Ouch, is all I could think to say after reading the First Circuit’s latest decision on ERISA preemption, Cannon v. Blue Cross & Blue Shield of Mass., in which a wrongful death action based on a benefit denial was deemed preempted. This is one of those tough outcomes that ERISA’s broad preemption provision sometimes leads to – a lack of any recovery simply because ERISA has subsumed the field, and despite the fact that ERISA itself presents no avenue for recovery. In the olden days, before equitable relief claims under ERISA were recognized by the Supreme Court, giving some possible avenue for relief in at least some such cases, judges used to refer to these types of cases as presenting “harms without a remedy” (or at least one federal judge did on a couple of cases where I was the defense lawyer and won just by invoking ERISA preemption).

Anyway, it’s a good decision on the reasoning, analysis and scope of preemption under the law of the First Circuit. Preemption remains vigorous here on my home turf and, while I thought the plaintiffs’ lawyers constructed some reasonable arguments around it in this case, it is obvious that still more is needed for a plaintiff in such a case to catapult over the defensive wall constructed by ERISA’s preemption provision.