The Centre Barely Holds: ERISA Preemption After Gobeille v. Liberty Mutual Insurance Company

When I was a very young lawyer practicing policyholder-side insurance coverage law, prominent coverage lawyer Jerry Oshinsky, still relatively fresh off inventing the triple-trigger, described to me the concept of “partial equitable subrogation” in the context of insurance law as “black magic,” in that it was basically a standard-less concept that courts applied as they saw fit. He was overstating the case, of course, for comedic (by lawyer standards anyway) effect.

I bring this up today, some quarter century plus later, because I have often thought of that exchange when I am asked to discuss preemption under ERISA. I have always thought that ERISA preemption and the standards that govern it can be so amorphous and malleable that the question of whether a particular state statute or regulation is preempted is often in the eye of the beholder. This notion seemed particularly apt to me when I read the Supreme Court’s recent ERISA preemption decision in Gobeille v. Liberty Mutual, in which the majority opinion and the dissent applied the exact same standards to the same set of facts and came up with exactly opposite conclusions.

My thoughts on that led to an article, titled “The Centre Barely Holds: ERISA Preemption After Gobeille v. Liberty Mutual Insurance Company,” that will be published by Bloomberg BNA. I am discussing a draft version of the paper at a meeting of the Bloomberg BNA Compensation Planning Tax Advisory Board next Thursday, May 19, 2016, which will be followed by a reception. If you would like to attend the event, feel free to email me and I will forward you an invitation. If you want to read the paper but don’t want to attend, circle back to me after its published and I will get you a copy then.