There have been an interesting series of federal court decisions concerning ERISA preemption during the past few months, some of which, in my view, cannot be fairly squared with the United States Supreme Court’s preemption decision earlier this year in Gobeille v. Liberty Mutual. I discussed in my recent article in Bloomberg BNA’s Tax Management Compensation Planning Journal, that the Supreme Court’s opinion in Gobeille raised two concerns: first, that it provides little principled guidance on the scope of preemption under ERISA and, second, that, if read literally, it is hard to conceive of a state statutory or regulatory initiative that would not be preempted. The article, which is titled The Centre Barely Holds: ERISA Preemption after Gobeille v. Liberty Mutual Insurance Company, argues that the opinion simultaneously gives great breadth to the scope of ERISA preemption and, at the same time, opens up avenues for disputing whether preemption applies in any particular case. All in all, as I discussed in the article, it is a fascinating but troubling opinion.

You can see that in this blog post from Joe Ronan and Steven Spencer of Morgan Lewis, in which they discuss the efforts the Sixth Circuit had to go this past summer to find that a particular state action was not preempted given the holding of Gobeille. Although slightly dated at this point, I thought of that post again when I was re-reading, and preparing to post, my article. It’s a perfect illustration of the Pandora’s box for litigants and courts that I believe the Supreme Court opened in Gobeille. Now to be fair, and as I reference in the article, ERISA preemption is one of those areas under ERISA where the statutory language makes it difficult to craft a consistent and workable doctrine, so the fault is not all the Court’s in this regard. But, nonetheless, it remains a problem that litigators, as well as state regulators, will continue to have to deal with for the foreseeable future.