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A Regulatory Vacuum Leaves Gaping Wounds - Can Common Sense Offer a Better Way to Address the Pain of ERISA Preemption?

State Cases

A Regulatory Vacuum Leaves Gaping Wounds - Can Common Sense Offer a Better Way to Address the Pain of ERISA Preemption?

By: Andrew L. Oringer
Law School: Hofstra University

I. INTRODUCTION

A. The Statutory Backdrop

The Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) is expressly intended to “protect . . . participants in employee benefit plans and their beneficiaries, by . . . establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” An important part of ERISA’s “comprehensive and reticulated” scheme is its broad preemptive effect, intended to foster the establishment of a uniform federal standard for employers. In this way, the dreaded “patchwork quilt” of disparate state and local benefits regulation would hopefully be avoided. Furthering what the author views as a classically appropriate use of its power to regulate interstate commerce, Congress hoped that such uniformity would benefit both employers, who would no longer have to adopt different policies depending on their employees’ location, and employees, who could benefit because a more uniform regime might reduce administrative costs and encourage employers to offer employee benefit plans.

Congress coupled the broad preemptive power of ERISA with a set of express remedies, and also with an understanding that the courts would promulgate a body of common law around ERISA to preserve its legislative intent and integrity. Over the thirty-plus years since the enactment of ERISA, courts have struggled with the nature of the available remedies, and with the extent of their power to fill in some of the statute’s “gaps” by promulgating federal common law. Questions arise as to whether the courts have gone far enough in providing for adequate remedies and in their gap-filling efforts.

The courts have manifested a constrained approach to tailoring relief under ERISA on at least two fronts. First, courts have taken a narrow view of the remedies available under ERISA, such that remedies that do not fall squarely within the confines of traditional equitable remedies are deemed unavailable to the claimant. Second, the courts have been hesitant to use their gap-filling ability to preserve meritorious claims where there is no express statutory cause of action under ERISA. The result in many of these cases has been that deserving participants who have suffered injury are left without remedy or any cognizable cause of action. These results, viewed in light of ERISA’s preemptive reach, can effectively leave plaintiffs with intuitively viable claims utterly out of court.

The state of access to judicial recourse under ERISA has been criticized in recent years, not only by those in academic circles, but also by members of the judiciary themselves constrained by precedent. The hew and cry has reached several members of the Supreme Court. It will be suggested in this Article that the time has come for the courts to interpret ERISA to permit recourse to a broader range of remedies, even to permit a greater range of traditionally viable causes of action, and that no further legislative change is necessary as a predicate for the courts to do so.


 

B. A Growing Outcry

Several judicial opinions have noted that, under ERISA as currently interpreted, injured employees are repeatedly left without recourse. The concurring opinion in DiFelice v. Aetna U.S. Healthcare referred to the “rising judicial chorus urging that Congress and the Supreme Court revisit what is an unjust and increasingly tangled ERISA regime.” In Aetna Health, Inc. v. Davila, Justice Ginsberg’s concurring opinion, in which Justice Breyer joined, cited to the DiFelice concurrence and joined the “rising judicial chorus” criticizing the current state of the development of the law under ERISA. As in DiFelice, the plaintiffs in Davila unquestionably suffered alleged harm but were deprived of any potential state-law relief and placed at the mercy of ERISA’s “regulatory vacuum.” Pointing to Supreme Court rulings in cases such as Massachusetts Mutual Life Insurance Co. v. Russell and Mertens v. Hewitt Associates, in which the Court “coupled an encompassing interpretation of ERISA’s preemptive force with a cramped construction of the ‘equitable relief’ allowable under Section 502(a)(3),” Justice Ginsburg recognized the conundrum that “virtually all state law remedies are preempted but very few federal substitutes are provided.” It is suggested here that the courts indeed have the present ability to fill this vacuum on multiple fronts, without the need for statutory change.

C. “Gaping Wound[s]” Left by “Regulatory Vacuum[s]”

The courts’ broad interpretation of ERISA preemption of state laws combined with their narrow construction of the relief available under ERISA has, to use language used in Davila, left a “regulatory vacuum” that has opened a “gaping wound” in the law. The shortcomings manifest themselves both (i) in connection with the remedies available, which, if not available under ERISA, may fall into an abyss, and (ii) in connection with the causes of action available, which, if not cognizable under ERISA, may fall into that same abyss. It is suggested here that there is a better way to put “security” back in ERISA, and that the unifying theme is common sense.

First, it is proposed here that the Supreme Court should embrace a more expansive understanding of the “appropriate equitable relief” under section 502(a)(3) and move away from the dichotomy between legal and equitable relief. Instead, the focus should turn to granting such equitable relief that achieves intuitively fair results.

Going further still, it is then suggested that the courts adopt a more flexible approach to gap-filling and draw a line that permits plan participants to bring traditional causes of action that uncontroversially would have historical viability. In doing so, the courts should allow remedies that ERISA does not expressly provide by drawing on the common sense that underlies trust—and other state—law principles.



 

Related Categories: Civil-Procedure, Conflict-of-Laws
 






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experience" to solve the remedial gap, and all but directed them to carry interpret erisa to permit recourse to a broader range of remedies, even in shaw v. delta balancing of the need for prompt and fair claims settlement procedures comprehensive civil enforcement scheme that represents a careful 414 hofstra labor & employment law journal [vol. 26:409 579345 at *1 (6th cir. mar. 9, 2009). 71. 534 u.s. 204 (2002). have indicated that fraud can be an element of a claim for a fiduciary the court noted that section 409(a) only authorizes the plan itself 56. id. at 138. fraudulent matter, then the six-year statute of limitations applicable to fiduciary breach cause of mr. amschwand, believing that he enjoyed full benefits under the however, represent a significant step in the direction of filling the action claiming personal injury or wrongful death arising from a medically reviewable decision. s. of some sort are indeed to be filled judicially, the question becomes one claim may generally be brought "by a participant or beneficiary . . . to miller arguably illustrates the to exercise ordinary care.43 preemptive reach and the manner in which erisa's civil-enforcement to "eliminat[e] the threat of conflicting and inconsistent state and local regulation." 120 cong. action that have to date been pursued by the courts, leaving aggrieved these sentiments are well expressed, and it is the author's hope that i.a.m. nat'l pension fund, 875 f.2d 1052, 1058 (3d cir. 1989) (allowing recovery of contributions amschwand will not be known in the immediate future, as the court postponed until their first day back at work.78 38. employee retirement income security act (erisa) of 1974 502(a)(1)(b), 29 u.s.c. 57. see id. at 140. section 409(a) of erisa provides: 23. see generally beck v. pace int'l union, no. 05-1448, slip op. at 4 (2007) (stating that erisa does not, however, provide for a statute of 9. see, e.g., mertens v. hewitt assocs., 508 u.s. 248, 256-57 (1993) (finding that erisa's prior to the implementation of an early retirement program under which they would have received precedent. cf. kennedy v. plan adm'r for dupont sav. & inv. plan, 129 s. ct. 865, 872 (2009) see h.r. rep. 107-184, at 31, 44 (2001). a conference committee was never appointed due to a least as grave. any and all state laws insofar as they may now or hereafter relate to any inconsistent with the seminal purposes of erisa that they should not be written off as some massachusetts mutual life insurance co. v. russell17 variety of settings,28 22. see infra part iii. referred to the apply regardless of special circumstances of specific inquiry."). rationale and approach. that is, the courts can and need to fill gaps to plan v. west, no. 07-663 (dec. 2008), available at they view their authority to incorporate trust law as limited.158 does not address a given issue. for example, in mackey v. lanier collection agency & service, 27. 120 cong. rec. 29,945. and as a condition of the sale, the defendants entered into agreements that in effect cancelled the battles, if the result is a patchwork quilt that causes employers to eschew the provision of employee benefits under the terms of the plan"38 "wipe the slate clean." erisa. first, if erisa is viewed as not providing for a particular and patently sympathetic claimants entirely out of court, leads this dissenting in part)). erisa is not viewed as contemplating the sought-after remedies or would have historical viability. in doing so, the courts should allow remain. as such, gaps need to be filled to allow erisa to protect reg. 29,197 (1974). it amschwand is miller v. rite aid corp.95 articulated a broad interpretation of erisa preemption and its narrow narrow interpretation of "other appropriate equitable relief." aetna health inc. v. additional remedies. in light of the legislative history on this issue, leave when spherion, his employer and plan fiduciary, switched 634, available at http://www.harpers.org/archive/1902/09/0010358 ("`be careful what you wish for, intended to be the exclusive remedies: these issues with a deafening silence, for what happens when the level of limitations? the entire prospect of gap-filling contemplates the inferring 2009] a regulatory vacuum leaves gaping wounds 417 "comprehensive and reticulated"). going further still, it is then suggested that the courts adopt a more individual plan beneficiaries.57 "a main strong. see mclean & richards, supra note 28 at 19; see also posting of andrew oringer to bna ceasing that process at any particular point, and there is no need to cir. 1986)). legal and equitable remedies to fit the facts and circumstances of the the court noted that plan."). claim as a breach of fiduciary duty. again because of erisa's preemptive reach and the consequent inability erisa] or the terms of the plan.39 such cause of action would still be completely preempted by section evolution regarding equitable relief would seem more clearly to require an overruling by the ms. miller did not become enrolled in the new plan costs are made overly burdensome, particularly for employers who generally foot most 85. id. 2. 29 u.s.c. 1001(b). forgot to incorporate expressly."42 it is time for a "gaping wound" resulting from a "regulatory vacuum" to action somehow implicates dangerous policy concerns seems to make an under erisa has been largely answered in the negative, the concept not remove to federal court where a claimant merely reserves the right to seek erisa benefits in the 196. see, e.g., caputo v. pfizer, inc., 267 f.3d 181 (2d cir. 2001) (finding that, if either a the sixth circuit reasoned that west should be entitled to the full amount of the accrued benefits interpreting the civil enforcement provisions of erisa which lower courts to address them. thus, while the notion of adding causes of salary for each year worked to terminated employees in the event of a plant closing was not corporation. id. at 646. the plaintiffs had pension benefits that included "bridging rights," 502(a).45 a. the statutory backdrop preemptive effect, intended to foster the establishment of a uniform has a point that [section] 502(a)(1)(b) offers redress for the recovery of benefits, enforcement of (citations omitted) ("erisa abounds with the language and terminology of trust law. erisa's contribution "has been for over a century, and remains, an integral and abject "failure," and may still be . . . fixed. see also infra note 220. obtain remedies under state law that congress rejected in erisa. "the in view of federal preemption, state laws compelling disclosure from remedy, then, as a result of preemption of state law, the remedy in another example of a failure to recognize a basic cause of action, adequate remedies and in their gap-filling efforts. in difelice, the third circuit manner.126 hewitt associates.65 whether such a remedy would be consistent with the underlying the principles underlying the cort analysis,204 b. a growing outcry wrongful health insurance denials, 90 minn. l. rev. 1447, 1449-55 (2006). income security act (erisa) of 1974 201(2), 301(a)(3), 401(a)(1), 29 u.s.c. 1051, 1081, convincing evidence that the defendant's conduct was committed with willful or wanton disregard the extent appropriate, albeit while acknowledging that the specific bring a civil action "(a) to enjoin any act or practice which violates any provision of [erisa] or the 74. id. at 358, 361-63. qualified pension plan could be held liable for losses that the plan 174. difelice, 346 f.3d at 444. instruction to his treating physician that [the prescribed medical device] effectuate its purposes.137 equitable estoppel is readily available under erisa.162 common were requirements that administrative procedures be exhausted before suit can be filed. state termination insurance programs, et cetera, will be superseded. it legislative history confirms that the act's fiduciary responsibility provisions, `codif[y] and mak[e] ginsburg recognized the conundrum that "virtually all state law be suggested in this article that the time has come for the courts to notes, 603 (2008) (discussing the ninth circuit's holding in golden gate). the effect of a found in [section] 502(a) of the statute as finally enacted . . . provide that have overtaken the health care system, and the difficulties that its appropriate equitable relief" does not include extra-contractual or "make of trust, including a surcharge, which would require the fiduciary to of finding a fiduciary to sue, just to bring a straightforward life in washington and even about aspects of the court's work, such as will not be adopted and that existing plans will not be expanded and liberalized if the participants. see also moon v. ozark health inc., no. 4:08cv00527 jlh, 2009 wl 737321, at *1- of action that have historically been available to those in the position of 170. cf. island view residential treatment ctr. v. blue cross blue shield of mass., 548 f.3d 91. id. at 7. case was ready for trial, the six-month window for rehiring at&t/lucent employees had long supreme court held that, if a federal statute, such as erisa, "wholly displaces the state-law cause 139. see, e.g., conn. gen. life ins. co. v. riner, f. supp. 2d 492, 497 (w.d. va. 2005), aff'd, is in addressing whether a private right of 24, 28 (1st cir. 2008) ("in an erisa case, a federal court would perhaps have `gap filling' authority nevertheless, we are bound by the precedent of this circuit and the supreme court. 2009] a regulatory vacuum leaves gaping wounds 437 45. see id. at 214 n.4 (citing ingersoll-rand co. v. mcclendon, 498 u.s. 133, 142 (1990) former employee's claim that an oral severance promise was breached, expressly noting that it was mistakes it makes can only be unwound by another legislative act. fiduciary actions.166 over." that struck me as surely right: not liking northern italian food must be as good airlines,34 16. id. at 222. similar language is found in pichoff v. qhg of springdale, inc., in which the concurring). hewitt assoc., 508 u.s. 248, 259 (1993) (citing firestone fire & rubber co. v. bruch, 489 u.s. able to proceed down this path in advance of movement by the supreme no. tsb-m-06(6)c, new york state tax treatment of employee trusts for purposes of 129. erisa's conference report states: erisa describing the civil enforcement provisions of the labor- recover benefits due to him under the terms of his plan, to enforce his the final result in larue may be, justice roberts' concurrence may open up additional issues. see the insurance plan.96 has not spoken, a federal common law for erisa by incorporating what 54. mass. mutual life ins. co. v. russell, 473 u.s. 134, 144 (1985). indicates that the drafters did not intend the statute to be all- reinvention of the statute. so, although it is by no means suggested here would be treated as federal questions.134 the broad scope of erisa's preemption provisions and that the provisions are interpreted to ensure but is it really the case that courts so obviously had to fill this gap? 181. in berlin v. michigan bell telephone company, the plaintiffs claimed that they had retired and sereboff v. mid atlantic medical services, inc.,73 422 hofstra labor & employment law journal [vol. 26:409 appropriate, but governed by the federal policies at issue."131 recognized that high administrative costs in pension and welfare plans "inquiry . . . is aided by the common law of trusts which serves as erisa's backdrop"). that deprives injured plan participants of relief. the courts would develop federal common law to effectuate the well be repeated under erisa's substantive laws, erisa 201-308, and (ii) the requirements the vital thing . . . is that either congress or the court act quickly, under the conference agreement, civil actions may be brought by a participant or would promulgate a body of common law around erisa to preserve its 29. it is also noted that traditional (non-erisa) concepts of preemption may apply as well. be any filling of gaps at all. concurring opinion in difelice v. aetna u.s. healthcare12 446 hofstra labor & employment law journal [vol. 26:409 since equity provided several remedies for breach 51. see generally id. that fiduciaries must disclose proposed changes to plan benefits absent a specific request for the extent to which technical limitations involving "equitable" remedies public interest in encouraging the formation of employee benefit plans. now shows that expanded judicial activity in pursuit of the so, to draw on principles of trust law.152 121. john h. langbein, what erisa means by "equitable": the supreme court's trail of u.s.c.c.a.n. 1906, 1948 (providing that "the committee intends the federal courts to develop a remedies that it simply forgot to incorporate expressly'"). abraham v. exxon corp., 85 f.3d 1126, 1131 (5th cir. 1996) (seeming to indicate its view that an preemption decisions would create.180 dissenting) (referring to the possibility that a "single courageous state" may "serve as a laboratory"). 77. id. at 343. asserted that "erisa's failure to change with the times has rendered it for rehearing en banc); e. daniel robinson, embracing equity: a new remedy for generally applicable rationale. 2009, at a1, available at http://online.wsj.com/article/sb124114676548376235.html#. as marvel from the remedies available under section 502.157 erisa. . . . [t]he committee has, over the years, considered the and the arguably unfair results that could have arisen thereunder. while 95. 504 f.3d 1102 (9th cir. 2007); see also lerner v. elec. data sys., no. 07-1730, 2009 wl coverage under a plan). in pilot life insurance co. v. dedeaux,132 breach.107 courts have used the law of trusts to "[serve] as erisa's backdrop."141 for example, this course has taken us down a road of having to it is submitted here that it is provides an alternative remedy to those provided by section 502(a), then more common-sense approach to "equitable" relief will probably need to despite the form of distribution and that section 502(a)(1)(b) should be interpreted to achieve this on at least two fronts by virtue of the juxtaposition of preemption and (i) according to the fifth circuit, committee report to the senate, explicitly described the intention that in varity, plaintiffs were former employees of massey-ferguson an exercise in gap-filling.163 4. see infra notes 25-50 and accompanying text. for example, in firestone tire & rubber co. v. bruch,142 141. beck v. pace int'l union, 551 u.s. 96, 101 (2007). states: has long been embedded in traditional trust law and equity vacuum."16 rossina barker & kevin o'brien, the erisa common law and the limits of reticulation, 14 illustrative of the way in which, under the current law, an administrator's infirmities are unnecessary and, moreover, antithetical to erisa's "simply following the legislative directive to fashion, where congress 200. one could make an argument that the existence of a fraud claim under erisa could chafe brought by beneficiaries or participants under erisa-regulated plans 29,942 (1974) (statement of sen. javits)). it is suggested here that the courts indeed have the present ability to fill remedies were to be incorporated into the federal common law of factors are: (i) whether the plaintiff is a member of the class for whose 208. mertens v. hewitt assocs., 508 u.s. 248, 264 (1992) (white, j., dissenting) (citations varity.185 107. brief for the united states as amicus curiae at 1, larue v. dewolff, boberg & assoc., the plaintiff, ms. miller, was on medical leave, her employer replaced 856 f.2d 1418, 1423 (9th cir. 1988) (applied three year statute of limitations to the erisa claim), [t]he detailed provisions of [section] 502(a) set forth a comprehensive action for interference but, with no relevant comment in the legislative history, disallowed the most b. complete or "field" preemption under section 502 inc., 128 s. ct. 1020 (2008) (no. 06-856), available at future without asserting a present claim). straightforward. larue holds that a claim for loss under an individual surrounding "equitable" relief may have higher visibility because the used in mertens and thereafter, but, due to the fact erisa litigation moves slowly, "by the time the welfare benefits is not preempted by erisa.); see also edward zelinsky, golden gate restaurant appropriate, there are bound to be unintended results. firestone decision discussed below) addressed competing interests that retirement by indicating that no such offering was being contemplated. id. the sixth circuit held completely preempted by erisa.177 on the issue of available causes of action, the courts may proceed 2009] a regulatory vacuum leaves gaping wounds 411 removing preemption, it would leave it to the states to set the floor with their own causes of action. the court also held 2009] a regulatory vacuum leaves gaping wounds 413 participants and their benefits, but at the same time the courts have to routinely forced to dismiss [participants'] entirely justified complaints . culpability is avoided on the strength of some technical non-fiduciary available at http://snltranscripts.jt.org/08/08wu3update.phtml). damage caps. see 145 cong. rec. 15,893 (1999) ($250,000 limit for noneconomic damages); 146 compatible with the purpose of section 301, may be resorted to in order to find the rule that will law in giving shape to a `federal common law of rights and obligations under erisa-regulated corp., 489 f.3d 590, 591-94 (3d cir. 2007) (ambro, j., concurring in denial of petition traditional forms of equitable relief, such as injunction, restitution and affairs, inc. and of the tax management compensation planning journal. 43. aetna health, inc. v. davila, 542 u.s. 200, 204 (2004). comprehensive regulatory scheme on its own.127 legislation is designed."27 26 (1983). private remedy not expressly provided in the statute, one must inquire whether: 1) plaintiff is a particularly in light of its extensive preemptive reach, that the federal a claim that a health maintenance organization ("hmo") had refused to to date, the question of whether there should be a common-sense decided on the strength of a five-justice congress coupled the broad preemptive power of erisa with a set the second circuit applied 144. see id. at 110 (citations omitted) ("erisa abounds with the language and terminology of estate was denied the death benefits under both plans.98 than an historical or otherwise technical approach thereto. 658. that same year, at&t split into three parts: at&t, lucent technologies, and ncr 205. thus, the author takes issue with the suggestion in difelice that the courts have no choice while courts may differ in specific approach,168 pursue results they perceive to be protective. see golden gate rest. ass'n v. city & county of san responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall 84. id. on these disturbing facts when it asked the united states for an amicus (2003)); see also memorandum decision re plaintiffs' motion to remand at 7-8, becerra v. 169. erisa 413. 90. brief for the united states as amicus curiae supporting petitioner, amschwand v. west court); ruppert v. alliant energy cash balance pension plan, no. 08-cv-127-bbc, 2009 wl the life insurance plan.81 reduce administrative costs and encourage employers to offer employee reasonably have declined to provide for punitive damages in establishing forward basis. the suggested approach might not require, however, a which, if not available under erisa, may fall into an abyss, and (ii) in develop principles governing areas of the law regulating employee results should be changed, the underlying rationale and analysis can 213. aetna health, inc. v. davila, 542 u.s. 200, 223 (2004) (ginsburg, j., concurring) (citing participants in employee benefit plans' . . . it makes little sense that plans the individual's cause of action is completely preempted.44 15. id. at 222 (ginsberg, j., concurring) (citing difelice, 346 f.3d at 453 (becker, j., 152 (2001); h.r. 2563 107th cong. 152 (2001)). the two bills aimed to negate erisa court held that incorporating contribution was an appropriate extension that do not fall squarely within the confines of traditional equitable http://www.usdoj.gov/osg/briefs/2008/2pet/6invit/2007-0663.pet.ami.inv.pdf. hewitt associates,18 death.82 20. id. at 222. contained a provision for "legal or equitable" relief, and that reference to 136. id. (quoting 120 cong. rec. 29,942 (1974) (statement of sen. javits)). by way there any more, it's always too crowded." id. at 108. contribution" must be based on an exercise of discretionary authority relating to a claim for benefits appropriate statute of limitations where erisa is silent; the situation is because she was included in the list of employees that were not effecting salutary change in many ways. the court has no crystal ball, to receive [the] accrued benefit as a lump sum rather than as a traditional annuity." id. in essence, remedies that erisa does not expressly provide by drawing on the as to the proper 156. see id. at 18. the courts have manifested a constrained approach to tailoring unnecessary leap.203 upon her death, ms. miller's 159. 422 u.s. 66 (1975). the court noted that 2009] a regulatory vacuum leaves gaping wounds 445 who participated in the massey-ferguson, inc., self-funded employee 211. the politicization of benefits issues can have great impact on the tenor of the discourse interpretation of erisa's preemptive force with a cramped construction 301 of the lmra," and concluded that this reference essentially showed the federal common law of equitable estoppel may be applied in this case [involving an oral potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to common law example, there can be some question as to whether a general claim for remand, cicio v. does, 385 f.3d 156 (2d cir. 2004). the lurching towards uncovering a fiduciary duty as a mechanism of action through complete pre-emption," the defendant can remove the state claim to federal court participants and beneficiaries, as opposed to intentionally excluding it to recover against a plan fiduciary and did not authorize suits brought by proscribed conduct without proper relief because erisa failed to provide an adequate remedy). calculation"). the supreme court has requested briefs on the question of whether to grant certiorari although there is support in erisa's legislative history that the courts cases where participants offer myriad varieties of artful pleadings in the suggestions made herein may ring to some as being made in a amschwand v. spherion corp.76 within erisa's preemptive reach, but is viewed as not being available six carefully integrated civil enforcement provisions found in [section] c. "gaping wound[s]" left by "regulatory vacuum[s]" (holding that an equitable estoppel claim was available, inter alia, under "extraordinary "when you come to a fork in the road, take it."214 legislative intent and integrity.8 on a medical treatment decision, it may not be preempted. id. courts have recently continued to 148. id. at 18. should draw upon such state law, viewing such law through the prism of erisa's statutory scheme long-standing trust law principles in holding that, while the statute did theoretically possible to imagine that there is no statute of limitations for whole" damages, such as life insurance benefits, that would have it points out what the parties may or may not do in certain situations. other problems will lie in the 100. see generally id. at 1106 (providing that a petitioner "may bring a civil suit under erisa the solicitor general reasoned that, since congress stated in out the job that congress gave them through the grant of common law account plan is indeed a claim for a loss to the plan, and that the statutory scheme that is designed fundamentally to allow and encourage 2009] a regulatory vacuum leaves gaping wounds 425 need for prompt and fair claims settlement procedures against the 194. see, e.g., shea v. esensten, 107 f.3d 625, 628 (8th cir. 1997) ("[o]ur earlier opinion flexible approach to gap-filling and draw a line that permits plan thus, in the appropriate case, a lower court should be the wake of publicity surrounding indirect fees and other downwards pressure on the investment cause of action in that case, it "would be pre-empted because it conflict[ed] directly with an erisa statute of limitations for non-fiduciary matters, the failure to specify the trust law. erisa's legislative history confirms that the act's fiduciary responsibility provisions . . . further than the solicitor general in the amschwand amicus brief, the was intended to be read extremely expansively.35 cover certain medical services in violation of an hmo's statutory duty but rigidly to stay the existing course. difelice v. aetna u.s. healthcare, 346 f.3d 442, 446 (3d damages. both houses of congress passed bills that would have subjected medically reviewable the state of access to judicial recourse under erisa has been golden, it is not necessarily the proper place of the courts to restrict erisa's preemptive reach or university school of law. he is chair of the fiduciary responsibility/plan investments sub- author suggests that, instead of taking the court's approach of drawing a interpreted, injured employees are repeatedly left without recourse. the and held that under section 502(a)(3) of erisa, a claimant can only therefore preempted." 36 compensation practices in new york, and is an adjunct professor teaching erisa at hofstra related cause of action is viewed as not being cognizable under erisa, benefits l.j. 1, 1-2 (2001) (explaining what the courts mean when they say that erisa is amschwand was only entitled to a disgorgement of the premiums and limitations for other actions.167 so what is so bad about the varity approach if the claim there was a cramped reading of erisa's remedies provisions so as, once again, to due to a medical condition that preceded the change in insurance congress included a broad preemption provision in erisa in order but it also erroneously informed him that he enjoyed full coverage under the supreme court held 102. 128 s. ct. 1020 (2008). when a plan fiduciary has breached its so, then, does larue at all advance the discourse regarding whether have underestimated their authority to tailor new remedies. for 420 hofstra labor & employment law journal [vol. 26:409 "equitable," based on the reasoning that the alternative, interpreting it seems counterintuitive that the court would not denied coverage] are concerned that the supreme court's interpretation of erisa . . . as preempting the notion of common law the court noted that it is noted that state criminal laws are among those expressly not preempted by virtue of section difelice "[d]etermining whether a claim could have been brought under reading of the notion of "equitable" in the context of remedies available "a law `relates to' an plaintiff's claim there was not on behalf of the plan, one wonders 204. see cort v. ash, 422 u.s. 66, 78 (1975) (explaining that to determine the existence of a played by keenan thompson) imploring--nay, commanding--simply to . . . "fix it!" saturday 190. id. at 505. 3. nachman corp. v. pension benefit guar. corp., 446 u.s. 359, 361 (1980). see generally egelhoff, erisa preemption, and the conundrum of the `relate to' clause, 91 tax notes 1917 u.s. 986 (1992) (citing martori bros. distribs. v. james-massengale, 781 f.2d 1349, 1357-58 (9th affects new york's ubit). see generally employment retirement income security act (erisa) 448, 457 (1957) ("the labor management relations act expressly furnishes some substantive law. or exhibiting equity: dealing fairly and equally with all concerned." merriam-webster's online those very participants. our dockets grow increasingly crowded with may bring a cause of action to enforce a legal requirement, even one set forth under the substantive- respect of the victim, should be given effect under erisa); mack v. est. of mack, 206 p.3d 98, 111 25. see 120 cong. rec. 29,944-45 (1974) (statement of sen. long) senator long explained: 214. see generally yogi berra & dave kaplan, when you get to a fork in the road, false promises it allegedly made with respect to the employment and benefit options that [the former davila concurrence, identifies a "`gaping wound' caused by the breadth laws that have not been preempted are laws of general application, being commonly traditional expressed poignantly in that concurrence, as follows: hired by any other division of at&t. id. at 647. the plaintiffs could have sought to enjoin at&t best effectuate the federal policy. any state law applied, however, will be absorbed as federal law deferential standard of review if the benefit plan expressly gives the plan removed the case from state court to the federal district court on the that, while mrs. amschwand was entitled to the premium payments, her i. introduction passed, rendering such an injunction worthless." eichorn, 489 f.3d at 592 (ambro, c.j., to massey combines.188 aetna the third circuit held that the claim alleging traditional causes of action which to date have not been permitted to claim, leaving yet another aggrieved plaintiff out of court.164 unaided by anything alleged in anticipation of avoidance of defenses which it is thought the whereby employees who left former at&t companies and returned within six months either to the issues are so squarely posed by the structure and language of the statute erisa an exclusive remedy looking at congress' decision to provide integrated civil enforcement be exclusive.64 following russell was dedeaux, in which the court again the committee believes that the legislative history of erisa and express preemption provisions were drafted to be expansive, reserving 1906, 1947-48 ("participants in erisa covered employee benefit plans that have been [improperly benefits altogether. cf. supra note 42 and accompanying text. but, where nothing is accomplished by a participant, beneficiary, or fiduciary (a) to enjoin any act or the defendant impleaded just to permit a facially valid claim, is unfortunate. would it not be it seems to this author that a balanced rule that takes these concerns 153. id. at 16. a resolution that would permit the plaintiff to assert his claim. 65. 508 u.s. 248 (1993). break the "specific command of [erisa]" to determine the rights of the parties solely based on "[the] basic thrust of the pre-emption clause . . . was to avoid a multiplicity of regulation in order to 39. erisa 502(a)(3). deferred compensation for a select group of management or highly compensated employees," and support its holding that the civil enforcement provisions of erisa were 206. under the suggested rule, where erisa preempts state law but does not offer guidance, the four cort circumstances"). it looked possible that the supreme court might revisit these issues employee benefit plans,"62 rev. 223, 224-26 (2008) (discussing the fundamental flaws of i.r.c. 409a); see generally difficult issues would seem to be raised limitation, but appellant made no effort to show such a need in this case."). further distinguishing russell, the court reasoned that, the fifth circuit thus held that "other state-law claim for fraud is not automatically preempted in the case of inducing an individual to but if it is determined that broader gap-filling is permitted and 502(a) of the statute as finally enacted . . . provide strong evidence that the employee retirement income security act of 1974, as benefits law."217 to satisfy a legal requirement. in west, early retirees who requested to receive their pension benefits error in russell, mertens and great-west, 103 colum. l. rev. 1317, 1343 (2003) (citing michael and restitution, but not compensatory damages)."69 of the bill. this would be self defeating and would hurt rather than help the employees actions under erisa would apply). protection afforded [to] participants by eliminating the threat of conflicting and inconsistent state considerations of that type are endemic to any development of common-law considerations, and in this way, the dreaded "patchwork davila holds that, if an individual could the supreme court cited that were "typically available in equity (such as injunction, mandamus, 217. jess bravin & evan perez, justice souter to retire from court, wall st. j., may 1, be completely preempted by federal law.37 566 f.3d 728, 732 (8th cir. 2009); see also pierce v. wells fargo bank, no. c 08-1554 jf (hrl), subject to erisa; consequently, state-law remedies were not was evidence that the employer instructed that communications to employees specifically encourage of supplemental or other additional rules that are not inconsistent with breach of fiduciary duty qualified as fraud or if the breach had subsequently been concealed in a in particular, the plan participants terms of the plan, or (b) to obtain other appropriate equitable relief (i) simply allow a fraud claim under the supposedly protective erisa light of its protective purposes. as another recent example of such a 166. employment retirement income security act (erisa) of 1974 413, 29 u.s.c. 1113 participant in a defined contribution plan may sue under erisa section we share appellant's concern that her claim exists in a remedy-less "regulatory vacuum" their pension rights but were unable to get any relief from the courts. eichorn, 484 f.3d at 647, as to the question of whether recent vague contextual movement to incorporate expressly.'"68 this reference to the lmra in the legislative history of erisa.133 turn] up in [erisa]," certain underlying principles may be relevant); mcgowan v. njr serv. in dedeaux, the court first noted that erisa's attorney fees in erisa litigation and in what amounts.161 2009] a regulatory vacuum leaves gaping wounds 447 2002). admittedly digressing, the author notes that his own favorite yogiism is, "nobody goes plan, continued paying the premiums while on disability leave until his the legislature left it to the courts to use their "wisdom and conclusion that varity officials communicated statements about benefits the employer (as the plan administrator) and the plan fiduciary had a "fiduciary duty to not make 147. 939 f.2d 12 (2d cir. 1991). 2009] a regulatory vacuum leaves gaping wounds 439 should be filled and some should not squarely frames the matter as one availability of a jury trial in any aspect of erisa litigation, and the cause of action may be preempted from the outset, the matter can be at 165. mertens v. hewitt assocs., 508 u.s. 248, 258 (1993) (citations omitted). erisa.148 varity corp. v. howe182 of the truth."); see also 60a am. jur. 2d pensions 98 (2003) (noting one example where a state 212. 321 f.3d 83 (2d cir. 2003), vacated, vytra healthcare v. cicio, 542 u.s. 933 (2003), on the supreme court stressed that preemption under section 514 administrative and compliance costs of employee benefit plans, thus more expansive understanding of the "appropriate equitable relief" under the divided bench."92 imposed in that case was, unlike contribution, not a traditional common be filled? the answer is: well, maybe, if viewed as providing a comics' stan lee might have intoned, "`nuff said!" see generally stan lee & george mair, those on the supreme court.219 118. see mertens v. hewitt assoc., 508 u.s. 248, 258 n.8 (1993) (emphasis omitted). in the law. the shortcomings difelice's claim challenging aetna's decision declaring the device "disturbed" by the result and that "it seems unfair that erisa should immunize [the] employer for appropriate amounted to negligent conduct under state law."174 being that erisa coverage leads to preemption,49 514(b)(4) of erisa. erisa 514(b)(4), 29 u.s.c. 1144(b)(4). compare erisa 514(a), op. under erisa, may fall into that same abyss. it is suggested here that development of a "serious consideration" standard to get at certain types claims against participants.74 been unreasonably delayed or totally disregarded by an insurer, an sense) before proceeding to award relief. committee of the employee benefits committee of the american bar association's section of pointing to supreme court rulings in cases such as lost their nonpension benefits.189 benefit the statute was enacted; (ii) whether there is an explicit or 436 hofstra labor & employment law journal [vol. 26:409 133. id. at 52. rather under erisa, it may in effect disappear. the issues discussed above as discussed below.29 under this approach, mrs. id. at 1026-27 (roberts, j., concurring). such. why should a claimant have to play a "where's waldo"-type or claims-preserving result, the result of the miller approach is to preserve predominance of the availability of fraud actions in historical state law fiduciary duty to make certain disclosures in a forthright manner. in the the ninth providers.79 performance of plan assets. see, e.g., 401(k) fair disclosure for retirement security act of 2007, that a plan fiduciary has no fiduciary duty to disclose potential changes to a benefit plan prior to maybe worse, once congress does act, any comp. planning j. (bna), at 223 (oct. 3, 2008) (discussing the complexities and confusion of trusts.'"). generic term embracing all the multifarious means which human ingenuity can devise and are denies them of legal recourse."). general concludes that when an erisa claim is against a fiduciary, the policy choices reflected in the inclusion of certain remedies and congress did not intend to authorize other remedies that it simply forgot to the author, varity may be viewed as a circuitous route to and structure that: causes of actions not expressly set forth in erisa the court cited to russell in expressing its "unwillingness to infer putative laboratories in order to achieve a proper balance. see also infra note 207 and referred to as the "crowning achievement" of the legislation.25 addressed what standard of review should apply to decisions by a plan miller engages in an analysis that ultimately extricated the proceed. just as with remedies, if a cause of action is deemed to fall to as "tax-qualification requirements" applicable to retirement plans and trusts intended to satisfy security act (erisa) of 1974 502(a)(3), 29 u.s.c. 1132(a)(3) (2006)). medical procedure, (ii) a denial based on a determination that a procedure was experimental or (essentially a sequel to the indeed look to another approach. 8. see infra notes 119-71 and accompanying text. preemption was intended to remove the patchwork of state and federal has been given to a program the existence of which has been withheld from potentially affected curiae brief in connection with the petition for certiorari. in that brief, a a 26. ingersoll-rand co. v. mcclendon, 498 u.s. 133, 142 (1990). judicial gap-filling to advance the purposes of erisa.209 statements that no such program was likely to occur. 858 f.2d 1154, 1160 (6th cir. 1988). there enforcement section.61 solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that 430 hofstra labor & employment law journal [vol. 26:409 tire & rubber co. v. bruch, 489 u.s. 101, 109-10 (1989)). knowingly and significantly in deceiving a plan's beneficiaries in order analogized the plan administrator's position to that of a trustee,145 an important part of provision requiring the breaching fiduciary to make the plan whole and arguably, there needed to be andrew l. oringer would be unnecessary if straightforward causes of action under erisa with e.g., meade v. pension appeals & review comm., 966 f.2d 190, 193 (6th cir. 1992) (applied h. langbein & bruce a. wolk, pension and employee benefit law 63-64 (foundation press 109. see larue, 128 s. ct. at 1025-26. it is noted, however, as simple and straightforward as for whose benefit the legislation is designed. as a lump sum payment claimed that the plan's failure to use a "whipsaw calculation" constituted a matters such as these. the goal was to minimize the administrative and financial burden of complying with conflicting had spherion not breached its fiduciary duty.84 senator javits that "`[i]t is also intended that a body of federal 183. see id. at 506 (quoting employment retirement income security act (erisa) of 1974 second, the courts it is therefore not surprising that erisa preemption arises in a another case with factual elements in some ways similar to those of for benefits or to construe the plan's terms.146 law' . . . is not the authority to revise the text of the statute."165 erisa's civil-enforcement provisions setting forth certain remedies and causes of action in the erisa context, since that statute's carefully expressly address the right to contribution or indemnity. in chemung ultimately denied certiorari.94 benefit plans" that would serve to supplement the statutory scheme, achieve fair--indeed, "equitable"--results. it is in effect proposed here accordingly, the district court's order of dismissal is affirmed. congress `wipe[s] the slate clean.'''213 directives among states or between states and federal government . . . [and to prevent] the accompanying text. of claim that sounds in fiduciary law, spawning an arguably strange policy. . . . federal interpretation of the federal law will govern, not state law. but state law, if that every perceived gap need be filled,170 178. id. at 454 (becker, j., concurring). if a state law claim is "related to" a benefit plan, it is night live: weekend update thurs., (nbc television broadcast oct. 23, 2008), available at although the bills differed on whether the claims would be governed by federal or state law. id. at 1052, 107th cong. 402 (2001). under this proposal, a "medically reviewable decision" was 128. id. anything that was not explicitly addressed, thereby treating any connection with the causes of action available, which, if not cognizable held that a plan administrator's wrongful denial of benefits constituted (ii) to enforce any provisions of [erisa] or the terms of the plan." employee retirement income 514(a), op. dep't of lab. 94-27a (july 14, 1994) (determining a wage-withholding law in new may wish in appropriate cases to continue to cry out. 98. id. at 1105. that such statements amounted to actionable fiduciary breaches.191 whether the court would have found itself unable to discern an available the committee reaffirms the authority of the federal courts to shape because "any state-law cause of action that duplicates, supplements, or management relations act of 1947 ("lmra"),129 violation of erisa and sought remedy under section 502(a)(1)(b). west, 484 f.3d at 401. while there was no way under supreme court precedent to help mrs. 143. id. at 108-09 (citing nachman corp. v. pension benefit guar. corp., 446 u.s. 359, 361 the court held that "making in some sense, it seems almost obvious coverage decisions. however, this legislation would only provide a ceiling for liability, and by the employer's advantage if congress does not step in to regulate. to 438 hofstra labor & employment law journal [vol. 26:409 wanted the courts to create a federal common law of erisa by mertens dictate against rewriting, however, should be read in the face of intended "to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; need for increased attention on national security following the events of september 11, 2001. see there must be a better way.220 remarks on erisa that "it is the judges who are appalled at the inequity and outrageous injustice focus, the court in metlife v. glenn114 dep't of lab. 2008-02a (feb. 8, 2008) (determining a kentucky wage-withholding law not to be seem to implicate substantial policy concerns. congress could of erisa, 61 hastings l.j. (forthcoming 2009). the numbingly technical cases involving applications of pension or gets involved. thus, not only are the courts best suited to untangle the the last thing that either side may want is for the courts to respond to their desperate attempts to circumvent erisa's procrustean reach, and medical facts of the specific case. id. 104. the bill would permit federal preemption of state law legislative history" of erisa, that an earlier version of the statute had as well as trust law for guidance as directed by the statute's legislative without turning their backs on, or otherwise reversing, the underlying anecdote: congressional purposes" in enacting erisa)). potentially developing common law, it might indeed be easier for the thus, in fashioning federal common law under erisa, the and lucent from enforcing the "anti-bridging" agreement under the definition of "equitable relief" assume that more substantive gap-filling is inappropriate. obligation to process claims in good faith and in a fair and diligent gate, 546 f.3d at 649. when it comes to this void, some courts seem anxious to stretch the law to court directives. history.140 162. e.g., kane v. aetna life ins., 893 f.2d 1283, 1285-86 (11th cir. 1990) ("[w]e find that so, then, why stop the triage with such items as the statute of 424 hofstra labor & employment law journal [vol. 26:409 law.128 struggle with the broad scope of erisa preemption. see, e.g., barnett v. skf usa inc., no. 282 "appropriate equitable relief" includes compensatory damages.93 action without restriction, it is suggested in light of erisa's purposes section 514 states, in part, that erisa "shall supersede 83. id. in pilot life insurance, co. v. dedeaux,40 18. 508 u.s. 248 (1993). circumstances show that the processing of legitimate benefit claims has unlikely," the court nevertheless reaffirmed this limited meaning of plans--unless a criminal statute of general application--establishing well, as yogi berra once said, 2009] a regulatory vacuum leaves gaping wounds 433 implicit legislative intent to create or deny the remedy sought; (iii) regulation and instead provide assurance that employers would only only failed to monitor the trustee, but upon learning of the breaches of quilt"5 and may arise more frequently. however, such a state of affairs does not connection with or reference to such a plan."33 having heightened importance.115 as the courts have used federal common law to fill in some of the moving from the remedies conundrum and the role of common johnson v. waterfront servs. co., no. 5-07-0458, slip op. at 8-9 (5th cir. 2009) (holding that a asked to decide whether a participant in a defined contribution plan can they have looked to erisa's underlying policies substantive law will be developed by the courts to deal with issues there, the court was benefit plan.184 supplement the explicit provisions and general policies set out in benefits under the plan, and for relief from breach of fiduciary responsibility. . . . [w]ith providers, wish that they had not been so successful at lobbying congress to rein in the internal c. need erisa preempt common sense? use of its power to regulate interstate commerce,6 in light of historical development, but is called for by the legislative consistent with the bedrock gap-filling principles that already exist, applicable to [erisa] fiduciaries certain principles developed in the evolution of the law of statutory violation. see id. at 404-05. the sixth circuit in west stated that, "[a]lthough ak steel such breach, and to restore to such plan any profits of such fiduciary which have been standards of conduct, responsibility, and obligation for fiduciaries of and giving deference to the district court's claim for fraud, the courts have embarked down a path of identifying a 444 hofstra labor & employment law journal [vol. 26:409 220. id. at 47. sufficient federal remedies. (1981)). technical distinctions in historical legal concepts between "equitable" such uniformity would benefit both employers, who would no longer history.125 2009] a regulatory vacuum leaves gaping wounds 423 remedy under section 502(a)(3) of erisa). it is noted that there is legislative history indicating that only permitted suits against employers maintaining a group plan under state law if the employer's sarbanes-oxley act of 2002, pub. l. no. 107-204, 116 stat. 745 (2002), which was passed in an wrongful administration of "insurance, administrative services, or medical services [by other claims where there is no express statutory cause of action under to address the pain of erisa compensate the trust for the consequences of the breach, the solicitor --does anyone, on any side, really want congressional according to larue, miller court intentionally used result-oriented reasoning to reach a got substantial attention from justice brennan in his concurring opinion ancillary cost of preemptive legislation. see supra notes 2-7 and accompanying text. 157. id. code of 1986 has arguably made an entire group of practitioners, service recipients and service and experience, a body of federal common law governing employee to pursue the cause of action in state court.48 encompassing as to details, but rather intended and expected, are problematic.111 claims are examples of causes of action that should be recognized as united states in similar fashion to those brought under section 301 of the labor- employee retirement income security act of 1974: the first decade 6-25 (1984) reprinted in john section 502(a)(1)(b) of erisa, the third circuit dismissed mr. descriptions below do not describe all their provisions, only the primary effects. particularly however, the committee believes such action is unnecessary. 203. ironically, it may well be that the case law governing equitable relief may evolve in held that, where a fiduciary "participate[s] the should be cognizable where (i) they are consistently extant under the grounds that the claim against it was completely preempted under 198. this course has taken us down the road of trying to identify when "serious consideration" employee] would enjoy"). erisa claims, particularly in light of the extremely specific inclusion in and employees, who could benefit because a more uniform regime might if protection is the guiding principle, what is next? going even trust law should inform the interpretation of the statute.144 v. be careful for what you wish congress hoped that federal common law of remedies . . . including such remedies as the awarding of punitive and/or 168. compare, e.g., meagher v. int'l ass'n of machinists & aerospace workers pension plan, disproportionality of the damage to one participant need not render the interpretation of an erisa plan]."); pell v. e.i. dupont de nemours & co., 539 f.3d 292, 300 (3d while erisa is comprehensive and reticulated, it is, in its supreme court precedent culminating in mertens and its progeny, that a defense, or a failure to locate a breach. stated another way, where a 179. difelice, 346 f.3d at 463, 465; see also supra note 16. 120. mass. mut. life ins. co. v. russell, 473 u.s. 134, 156 (1985) (quoting 120 cong. rec. & edward p. richards, managed care liability for breach of fiduciary duty after pegram v. the beneficiary would have received but for the fiduciary breach of deferred compensation, section 409a (and more recently section 457a) of the internal revenue not bring a claim on behalf of the plan merely because the damage now.205 terms of the plan, or (b) to obtain other appropriate equitable relief (i) to redress such violations or intentional representations about the future of plan benefits in [the to be sure, prior results would need to be overruled on a going- 172. see difelice v. aetna, 346 f.3d 442, 453 (3d cir. 2003). but see bertoni v. stock bldg. criticized in recent years, not only by those in academic circles, but also take it!: inspiration and wisdom from one of baseball's greatest heroes (hyperion according to the new provider's "active work the court went on to interpret "equitable" in the context of the civil shoehorn what seems like facially obvious fraud claims into some type (2001) (suggesting the best interpretation of section 514 and the "relate to" test is to "treat them as a eda 2008 10-11, 18 (pa. super. ct. july 13, 2009) (holding that a claim based on an employer's 182. 516 u.s. 489 (1996). response to judicial outcry before the case law governing causes of action, in that, to the author, an 180. id. at 465. f.3d 590, 592 (3d cir. 2007) (ambro, c.j., concurring) ("thus, to accept the mertens/great-west pension plans depend for their very existence voluntary action. we know that new plans 5. erisa: a comprehensive guide 8.01, p. 8-3 (paul j. schneider & barbara w. made clear that the duty of loyalty requires an erisa fiduciary to communicate any material facts ("erisa") is expressly intended to "protect . . . participants 126. id. any person who is a fiduciary with respect to a plan who breaches any of the www.tax.state.ny.us/pdf/memos/corporation/m06_6c.pdf (discussing how the hattem holding by members of the judiciary themselves constrained by precedent. the aetna health, inc. v. davila,14 combined with their narrow construction of the relief available under beneficiary to recover benefits due under the plan, to clarify rights to receive future tinkering with participants' and beneficiaries' access to the courts in this the recover damages to the participant's account.103 1101 (2006). no further legislative change is necessary as a predicate for the courts to claimant to make fraud-based claims without a written basis to do so. first, one could imagine a oxley's negative impact in and interference with the capital markets). in the arena of nonqualified citing precedent as well as legislative history, the court began by principle of equity jurisprudence governing the law of trusts, those charge,50 can common sense offer a better way 37. id. at 214. 6. u.s. const. art. i, 8, cl. 3. see generally david gregory, the scope of erisa the courts already have the ability to impose compensatory damages through their common-law in larue, the plaintiff, mr. larue, alleged that the fiduciary of his steel corp. ret. accumulation pension plan, 484 f.3d 395 (6th cir. 2007), is illustrative of the andrew l. oringer is a partner at ropes & gray llp, leading the firm's erisa and executive (2001); h.r. 2563 107th cong. (2001)). these bills are typically very lengthy and intricate, and the pension and benefits blog, http://bnablog.bna.com/penben/2008/09/9th-circuit-hol.html#comments concurrence urged the supreme court to lead in the evolution of the law reference to "equitable relief" into a reference to "all relief,"118 section 413 of a statute of limitations for some, but not all, erisa have brought his claim under erisa section 502(a)(1)(b) and there is 502(a)(1)(b).173 there was some possibility that these issues would be addressed in life ins. co. of am. v. meyling, 146 f.3d 1184, 1192-93 (9th cir. 1998) (discussing when a court 209. the author would by no means suggest that the courts should, without restraint, simply andrew l. oringer, release us from confusion over nonqualified deferred compensation, 36 the plaintiff's complaint does not contain a federal claim (absent another basis to do so), even if a beneficiaries were free to obtain remedies under state law that reticulate and comprehensive statute, understood that it was taking the risk that any number of 86. id. at 345, 348. approach to historical remedies and restrictive approach to causes of concurring) (quoting difelice v. aetna u.s. healthcare, 346 f.3d 442, 456 (3d cir. 2003) (becker, of comparison, a previous test for whether an action could be brought as the court has acknowledged that congress 207. georgia j. hinde, federal rule of evidence 801(d)(2)(e) and the confrontation clause: thereunder.138 418 hofstra labor & employment law journal [vol. 26:409 146. id. at 115; see also metropolitan life ins. co. v. glenn, 128 s. ct. 2343, 2350 (2008). medical negligence and was completely preempted by section based on erisa's legislative history, the court held that congress establishing its authority to develop federal common law, and in doing these results, viewed in light of erisa's 103. id. at 1022. vi. conclusion 48. see generally id. 24. see infra notes 172-208 and accompanying text. example: (holding that "[e]ven if there were no express pre-emption [under erisa section 514(a)]" of the a question arises as to whether development of the remedies and 123. see h.r. rep. no. 101-247, at 56 (1st sess. 1989), reprinted in 1989 u.s.c.c.a.n. 1906, simply put, the judicial 114. 128 s. ct. 2343 (2008). administrator or fiduciary discretionary authority to determine eligibility remedies are deemed unavailable to the claimant.9 amended,1 for fraud were held to be available.200 dictionary (2009), available at http://www.merriam-webster.com/dictionary/equitable. erisa was to be interpreted broadly to preempt state laws, it was also administration of or eligibility for benefits was completely preempted by remedies and the exclusion of others under the federal scheme would preemption of certain state taxes); n.y. state dep't of taxation and fin., corp. tax memo "erisa-regulated 401(k) retirement savings plan," failed to make 164. see supra notes 102-112 and accompanying text. mandamus.52 manifest themselves both (i) in connection with the remedies available, regulated plans "if the remedies available to erisa participants and eventually, the impracticality of this 40. 481 u.s. 41 (1987). davila unquestionably suffered alleged harm but were deprived of any are an example of an item not expressly covered by erisa,201 pension plans.31 recognition of their viability under erisa would raise no substantial and in deference to the majority,72 154. id. at 16. a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his development of erisa-related case law in the "laboratories of the lower remedy might be available, a plaintiff may be out of court if a benefits- appears to have long passed to argue that there is no statute of of situations it will inexorably lead to the ultimate dismissal of claims if tex., 198 f.3d 552, 556 (5th cir. 2000) ([t]hese cases, which adopt a case by case or ad hoc only in u.s. district courts but also in state courts of competent jurisdiction. all such the author believes that to go down this path would avoided. furthering what the author views as a classically appropriate 97. id. congress did not intend to authorize other remedies that it simply approach, do not warrant the wholesale judicial legislation of a broad duty to disclose that would circuit held that, since ms. miller was not a participant under either of in its second year of operation, and the employees as well as the retirees civil enforcement provisions of erisa section 502(a) has been held to 189. id. while larue is welcome in the 76. 505 f.3d 342 (2007), cert. denied, 128 s. ct. 2995 (2008). great weight of traditional common-law experience, and (ii) the and restore lost profits to the plan.104 association: employer mandates and erisa preemption in the ninth circuit, 47 state tax massey-ferguson was a wholly owned subsidiary of federal law if it appears "in the plaintiff's statement of his own claim in the bill or declaration, wronged participants and beneficiaries without recourse, the courts, it is suggested here, should york law not to be preempted, although without discussion of the criminal-law issue). see also further, not only did spherion fail to waive the active work requirement, persons]." see h.r. rep. 106-366, at 4 (1999). under the proposals, suits against an employer, of the `equitable relief' allowable under section 502(a)(3)," justice "equitable" to mean "whatever relief a court of equity is empowered to the statutory language. this process by its nature, in order to be of blue cross & blue shield plans v. travelers ins. co., 514 u.s. 645, 657 (1995) (noting that light of express focus on the legal/equitable dichotomy from the hopefully would not be sufficient to dissuade the courts from continuing to experiment in their which authorizes "such other equitable or remedial relief as the court developed by the courts to deal with issues involving rights and state "slayer" statutes, which generally operate to preventing a killer from receiving benefits in of a simple cause of action for rank fraud and other similar causes of behest of [the defendant], to slam the courthouse doors in [the mentioned in erisa itself. in cases in which, for instance, facts and the urgency of the current situation was sanctions, and ready access to the federal courts."2 architect of erisa."121 erisa.10 law remedy.156 consider the issue as it was focused on the welfare of the plan's gain, while legal restitution goes further by imposing personal liability game197 of express remedies, and also with an understanding that the courts not the authority to revise the text of the statute."). "to [the] federal authority the sole power to regulate the field of and should be treated with a dose of common sense. the plans at the time the action was brought, her estate's claim was not a place, but told him that we could go somewhere else if he objected to northern italian regard. section 413 of erisa provides for a statute of limitations for 53. andrews-clarke v. travelers ins. co., 984 f. supp. 49, 53 (d. mass. 1997). even where point axiomatic that some consider aspects of the current scheme and its over the thirty-plus years since the for suits seeking damages against a benefits provider for personal injuries or death caused by because the claim was compensatory in nature, it held that recovery was possible under section with respect to the reference in the conference report on 416 hofstra labor & employment law journal [vol. 26:409 be misled). preempted by erisa). to the author, golden gate shows that, while silence may not always be s. gordon, overview: why was erisa enacted?, in u.s. senate, special comm. on aging, the 2009] a regulatory vacuum leaves gaping wounds 431 documents on file with the plan); manning v. hayes, 212 f.3d 866, 870 (5th cir. 2000) (discussing was paid less than the full accrued benefit due him under the ak steel plan because of his election 2009] a regulatory vacuum leaves gaping wounds 415 unfortunate result is one in which the "court [has] no choice but to pluck including . . . the awarding of punitive and/or compensatory damages fiduciary's right to seek contribution and indemnity was a fundamental tension between reading erisa remedies expansively and leaving claimants out of court, and is an equitable relief such as an injunction is a possible remedy, the slow pace of erisa litigation often the erisa 514(b)(2) (generally saving, among other things, state-law insurance regulation). construction of the remedies generally available under erisa's civil as the court's discussion in larue itself wake of a line of cases in the lower courts,181 accrued to the plan beneficiary but for the fiduciary's negligent joined the "rising judicial chorus" criticizing the current state of the 80. id. courts would formulate a "nationally uniform federal common law to management relations act of 1947. 105. id. at 1022. ultimately, since there is no dispute that gaps in erisa would appear to be preempted by section 502 of erisa. id. but, when a state law claim is based 173. see difelice, 346 f.3d at 453; erisa 502(a)(1)(b) ("a civil action may be brought by plaintiff's] face and leave [the plaintiff] without any remedy."53 preempted in states that only allow those types of damages for wrongful death. id. in 2001, the there may well at some point come a case in which 79. id. at 343-44. herein that the court indeed "start over" rather than wait for congress to pilot life 68. see id. at 254 (citing mass. mutual life ins. co. v. russell, 473 u.s. 134, 146 (1985)). you may receive it.' anonymous"). when the cacophony for change and against objectionable 329, 332, 341-42 (2003) (holding that kentucky's "any willing provider" statute is not preempted); only used to show that once this relatively noncontroversial gap-filling is the difelice concurrence noted the "serbonian bog" that has only if [that person] was a `participant' in an erisa plan at the relevant time"). spherion and its new this gap-filling has proceeded notwithstanding that, as mertens development of the law under erisa.15 however, due to administrative oversight, spherion did not the statute by providing appropriate causes of action where the effectuates the purposes of the statute, and nothing that would foreclose but rather action, but dressed up in fiduciary clothes. given the overwhelming contribution is not a remedy explicitly set forth in section 502(a), the cases, regardless of the absence of a statutory provision. therefore, it is develop the standards that the statute only set out in general terms, and 155. id. at 17-18. this common-sense approach to the notion of "equitable" would intended for the courts to develop a federal common law with respect held a meeting at which employees were provided information that was 61. see pilot life ins. v. dedeaux, 481 u.s. 41, 46, 54 (1987). of the law of trusts.'") (quoting h.r. rep. no. 93-533, at 2358 (1973)). intended that federal common law would be developed under erisa to in the mid-1980s, varity decided to reorganize its financially spirit of judicial activism, suggesting that judges should amorphously 218. cf. kennedy v. plan adm'r for dupont sav. & inv. plan, 129 s. ct. 865, 872 (2009) 31, 2009) (holding that retroactive reinstatement of health coverage is available as an equitable struggle with the point at which a fiduciary duty to disclose arises.194 31. see, e.g., aetna health, inc. v. davila, 542 u.s. 200, 208 (2004) ("the purpose of erisa disclosure only where there is "substantial likelihood" that a reasonable employee would otherwise supreme court rationale. having said that, the author acknowledges that a reappraisal of what the participants and beneficiaries."183 results of prior judicial application of the gap-filling approach would for fiduciary breach fails because claimant was not a participant at the applicable time). 7. ingersoll-rand co. v. mcclendon, 498 u.s. 133, 142 (1990) (holding that congress 82. id. an indication as any that you have made too many wrong turns and that you might as appears regarding a basic action for fraud. rather than permitting a crafted and detailed enforcement scheme provides `strong evidence that 101. see also phelan v. wyoming associated builders, no. 08-8055 at 12, 21 (10th cir. july misrepresentations, either negligently or intentionally, to potential plan participants" and that "any 119. e.g., franchise tax bd. of cal. v. constr. laborers vacation trust for s. cal., 463 u.s. 1, allowed? there are several possible problems. while some courts may lack of provision for adequate recourse to be appalling.215 428 hofstra labor & employment law journal [vol. 26:409 jurisprudence."154 federal standard for employers.4 created by erisa's broad preemption of state law claims and the supreme court's second, even if a sought-after a claim, albeit ironically by holding there to be no erisa claim. it is preempt an employee's claim for negligent misrepresentation regarding reimbursement for social permit the nationally uniform administration of employee benefit plans"). in sum, the detailed provisions of [section] 502(a) set forth a distinguished the russell holding by noting that the remedy sought to be the court in varity stated that it was not addressing the broader erisa requirement could support a private right of action, acknowledging that "[i]t is true that remedies, even if they are not specifically enumerated in section 502 of souter's impending retirement: "justice souter has complained about him, he remained subject to the new rule as he never returned to work.80 group health plan, or other plan sponsor maintaining the plan for "a right of recovery, indemnity, or for employees such as mr. amschwand, who were not working full time limitations emanates from the penumbra of erisa. regardless, the time drawn--and where it has been drawn to date is not necessarily at the the impassioned pleas of the concurrence in difelice have, as congress rejected in erisa . . . . the deliberate care with which 219. difelice v. aetna u.s. healthcare, 346 f.3d 442, 453 (3d cir. 2003) (becker, j., provisions in section 502(a), and concluding that "`congress did not intend to authorize other that congress intended the remedies in section 502 to be the exclusive optimal spot.171 http://www.dol.gov/sol/media/briefs/amschwand(a)-05-2008.pdf. use of unorthodox reasoning that avoids the jurisprudence in this area supplants the erisa civil enforcement remedy conflicts with the clear of disparate state and local benefits regulation would hopefully be there being some inevitable rewriting if it is presupposed that there will of interests, considerations, and other equities (in the plain-language the statute that erisa's goal is "`to protect . . . the interests of additional claim for monetary damages did not constitute "appropriate in a broad range member of the class of which the statute intended to benefit by its enactment; 2) the legislative revisit what is an unjust and increasingly tangled erisa regime."13 as part of its efforts to persuade the 117. aetna health inc. v. davila, 542 u.s. 200, 223 (2004) (ginsburg, j., concurring). suggested here would be another step in the development of the common 440 hofstra labor & employment law journal [vol. 26:409 federal courts to develop a federal common law of remedies, . . . otherwise try to be protective because at times the other erisa policies, such as uniformity, are too 28. cases in which erisa leaves a gap should be distinguished from cases in which erisa as another 12. 346 f.3d 442 (3d cir. 2003). rule," the coverage date for employees who were ill or injured would be closing the window of admissibility for coconspirator hearsay, 53 fordham l. rev. 1291, 1308 federal questions `which cannot be answered from federal statutes alone'"); see also mertens v. statute and our case law chart the path we must follow."); see also eichorn v. at&t corp., 489 plan which do not involve application of the title i provisions, they may be brought not result. see also trayler v. avnet inc., no. cv-08-0918-phx-fjm, 2009 wl 383594, at *3 (d. we who have worked intimately on this legislation have always kept in mind that private desire to offer employees enhanced protection for their benefits'" as follow precedents that lead inexorably" to bad results.179 suggested here, however, that even a possible need for these types of court, [which] will not be healed until the court `start[s] over' or misadministration of the participant's plan.88 while recognizing against the public interest in encouraging the formation of employee erisa so that injuries caused by wrongful benefits administration would be compensable by money traditionally relegated to state law, making a federal cause of action inappropriate). 3 (e.d. ark. mar. 20, 2009) (oral promise to waive 90-day waiting period unenforceable, and claim widow's claim that her deceased husband's former employer negligently failed to process his participation in the breach of fiduciary duty by the plan's fiduciary by which pushes the case law in directions the author finds disconcerting, civil enforcement provisions of erisa indicated an intent that the that there must be some statute of limitations for the actions remaining compare id., with pocchia v. nynex corp., 81 f.3d 275, 278 (2d cir. 1996) (generally holding care accountability, 13 annals health l. 233, 293-94 (2004) (citing s. 1052, 107th cong. employer, a plan administrator, or a plan, the committee intends the insurance co. v. knudson,71 2007) (ambro, c.j., concurring). for example, in eichorn v. at&t corp., 484 f.3d 644 (3d cir. backdrop against which courts can trend towards interpreting erisa in would grant an employer a rescission remedy in cases where an employee lied in order to obtain actions in federal or state courts are to be regarded as arising under the laws of the 63. see id. at 55-56. that an administrator's decision should be reviewed according to a law consistent with its guiding principles, the author would suggest that, the court stated that being eschewed in favor of a technical, historically based analysis.51 unfortunately, to quote gaps under the guise of a federal common law. the advocated change in claim under erisa section 502(a)(3) seeking the full benefits that common law with regard to the construction and enforcement of dedeaux court focused on the "powerful pre-emptive force of [section] relief that achieves intuitively fair results.22 company they left or to another of the former at&t companies, would be eligible to "bridge" their congressional intent to make the erisa remedy exclusive and is the (indicating that, while "the whole law of spendthrift trusts and disclaimers [does not necessarily scope of the equitable remedies available under erisa, it is suggested unenumerated by erisa in section 413. provisions have been viewed.46 spherion corp. at 8-15, 128 s. ct. 1493 (2008) (no. 07-841), available at 412 hofstra labor & employment law journal [vol. 26:409 was sensible to provide initially for a judicious approach to the filling of ariz. feb. 13, 2009) (citing west 484 f.3d at 412) (agreeing with the conclusion reached by the intent, implicitly or explicitly, permits or denies such remedy; 3) providing such remedy is cuisine. "in my book," he replied, "anyone who objects to northern italian should start 75. see difelice v. aetna u.s. healthcare, 346 f.3d, 442, 446 (2003) ("in any event, the section 502(a)(3) and move away from the dichotomy between legal and 2009] a regulatory vacuum leaves gaping wounds 429 64. id. at 54. undermined if erisa-plan participants and beneficiaries were free to section 401(a) of the internal revenue code of 1986, even where (i) the requirements at issue may death. this bill also provided a cap of $250,000 for non-economic damages. 145 cong. rec. there is a general changes he requested to the investments in his plan account.105 and "legal" remedies, there in the opposite context of insurance-related statute there to protect the claimant?101 188. id. at 494. consensus that some statute of limitations exists as to non-fiduciary as to the development of available causes of action, the suggestion 2009] a regulatory vacuum leaves gaping wounds 435 and intent. it is submitted that courts should feel free to look to state-based to common law to shape rather, larue correctly identifies the claim at issue a cause of action under state law that falls within the scope of the that it simply forgot to incorporate expressly."60 19. see davila, 542 u.s. at 222 (quoting difelice, 346 f.3d at 456 (becker, j., concurring)). obligations under private welfare and pension plans.122 the path to such a resolution turned out to be relatively simple and following her husband's death, mrs. amschwand was denied in this case, a former plan trustee was sued for breaching its restore lost profits.112 common-law fraud action is not preempted). see generally 70 c.j.s. pensions 16 (2005) ("state 502(a)(2) to recover losses sustained to his account due to a fiduciary 158. see elizabeth a. di cola, fairness and efficiency: allowing contribution under erisa, 434 hofstra labor & employment law journal [vol. 26:409 because the cause of action, "even if pleaded in terms of state law, is in reality based on federal about 1,500 employees transferred indeed, the path to applying erisa's rules can be the court therefore concluded that 191. id. at 498. 33. shaw v. delta airlines, 463 u.s. 85, 96-97 (1983). see generally edward zelinsky, about them. see generally posting of andrew oringer to bna pension & benefits blog, jurisprudence,195 193. id. 163. see metropolitan life ins. co. v. glenn, 128 s. ct. 2343, 2350 (2008) (citing firestone causes of action are available under erisa may involve a difficult-to-control slippery slope. preempted, expressly focusing, inter alia, on the non-criminal nature of the law), with erisa davila deals with the question of whether a texas court could hear such fiduciary. wait for the supreme court's imprimatur. until then, the lower courts exercises of state power or regulatory authority, whose effect on erisa is incidental."). revenue service. see michael doran, time to start over on deferred compensation, 28 va. tax and mertens v. plan to which her husband had diligently contributed.85 is not argued here that the courts should refrain from developing the 116. for example, one reference dictionary defines "equitable" with a first meaning of "having compensatory damages"). the statutory provisions of erisa were not intended to establish a of erisa.151 15,893 (1999). another proposal was to remove federal preemption with regard to state causes of fiduciary breaches his duty under erisa to act "solely in the interest of participants who have suffered injury are left without remedy or any leave a plaintiff with good claims out of court. 52. see mertens v. hewitt assoc., 508 u.s. 248, 255-58 (1993). preemption of state causes of action involving medically reviewable health plan determinations, but a slavish adherence to some imagined erisa construct, at the expense of leaving concededly available under the civil enforcement provision of erisa in mertens v. be discharged from the hospital before his attending physician deemed it 1948. common sense that underlies trust23 was `medically unnecessary' and aetna's insistence that [mr. difelice] in amschwand, the plaintiff, mr. amschwand, was on medical such plans, imposing criminal penalties on failure to contribute to consequences of applying varity illustrate the importance of setting the proposals to legislatively change disclosure requirements applicable to employee benefit plans in calling for discretion under the common law to fix where the line is that courts have always declined to define the term"); 37 c.j.s. fraud 1 (2008) ("fraud is a meaningful recourse due to erisa preemption and the lack of any decision is forced into a rationale to reach a result that is perceived to be 44. id. at 210. employee inquiries."193 171. a countervailing argument to the one made herein is that congress, in enacting such a should take a common-sense approach to equitable relief and aim to id. at 646-47. in 1996, lucent sold paradyne, a subsidiary of at&t corp, to texas pacific group, circuitous way of allowing fraud claims may well emerge. the potential 167. see generally id. 1001-1461. courts would develop a body of federal common law to fill in the the trustee's duty, they silently removed the trustee without disclosing the district court held the court so downright painful that we may well have lost a supreme court justice basic firestone/metlife analysis of plan interpretation may be viewed as generally defined as (i) a denial based on a decision about the necessity or appropriateness of a provide in the particular case at issue," would render the word 142. 489 u.s. at 101. expressly authorized by erisa, the court did not read into the statute h.r. rep. 106-366, at 153, 223 (1999); 145 cong. rec. 15,893 (1999). some bills proposed erisa's fundamental purposes and intent. thus, while the ultimate regulatory void can be plainly seen in the health-care arena, where states and municipalities are resulted from the efforts of the courts to apply the preemption test.178 of degree, not one of principle, and the author sees nothing that would involving rights and obligations under private welfare and pension an appropriate exercise of its authority to adopt contribution as a part of there is a better way to put "security" back in erisa, and that the possible to craft a general approach that would effectively address remedies are limited to the types of relief that were "typically available in equity" such as court said that, given the breach of duty in varity, it "need not reach the limitations applicable for non-fiduciary erisa purposes. to be clear, it the courts have dutifully followed.75 larue v. dewolf, boberg & associates, inc.102 further, 41. id. at 52. this vacuum on multiple fronts, without the need for statutory change. section 502(a)(2) authorizes actions under section 409, which in turn fiduciaries. a number of other courts have rejected this approach, as in to a plan that were erroneously paid despite any express statutory authorization of such relief); sec. gaps within erisa,139 the solicitor general asserted that the fifth circuit 34. shaw, 463 u.s. at 85. incapable of protecting employees" but that "lower courts are bound to http://bnablog.bna.com/penben/2009/01/are-reactions-to-the-investmentadvice-regulations- even if a state-law claim is not preempted under section 514, if it (nov. 19, 2008, 16:33 est). indeed, even pro-employee interests may regret it if they win these indicates, a holding that a participant in a defined contribution plan does 59. id. at 145-46. wrongdoing?198 another example of a gap within erisa is that the statute does not cong. rec. 15,972 (2000) ($350,000 maximum award). one bill would have removed preemption erisa's civil enforcement remedies were drafted and the balancing of 1132(a)(1)(b) (2006). enactment of erisa, courts have struggled with the nature of the context of an enterprise's future financial viability] is an act of plan the result in many of these cases has been that deserving were decided or that the fundamental rationale needs to be reversed. it the plaintiff, mr. difelice, alleged, "that aetna's lost through fiduciary mismanagement."108 misrepresentation[] made . . . could constitute a breach of a fiduciary duty." id. at 1163-64. bring fiduciary breach claims under section 502(a)(2) of erisa to of 1974 4(b), 29 u.s.c. 1003(b) (2006) (setting forth express exclusions form erisa coverage). 72. id. at 206. provides enough fodder for a lower court to move on these issues, the asserted claims, as the case may be. it is suggested below that these 410 hofstra labor & employment law journal [vol. 26:409 answer may well be that it does not. it is acknowledged, particularly in as in difelice, the plaintiffs in in granting certiorari, the court invited the solicitor general to file example of a case resolving in the participant's favor the ability to bring a claim based on a failure struggling to fill a substantive void viewed by some as having been left by congress. see golden permitted to any extent, must amount to something less than a proscribed thus, there is no principled need to conclude that a statute of veritable pyrotechnic gymnastics, with questionable analytical validity, unanimous decision, the court continued its mertens path, focusing on 140. see, e.g., firestone tire & rubber co. v. bruch, 489 u.s. 101, 110-11 (1989). the peculiarities of the law of each jurisdiction"). rep. dent stated that the purpose of erisa was thus, the development of federal common law to fill in "gaps" in cal., 463 u.s. 1, 10 (1983). under the "well-pleaded complaint" rule, a case generally arises under thereof, and (ii) presumably, an implementing provision in the underlying plan). but see, e.g., nevertheless comply with erisa." id. at 405. the court stated that "the key issue is whether west "rising judicial chorus urging that congress and the supreme court http://www.nbc.com/saturday_night_live/video/clips/update-freds-mapfix-it/784121/ (transcript to create a uniform body of law to govern employee benefit plans and action for extra-contractual damages could be implied even if it is not for a violation of plan terms or whether it is more expansive, such that it authorizes relief for a appropriate.208 21. id. at 223 (quoting cicio v. does, 321 f.3d 83, 106 (2d cir. 2003) (calabresi, j., embodying a common-sense approach to the term "equitable,"116 sought to make the plan whole for the losses from the actuary's knowing justice ginsberg's concurring opinion, in members of the plan's investment committee, claiming that they not 195. see, e.g., 37 am. jur. 2d fraud and deceit 1 (2001) (new fraud schemes are "so great common law of erisa, and that they need not wait for congress or the berman-sandler, supra note 211, at 293-94. statutory presumption for preemption"). 73. 547 u.s. 356 (2006). relief under erisa on at least two fronts. first, courts have taken a consistent with the purpose underlying the statutory scheme; and 4) the cause of action is one equitable relief. instead, the focus should turn to granting such equitable not, as the court suggested in mertens, effectively convert the erisa 115. id. at 2349 (quoting varity corp. v. howe, 516 u.s. 489, 497 (discussing "competing with regards to exemplary or punitive damages awards, unless it was established by clear and the courts' broad interpretation of erisa preemption of state laws 89. id. at 348. coyne, 482 u.s. 1, 3-4 (1987) (holding that a maine statute requiring employers to pay one week's fraud claim? and even after finding that fiduciary, why should a route waive the "active work rule" for mr. amschwand and, unbeknownst to concurring)). there is something herein that may aid in the path to that "better way." which justice breyer joined, cited to the difelice concurrence and court to authorize that pursuit. the courts can do so, it is contended, legislators intended erisa to preempt state law is not only appropriate remedies included in section 502 were to be exclusive.155 underlying intent of the statute, stating: rights under the terms of the plan, or to clarify his rights to future administration,"190 preemptive reach, can effectively leave plaintiffs with intuitively viable u.s. 1, 11 (1987) (cautioning against a "patchwork scheme of regulation"). see generally shaw v. the court suggested that whether the court in amschwand was correct in its determination that and would thus be more aligned with the very purpose of erisa's 150. id. at 14. erisa's enactment, the courts have consistently recognized congress' comprehensively. it is suggested here, however, that the consequences, to the extent that plaintiffs acknowledged as appropriate, there becomes nothing obvious about legal relief was ultimately deleted from the version of the bill.59 beneficiary for extra-contractual compensatory or punitive damages policies embodied in its choice of remedies argue strongly for the making?, 53 u. fla. l. rev. 1, 19 (2001); see also ky. ass'n of health plans v. miller, 538 u.s. participants to bring traditional causes of action that uncontroversially powers. see generally h.r. rep. no. 101-247, at 56 (1st sess. 1989), reprinted in 1989 herdrich: the end of erisa preemption for state law liability for medical care decision caused by improper or untimely processing of benefit claims.54 92. id. and local regulation")). 52 (7th cir. 2008) (declining to provide for a private right of action for a tax-qualification point 67. id. at 253. resorted to by one individual to gain an advantage over another by false suggestions or suppression 2009] a regulatory vacuum leaves gaping wounds 427 199. top hat plans are unfunded and maintained "primarily for the purpose of providing 176. see generally id. at 444-453. the point here is that fraud and similarly straightforward preempted.99 preempted by section 514 of erisa. id. if a state law claim is based on an eligibility decision, it their adoption), and fischer v. philadelphia elec. co., 994 f.2d 130, 135 (3d cir. 1993) (holding result can be achieved not only in the case at hand but also as a matter of 30. difelice v. aetna u.s. healthcare, 346 f.3d 442, 446 (3d cir. 2003). reasonableness and correctness of its result, it generally does not, 66. id. at 249-50. section 502(a)(3) authorizes a plan beneficiary, participant, or fiduciary to properly notes, "[t]he authority of courts to develop a `federal common 101, 110 (1989) ("the authority of courts to develop a `federal common law' under erisa . . . is breach,196 192. id. at 506. omissions as intentional.58 a. development of the federal common law under erisa j., concurring)). query whether existing precedent would necessarily have to be there are no fiduciaries at all?199 canal trust co. v. sovran bank/maryland,147 a regulatory vacuum leaves gaping not explicitly provide for contribution and indemnity, because a the statute's "gaps" by promulgating federal common law. questions investigational, or (iii) a decision by a healthcare professional not to cover a procedure based on against the person responsible for the failure to pay claims in a timely additional severance benefits, due to their reliance on the plan fiduciary's and the employer's omitted) ("congress intended that the courts would look to the settled experience of the common application for supplemental life insurance). plan participants. difelice demonstrates how even a claim for simple inc., 486 u.s. 825, 841 (1988), the supreme court held that erisa does not preempt a state's anti- failure to identify the principles regarding when to make the awards of supply, 989 so. 2d 670, 672 (fla. dist. ct. app. 2008) (holding that erisa does not preempt a the supreme court has interpreted section 502(a) to allow only davila, 542 u.s. 200, 222 (2004) (ginsburg, j., concurring); see also eichorn v. at&t significantly, this discussion gave rise to justice stevens' much repeated conclusion that the results in these cases were erroneous at the time they do so. and the states have a relatively uniform set of laws with regards to a particular issue, the courts participants or beneficiaries because erisa preempts state law. the 186. id. at 493. respect to suits to enforce benefit rights under the plan or to recover benefits under the reviewable decisions. see berman-sandler, supra note 211, at 293-94 (citing s. 1052, 107th cong. you wish210 to save the employer money at the beneficiaries' expense," such and held that these provisions should (2000), a medical-services organization was held not to be an erisa plan. see thomas r. mclean 96. miller, 504 f.3d at 1104. beneficiaries under [section] 502(a) could be supplemented or a. conflict preemption under section 514 court, in the spirit of implementing an evolving federal common law, decisions to state law, so that compensatory damages can be imposed. see generally leatrice 160. id. at 78. that has opened a "gaping wound"21 under federal law to provide protection for minors who could be unfairly affected by a contractual certain minimum standards in employee benefit plan administration). 134. id. at 55-56. satisfying or productive life at that."30 104. id. at 1023 n.2 (quoting erisa 409(a), 29 u.s.c. 1109(a)). 10. see, e.g., aetna health, inc. v. davila, 542 u.s. 200, 208-09 (2004) (quoting pilot life troubled divisions, including massey-ferguson, into a single subsidiary the dissent in cicio v. does,212 132. 481 u.s. 41 (1987). plainly in order."117 of preemption and limited remedies under erisa, as interpreted by th[e] narrow view of the remedies available under erisa, such that remedies as a claim properly brought on behalf of a plan under an erisa mrs. amschwand brought a question of when fiduciaries had an affirmative duty to speak.192 available remedies, and with the extent of their power to fill in some of massey-ferguson employees to transfer to massey combines, varity first bank in meridan, 299 u.s. 109, 117-18 (1936)). supplanted by varying state laws."135 action under erisa may be subject to less of a current groundswell than manner, a plan beneficiary could recover both compensatory and 2009] a regulatory vacuum leaves gaping wounds 443 112. see larue, 128 s. ct. at 1024. need to be subject to change. id. and twenty years ago it could not have foreseen the radical changes an appropriate erisa-based result, without necessarily feeling bound to import every detail of the 42. id. at 54 (quoting mass. mutual life ins. co. v. russell, 473 u.s. 134, 146 (1985)). overruled in order to begin proceeding down this path. as the path echoed the distinction between equitable restitution and legal restitution, benefit plans. the policy choices reflected in the inclusion of certain 138. see, e.g., milwaukee v. illinois, 451 u.s. 304, 314 (1981) (citations omitted) (stating that complexities of the subject and lack of any meaningful guidance. 122. 120 cong. rec. 29,942 (1974) (statement of sen. javits). cf. hattem v. schwarzenegger, 449 f.3d 423, 427-29, 435 (2d cir. 2006) (regarding the possible 1990)). dicta that "[t]he six carefully integrated civil enforcement provisions berman-sandler, independent medical review: expanding legal remedies to achieve managed 55. id. at 138, 148 (citing employee retirement income security act (erisa) of 1974 erisa, referring to and guided by principles of state law when delta airlines, 463 u.s. 85, 98-99 (1983) (quoting 120 cong. rec. 29,197 (1974) (discussing "the preemption is an important part of erisa's scheme, and has been congress' broad intention to preempt all state laws is at odds with the claim without remedy.109 --and other state--law principles.24 arise as to whether the courts have gone far enough in providing for excelsior!: the amazing life of stan lee 149 (fireside 2002). gaps.123 intended to assure them that their benefits would remain secure if they federal defense exists. see, e.g., franchise tax bd. of cal. v. constr. laborers vacation trust for s. freedman eds., aspen publishers, 2d ed. 2003); see also fort halifax packing co. v. coyne, 482 may deem appropriate"55 or play" approach to address the absence of federal substantive action regarding the provision of in russell, where he referred to the remarks of senator javits,120 that congress was concerned with making clear its intention that all suits erisa and then moved to dismiss the claim completely.175 unifying theme is common sense. claims.169 specific consequences flowing from the words and structure of the statute would be inconsistent 13. see id. at 453 (becker, j., concurring). those employers and insurers who would self-interestedly argue in favor against the written-plan requirement of section 401(a)(1) of erisa, by essentially allowing a would have the courts proceed with a careful and appropriate balancing (ii) the manner in which common-law principles have evolved under the breach of a fiduciary duty resulting in the inadequate funding of a 152. id. at 16 (citing firestone tire & rubber co. v. bruch, 489 u.s. 101, 110 (1989) coverage decision was based on an exercise of discretionary authority that resulted in injury or common sense has a role if erisa is viewed as comprehending therefore be interpreted in an expansive manner.63 is to provide a uniform regulatory regime over employee benefit plans."); see also n.y. state conf. which could adversely affect a plan member's interest."); ehlmann v. kaiser found. health plan of our caselaw grows massively inconsistent due to the sheer wounds-- congressional authorization for the federal courts to develop a federal common law under erisa has been sufficient, in light of erisa's 99. id. at 1108-09. compare id., with carroll v. los alamos nat'l sec., no. civ 08-0959 h.r. 3185, 110th cong. (2007). there is no intent here to judge the wisdom of the prior enactments have been hesitant to use their gap-filling ability to preserve meritorious interestingly, since the issues arise against the backdrop of a h.r. rep. no. 93-1280, at 327 (1974) (conf. rep.) (emphasis added). perhaps moreover, it would not seem to do material violence to erisa's principles to provide that complied with the "active work rule."83 bright line rule dichotomizing legal and equitable remedies, the court not the benefits under the plan.89 110. see aetna u.s. healthcare, inc. v. davila, 542 u.s. 200, 222 (2004) (ginsburg, j., congress had not perceived the need to act. state bar association and a member of such tax section's executive committee. he is also a 1. 29 u.s.c. 1001-1461 (2006). importantly, cause of action")). it is noted that, generally, a defendant may not remove a case to federal court if the fourth circuit decision in larue can be characterized as extending redress (and where relief to other litigants is available) and then, at the observer to wonder why it is so difficult to apply erisa in a facially an implied cause of action was set forth in cort v. ash.159 accept employment with the promise of plan participation). (nev. 2009) (holding the nevada "slayer" statute not to be preempted by erisa); plucinksi v. security and medicare contributions deducted from salary because the alleged misrepresentations employee benefit plan" covered by erisa.32 senator javits, when presenting the conference recognize that the gaps that need to be filled may be wider than those 32. erisa 514(a). treacherous area?211 punitive damages.56 notwithstanding (i) a corresponding erisa provision and regulations applicable for purposes is also intended that a body of federal substantive law will be see boggs v. boggs, 520 u.s. 833, 844 (1997). a court from proceeding to fill gaps even where there might be material extent to which these gaps have been filled is insufficient to effectuate employee benefit plan, in the normal sense of the phrase, if it has a civil enforcement scheme that represents a careful balancing of the 17. 473 u.s. 134 (1985). preferable for the court to have taken a more straightforward path within medically unnecessary.176 stating that is taking place in the federal courts all over this country, and it is wrong"). "regulatory vacuum"110 e.g., mccarter v. ret. plan for the dist. managers of the am. family ins. group, 540 f.3d 649, 651- incorporating common law trust principles including contribution among 426 hofstra labor & employment law journal [vol. 26:409 injunction, mandamus, and restitution). the technical thereby acknowledging the legislative intent that, while 2009] a regulatory vacuum leaves gaping wounds 421 adoption. as the davila concurrence states, a "fresh consideration of the 62. see id. at 46 (quoting 120 cong. rec. 29,197 (1974) (statement of rep. dent)). universally-recognized part of trust doctrine," and concluded that it was ii. the mechanics of erisa preemption benefit plans that had previously been exclusively governed by state of dishonesty. and what will become of claims under plans for which strong evidence that congress did not intend to authorize other remedies incorrect.113 congress expressly "empowered the courts to develop, in light of reason notion of a federal common law of rights and obligations under erisa- courts"207 noted earlier, made their way into the consciousness of at least some of 49. olson v. gen. dynamics corp., 960 f.2d 1418, 1421 (9th cir. 1991), cert. denied, 504 taxation, and co-chair of the employee benefits committee of the tax section of the new york judicial path has produced, the author suggests being careful for what iii. remedies--is there no equity in "equitable"? intended the courts to supplement the statutory scheme of erisa with be completely undermined if erisa-plan participants and 81. id. claims utterly out of court. insurance provider agreed that the "active work rule" would be waived 36. see davila, 542 u.s. at 209. extreme rush, and was the subject of broad-based derision. see generally james fanto, a social are generally exempt from the fiduciary requirements under erisa. see employment retirement provides for breaching fiduciaries "to make good" any losses to a plan citing numerous cases holding that a claim challenging the substantive implications. 137. see generally id. at 55-56. 69. id. at 256 (emphasis omitted). russell, dedeaux, and mertens stand as restrictive precedent private welfare or pension plans, imposing fiduciary requirements on plan participant from erisa's supposedly protective reach, with the the court quoted the remarks of countervailing policy considerations. fifteen year statute of limitations to the erisa claim). illadvised.html (jan. 29, 2009, 14:17 est). in recent years, congress has attempted to amend because the current situation is plainly untenable. lower courts are 125. id. compensatory damages against the plan fiduciary equal to the benefits cicio, 321 f.3d, at 106, 107 (calabresi, j., dissenting)). one author presents the following erred in holding that section 502(a)(3) does not authorize a claim for 215. 145 cong. rec. 16,054 (1999) (statement of sen. kennedy) (commenting on judge letts' converge, and one would like to think that they need not be mutually scheme is its broad is that the courts can address the matter in pursuit of developing the enforcement provisions of erisa to mean only those categories of relief rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the cases before them, even though those remedies may not be specifically to a breach then have to be navigated merely to assert intentional to redress violations or (ii) to enforce any provisions of [title i of exempted from the "active work rule."97 the preemption/remedies precedent in which it was faced, the fifth court indeed, even the erisa has proven to be anything but an exact science. in fact . . . the cir. 2008) (quoting curcio v. john hancock mut. life ins. co., 33 f.3d 226, 235 (3d cir. 1994)) instances, but on those occasions it does so explicitly"). thus, the question of whether a participant s. ct. 1020 (2008). in which the court "coupled an encompassing question [of] whether erisa fiduciaries have any fiduciary duty to it is a "comprehensive and reticulated statute."143 with fundamentally good benefits-type claims are left out of court at inception, are so basically in the mid-1980s, the ninth circuit noted that the "bare terms" of defense of sarbanes-oxley, 52 n.y.l. sch. l. rev. 517, 518, 524-25 (2007) (discussing sarbanes- the erisa scheme--to permit a claim under, instead of around, the very remedies for violations of rights guaranteed under erisa.41 145. see id. at 110-12. 70. see id. at 256-58. no other independent legal duty implicated by a defendant's action, then sensible manner.216 rule under which even the fraud claim would have to be based on written materials. second, and i.r.c. 409a (2006)); see also i.r.c. 409a (2006), i.r.c. 457a (2008). there have also been 161. see langbein, supra note 121, at 1345. federal common law, even in decisions where it has narrowly interpreted garnishment statute, as applied to a welfare plan, and, in pegram v. herdrich, 530 u.s. 211, 223 `codif[y] and mak[e] applicable to [erisa] fiduciaries certain principles developed in the evolution for breach of fiduciary duty.87 216. one can almost hear the oscar rogers character on nbc's saturday night live (as 35. see id. at 98-99. iv. causes of action under erisa--common sense and the the and will not be an independent source of private rights." (citations omitted)). 47. see generally paul m. secunda, sorry, no remedy: intersectionality and the grand irony coverage which resulted in the injury or death. id. at 5. an earlier similar proposal would have court reversed the ninth circuit's ruling that under section 409(a), the civil-enforcement provisions of erisa and its own authority to act 142 fed. app'x 690 (4th cir. 2005) (addressing the question of whether the principles underlying power.124 (2006). benefit plan could not be held personally liable under erisa to a plan 2009] a regulatory vacuum leaves gaping wounds 419 exercise seems to have taken on a life of its own, and not a very would have accrued to the beneficiary under the life insurance policy whether or not the 177. id. at 453. 2009 wl 1258591, at *13 (n.d. cal. may 5, 2009) (wherein the court completely dismissed a scope arises from the fact that, now, it has become evident that the in upholding the district court and following the inexorable path of benefits under the policy on the grounds that her husband had not as a result; to quote the wall street journal in an article about justice readdressing concepts of equity, it may be the case that addressing the the court then echoed justice stevens' sentiment in russell to in russell, the supreme court held that a fiduciary to an employee to permit a greater range of traditionally viable causes of action, and that be personally liable to make good to such plan any losses to the plan resulting from each 108. see id. at 20 (emphasis omitted) (quoting erisa 2(b)). 502(a)(1)(b). see id. at 403-05, 412. an issue was whether section 502(a)(1)(b) allows relief only [t]he supreme court, in its interpretive capacity, is capable of defendant may interpose." see taylor v. anderson, 234 u.s. 74, 75-76 (1914). however, the better realize the congressional intent of protecting plan participants, made through use of assets of the plan by the fiduciary, and shall be subject to such other incurred affects a particular account would have been flatly and facially an action that was typically available in courts of equity in the days of particulars, paradoxically full of gaps. the legislative history of erisa plaintiff's bridging rights by precluding any employee who voluntarily left paradyne from being both the erisa language, as well as the legislative history, indicate that preserving what amounts to a traditional state-based fraud cause of result of preserving a potential cause of action.100 conclusion that erisa's civil enforcement remedies were intended to 130. menhorn, 738 f.2d at 1499 (quoting textile workers union v. lincoln mills, 353 u.s. this opening has left the lower courts to called massey combines.186 58. russell, 473 u.s. at 147 (citing nw. airlines, inc. v. transp. workers, 451 u.s. 77, 97 409(a), 29 u.s.c. 1109(a) (2006)). 106. larue v. dewolff, boberg & assocs., 450 f.3d 570, 573-74 (4th cir. 2006), vacated 128 a brief expressing the view of the federal government on whether a traditionally relegated to state law.160 practice which violates any provision of [title i of erisa] or the 175. id. 14. 542 u.s. 200 (2004). less serious and, indeed, in some ways, given the result that the entire the court dismissed the argument that damages should be granted under the equitable relief rubric member of the advisory boards of the pension & benefits reporter of the bureau of national a law school dean once asked me to suggest a restaurant for a dinner meeting. i named while the notion of a federal common law to complement a working through section 409, contemplates only recovery by the plan.106 2007), reh'g denied, 489 f.3d 590 (3d cir. 2007), the plaintiffs sued at&t for interference with based on the judiciary's experiences with erisa to date. sense in that context, the discussion below will address whether purposes of the statute; and (iv) whether the cause of action is one when an employer is determining whether it is in the role of plan sponsor or plan administrator that examples of other gaps in erisa include the general lack of a question may be altogether unavailable.47 had the court in larue held that the the chemung court rejected arguments based on russell that the that, where "serious consideration" was being given to offering the additional several benefits, both formulation is to accept that congress specifically allowed erisa participants to pursue a cause of 46. cf. franchise tax bd. of cal., 463 u.s. at 20-21 ("`what is needed is something of that intent that the courts do so under erisa.119 as decided, larue simply does not reach difficult questions regarding insurance providers.77 127. menhorn v. firestone tire & rubber co., 738 f.2d 1496, 1499 (9th cir. 1984). specifically, the solicitor general analogized this type of claim 185. id. statutory scheme is extremely unusual, beginning the decade after the court discussed the "voluminous 131. id. at 1500. the court penumbra of express statutory mandates. some will lack express statutory sanction but will be "equitable" meaningless.70 several judicial opinions have noted that, under erisa as currently some courts have been reluctant to recognize certain basic causes that the court initially chose to fill.206 to employee benefit plans, including the development of appropriate availability of consequential damages under [section] 502(a)(3) is subsequent expansions of erisa support the view that congress and proposals; suffice it to say, however, that those in the crosshairs thereof may well wish that well put all your efforts down as a failure. disclose truthful information on their own initiative, or in response to the supreme court in in west and the solicitor general has filed such a brief recommending that certiorari not be granted. to "an action against a trustee for monetary redress of a breach of trust, have to adopt different policies depending on their employees' location, 88. id. at 343. 87. id. at 346. http://www.usdoj.gov/osg/briefs/2006/2pet/6invit/2006-0856.pet.ami.inv.pdf. for the rights or safety of others. id. 402. punitive or exemplary damages would not be 2009] a regulatory vacuum leaves gaping wounds 441 for permitting intentionally misled participants to have viable claims corp., 423 f.3d 241, 246 (3d cir. 2005) (noting that looking beyond the plan documents would potential state-law relief and placed at the mercy of erisa's "regulatory brief for the united states as amicus curiae at 19-22, ak steel corp. ret. accumulation pension hew and cry has reached several members of the supreme court. it will encouraging their creation.26 law." see davila, 542 u.s. at 207-08 (quoting beneficial nat'l bank v. anderson, 539 u.s. 1, 8 appropriate, the question arises: how far does one go? punitive damages federal common law is a "necessary expedient" that courts resort to when "compelled to consider subsequently, in great-west life & annuity section 301 of the lmra has been interpreted by courts as a scheme. instead, the court opted to recognize what amounts to a fraud more expansive approach to equitable relief was considered by the rights, or clarification of rights to future benefits under the terms of the plan, those terms must two terms of employment, thereby continuing to accrue pension benefits as if they had never left. solicitor general.90 erisa law.153 of judicial restraint and a continuation of the results that the current the statute of limitations inquiry is particularly instructive in this erisa has, to use language used in davila, left a "regulatory vacuum"20 preemption of state law: a study in effective federalism, 48 u. pitt. l. rev. 427 (1987). 294. this legislation also sought to create a federal cause of action for breach of "ordinary care" in alleged oral agreement to provide certain specific termination rights, including early pension vesting "would hurt rather than help the employees for whose benefit the employee benefit plans, and by providing for appropriate remedies, 124. see id. court said: 357942, at *11 (w.d. wis. feb. 12, 2009) (certifying a class based on an improper "whipsaw option of amending the statute to encompass specifically several natural remedy."). regardless of the details of where we go from here, it is at this 93. id. at 11-12, 21. into account should be possible to craft. in particular, echoing some of permit efforts to promote a pro-employee benefits agenda. see, e.g., fort halifax packing co. v. employee retirement income security act (erisa) of 1974 409(a), 29 u.s.c. 1109(a) (2006). that state-law claims for wrongful denials of benefits "relate to" erisa might be at stake under erisa, and expressly emphasized "`congress' state laws that authorize punitive . . . damages in connection with claims for benefits effectively that the appropriateness of such an interpretation was "increasingly rights, was not preempted, where the plaintiffs altogether avoided trying to bring an erisa claim); plans.'"). first, it is proposed here that the supreme court should embrace a plans,'"136 409 184. id. at 492. equitable or remedial relief as the court may deem appropriate, including removal of duty of care with respect to investments.149 congress had expressed the same intent with respect to erisa--that "do the right thing." rather, these suggestions are made in the spirit of a concurring). there, the court addressed the issue of whether continuing development of the common law is necessary and erisa does incorporate portions of the internal revenue code and treasury regulations, in some as a result, legal relief which may be available under state benefit plans.7 easily begin to be handled in the lower courts, without further supreme preemption? with its intent. such a result may be characterized as endemic to any effort to regulate so 149. id. at 13-14. under section 502(a), a law of erisa, and maybe even one restated in the plan itself, is not always so clear. west v. ak national policy.202 the framers of erisa expressly the fact that on balance some 113. see id. at 1022 (citing mass. mutual life ins. co. v. russell, 473 u.s. 134, 140 (1985)). every now and then common sense and common law 197. see martin handford, where's waldo? (little, brown & co., 1987). 80 cal. l. rev. 1543, 1550-51 (1992). results reaches sufficient volume, we get such actions as, in the case of corporate governance, the mcclatchy co., no. 1:09-cv-00125 (e.d. cal. may 27, 2009) (mem.) (holding that a defendant may the exclusion of others under the federal scheme would be completely morass in which the case law finds itself, but it is arguable that it is to under section 502(a)(3), a nonfiduciary who knowingly participated in errors may greatly injure an employee, yet leave the employee without equitable damages" and that she could not receive the benefits of the common-sense accommodation of judgment to kaleidoscopic situations . . . .'") (quoting gully v. equitable restitution seeks only to restore to the plaintiff the defendant's took place before the employer's plan was created). . . all because of erisa, the very purpose of which was to safeguard in employee benefit plans and their beneficiaries, by . . . establishing massey combines was placed into receivership 11. see id. at 222-23 (noting several decisions which have left persons wronged by erisa- cir. 2003) ("in any event, the statute and our case law chart the path we must follow."). antagonism to existing rules gets too much to bear is that congress often law, such as compensatory damages, is unavailable to injured plan 60. id. at 146. but would right precedent, and deciding a case for the right reasons, such that a fair suffered as a result of the breach.66 404(a), 29 u.s.c. 1104(a) (2006)). cognizable cause of action.11 negligence can fall by the wayside.172 jb/act, 2009 wl 1255522 at *1, *13 (d.n.m. apr. 28, 2009) (holding that erisa does not prevent the appropriate line from being drawn in a place that better dangers posed by allowing courts to identify additional valid causes of transferred to massey combines.187 may also be repeated or at least required to be repeated in the underlying plans themselves. see, 151. id. at 18. matter of nonexistent causes of action may be a matter that can more erisa's "comprehensive and reticulated"3 francisco, 546 f.3d 639, 648-49 (9th cir. 2008) (holding that a municipality's attempt to use a "pay 201. see langbein, supra note 121, at 1345. 135. see id. at 56. exclusive.218 house and senate both passed legislation that would have removed preemption from medically as described with approval in the 210. see, e.g., william w. jacobs, the monkey's paw, harper's monthly, sept. 1902, at recover damages under the former.86 432 hofstra labor & employment law journal [vol. 26:409 50. see generally secunda, supra note 47. have to follow one uniform standard, thereby lessening the 442 hofstra labor & employment law journal [vol. 26:409 nevertheless, to suggest that confirming the existence (1980)). remedies are preempted but very few federal substitutes are provided."19 ("[c]ommon sense and common law" may lead to the same result). doran, supra note 210, at 223. hopefully, erisa jurisprudence has not quite gotten to the level of ins. co. v. dedeaux, 481 u.s. 41, 54 (1987)) (discussing the "clear congressional intent" to make to its employees wearing their fiduciary (rather than employer) hat, and collective bargaining agreements.130 fourth circuit rejected his claim on the basis that section 502(a)(2), 78. id. 202. but see h.r. rep. no. 101-247, at 55 (1st sess. 1989), reprinted in 1989 u.s.c.c.a.n. administrator, an issue that erisa did not completely address, although the court continued its narrow interpretation of the remedies [the plaintiff's] case out of the state court in which [the plaintiff] sought suing for "other appropriate relief" as authorized by section 502(a)(3).67 111. there is uncertainty surrounding a participant's ability to enforce what are often referred under erisa: with respect to contribution, it was likely that congress simply failed to and their participants should be left with no relief when plan assets are intentional (fraudulent) wrongdoing is actionable whether or not in writing. (1985). compare id., with new state ice co. v. liebmann, 285 u.s. 262, 311 (1932) (brandeis, j., the court the unrelated business income tax (2006), available at http:// the reason and took no other action to make the plan whole.150 duty.91 b. experimenting in the laboratories of the lower courts leaves employees without a remedy. see eichorn v. at&t corp., 489 f.3d 590, 592-93 (3d cir. negligence regarding aetna's decision was medically unnecessary was 94. amschwand v. spherion corp., 128 s. ct. 2995 (2008). mean that the issues surrounding nonexistent causes of action are any 187. id. at 493-94. that erisa's use of the concept of equitable relief be viewed as in doing so, the court was careful to note that it was

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