On September 16, 2026, Cathy Pover filed a waiver of her right to respond to a Supreme Court petition filed against her. A week later, the case was distributed for the Court's October 9 conference. Normally that sequence ends one way: a quiet denial.
Then on October 1, the Court requested a response anyway, due November 2.
The Court does not ask for briefing it does not want. When a respondent waives and the justices call for a response regardless, it usually means at least one chambers flagged the petition as worth a closer look. For anyone holding a 401(k), the question that drew that attention is worth understanding.
The Question Presented
The petition in The Capital Group Companies, Inc. v. Pover (No. 26-267) asks whether "appropriate relief" for a defined-contribution-plan participant under ERISA § 502(a)(2) includes monetary recovery to other participants' individual retirement accounts.
Put plainly: if you sue your employer's 401(k) plan over mismanagement and win, does the money go back to the plan — repairing every account that was harmed — or only to yours?
The statutory plumbing matters here. ERISA § 409 makes a breaching fiduciary "liable to make good to such plan any losses." Section 502(a)(2) lets a participant sue for relief under § 409. In Massachusetts Mutual Life Insurance Co. v. Russell (1985), the Court held that recovery under § 409 runs to "the plan as a whole." But Russell was a defined-benefit case — a pension with a fixed promise. In LaRue v. DeWolff, Boberg & Associates (2008), the Court extended § 502(a)(2) to defined-contribution plans, permitting recovery for breaches "that impair the value of plan assets in a participant's individual account."
That phrase is the ambiguity. Does it describe whose losses are recoverable, or merely which kinds?
A Real Circuit Split
Capital Group's petition identifies a genuine disagreement, which is what makes it more than a routine appeal. The Fourth Circuit, in Trauernicht v. Genworth Financial (2026), limits defined-contribution plaintiffs to recovery for their own individual accounts. Seven circuits — including the Ninth Circuit in Pover — hold that § 502(a)(2) does not confine plaintiffs to losses suffered only in their own accounts.
The Ninth Circuit's July 30, 2026 decision arrived by a different route. Capital Group's plan contained an arbitration clause with a waiver of any claim brought on "a class, collective, or representative basis." Judge Forrest, writing for the panel, held that waiver unenforceable under the effective-vindication doctrine: because a fiduciary-breach claim under § 502(a)(2) can only be brought representatively, on the plan's behalf, forbidding representative claims would extinguish the right itself. Judge VanDyke dissented, reading "representative" to cover only class and collective actions.
One detail decided where the case lands. The plan's own waiver provision said that if a court found it unenforceable, representative claims would be filed in court — not arbitration. Capital Group's drafting sent the dispute to the forum it was trying to avoid.
Why It Matters to Your Account
Excessive-fee and imprudent-investment litigation is the primary private enforcement mechanism for 401(k) costs. That model depends on plan-wide recovery. If relief shrinks to the named plaintiff's balance, most cases stop being economically viable to bring — a few thousand dollars in individual losses will not fund years of litigation against a plan sponsor.
Two practical takeaways:
Read your plan's dispute-resolution terms. Check your summary plan description for a mandatory arbitration clause and whether it waives class, collective, or representative claims. Most participants have never looked. These clauses are increasingly common, and their enforceability now varies by circuit.
Do not wait for courts to police your fees. Litigation is a backstop, not a strategy. Pull your plan's fee disclosure, compare expense ratios against index alternatives in the same menu, and raise gaps with your benefits committee. Self-help is available today; the legal remedy is contingent on a question the Supreme Court has not yet agreed to answer.
Nothing is settled. A response request is interest, not a grant — and the Court may still deny review. But the November 2 deadline means this petition will be reconsidered at a conference later this fall.
Sources: Supreme Court of the United States, Docket No. 26-267; Petition for Certiorari, The Capital Group Companies, Inc. v. Pover (Aug. 19, 2026); Pover v. The Capital Group Companies, Inc., No. 24-5298 (9th Cir. July 30, 2026); Trauernicht v. Genworth Financial, Inc., 169 F.4th 459 (4th Cir. 2026)