 When "Mertens" reached the High Court, "Russell" was already in the U.S. Reports suggesting that money damages for consequential injury sounding in ERISA is an implied right of action rather than an express right.Hewitt Associates "was the plan's actuary in 1980, when Kaiser began to phase out its steelmaking operations, prompting early retirement by a large number of plan participants.Respondent did not, however, change the plan's actuarial assumptions to reflect the additional costs imposed by the retirements.