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
Preemption
The Centre Barely Holds: ERISA Preemption after Gobeille v. Liberty Mutual Insurance Company
By Stephen Rosenberg on
Posted in Preemption
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…
The Centre Barely Holds: ERISA Preemption After Gobeille v. Liberty Mutual Insurance Company
By Stephen Rosenberg on
Posted in Preemption
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 …
Gobeille v. Liberty Mutual Insurance Company: The Interesting Things Are in the Concurrences and the Dissent
By Stephen Rosenberg on
Posted in Preemption
So, anyone besides me remember that great scene in 48 Hours where Luther goes to pick up a car at a parking garage where it was left years before, and responds to the cashier’s comment about how long its been by shouting “I’ve been busy!”? I always think of that when I get so busy…
Breach of Fiduciary Duty, Preemption and Liberal Pleading Rules
By Stephen Rosenberg on
I obtained dismissal of a breach of fiduciary duty claim, as well as state law claims, against my clients in an opinion filed on Friday. While long time readers know that I won’t comment substantively on rulings involving my clients, the opinion is worth a read on at least two substantive points involving breach of …
Did the First Circuit Just Change its Test for Preemption?
By Stephen Rosenberg on
Posted in Preemption
Or did it just use a clever turn of phrase? More likely the latter, I think, but even if that is the case, it is absolutely a turn of phrase that is useful and important to know for anyone litigating an ERISA preemption issue in the First Circuit.
Historically, courts in the First Circuit have…
Liberty Mutual v. Donegan: The Second Circuit Reinforces the Broad Scope of ERISA Preemption
By Stephen Rosenberg on
Posted in Preemption
The Second Circuit has just released its opinion in Liberty Mutual v. Donegan, which concerns whether certain Vermont state reporting regulations are preempted as applied to an ERISA governed plan. The Court concluded that they were, but the more interesting part of the opinion is not its analysis of that particular issue, but rather…
Sprint(ing) Right to Federal Court to Protect Plans Against Preempted State Action
By Stephen Rosenberg on
Posted in Preemption
You know I think all things are about ERISA, and ERISA is about everything, don’t you? And of course, my view on this is even somewhat logical, and not just an outgrowth of my own personal interests. If you walk, talk, have health insurance, invest for retirement, have a pension or, even more so, work…
Cancelling a SERP and the Limits of Preemption
By Stephen Rosenberg on
Posted in Preemption
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…
Preemption of Misrepresentation Claims
By Stephen Rosenberg on
Posted in Preemption
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…