Full opinion text
MATHESON, Circuit Judge. Great-West Life Annuity and Insurance Company ("Great-West") manages an investment fund that guarantees investors will never lose their principal or the interest they accrue. It offers the fund to employers as an investment option for their employees' retirement savings plans, which are governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. John Teets-a participant in an employer retirement plan-invested money in Great-West's fund. He later sued Great-West under ERISA, alleging Great-West breached a fiduciary duty to participants in the fund or that Great-West was a non-fiduciary party in interest that benefitted from prohibited transactions with his plan's assets. After certifying a class of 270,000 plan participants like Mr. Teets, the district court granted summary judgment for Great-West, holding that (1) Great-West was not a fiduciary and (2) Mr. Teets had not adduced sufficient evidence to impose liability on Great-West as a non-fiduciary party in interest. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND Great-West is a Colorado-based insurance company that provides "recordkeeping, administrative, and investment services to 401(k) plans." Aplt. App., Vol. II at 149. It qualifies as a service provider-a "person providing services to [a] plan"- under ERISA. See ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B). Mr. Teets participated through his employment in the Farmer's Rice Cooperative 401(k) Savings Plan ("the Plan"). Under the Plan, employees contribute to their own retirement accounts and choose how to allocate their contributions among the investment options offered. When employees invest in a particular fund, they become "participants" in that fund. Great-West contracts with the Plan and other comparable employer plans to offer the investment fund that is the subject of this case. Great-West is not in a contractual relationship with participants. In this section, we first provide an overview of the ERISA legal framework governing this appeal. We then detail the factual background of the case and the proceedings in the district court. A. Statutory Background 1. ERISA Protections Against Benefit Plan Mismanagement ERISA regulates employee benefit plans, including health insurance plans, pension plans, and 401(k) savings plans. It is a "comprehensive and reticulated statute, the product of a decade of congressional study of the Nation's private employee benefit system." Mertens v. Hewitt Assocs., 508 U.S. 248, 251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (quotations omitted). It governs employers that create and administer benefit plans as well as third parties that provide services for plans. See 29 U.S.C. § 1002(1), (4), (14), (16). ERISA seeks to protect employees against mismanagement of their benefit plans. See Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 15, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) ("The focus of the statute thus is on the administrative integrity of benefit plans."). "[T]o ensure that employees will not be left empty-handed," Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996), ERISA imposes fiduciary duties on those responsible for plan management and administration. See ERISA §§ 404, 406, 29 U.S.C. §§ 1104, 1106. "Congress commodiously imposed fiduciary standards on persons whose actions affect the amount of benefits retirement plan participants will receive." John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86, 96, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) ("Harris Trust"). 2. ERISA Fiduciaries a. Establishing fiduciary status- named and functional fiduciaries Under ERISA, a party involved in managing a benefit plan takes on fiduciary obligations in one of two ways. See In re Luna, 406 F.3d 1192, 1201 (10th Cir. 2005). First, the instrument establishing a plan must specify at least one fiduciary-typically the employer or a trustee-that will have the "authority to control and manage the operation and administration of the plan." ERISA § 402(a), 29 U.S.C. § 1102(a). These are "named fiduciaries." See Maez v. Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1498 (10th Cir. 1995) (defining "named fiduciary"). Second, a party not named in the instrument can nonetheless be a "functional fiduciary" by virtue of the authority the party holds over the plan. See Santomenno v. Transamerica Life Ins. Co., 883 F.3d 833, 837 (9th Cir. 2018) ("Transamerica Life Insurance"); David P. Coldesina, D.D.S., P.C., Emp. Profit Sharing Plan & Tr. v. Estate of Simper, 407 F.3d 1126, 1132 (10th Cir. 2005) ("Coldesina") (describing the "functional" approach to evaluating fiduciary status). Under § 3(21)(A) of ERISA, a party becomes a functional fiduciary when (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A) (emphasis added). Functional fiduciaries' obligations are limited in scope: "Plan management or administration confers fiduciary status only to the extent the party exercises discretionary authority or control." Coldesina, 407 F.3d at 1132. And they must actually exercise their authority or control over the plan's assets. Leimkuehler v. Am. United Life Ins. Co., 713 F.3d 905, 914 (7th Cir. 2013) (explaining that a decision not to exercise control over a plan's assets does not confer fiduciary status). Any alleged breach of a functional fiduciary's obligations must arise out of an exercise of that authority or control. See id. at 913; Assocs. in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 569 (7th Cir. 1991). As the following discussion illustrates, although named fiduciaries and functional fiduciaries obtain fiduciary status in different ways, they are bound by the same restrictions and duties under ERISA. b. Fiduciary duties and prohibited transactions Section 404 of ERISA imposes general duties of loyalty on fiduciaries, requiring them to "discharge [their] duties with respect to a plan solely in the interest of the participants and beneficiaries" and "for the exclusive purpose of ... [1] providing benefits as to participants and their beneficiaries; and [2] defraying reasonable expenses of administering the plan." 29 U.S.C. § 1104(a)(1). In addition to imposing general duties, ERISA prohibits fiduciaries from engaging in certain specific transactions. First, it restricts transactions between plans and fiduciaries. Under § 406(b)(1), a fiduciary may not "deal with the assets of the plan in his own interest or for his own account." 29 U.S.C. § 1106(b)(1). Second, ERISA restricts transactions between fiduciaries and non-fiduciary third parties, referred to as "parties in interest." The latter can include service providers. See ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B). Under § 406(a), a fiduciary may not allow a plan to engage in a transaction the fiduciary knows or should know is (1) a "sale or exchange, or leasing, of any property between the plan and a party in interest"; (2) "lending of money or other extension of credit between the plan and a party in interest"; (3) "furnishing of goods, services, or facilities between the plan and a party in interest"; (4) "transfer to, use by or for the benefit of, a party in interest, of any assets of the plan"; or (5) "acquisition, on behalf of the plan, of any employer security or employer real property in violation of [§] 1107(a)." 29 U.S.C. § 1106(a)(1)(A)-(E). If a fiduciary engages in one of these prohibited transactions under § 406, ERISA's civil enforcement provision, § 502, allows plan participants to sue the fiduciary "to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan" or "to obtain other appropriate equitable relief." ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). Fiduciaries can avoid liability for a prohibited transaction if they qualify for certain exemptions under § 408 of ERISA. 3. ERISA Non-Fiduciary Parties in Interest and Prohibited Transactions Although parties in interest have no fiduciary obligations to a plan or its participants, the Supreme Court has read § 502(a)(3) to allow a suit against a party in interest for its participation in a prohibited transaction. Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 241, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) ("Salomon") ("[Section] 502(a)(3) admits of no limit ... on the universe of possible defendants."). A party in interest is liable if it "had actual or constructive knowledge of the circumstances that rendered the transaction unlawful"-that is, prohibited under § 406(a). Id. at 251, 120 S.Ct. 2180. We discuss this standard in detail below. B. Factual Background 1. The Key Guaranteed Portfolio Fund a. Overview Great-West offers an investment product called the Key Guaranteed Portfolio Fund ("KGPF"). The KGPF is a stable-value fund. It "guarantees capital preservation." Aplt. App., Vol. II at 150. This means KGPF participants will never lose the principal they invest or the interest they earn, which is credited daily to their accounts. Id. The KGPF was one of 29 investment options the Farmer's Rice Cooperative Plan's fiduciaries chose to offer participants like Mr. Teets. b. Great-West's management of the KGPF and the Credited Interest Rate Great-West deposits the money that participants have invested in the KGPF into its general account. That account, in turn, is invested in fixed-income instruments such as treasury bonds, corporate bonds, and mortgage-backed securities. Great-West employs a self-described "conservative investment strategy." Id. at 157, 173. Its investments earn lower interest rates than some higher-risk instruments or funds. Money invested in the KGPF earns interest at the "Credited Interest Rate" (the "Credited Rate"). Under the contracts it executes with employer plans, Great-West sets the Credited Rate quarterly, announcing the new rate at least two business days before the start of each quarter. Its contract with Mr. Teets's Plan provides, "Interest earned on the Key Guaranteed Portfolio Fund value is compounded daily to the effective annual interest rate. The interest rate to be credited to the Group Contractholder [the Plan] will be determined by [Great-West] prior to the last day of the previous calendar quarter." Aplt. App., Vol. I at 129. "The effective annual interest rate will never be less than 0%." Id. Great-West retains as revenue the difference between the total yield on the KGPF's monetary instruments and the Credited Rate, also known as the "margin" or the "spread." Some portion of the margin goes toward Great-West's operating costs. Great-West publicly discloses an administrative fee of .89 percent, but claims that figure does not capture all the costs associated with maintaining the KGPF. Great-West retains as profit whatever portion of the margin exceeds its costs. The parties dispute the total KGPF-associated profit Great-West has earned, but all agree that as of 2016 it was greater than $ 120 million. The Credited Rate dropped from 3.55 percent before the financial crisis in 2008 to 1.10 percent in 2016. During that time, the Credited Rate increased only once, in 2013. At the same time, Great-West's margin remained relatively constant, between approximately two and three percent. c. Exiting the KGPF Plans may terminate their relationship with Great-West based on changes to the Credited Rate. If they do, Great-West "reserves the right to defer payment" of participants' KGPF money back to the plan- presumably to reinvest with another provider -"not longer than 12 months." Id. There is no evidence Great-West has ever exercised the option to impose that waiting period. Participants who have placed their money in the KGPF may withdraw their principal and accrued interest at any time without paying a fee. Great-West does, however, prohibit plans offering the KGPF from also offering any other stable value funds, money market funds, or certain bond funds-in other words, products with comparable risk profiles. C. Procedural Background Mr. Teets sued Great-West in the United States District Court for the District of Colorado on behalf of all employee benefit plan participants who had invested in the KGPF since 2008, as well as those participants' beneficiaries. The district court certified the class under Federal Rule of Civil Procedure 23(b)(3). See Teets v. Great-West Life & Annuity Ins. Co., 315 F.R.D. 362, 374 (D. Colo. 2016). At certification, the class included approximately 270,000 KGPF participants spread across more than 13,000 plans. Id. at 369. None of the plans' named fiduciaries is a named plaintiff or a member of the class. 1. Mr. Teets's ERISA Claims Mr. Teets alleged three ERISA violations. His first two claims alleged Great-West had violated ERISA's fiduciary duty provisions. First, Mr. Teets claimed that Great-West had breached its general duty of loyalty under § 404 by (1) setting the Credited Rate for its own benefit rather than for the plans' and participants' benefit, (2) setting the Credited Rate artificially low and retaining the difference as profit, and (3) charging excessive fees. Second, he claimed that Great-West, again acting in its fiduciary capacity, had engaged in a prohibited transaction under § 406(b) by "deal[ing] with the assets of the plan in [its] own interest or for [its] own account." 29 U.S.C. § 1106(b). As a prerequisite to bring both of these claims, Mr. Teets alleged that Great-West is an ERISA fiduciary because it exercises authority or control over the quarterly Credited Rate and, by extension, controls its compensation. The district court limited its review of these two fiduciary duty claims by addressing only this prerequisite -that is, whether Mr. Teets had sufficiently established Great-West's fiduciary status. Because the court found that Great-West was not a fiduciary, it did not address whether Great-West had breached any fiduciary obligations. Great-West's fiduciary status is thus the focus of our review of Mr. Teets's fiduciary duty claims. Mr. Teets's third claim, raised in the alternative, was based on Great-West's having non-fiduciary status. He alleged that Great-West was a non-fiduciary party in interest to a non-exempt prohibited transaction under § 406(a) insofar as it had used plan assets for its own benefit. On all three claims, Mr. Teets sought declaratory and injunctive relief and "other appropriate equitable relief," including restitution and an accounting for profits. Aplt. App., Vol. I at 37. 2. Summary Judgment Ruling After discovery, the parties filed cross-motions for summary judgment. The district court denied Mr. Teets's motion and granted summary judgment for Great-West. It disposed of Mr. Teets's first two claims at the same time, concluding that Great-West was not acting as a fiduciary of the Plan or its participants. It held that Great-West's contractual power to choose the Credited Rate did not render it a fiduciary under ERISA because participants could "veto" the chosen rate by withdrawing their money from the KGPF. Id. at 99. As to Great-West's ability to set its own compensation, the court held that Great-West did not have control over its compensation and thus was not a fiduciary because the ultimate amount it earned depended on participants' electing to keep their money in the KGPF each quarter. The district court also granted summary judgment on Mr. Teets's third claim, concluding that Great-West was not liable as a non-fiduciary party in interest because Mr. Teets had failed to establish a genuine dispute as to whether Great-West had "actual or constructive knowledge of the circumstances that rendered the transaction unlawful." Id. at 105 (quoting Salomon, 530 U.S. at 251, 120 S.Ct. 2180). Mr. Teets timely appealed. Our review thus focuses on (1) whether Great-West is a functional fiduciary because it "exercises ... authority or control" over Plan assets, ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), when its sets the Credited Rate or its compensation; and (2) whether, if Great-West is not a fiduciary, it is liable as a non-fiduciary party in interest for its participation in a transaction prohibited under ERISA. We will add further factual and procedural background as it becomes relevant. D. Summary Judgment Background "We review a grant of summary judgment de novo, applying the same legal standard as the district court." Coldesina, 407 F.3d at 1131. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the evidence and draw reasonable inferences in the light most favorable to the nonmoving party. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). "The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). A movant that does not bear the burden of persuasion at trial may satisfy this burden "by pointing out to the court a lack of evidence on an essential element of the nonmovant's claim." Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). "If the movant meets this initial burden, the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant." Id. (quotations omitted). To satisfy this burden, the nonmovant must identify facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. (citation omitted). These facts "must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001). "Where, as here, we are presented with cross-motions for summary judgment, we must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor." United States v. Supreme Ct. of N.M., 839 F.3d 888, 906-07 (10th Cir. 2016) (quotations omitted). II. DISCUSSION Mr. Teets argues that (A) Great-West is a fiduciary because it has the authority to set the Credited Rate each quarter and, by extension, to determine its own compensation; and (B) even if Great-West is not a fiduciary, it is nonetheless liable as a party in interest because it benefitted from a transaction prohibited under ERISA. A. Fiduciary Duty Claims-Great-West's Fiduciary Status The threshold question for the two fiduciary duty claims is whether Great-West is a functional fiduciary under ERISA. Mr. Teets argues it is because Great-West exercises "authority or control" over the Plan or its assets by changing the Credited Rate without plan or participant approval. Aplt. Br. at 17-19, 25-26. He also contends Great-West has sufficient control over its own compensation to render it an ERISA fiduciary. We conclude that Mr. Teets did not make an adequate showing in response to Great-West's summary judgment motion to support these points. The following discussion describes the pertinent legal background, summarizes the district court's ruling, and analyzes the evidence of Great-West's authority in relation to plans and participants. 1. Legal Background As noted above, a service provider can be a functional fiduciary under § 3(21)(A) of ERISA when it exercises authority or control over plan management or plan assets. See 29 U.S.C. § 1002(21)(A). Courts consider an employee benefit plan contract -like the one between Mr. Teets's Plan and Great-West-to be an asset of the plan, such that a service provider's authority or control over the plan contract can give rise to fiduciary status. See Chicago Bd. Options Exch., Inc. v. Conn. Gen. Life Ins. Co., 713 F.2d 254, 260 (7th Cir. 1983) ("CBOE") ("[T]he policy itself is a plan asset."); accord ERISA § 401(b)(2), 29 U.S.C. § 1101(b)(2) (providing that a contract for a guaranteed-benefit policy is an asset of the plan to which it is issued). The case law points to a two-step analysis to determine whether a service provider is a functional fiduciary when a plaintiff alleges it has acted to violate a fiduciary duty. First, courts decide whether the service provider's alleged action conformed to a specific term of its contract with the employer plan. By following the terms of an arm's-length negotiation, the service provider does not act as a fiduciary. See, e.g., Schulist v. Blue Cross of Iowa, 717 F.2d 1127, 1132 (7th Cir. 1983) (holding service provider was not fiduciary where its compensation was established through successive negotiations). Second, if the service provider took unilateral action beyond the specific terms of the contract respecting the management of a plan or its assets, the service provider is a fiduciary unless the plan or perhaps the participants in the plan (see below) have the unimpeded ability to reject the service provider's action or terminate the relationship with the service provider. See, e.g., Midwest Cmty. Health Serv., Inc. v. Am. United Life Ins. Co., 255 F.3d 374, 377-78 (7th Cir. 2001) (holding service provider was fiduciary when it could make changes to plan contract without plan approval and would assess a fee for plans withdrawing funds). Thus, to establish a service provider's fiduciary status, an ERISA plaintiff must show the service provider (1) did not merely follow a specific contractual term set in an arm's-length negotiation; and (2) took a unilateral action respecting plan management or assets without the plan or its participants having an opportunity to reject its decision. a. Arm's-length negotiation of contract terms When a service provider adheres to a specific contract term that is the product of arm's-length negotiation, courts have held that the service provider is not a fiduciary. Schulist provides a useful example. 717 F.2d at 1132. In Schulist, a service provider won a contract to administer an employer's health care plan by submitting the winning bid-the lowest premium price-in a competitive bidding process. Id. at 1129. During the first year of operating under the contract, premium payments resulted in a large surplus. Id. The parties agreed to a lower premium for the second year, but the surplus returned. In the third year, the parties negotiated a new contract whereby any surplus would be returned to the plan. Id. The employer's trustees sued the service provider for breach of contract and breach of fiduciary duty. Id. at 1130. The Seventh Circuit concluded that the service provider was not a fiduciary because, during the initial auction and at every subsequent renewal, "[the insurer] entered into an arm's length bargain presumably governed by competition in the marketplace." Id. at 1132. A service provider similarly does not owe a fiduciary duty regarding its compensation when compensation is fixed during an arm's-length negotiation. In Transamerica Life Insurance, for example, the Ninth Circuit held that the manager of an employee retirement plan was not an ERISA fiduciary as to its compensation because the plan contract set the manager's compensation at a fixed percentage of the plan's assets, and it also provided a specific schedule for fees the manager could collect. 883 F.3d at 836; see also F.H. Krear & Co. v. Nineteen Named Trs., 810 F.2d 1250, 1254-55, 1259 (2d Cir. 1987) (holding service provider was not a fiduciary when the contract that defined the amount of its compensation was the product of an arm's-length negotiation). b. Unilateral decisions regarding plan or asset management When a service provider acts with authority or control beyond the contract's specific terms, the service provider may be a fiduciary. And when the plan or the plan participants cannot reject the service provider's action or terminate the contract without interference or penalty, the service provider is a functional fiduciary. See, e.g., Charters v. John Hancock Life Ins. Co., 583 F.Supp.2d 189, 199 (D. Mass. 2008) (holding service provider was fiduciary where plan attempting to terminate contract faced "built-in" monetary penalties). Fiduciary status turns on whether the service provider can force plans or participants to accept its choices about plan management or assets. See, e.g., CBOE, 713 F.2d at 260 (finding fiduciary status where service provider "determined what type of investment the Plan must make"). The cases discussed in this section address whether plans faced impediments to rejecting service providers' actions. In some cases, the service provider's unilateral decision changes a term of the plan contract. For example, in CBOE, a service provider provided investment services for an employee retirement benefit plan. Id. at 255-56. Under the contract, contributions made on behalf of each plan participant were deposited into an individual account. Id. at 256. The service provider announced that it was going to restructure the investment options it provided to the plan by creating a new account for each participant and annually transferring 10 percent of the balance from the participant's original account to the new one, which was supposed to yield a higher rate of return. Id. This "unilateral" restructuring effectively amended the original terms of the contract. Id. If the plan disagreed with this approach and sought to terminate the contract and withdraw its participants' funds to reinvest them elsewhere, the service provider could limit the plan's withdrawal of funds to 10 percent of the total balance per year, effectively requiring 10 years to withdraw all of the funds. Id. The Seventh Circuit held that this restriction "lock[ed] [the plan] in" and made the service provider a functional fiduciary. Id. at 260. In other cases, the contract may "grant[ ] [a service provider] discretionary authority" over an aspect of plan or asset management. Ed Miniat, Inc. v. Globe Life Ins. Grp., Inc., 805 F.2d 732, 737 (7th Cir. 1986). In those cases, too, the service provider's discretionary decision making- though authorized by contract-is "cabined by ERISA's fiduciary duties" unless plans or participants can freely reject the service provider's choices or terminate the contract. Edmonson v. Lincoln Nat'l Life Ins. Co., 725 F.3d 406, 422 (3d Cir. 2013). For example, in Ed Miniat, the service provider contracted with an employer to provide investment services for an employee insurance plan. Under the plan contract, the employer paid premiums to make life insurance available to employees upon their retirement. See 805 F.2d at 733-34. The service provider had the "apparent unilateral right to reduce the rate of return" it paid on the employer's contributions. Id. at 734. Before it issued any insurance under the plan, the service provider reduced the rate of return from 10 percent to 4 percent (the lowest value allowed by the contract) and increased premiums. Id. When the employer sought to terminate the contract, the service provider refused to reimburse half of the premiums the employer had paid. The Seventh Circuit held the service provider was a fiduciary, reasoning that it had the power to unilaterally amend the contract. Id. at 738. In contrast to the foregoing cases holding a service provider to be a fiduciary, when plans and participants have a "meaningful opportunity" to reject a service provider's unilateral decision, courts have held the service provider is not a fiduciary. Charters, 583 F.Supp.2d at 199. For example, in Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009), the Seventh Circuit declined to impose fiduciary duties on a fund manager that was retained to advise a plan on which investment options to include in the plan. Id. at 578, 584. It reasoned that the plan contract gave the plan, not the fund manager, "final say on which investment options [would] be included." Id. at 583; see Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 295 (3d Cir. 2014) ("John Hancock") (holding no fiduciary relationship arose from service provider providing suggested list of funds where "trustees still exercised final authority over what funds would be included"). In Zang and Others Similarly Situated v. Paychex, Inc., the employee benefit plan selected mutual funds to offer its participants from a list composed by a service provider. 728 F.Supp.2d 261, 263 (W.D.N.Y. 2010). The service provider "reserve[d] the right to modify" the list of mutual funds the plan selected. Id. The contract required at least 60 days' notice of a proposed modification and an opportunity for the plan to reject the change or terminate the contract. Id. at 263-64. The court held that the service provider's ability to amend the list of available mutual funds did not give rise to fiduciary status because the contract gave the plan the ultimate say over whether the change would take effect. Id. at 271 n.6 ("Paychex could not force the employer to accept any particular deletion or substitution."). The foregoing analysis applies to determining whether a service provider's control over its own compensation may make it a fiduciary. A contract might give a service provider "control over factors that determine the actual amount of its compensation." Krear, 810 F.2d at 1259. If the service provider exercises unilateral control over those factors, it can be a fiduciary. In Pipefitters Local 636 Insurance Fund v. Blue Cross and Blue Shield of Michigan, the Sixth Circuit held an insurer was a fiduciary as to its compensation. 722 F.3d 861 (6th Cir. 2013). State law required the service provider to pay one percent of its total income to the state, and its contract with the plan entitled it to pass along that cost to the plan. Id. at 864 (detailing provision allowing "any cost transfer subsidies or surcharges ordered by the State Insurance Commissioner ... [to] be reflected in the ... Amounts Billed"). But "the state did not fix the rate that Defendant charged each customer, and crucially, neither did the [contract] between Plaintiff and Defendant." Id. at 867 (emphasis added). Because the contract "in no way cabin[ed] [the provider's] discretion" to decide how much of the fee to collect from each plan, the court held the service provider was an ERISA fiduciary. Id. 2. District Court Ruling The district court evaluated whether Great-West is a fiduciary based upon its changes to the Credited Rate and control over its compensation. a. Change to the Credited Rate The district court held that Great-West is not a fiduciary when it sets the Credited Rate. It acknowledged that "in some sense," Great-West "undoubtedly" exercises some control when it sets the Credited Rate. Aplt. App., Vol. I at 92. But the court recognized "a number of cases favoring the theory that a pre-announced rate of return prevents fiduciary status from attaching to the decision regarding the what [sic] rate to set, at least when the plan and/or its participants can `vote with their feet' if they dislike the new rate." Id. "Thus," the court stated, "if the all the [sic] circumstances of the alleged ERISA-triggering decision show that the defendant does not have power to force its decision upon an unwilling objector, the defendant is not acting as an ERISA fiduciary with respect to that decision." Id. at 98. The court discussed this issue separately as it concerned plans and participants. First, as to Great-West's ability to bind plans to its Credited Rate decisions, the district court rejected Mr. Teets's argument that plans cannot readily withdraw from the KGPF because Great-West has a right to impose a waiting period of up to one year. The court stated, "This is not an argument that the Court can consider in the present posture.... [W]hether [the waiting period] would actually be imposed... is speculative." Id. at 99. Second, as to individual participants' ability to reject the Credited Rate, the district court concluded that participants do have a "real ability" to reject Great-West's choice of the Credited Rate by withdrawing their funds from the KGPF without fee or penalty. Id. Although it had "given serious thought to" the argument that participants cannot easily withdraw from the KGPF because Great-West prohibits plans from offering other comparable investment products, the court concluded that imposing a fiduciary duty on that basis would "introduce[ ] a host of other considerations individual to each participant." Id. As a result, it would be "too attenuated" to say that a given participant could not reject the Credited Rate each quarter. Id. b. Control over compensation The district court also concluded Great-West is not a fiduciary as to setting its compensation. Although it acknowledged that a service provider's control over compensation factors can give rise to fiduciary obligations, the court said this principle "has only been applied in cases where the alleged fiduciary has some form of direct contractual authority to establish its fees and other administrative charges, or has authority to approve or disapprove the transactions from which it collects a fee." Id. at 100. The court also reasoned that Great-West does not have control over its compensation because, even though it could use the Credited Rate to "influence its possible margins," the ultimate amount it earns depends on whether participants elect to keep their money in the KGPF each quarter. Id. at 101. 3. Analysis Mr. Teets argues that Great-West's ability to set the Credited Rate renders it an ERISA fiduciary because neither the Plan nor its participants can reject changes to the Credited Rate. He focuses on Great-West's (1) contractual right to impose a 12-month waiting period on withdrawing plans and (2) prohibition on plans' offering comparable investment options to participants. We conclude that Mr. Teets has not adduced sufficient evidence to create an issue of material fact as to whether either of the foregoing has prevented plans or participants from rejecting a change in the Credited Rate. Mr. Teets separately argues that Great-West's control over the Credited Rate gives it control over its compensation and thereby renders it an ERISA fiduciary. We conclude that because Great-West does not have unilateral authority or control over the Credited Rate, it also lacks such control over its compensation. We therefore affirm the district court's summary judgment ruling that Great-West is not a functional fiduciary. a. Change to the Credited Rate The contract between the Plan and Great-West does not set a Credited Rate or prescribe a Credited Rate formula. Instead, it authorizes Great-West to set the Credited Rate on a quarterly basis without input from the Plan or its participants. Accordingly, the Credited Rate is not the product of an arm's-length negotiation, and Great-West's fiduciary status therefore depends on whether the Plan or its participants can reject a change in the Credited Rate. To make that determination, we address Great-West's (1) right to impose a 12-month waiting period on departing plans and (2) prohibition on plans offering comparable investment options to their participants. i. Potential 12-month waiting period for withdrawing plans As discussed above, a service provider's unilateral decision regarding management of a plan or its assets can give rise to functional fiduciary status if the service provider can prevent or penalize plans for withdrawing funds from the service provider or terminating the contract. See, e.g., CBOE, 713 F.2d at 260; Charters, 583 F.Supp.2d at 199. When Great-West changes the Credited Rate, its contractual option to delay a plan's ability to receive funds from the KGPF upon termination of the contract may make it a fiduciary. Mr. Teets contends that Great-West, like service providers held to be fiduciaries in CBOE, Ed Miniat, and Midwest Community Health, has "unhampered discretion" under ERISA because it has "the ability"-even if never used-"to force plans to accept the Credited Rate for up to a year." Aplt. Reply Br. at 7 (quotations omitted); see Aplt. Br. at 21-23. Great-West argues that its contractual option to delay the return of a departing plan's funds does not establish fiduciary status because it has never exercised this right. Aplee. Br. at 29. It relies on ERISA's text, which confers fiduciary status on a service provider only to the extent it "exercises any discretionary authority or discretionary control" over a plan or its assets. ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A); see also Leimkuehler, 713 F.3d at 911 (declining to recognize fiduciary status where service provider "reserve[d] the right to make substitutions to the funds" but "ha[d] never exercised this contractual right in a way that could give rise to a claim"). We agree with Great-West that its contractual option to impose a 12-month waiting period on plan withdrawal is different from the penalties and fees that gave rise to fiduciary status in the cases cited by Mr. Teets. In those cases, the penalties either had been or were certain to be enforced on the plans. See, e.g., Ed Miniat, 805 F.2d at 734 (service provider actually "deducted `front end load' charges" upon contract cancellation); Midwest Cmty. Health Serv., Inc., 255 F.3d at 375 (service provider "would assess a withdrawal or `surrender charge' and make an `investment liquidation adjustment'" upon withdrawal); Charters, 583 F.Supp.2d at 191 (plan was "subject to administrative charges" and "termination fees" upon cancellation or transfer of funds). In other words, the service providers' rights to impose penalties in those cases had been or were certain to be "exercised." See ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). But in this case, a plan's attempt to terminate its KGPF contract in response to a change in the Credited Rate does not trigger the waiting period. Great-West must exercise its option to impose it, and Great-West never has. We are not aware of any case finding fiduciary status under § 3(21)(A) of ERISA based on a service provider's unexercised contractual option to restrict or penalize withdrawal. But even if a potential restriction or penalty could make Great-West a fiduciary, it cannot do so in this case. This is so because Mr. Teets not only has provided no evidence that Great-West has ever imposed the waiting period on a plan's withdrawal, he has provided no evidence that even the potential of Great-West's imposing a waiting period has affected any plan's choice to continue with or withdraw from the KGPF contract. More than 3,000 plans have terminated the KGPF as a plan offering during the class period. Mr. Teets has not provided a single example showing the potential waiting period has deterred any of the 13,000 plans represented by participants in the class from withdrawing from the KGPF. Unlike in CBOE, there is no evidence a plan has actually been or is likely to be locked in to a Credited Rate for up to 12 months. See 713 F.2d at 260. Without any evidence that Great-West has exercised its right or that the right has deterred any plan from exiting the KGPF, summary judgment in favor of Great-West on this issue was appropriate. ii. Prohibition on comparable investment options for participants We next turn to whether plan participants -the class members in this case- can reject the quarterly Credited Rate by withdrawing from the KGPF. When Great-West moved for summary judgment contesting fiduciary status, it argued that "[t]he evidence shows that" when it changes the Credited Rate, "participants, not Great-West, have the `final say' on whether any Credited Interest Rate will apply to their investments in the [KGPF]." Aplt. App., Vol. II at 176. Great-West contended that this was so because participants who have invested in the KGPF "can reject any new Credited Interest Rate by transferring their accounts out of the [KGPF] at any point, without penalty." Id.; see also id. at 151, 282-83. In response, Mr. Teets made two arguments, both unavailing. First, he disagreed that Great-West's fiduciary status may turn on whether participants can freely withdraw from the KGPF. He repeats this contention on appeal: "participants' ability to `accept' or `reject' Great-West's Credited Rate decision is legally irrelevant." Aplt. Reply Br. at 9. It is not clear to us why Mr. Teets would take this position, but if this were his only argument and we have understood it properly, he would have effectively conceded that participants' ability to leave the KGPF, impeded or unimpeded, has no effect on whether Great-West is a fiduciary. Second, Mr. Teets argued, alternatively, in his opposition to summary judgment, that Great-West is a fiduciary because "Great-West precludes plans from offering alternative low-risk investments alongside the KGPF" and therefore participants are not free to leave. Aplt. App., Vol. II at 301. He noted that when his Plan contracted with Great-West, it agreed that no stable value fund-effectively, no fund with a similar risk profile-would be offered that is comparable to the KGPF. Id. at 292-93, 301. As a result, "participants who divest from the KGPF in response to a change in Credited Rate are forced to alter the risk profile of their retirement accounts." Id. at 301. It follows, he asserted, that Great-West is a fiduciary as to setting the Credited Rate. See id. Mr. Teets's opposition to summary judgment on this alternative ground lacked supporting law or facts. He has not cited, and we have not found, a case in which a court has deemed a service provider to be a fiduciary based on participants' lack of alternative investment options, or on anything other than imposing a penalty or fee for withdrawal. Moreover, Mr. Teets has not cited, and we have not found, a case finding fiduciary status based solely on restrictions on participants' ability to leave a fund. Even if the ability of participants to reject service provider actions is relevant to the fiduciary status, Mr. Teets failed to provide factual support to counter Great-West's assertion in district court that participants can freely transfer their money out of the KGPF. See id. at 176. He pointed only to Great-West's policy against competing funds. He adduced no evidence that this policy forced participants to accept a Credited Rate or that they felt effectively locked in to the KGPF. See CBOE, 713 F.2d at 260. Like the 12-month waiting period's potential effect on plans, the restriction on competing investment options may impede participants from exiting the KGPF. But as with the waiting period, Mr. Teets offered no evidence that the competing fund provision has affected any of the 270,000 participants' decisions to stay with or leave the KGPF. Mr. Teets has not even alleged that the competing fund provision has affected his own choice about participation in the KGPF. In sum, in response to Great-West's contention that it should receive summary judgment because the plan participants are free to leave the KGPF after a change in the Credited Rate, Mr. Teets said (1) the participants' freedom to leave the KGPF is not relevant to fiduciary status and (2) if it were, Great-West is a fiduciary because the limit on competing funds restricted participants' ability to leave. The first point seems to concede the issue to Great-West. On the second, Mr. Teets failed to provide legal support or "`set forth specific facts' from which a rational trier of fact could find" in his favor. Libertarian Party of N.M., 506 F.3d at 1309 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). * * * * Summary judgment on the issue of Great-West's authority or control over the Credited Rate was proper. b. Control over compensation Mr. Teets's failure to show Great-West has authority or control over the Credited Rate means he cannot show Great-West has authority or control over its compensation. Great-West argues, and Mr. Teets does not contest, that its compensation is a function not only of the Credited Rate, but also of "(1) the willingness of plans and participants to accept the Credited Interest Rates that Great-West offers; and (2) the performance of the volatile financial markets in which Great-West invests its general account." Aplee. Br. at 31. Of these variables, Mr. Teets contends Great-West has control over the Credited Rate. He acknowledges any control Great-West has over its compensation "will always be cabined by external realities and limitations like the market's actual performance.... And plans and participants entering and leaving the [KGPF] will have some impact on the total amount of Great-West's compensation." Aplt. Br. at 26 n.7. But, he argues, "when Great-West exercises its authority to set the Credited Rate, it also determines the amount of its own compensation." Id. at 26. Mr. Teets's argument that Great-West exercises authority or control over its compensation because it exercises authority or control over the Credited Rate is self-defeating. As we have already discussed, Mr. Teets has not shown that Great-West has discretion over the Credited Rate. It follows that Great-West similarly lacks discretion or control over its compensation. Accord Insigna v. United of Omaha Life Ins. Co., No. 8:17CV179, 2017 WL 6884626, at *4 (D. Neb. Oct. 26, 2017) (finding a service provider did not exercise control over its compensation where its compensation was "too attenuated" from its choice of monthly interest rate). Accordingly, summary judgment was proper on Mr. Teets's claims of fiduciary liability. B. Non-Fiduciary Prohibited Transaction Claim Having affirmed summary judgment that Great-West is not a fiduciary, we turn to whether the district court properly granted summary judgment to Great-West on Mr. Teets's non-fiduciary party-in-interest claim. Because Mr. Teets failed to carry his burden to show that he qualified for "appropriate equitable relief" under ERISA § 502(a)(3), we affirm summary judgment for Great-West. 1. Legal Background-ERISA Section 406(a) of ERISA lists transactions that are prohibited between fiduciaries and non-fiduciary parties in interest. 29 U.S.C. § 1106(a). Section 408(b) recognizes exemptions to the prohibitions in § 406(a). 29 U.S.C. § 1108(b). Section 502(a)(3) authorizes participants to bring civil suits to obtain equitable relief for violations of ERISA. 29 U.S.C. § 1132(a)(3). We describe these provisions below and discuss how they apply to fiduciaries and to non-fiduciary parties in interest, such as Great-West. a. Prohibited transactions under ERISA § 406(a) Section 406(a) of ERISA prohibits fiduciaries like the Farmer's Rice Cooperative from engaging in certain transactions with "part[ies] in interest," such as service providers like Great-West. 29 U.S.C. §§ 1106(a), 1002(14)(B). The transactions listed in § 406(a) "create some bright-line rules, on which plaintiffs are entitled to rely." Allen v. GreatBanc Trust Co., 835 F.3d 670, 676 (7th Cir. 2016). Congress enacted § 406(a)'s "per se violations," Chao v. Hall Holding Co., 285 F.3d 415, 441 n.12 (6th Cir. 2002), to bar transactions "deemed likely to injure the ... plan." Salomon, 530 U.S. at 242, 120 S.Ct. 2180 (quotations omitted). Violation of § 406(a) can lead to liability for fiduciaries or non-fiduciary parties in interest. See id. at 241, 120 S.Ct. 2180. Under § 406(a), a fiduciary may not allow a plan to engage with a non-fiduciary party in interest in a transaction that the fiduciary knows or should know is (1) a "sale or exchange, or leasing, of any property between the plan and a party in interest"; (2) "lending of money or other extension of credit between the plan and a party in interest"; (3) "furnishing of goods, services, or facilities between the plan and a party in interest"; (4) "transfer to, or use by or for the benefit of a party in interest, of any assets of the plan"; or (5) "acquisition, on behalf of the plan, of any employer security or employer real property in violation of [§] 1107(a)." 29 U.S.C. § 1106(a)(1)(A)-(E). On its face, § 406(a) covers wide swaths of plan activity. But as the following section explains, certain § 406(a) transactions are exempt from ERISA liability under § 408(b). The § 406(a) prohibition most relevant to this case is the "transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." Id. § 1106(a)(1)(D). b. Exemptions under ERISA § 408(b) Although § 406(a) broadly delineates prohibited transactions, § 408(b) provides exemptions for parties engaged in those transactions. 29 U.S.C. § 1108(b). "ERISA plans engage in transactions nominally prohibited by § [406] all the time, while also taking steps to comply with ERISA by relying on one or more of the many exceptions under § [408]." Fish v. GreatBanc Tr. Co., 749 F.3d 671, 685-86 (7th Cir. 2014). These exemptions allow plans to do business with parties in interest if certain conditions are met. ERISA § 408(b), 29 U.S.C. § 1108(b). The § 408(b) exemption pertinent to this case allows parties in interest to provide "services necessary for the establishment or operation of the plan"-otherwise prohibited under § 406(a)-so long as "no more than reasonable compensation is paid therefor." 29 U.S.C. § 1108(b)(2). c. Non-fiduciary party-in-interest liability for prohibited transactions To be liable for a § 406(a) prohibited transaction, a non-fiduciary party in interest such as Great-West must have engaged in such a transaction and "have had actual or constructive knowledge of the circumstances that rendered the transaction unlawful." Salomon, 530 U.S. at 251, 120 S.Ct. 2180. "Those circumstances, in turn, involve a showing that the plan fiduciary, with actual or constructive knowledge of the facts satisfying the elements of a § 406(a) transaction, caused the plan to engage in the transaction." Id. But as discussed above, even if the plaintiff can prove these § 406(a) elements, the party in interest may not be liable if it qualifies for a § 408(b) exemption. See 29 U.S.C. § 1108(b)(2); Salomon, 530 U.S. at 251, 120 S.Ct. 2180. d. Appropriate equitable relief In addition to satisfying the requirements of Salomon, a plaintiff bringing suit against a non-fiduciary party in interest must show that equitable relief can be granted. ERISA's civil enforcement provision, § 502(a)(3), allows a "participant, beneficiary, or fiduciary" to bring a civil suit "to enjoin any act or practice" that violates ERISA or "to obtain other appropriate equitable relief ... to redress such violations." 29 U.S.C. § 1132(a)(3). Satisfying § 502(a)(3) functions as an element of the ERISA claim. If a plaintiff cannot demonstrate that equitable relief is available, the suit cannot proceed. For example, in Central States, Southeast & Southwest Areas Health & Welfare Fund v. Gerber Life Insurance Co., 771 F.3d 150 (2d Cir. 2014), the Second Circuit affirmed dismissal of a plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6) because it failed to seek appropriate equitable relief. Id. at 154-58; see also Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 206, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) ("The question presented is whether § 502(a)(3) of [ERISA] authorizes this action by petitioners...."); accord Pender v. Bank of Am. Corp., 788 F.3d 354, 361-65 (4th Cir. 2015) (treating the § 502(a)(3) inquiry as a threshold requirement at summary judgment stage). In the remainder of this section we explain (1) how the Supreme Court has interpreted the scope of § 502(a)(3), (2) the requirement that plaintiffs seeking equitable restitution under § 502(a)(3) identify a specific res from which they seek to recover, (3) the modification of that requirement for claims seeking the restitutionary remedies of accounting for profits and disgorgement of profits, and (4) the effect of a defendant's commingling assets with the plaintiff's property on the availability of equitable relief. i. Scope of equitable relief under § 502(a)(3) The Supreme Court has interpreted "appropriate equitable relief" under § 502(a)(3) to include equitable remedies that only historical courts of equity were empowered to award. It has excluded remedies typically available in historical courts of law, such as compensatory damages. In Mertens, the Supreme Court said that § 502(a)(3) of ERISA encompasses "those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." 508 U.S. at 256, 113 S.Ct. 2063. "[A]t common law, the courts of equity had exclusive jurisdiction over virtually all actions by beneficiaries for breach of trust." Id. "[T]here were many situations ... in which an equity court could `establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority.'" Id. (quoting 1 Spencer W. Symons, Pomeroy's Equity Jurisprudence § 181 at 257 (5th ed. 1941)). But "appropriate equitable relief" does not encompass all forms of "relief a court of equity [would be] empowered to provide in the particular case at issue, including ancillary legal remedies." Montanile v. Bd. of Trs. of Nat'l Elevator Indus. Health Benefit Plan, ___ U.S. ___, 136 S.Ct. 651, 660, 193 L.Ed.2d 556 (2016) (quotations omitted). Instead, it includes remedies that could be awarded only by equity courts. See Mertens, 508 U.S. at 258, 113 S.Ct. 2063 ("Regarding `equitable' relief in § 502(a)(3) to mean `all relief available for breach of trust at common law' would ... deprive of all meaning the distinction Congress drew between ... `equitable' and `legal' relief."). Thus, "legal remedies-even legal remedies that a court of equity could sometimes award- are not `equitable relief' under § 502(a)(3)." Montanile, 136 S.Ct. at 661. Certain remedies can be equitable or legal, depending on the circumstances. "Equitable remedies `are, as a general rule, directed against some specific thing; they give or enforce a right to or over some particular thing ... rather than a right to recover a sum of money generally out of the defendant's assets.'" Id. at 658-59 (alteration in original) (quoting 4 Symons, § 1234 at 694). "[T]he fact that ... relief takes the form of a money payment does not remove it from the category of traditionally equitable relief." CIGNA Corp v. Amara, 563 U.S. 421, 441, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). ii. Tracing requirement for equitable restitution Payment of restitution, which Mr. Teets seeks, can be equitable or legal. See Knudson, 534 U.S. at 212, 122 S.Ct. 708. A plaintiff can recover equitable restitution, "ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession." Id. at 213, 122 S.Ct. 708. In those circumstances, "[a] court of equity could ... order a defendant to transfer title (in the case of the constructive trust) or to give a security interest (in the case of the equitable lien) to a plaintiff who was, in the eyes of equity, the true owner." Id. Accordingly, "[f]or 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 or property in the defendant's possession." Id. at 214, 122 S.Ct. 708. In contrast, when the plaintiff cannot "assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him," the plaintiff has a right to legal restitution. Knudson, 534 U.S. at 213, 122 S.Ct. 708 (quoting 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.2(1) at 571 (2d ed. 1993)). Such claims are considered legal because the plaintiff is seeking "to obtain a judgment imposing a merely personal liability upon the defendant to pay a sum of money." Id. (quoting Restatement (First) of Restitution § 160 cmt. a (Am. Law Inst. 1937)); accord Montanile, 136 S.Ct. at 659 (describing "a personal claim against the wrongdoer" as "a quintessential action at law"). As we have explained, under § 502(a)(3), legal restitution is not available for ERISA claims. iii. Modified tracing requirement for accounting and disgorgement of profits Accounting for profits (also referred to as an "accounting") and disgorgement of profits are forms of restitution. See Knudson, 534 U.S. at 214 n.2, 122 S.Ct. 708 ("[A]n accounting for profits [is] a form of equitable restitution."); Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) ("An action for disgorgement of improper profits ... is a remedy only for restitution."). "The ground of this liability is unjust enrichment." 1 Dobbs, § 4.3(5) at 611. A court order for an accounting or disgorgement of profits allows the plaintiff to "recover a judgment for the profits due from use of his property," id. at 608, and thus "holds the defendant liable for his profits, not for damages," id. at 611. The tracing requirement described above for equitable restitution also applies to accounting and disgorgement of profits but may be modified in certain limited circumstances. See Knudson, 534 U.S. at 214 n.2, 122 S.Ct. 708. "If, for example, a plaintiff is entitled to a constructive trust on a particular property held by the defendant, he may also recover profits produced by the defendant's use of that property, even if he cannot identify a particular res containing the profits sought to be recovered." Id.; Pender, 788 F.3d at 364; 1 Dobbs, § 4.3(5) at 614 ("If the accounting seeks to recover a fund that has been traced, so that it is in effect a constructive trust on a fund of money, the case might be classed as an equitable suit."). To qualify for this remedy in equity, the plaintiff still must show entitlement "to a constructive trust on particular property held by the defendant" that the defendant used to generate the profits. Knudson, 534 U.S. at 214 n.2, 122 S.Ct. 708; see also In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 238 (3d Cir. 2009) ("[P]laintiffs cannot recover under [an accounting or a disgorgement of profits] theory without first identifying the profit generating property or money wrongly held by [the defendant]."); Urakhchin v. Allianz Asset Mgmt. of Am., L.P., No. SACV 15-1614-JLS (JCGx), 2016 WL 4507117 (C.D. Cal. Aug. 5, 2016). Accordingly, without a particular profit-generating res, a claim for payment out of the defendant's general assets is a request for legal relief rather than for equitable accounting or disgorgement of profits and cannot be awarded under § 502(a)(3). iv. Commingled funds and traceability If a defendant disposes of all of the particular property that allegedly should belong to the plaintiff under equitable principles, the plaintiff no longer has a specifically identifiable res. The Supreme Court said in Montanile that § 502(a)(3) does not authorize "a suit to attach the [defendant's] general assets" as a substitute for the previously identifiable property. 136 S.Ct. at 655; see also Knudson, 534 U.S. at 213-14, 122 S.Ct. 708. Montanile further recognized "that commingling a specifically identified fund-to which a lien attached-with a different fund of the