Law Professors Ask SCOTUS to Expand Court Choice in ERISA Suits

Eleven law professors called on the U.S. Supreme Court to rule that companies can’t unilaterally limit the courts in which workers can sue over their health and retirement benefits.

The case, which involves the retirement package of a former Pfizer Inc. executive, asks whether benefit plans governed by the Employee Retirement Income Security Act can force lawsuits over plan benefits into the company’s preferred court. These plan provisions—called forum selection clauses—violate the statute’s policy of giving benefit plan participants “ready access to the Federal courts,” the professors said in a May 28 brief filed by Sandals & Associates PC.

Forum selection clauses impose additional procedural barriers to ERISA lawsuits and can force workers to sue in courts far from where they live or were employed, the professors said. Employers are increasingly adopting these clauses as a way of insulating themselves from “potentially meritorious” lawsuits, the professors said.

Since 2014, four federal appeals courts have declined to hold that forum selection clauses violate ERISA. The U.S. Labor Department has long taken the opposite view, filing multiple supporting briefs arguing against these clauses.

The Supreme Court expressed interest in the issue in 2016, after the Sixth Circuit became the first appeals court to hold that forum selection clauses are permissible under ERISA. The justices asked the U.S. solicitor general for its opinion, and the solicitor said the Sixth Circuit was wrong to allow an ERISA plan to enforce a forum selection clause. However, the solicitor advised the justices to wait for a circuit split before addressing the issue.

Since then, the Third, Seventh, and Eighth circuits all followed the Sixth Circuit’s lead in upholding these clauses from ERISA challenges.

The professors’ brief comes one month after former Pfizer executive Jeffrey Robertson asked the Supreme Court to address this line of cases. Robertson, who noted that two of the appellate decisions drew dissents from circuit judges, said the issue has been “percolating long enough.”

The Supreme Court hasn’t announced whether it will take Robertson’s case.

The case is Robertson v. U.S. District Court for the E. District of Pa., U.S., No. 18-1341, amicus brief 5/28/19.