Interestingly, right after I posted about Albert Feuer’s detailed analysis of the proper role of Qualified Domestic Relations Orders (“QDRO”) in the ERISA scheme, the Supreme Court granted cert in a case on that exact issue (although I don’t intend to imply a causal relationship between the two events). The Court granted cert yesterday in the case of Kennedy v. DuPont Plan Administrator, but only on Question number 3 raised in the petition, which was whether ERISA’s QDRO provisions are the only manner in which an ex-spouse can waive rights to a former spouse’s pension benefits. SCOTUS blog has the story here, and the petition (as well as the opposition) here.

This order continues a trend I suggested we would see, namely the Supreme Court, having concluded its efforts to redirect the path of patent law after substantial criticism in the business, legal and academic communities that the governing body of law in that area was veering wildly off course, turning to another statutory body of law, ERISA, that has likewise come under significant criticism, in this instance because of the stress points that have erupted as the law of ERISA has attempted to cope with the transition from a defined benefits world of pensions – where employees bore little risk – to a defined contribution world, in which employees bear most of the risk and thus place more demands on ERISA and the case law interpreting it. Still, even under those circumstances, the focus on QDROs seems a slightly unusual point of emphasis for the Court, given the range of ERISA related issues that the Court could select from. The case and the issue presented do, however, concern pension benefits and the impact of ERISA on employee’s rights under them, fitting with the theme I identified above, plus QDROs themselves are being interpreted in some interesting ways at the district court level, as I suggested in this post, ways that may not be an exact fit with the statutory requirements.