Sep 26, 2017

Is the Supreme Court Likely to Change Direction?


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11/17/2008
Brian S. King
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Stephen Rosenberg, an ERISA and insurance defense lawyer from Boston, has a blog entry from a few days ago titled “Is the Supreme Court setting out to alter the law of ERISA?” Of course, we won’t know the answer to the question until the cases currently before the Court that Rosenberg comments on are decided. But I doubt we're in for anything other than narrow decisions that don't fundamentally alter the approach the federal judiciary has taken to ERISA over the last twenty years. In the first place, I’ve seen little from the Supreme Court in the last few years to suggest that it is inclined to begin reconsidering the poor remedies the Court itself has imposed on claimants over the last couple of decades. One recent case, Sereboff v. MAMSI, 126 S.Ct. 1869 (2006), prominently continued the Court’s pro-employer/insurer slant in the context of reimbursement and subrogation claims. On the other hand, Kentucky Association of Health Plans v. Miller, 538 U.S. 329 (2002), altered the analysis of ERISA's savings clause somewhat in a way that favored greater preservation of state insurance laws that generally provide more protection for claimants. Second, the two new justices on the Court, John Roberts and Samuel Alito, haven’t shown themselves to be any more inclined to favor the interests of employees over businesses than the justices they replaced, Rehnquist and O’Connor. Third, although the Court has accepted certiorari on LaRue v. DeWolff, Boberg & Associates, 458 F.3d 359 (4th Cir. 2006), and turned away just a few days ago the respondent’s request to dismiss the appeal based on a challenge to the petitioner’s standing to sue, the petitions for writ of certiorari for the other two cases Stephen identifies haven’t yet been accepted. There’s a good chance one or both petitions will yet be denied. I’d love nothing better than to see the Court change direction in this area of law. But I’m not getting my hopes up. By the way, you can read the Solicitor General's amicus brief in support of the petitioner in LaRue here.

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