Whether the judge-made 'effective vindication' exception to the Federal Arbitration Act may be used to invalidate an individual arbitration procedure in an ERISA-governed plan

question presented is whether the judgemade “effective vindication” exception to the FAA, which the Court has consistently refused to apply, may be used to circumvent the statutory mandates of the FAA and invalidate an individual arbitration procedure contained in an ERISA-governed plan. 2. Tothe extent the “effective vindication” exception to the FAA is viable, the lower courts are split about its effect on individual arbitration provisions contained in ERISA-governed plans. The split is based on (a) varying interpretations of the Court’s decision in LaRue v. DeWolff, Boberg, & Assocs., 552 U.S. 248 (2008), (b) the scope of the cause of action authorized by ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), and (c) the impact of Thole v. U.S Bank N.A., 590 U.S. 538 (2020), and Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022). The court below misconstrued LaRue and ignored the import of Thole and Viking River to find that ERISA guarantees a single plan participant an unwaivable statutory right to seek monetary relief, in a representative capacity, on behalf of all absent i plan participants and their individual plan accounts. In so holding, the lower court ignored the express limitation on the relief available set forth in ERISA § 502(a)(2) and the due process rights of absent plan participants and plan fiduciaries. The Second, Third, and Tenth Circuit have made similar errors. Other courts, however, have interpreted the Court’s precedent and ERISA § 502(a)(2) to avoid a conflict between ERISA and the FAA and to preserve the due process rights of absent plan participants and plan fiduciaries. Given the divergence among the lower courts as to the impact of the Court’s decisions on ERISA, the second question presented is whether a participant in an ERISA-governed plan has an unwaivable statutory right (or stated differently, a mandatory obligation) under ERISA § 502(a)(2) to represent the plan as a whole and seek monetary relief on behalf of all absent plan participants’ individual plan accounts, such that enforcement of a plan’s individual arbitration procedure would preclude the participant’s “effective vindication” of his ERISA statutory rights. ii