Tuesday, February 24, 2009

Are We Moving Away from Mickey Mouse Decisions by the Supreme Court Under ERISA?

In looking at the recent spate of the Supreme Court's jurisprudence under ERISA, I am left hopeful. Starting with LaRue, and continuing on to MetLife v. Glenn and Kennedy, the Court has taken a straightforward and common-sense approach to the analysis, and results seem crafted to be at least consonant with ERISA's protective purposes. To be sure, there is no consensus that the jurisprudence is perfect - footnotes and concurrences open new doors, subjective issues remain, someone's ox gets gored based on whatever final balance is struck, etc. But I think that the general tenor of the cases is to try to read the words of the statute and precedent simply, in a way that harmonizes them with an intuitively reasonable result.

So, does LaRue begin a Golden Age of ERISA litigation, just as The Little Mermaid began Disney's Golden Age? Are LaRue, MetLife and Kennedy "our" Little Mermaid, Beauty and the Beast and Aladdin? (You'll forgive me for passing over The Rescuers.) And, if so, what will be our The Lion King?

Well, they could've accepted certiorari in Amschwand, and addressed the debacle of the current state of preemption analysis coupled with restrictive views of available remedies and causes of action. Indeed, maybe Professor Langbein would agree that Russell, Mertens and Great-West represent "our" The Black Cauldron, The Great Mouse Detective and Oliver & Company. Certiorari was denied in Amschwand, however, and we will have to wait for another day for the Court to circle (of life?) back to these issues.

And who's the foil - the DreamWorks - in all of this? Until DreamWorks, there was (with apologies to Don Bluth and DreamWorks' predecessors) essentially no place else to go but Disney. Where does one go if the Court does not come through? You could go to Congress, but if you do that you may well get something that looks and sounds like Howard the Duck. Query whether the Court's tradition of valuable dissents and concurrences can play the role here. On the preemption front, Justice Ginsberg almost got there with her Davila concurrence, and maybe eventually the concerns she expressed there will move to the fore and prevail.

In the meantime, I'll try to find a way to continue to think of Disney movies as I read through ERISA cases.

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