So the Supreme Court, for the second time, has now taken a pass on ruling on whether ERISA plans can contain forum selection clauses. As this article notes, a number of courts have enforced forum selection clauses in ERISA-governed plans, essentially treating them the same in that context as they would be treated in an action involving a typical private contract, where parties are generally free to select a forum for their disputes.
The on-going dispute over the question of whether plan sponsors can properly include forum selection clauses in plans, and the Supreme Court’s most recent pass on the issue, always makes me think of a comment I recently heard from a federal court judge, who was speaking about her sense that ERISA litigators tend to see themselves – and the area in which they work – as unique and distinct (we are, by the way, and so is the area in which we work!). The judge said that she felt the message from the Supreme Court in its various decisions over the years on ERISA cases, including on what issues not to even consider, was that ERISA is not a world of “special snowflakes” (the judge’s words, not mine) and that most ERISA issues should be governed by the same procedural and substantive rules as would govern most other private, commercial cases, unless there was something in the statute itself dictating a different approach. In other words, I think, this judge would argue (and these are now my words and my speculation, not hers) that since ERISA does not expressly address the propriety of forum selection clauses, the generally applicable standards in the federal courts should govern the issue.
At the same time, though, the statute does contain an express venue provision, but one which admittedly does not expressly void private contracting over venue. It is widely accepted that the venue provision in the statute provides broad venue options to plan participants, and that Congress intended to remove procedural barriers to obtaining redress. Now, I have to say that this depiction has become settled dogma, and I have often wondered whether the statutory history actually supports this assessment as to why the statute contains such a broadly worded venue provision, but nonetheless, this is the interpretation of the statute’s venue provision that we currently operate under. If that premise is accepted, though, it becomes hard to argue with the alternative view that, in fact, when it comes to venue, ERISA is a “special snowflake,” and so too are those who sue under it. If the statute was specifically given a broad venue provision for the express purpose of more fully arming plan participants who sue to enforce their rights, than clearly the statute requires treating any issue involving venue as unique to ERISA and its context, and not just like any run of the mill federal court action.