In the 1992 case of Mertens v. Hewitt Associates, the U.S. Supreme Court ruled that non-fiduciaries cannot be held liable for losses to a benefit plan under ERISA (Employee Retirement Income Security Act). The plaintiffs were participants in a retirement plan who alleged that Hewitt Associates, an actuarial consulting firm hired by their employer's pension fund, had given incorrect advice leading to significant financial loss for the fund. They sought relief under Section 502(a)(3) of ERISA which allows suits against fiduciaries and other parties 'in his capacity as' such. However, the court found that this provision did not extend liability to entities like Hewitt who acted only as service providers rather than fiduciaries with discretionary control over management or administration of the plan.

In the dissenting opinion for Mertens v. Hewitt Associates, Justice White argued that fiduciaries under ERISA should be held accountable for all losses resulting from their breach of duty, not just profits made through self-dealing. He contended that limiting liability to ill-gotten gains would undermine the purpose of ERISA and leave participants without full compensation for their losses. Furthermore, he disagreed with the majority's interpretation of "appropriate equitable relief", stating it was too narrow and inconsistent with Congress' intent when drafting ERISA. He believed this phrase should encompass any remedies traditionally considered equitable, including restitutionary damages or disgorgement of ill-gotten profits - even if they exceed actual harm suffered by plan participants.