying remedies not
expressly provided in the statute. Id. at 147 (citation
omitted). Although ERISA’s text and legislative history
reveal Congress’s “purpose to protect contractually defined
benefits,” they show no corresponding intent to sanction the
recovery of extracontractual damages. Id. at 148. Thus, the
Court held that “Congress did not provide, and did not intend
the judiciary to imply, a cause of action for extra-contractual
damages” under ERISA. Id. (emphasis added). But
Massachusetts Mutual did not address, let alone limit, a
plan’s ability to bargain for a self-help measures that may be
used without bringing a legal action.

Second, the Mulls cite Pilot Life for the proposition that
“[t]he deliberate care with which ERISA’s civil enforcement
remedies were drafted and the balancing of policies
30 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

embodied in its choice of remedies argue strongly for the
conclusion that ERISA’s civil enforcement remedies were
intended to be exclusive.” 481 U.S. at 54. As in
Massachusetts Mutual, though, the Supreme Court was
merely articulating the principle that ERISA excludes other
causes of action not expressly authorized in the statute. In
Pilot Life, a participant sued his benefits plan after it
terminated his long-term disability payments, but instead of
bringing a cause of action under ERISA, he asserted three
claims under state common law. Id. at 43. Invoking its
reasoning in Massachusetts Mutual, the Court concluded
once again that the “comprehensive civil enforcement
scheme” in ERISA § 502(a) precludes separate causes of
action not explicitly provided in the statute. Id. at 54.
Congress, it noted, clearly intended § 502(a) to serve as the
“exclusive vehicle for actions by ERISA-plan participants
and beneficiaries asserting improper processing of a claim
for benefits,” and thus, “varying state causes of action for
claims within the scope of § 502(a)” would frustrate that
congressional purpose. Id. at 52 (emphases added). Like
Massachusetts Mutual, then, Pilot Life simply prevents a
party from bringing a non-ERISA cause of action that falls
“within the scope of § 502(a).” Id.

Apart from their reliance on Massachusetts Mutual and
Pilot Life, the Mulls cannot reconcile their argument with the
fact that numerous courts, including this one, have upheld
self-help remedies similar to the one in this case.

For example, in Stuart v. Metropolitan Life Insurance
Co., 664 F. Supp. 619 (D. Me. 1987), aff’d, 849 F.2d 1534
(1st Cir. 1988) (mem.) (per curiam), the plaintiffs had signed
an agreement promising to reimburse their long-term
disability plan using any retroactive Social Security
disability payments they might eventually receive. Id.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 31

at 621. The agreement also authorized the plan to enforce
this right to reimbursement “by withholding or reducing
future long-term disability benefits.” Id. When the plaintiffs
failed to reimburse the plan as required, the administrator
began to recoup the Social Security disability payments by
withholding benefits. Id. Like the Mulls, the plaintiffs sued
the plan under ERISA § 502(a)(1)(B) to recover the withheld
benefits. Id. at 622 n.7. But the court, interpreting the “plain
and unambiguous language of the [p]lan,” upheld the
recoupment provision and granted summary judgment for
the plan. Id. at 623–24. The First Circuit subsequently
affirmed. 849 F.2d 1534.

We relied on Stuart in deciding Madden v. ITT Long
Term Disability Plan for Salaried Employees, 914 F.2d 1279
(9th Cir. 1990). As in Stuart, the plaintiff in Madden sued
his long-term disability plan under ERISA § 502(a)(1)(B),
arguing in relevant part that the plan should not be permitted
to reduce his benefits by any Social Security disability
award. Id. at 1282–83. Invoking Stuart, we observed that
“courts have upheld the recovery of retroactive [S]ocial
[S]ecurity awards by ERISA plans where such plans provide
for the reduction of benefits by such awards.” Id. at 1287.
Because the plan in Madden explicitly “provide[d] for the
reduction of [p]lan benefits by social security disability
awards,” we held that the plan was entitled to reduce the
plaintiff’s benefits by the amount of such awards. Id.

Stuart and Madden are not outliers: “Numerous courts
have approved of the recoupment of retroactive [Social
Security disability] awards.” White v. Coca-Cola Co.,
514 F. Supp. 2d 1353, 1372 (N.D. Ga. 2007) (gathering
cases), aff’d, 542 F.3d 848 (11th Cir. 2008). Nor has this
practice been limited to the recoupment of Social Security
disability payments. In Nesom v. Brown & Root, U.S.A.,
32 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

Inc., 987 F.2d 1188 (5th Cir. 1993), for example, the Fifth
Circuit held that a long-term disability plan could reduce its
monthly payments to a beneficiary after the beneficiary
received a retroactive workers’ compensation award. Id.
at 1190–91. After examining the relevant provision that
authorized this relief, the court cited Stuart and Madden in
concluding that the plan was “entitled to recoup the
retroactive award from future benefits payable.” Id. at 1194.

The Mulls try to distinguish this line of cases on two
grounds, neither of which is persuasive.

First, the Mulls contend that these cases “are not on point
because [they] involve[d] a plan member who was also a
recipient of the ‘identifiable fund’ of the Social Security or
workman’s compensation payment.” Thus, “under the
[Great-West]-Montanile line of cases,” the plans could have
a right to an equitable lien or constructive trust to recover
their benefits” under § 502(a)(3). But this argument
obscures a significant distinction between the Great-West
line of cases and those just discussed. In Stuart, Madden,
and Nesom, as in this case, the beneficiary was suing the plan
under ERISA § 502(a)(1)(B). 12 These cases did not involve
a fiduciary’s action for equitable relief under § 502(a)(3),
and thus, the “identifiable fund” requirement discussed in
Great-West and subsequent cases was of no relevance to
their holdings.

Second, the Mulls argue that cases such as Stuart,
Madden, and Nesom have little persuasive force because
12
The same was true in other cases cited by the Plan that the Mulls
suggest are distinguishable, namely Northcutt, Nordby v. Unum
Provident Insurance Co., No. 06-CV-117-EFS, 2009 WL 426123 (E.D.
Wash. Feb. 20, 2009), and Calloway v. Pacific Gas & Electric Co.,
800 F. Supp. 1444 (E.D. Tex. 1992).
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 33

they “predate[] the [Great-West]-Montanile line of cases”
construing the requirements for equitable relief under
§ 502(a)(3). But for reasons already discussed, the Great-
West line of cases does not impact the reasoning and
conclusions in these earlier cases, which did not involve
claims for equitable relief under § 502(a)(3). Indeed, the
Seventh Circuit’s decision in Northcutt v. General Motors
Hourly-Rate Employees Pension Plan, 467 F.3d 1031 (7th
Cir. 2006), which came after Great-West and Sereboff,
illustrates this principle.

In Northcutt, as in the cases just discussed, the plaintiffs
were required to reimburse their benefits plan if they also
received a retroactive award of Social Security disability
payments for the same period. 467 F.3d at 1032–33. If they
failed to do so, the plan was authorized “to make appropriate
deductions from any future compensation or insurance
benefits” payable to the beneficiary. Id. at 1033. After the
plan invoked its recoupment provision and began
suspending the plaintiffs’ benefits, the plaintiffs sued the
plan under § 502(a)(1)(B), arguing, as the Mulls do here, that
§ 502(a)(3) “provides the only mechanism through which
ERISA-covered entities may obtain reimbursement from
plan participants for violations of plan provisions.” Id.
at 1034.

The Seventh Circuit rejected this argument. As the court
explained, the Supreme Court cases interpreting ERISA—
including Massachusetts Mutual, Great-West, and
Sereboff—“lend no support to the view that Congress’ fine-
tuning of the judicial remedies available to various ERISA
entities was intended to preclude extra-judicial contractual
remedies such as the one at issue here.” Id. at 1036.
Whereas these cases focus narrowly on the “viability of
some form of judicial action for relief outside the statutory
34 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

terms,” they “simply do not address contractual
reimbursement schemes” like the one here. Id. at 1037.
Accordingly, the court affirmed the grant of summary
judgment in favor of the plan. Id. at 1038. Since Northcutt
was decided, other courts have adopted its reasoning, either
explicitly or implicitly, in rejecting similar challenges under
ERISA. See, e.g., White, 542 F.3d at 858 (affirming district
court decision that relied on Northcutt to uphold a
contractual recoupment remedy, and observing that Sereboff
was inapposite because the defendant had not sought judicial
relief under § 502(a)(3)). 13

In sum, the Plan’s recoupment provision does not violate
ERISA’s civil enforcement scheme. As our court and others
have recognized, plan fiduciaries may bargain for and
implement self-help remedies that do not require judicial
enforcement. Great-West and subsequent cases are not to
the contrary.

D. Res Judicata Does Not Bar the Plan’s Use of Its Self-
Help Remedy

Finally, the district court concluded that the Plan’s
ability to enforce its recoupment provision is barred by res
judicata. Res judicata “comprises two distinct doctrines
regarding the preclusive effect of prior litigation.” Lucky
Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S.

13
A panel of the Sixth Circuit has explicitly adopted Northcutt’s
reasoning, albeit in an unpublished opinion. See Shaffer v. Rawlings Co.,
424 F. App’x 422, 424–25 (6th Cir. 2011) (citing Northcutt for the
proposition that neither Great-West nor Sereboff “speak[s] to extra-
judicial contractual reimbursement schemes,” and concluding that while
these cases limit the scope of judicial relief under § 502(a)(3), they do
not “prevent[] the parties from agreeing to follow the terms of a contract
on their own”).
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 35

Ct. 1589, 1594 (2020). “The first is issue preclusion
(sometimes called collateral estoppel), which precludes a
party from relitigating an issue actually decided in a prior
case and necessary to the judgment.” Id. “The second
doctrine is claim preclusion (sometimes itself called res
judicata).” Id. The district court appeared to use res judicata
in the latter sense, referring solely to claim preclusion. See
Turtle Island Restoration Network v. U.S. Dep’t of State,
673 F.3d 914, 917 (9th Cir. 2012). In particular, the court
cited the two final judgments dismissing the Plan’s
counterclaim against Norman and Lenai. It also noted that
the Plan had not raised “the issue of its recoupment of
benefits” in its counterclaim and had failed to name Danielle
or Carson as defendants in that counterclaim. Without
elaborating, the court declared that the final judgments
dismissing the Plan’s counterclaim “serve as res judicata on
the underlying obligation of the Mulls to the . . . [P]lan.”

On appeal, the Mulls have tried to sharpen the district
court’s reasoning. They argue, for example, that a ruling in
favor of the Plan would be at odds with the final judgments
dismissing the Plan’s counterclaim, and that such an
outcome would undermine res judicata’s aim of preventing
inconsistent judgments. They also argue that under Rule 13
of the Federal Rules of Civil Procedure, the Plan was
required “to raise all claims it had against the Mull family”—
including its so-called “self-help” claim—“when it filed its
counterclaim arising from the same transaction.” Given the
Plan’s failure to do so, the Mulls argue that res judicata bars
it “from resurrecting” its “claims” for reimbursement against
Danielle and Carson, who “should have been included as
counter-defendants in the compulsory counterclaim.”
36 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

Assuming without deciding that res judicata potentially
applies, 14 we first address the argument that the final
judgments dismissing the Plan’s counterclaim against
Norman and Lenai preclude enforcement of its recoupment
provision. The doctrine of claim preclusion provides that “a
final judgment forecloses successive litigation of the very
same claim, whether or not relitigation of the claim raises the
same issues as the earlier suit.” Taylor v. Sturgell, 553 U.S.
880, 892 (2008) (citation and internal quotation marks
omitted). Claim preclusion “applies only where there is (1)
an identity of claims, (2) a final judgment on the merits, and
(3) privity between parties.” Turtle Island, 673 F.3d at 917
(citation and internal quotation marks omitted).

Even assuming that claim preclusion potentially applies
in this case, the first element of this defense is not satisfied
here. To determine whether there is an “identity of claims”
between two actions, id., courts must “determine whether
successive lawsuits involve a single cause of action,”

14
As a threshold matter, res judicata does not appear to be the
appropriate doctrine to apply under the procedural posture of this case.
Though neither party raises this issue, it is well-established that “[r]es
judicata applies as between separate actions, [but] not within the confines
of a single action on trial or appeal.” 18 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure:
Jurisdiction § 4404 (3d ed.); see also, e.g., Olivas-Motta v. Whitaker,
910 F.3d 1271, 1280 (9th Cir. 2018). In United States v. Walker River
Irrigation District, 890 F.3d 1161 (9th Cir. 2018), we concluded that for
purposes of res judicata, a counterclaim asserted within the same
litigation did not constitute a separate action, and thus, “traditional claim
preclusion and issue preclusion [did] not apply,” id. at 1172. Here, the
final judgments that supposedly have preclusive effect stem from
counterclaims asserted within this action. Under Walker River, then, res
judicata likely should not have come into play. Nonetheless, because the
parties did not brief this point, we do not decide the res judicata issue on
these grounds.
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 37

Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th
Cir. 1982). The district court erred in concluding that the
Plan’s counterclaim against Norman and Lenai under
§ 502(a)(3) is “identical” to the “claim” it has raised as a
defendant in this action. For purposes of claim preclusion, a
“claim” refers to a cause of action. See Costantini, 681 F.2d
at 1201. But what the district court erroneously described as
the Plan’s “claim” is simply an argument, raised in its
capacity as a defendant, that it is entitled to enforce the self-
help provision in the Plan. For the same reason, the Plan’s
failure to name Danielle or Carson in its counterclaim (an
omission which might, under some circumstances, trigger
preclusive effect) is irrelevant here, since there is simply no
“claim” being asserted by the Plan that might be barred by
res judicata. Accordingly, the Mulls cannot defeat summary
judgment based on claim preclusion.

Although the district court did not discuss the separate
doctrine of issue preclusion, it would arguably provide a
more apt framework for evaluating the preclusive effect (if
any) of the prior judgments in this case. In contrast to claim
preclusion, issue preclusion “bars successive litigation of an
issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment, even if
the issue recurs in the context of a different claim.” Taylor,
553 U.S. at 892 (emphasis added) (citation and internal
quotation marks omitted).

Here, while the district court purported to bar the Plan
from asserting a precluded “claim,” it actually barred the
Plan from raising a particular “issue of fact or law”—
namely, whether Norman is liable for reimbursement of
overpaid benefits, and, if so, whether the Plan may enforce
its recoupment provision. This issue, however, was not
“actually litigated and resolved” in either of the judgments
38 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN

dismissing the Plan’s counterclaim. Taylor, 553 U.S. at 892
(citation omitted).

With respect to the Plan’s counterclaim against Norman,
the district court’s dismissal of the counterclaim was based
on what it perceived to be conflicting representations by the
Plan. In its opposition to Norman’s Rule 12(b)(6) motion,
the Plan had stated that it sought to impose a constructive
trust “upon any portion” of Lenai’s recovery that was “in the
possession or control” of Norman. In an earlier submission
to the court, the Plan had stated that Lenai was “in possession
of the remaining funds from her recovery.” In the court’s
view, the Plan’s more recent assertion contradicted its
“earlier[,] unqualified statement” that the recovery was in
Lenai’s possession or control. Because the court had
accepted the Plan’s prior position, and because the Plan
would obtain an unfair advantage if allowed to change its
position, the court held that the Plan was judicially estopped
from alleging that Norman had control or possession over
any part of Lenai’s recovery. Since a claim for equitable
relief under § 502(a)(3) requires the plan administrator to
seek specifically identifiable funds in the defendant’s
possession or control, the court held that the Plan’s
counterclaim against Norman failed to state a necessary
element.

The district court dismissed the Plan’s counterclaim
against Lenai based on the claim’s discharge in bankruptcy
court. The Plan had brought an adversary action in the
bankruptcy court to prevent the discharge of Lenai’s debt,
alleging that she had breached a fiduciary duty and
committed defalcation in a fiduciary capacity. Despite this
opposition, the bankruptcy court ordered Lenai’s discharge
in August 2014, and the Plan dismissed its action by
 MULL V. MOTION PICTURE INDUSTRY HEALTH PLAN 39

stipulation a month later and subsequently withdrew an
objection to Lenai’s personal injury exemption.

In sum, neither the bankruptcy court nor the district court
ever ruled on whether Norman was liable to the Plan, let
alone on whether the Plan’s self-help provision was valid
and enforceable. The Plan’s counterclaim against Lenai and
Norman was dismissed on entirely separate grounds.
Because the relevant legal issues were never actually
litigated and resolved at prior points in the litigation, the
doctrine of issue preclusion—to the extent it applies at all—
provides no more relief than claim preclusion.

In light of this conclusion, we need not reach the parties’
remaining arguments.

III. Conclusion

Under the clear terms of the Plan Description, Norman is
liable for the reimbursement of Lenai’s benefits, and the Plan
is authorized to recoup those benefits through its self-help
provision. ERISA does not limit the use of such self-help
remedies, and neither contractual doctrines nor res judicata
prevent the Plan from enforcing this provision.

REVERSED AND REMANDED for further
proceedings with instructions to the district court to
enter an order granting summary judgment in favor of
the Plan.