If you are the fiduciary of an ERISA plan that invested in John Hancock group variable annuity contracts, we hope you have heard that three individuals have filed a lawsuit, claiming to be representing your plan and its participants and beneficiaries. You will not be receiving service of process.

Santomenno v. John Hancock Life Insurance Company is an “excessive fee” case. The Third Circuit held that a participant may bring ERISA Sections 502(a)(2) and (3) claims without first making demand upon the plan trustee who entered into the contract with the defendant, and without joining the plan trustee. The U.S. Supreme Court declined to consider the decision, so the case will move forward.

ERISA defines a participant as an employee or former employee who is eligible for a benefit in an employee benefit plan. Each named plaintiff participated in an employee benefit plan that invested in John Hancock contracts, but the Third Circuit decision did not name the employer(s) or their plans. Rather, the court simply grouped Danielle Santomenno, Karen Poley and Barbara Poley together and labeled them “Participants,” for convenience. We think there may be Constitutional or procedural hurdles with respect to claims involving the plans in which they participated, but our focus is on the other plans.

The “participant” label in Santomenno v. John Hancock Life Insurance Company could lead the district court to assume that ERISA gives an “Apple Employee Plan” participant standing to bring claims on behalf of the “Banana Employee Plan,” in which she was never a participant and never had any beneficial interest. We could use technical terms like privity, standing, and res judicata to explain why that can’t happen, or we could just put this in street terms: how do you jack a 401(k) plan?