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Friday, November 22, 2019

Disney Meets Rocky in a Tale of ERISA Litigation?

Only here could you get a strained connection between Disney and Rocky in the guise of an ERISA discussion.

Years ago, I posted about how ERISA litigation might be entering a golden age, and compared (sorry) the situation to Disney's Golden Age, which began with The Little Mermaid.  One self-congratulatory note there is that I bemoaned the Court's failure to grant cert. in the Amschwand case, and expressed hope that the Court might someday address the continuing inability of claimants with arguably sympathetic cases to be substantively heard to any extent because of the theretofore uniform rejection of a monetary remedy in ERISA cases.  Voilà - we later got CIGNA v. Amara, which became and remains (laugh all you want) my favorite ERISA case. 

Then, some time later, in a Rocky-themed post about winning, I noted (courtesy of my friend Andy G.) the WSJ report about Justice Souter's retirement being hastened by . . . ERISA litigation.  To wit: "Justice Souter has complained about life in Washington and even about aspects of the court's work, such as the numbingly technical cases involving applications of pension or benefits law."  ERISAns won one!

Now, in the context of yet another term with three cases,* my mind turned back to the possible continuation of this Golden Age (again, sorry) of ERISA litigation and then, in turn, to the Souter report.  Fortuitously, my friend Steve R. has shown me some additional material that rings in the same Eeyore-type Souter-like* bemoaning of the sadness that ERISA litigation can be.***   In that spirit, I share the following;

- Justice Rehnquist said that “[t]he thing that stands out about [ERISA cases] is that they’re dreary,” and that the Court would grant review by virtue of “duty, not choice”

- Justice O’Connor referred to ERISA cases as being “tedious”

- Justice Ginsburg, whose first opinion on the Court was an ERISA decision, referred to ERISA cases as being “sloughy” (relating to being “shed or cast off”?) (relating to “a place of deep mud or mire”?) (relating to “a mental state of deep sadness or no hope”?)****

As Stan Lee might've said - 'Nuff said!

* I would argue that some years ago we had four cases, if you count Spokeo.  It looked like ERISA might, even if indirectly, again (see R.A. Gray) make it into the Court's constitutional (!) jurisprudence.  Spokeo, it turned out, was a dud, but it looks like Thole is now our current chance for some real constitutional fireworks.

** (reportedly)

*** The juxtaposition of the consistent bemoaning of ERISA and the undeniable propensity of the Court to take ERISA cases is an interesting one, at least to me.

**** Note also that rumor has it that it's the first-year justices who are allocated the . . . thrill . . . of writing the ERISA decisions.

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