Thoughts on the Latest Battles over ERISA's Remedies
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It is extraordinarily unlikely that the drafters of ERISA foresaw the effect the statute would have on federal courts and American economic life. It was originally conceived as a "pension bill of rights" designed to ensure that workers received the fixed monthly pension payment (based on tenure and average salary) that they had been promised. It grew, however, into the most litigated statute in the United States Code; to govern increasingly popular individual retirement savings accounts, e.g., 401(k) accounts;4 to be the central statute regulating employment based health insurance, which covers over one hundred and sixty million people; to be one of the most anti-federalist statutes in force, depriving states of large swathes of power to regulate insurance, historically an area of state dominion; and to regulate almost entirely, the group of private arrangements that collectively allocates several trillion dollars for the elderly and the ill. The importance and reach of the statute, coupled with its expansive preemptive shadow, resulted in an intensified interest in ERISA's remedies, which are often the only remedies a plaintiff may be able to pursue. The United States Supreme Court has repeatedly, if not habitually, addressed itself to the matter of ERISA's remedies. Regrettably, frequent Supreme Court attention has done little to clarify many important questions regarding ERISA's remedies. Below, the latest round of confusion on ERISA's remedies is analyzed, and opinions on a resolution are offered. Part I offers a brief background on ERISA. Part II examines the pleading confusion that has arisen in response to the Supreme Court's decision in Varity v. Howe. Part III considers the Court's recent opinion in CIGNA v. Amara and the meaning of its holding with respect to the equitable relief now available under section 1132(a)(3) of the statute. Part IV remarks on an emerging battle concerning the scope of ERISA preemption of "saved" state insurance laws.
