Preemption

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There may be nothing more fun than ERISA to a lawyer who likes to maneuver among innumerable rules, dodge endless traps, and work out the interaction of numerous potentially inconsistent statutory, regulatory and judge-made requirements. I stand guilty as charged. Indeed, if you were going to create a Myers-Briggs Inventory for the job heading “ERISA Lawyer,” the first question you would put in would ask if you liked civil procedure in law school, because if you don’t like substantive issues like standing, procedural issues like venue, or more run of the mill issues like the scope of discovery, you will never like being an ERISA litigator. Beyond that, if you don’t like a rules based environment, you almost certainly won’t like being a non-litigation ERISA lawyer, with its heavy engagement with express statutory requirements, a million or more regulations from multiple agencies, and constant engagement with the tax code.
Continue Reading How Not to Sue an ERISA Governed Plan: Thoughts on the Ninth Circuit’s Ruling in DB Healthcare

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…

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 …

One of the more singularly interesting problems in ERISA litigation for anyone who, like me, greatly enjoys the complexities of civil procedure is the interplay of preemption (which, as we all know, is very broad under ERISA) and removal from state court to federal court. We all know that many plan participants would prefer to…

Longtime readers of this blog know that I don’t comment on my own on-going cases, but that I will pass along interesting decisions from my cases, without much comment or analysis, when I think they provide some value to readers. In that vein, attached is a recent 22 page opinion in favor of one of…