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ERISA Preemption of State Bars on Discretionary Clauses in Health and Life Insurance Policies (PDF)
Proskauer Rose LLP 
[Guidance Overview] May 16, 2008
At page 5. Excerpt: For years, discretionary clauses have been challenged by ERISA plaintiffs and consumer groups. State insurance regulators entered the fray in 2002, and appear to be succeeding in setting aside these clauses for insured plans. Significantly, the usual ERISA preemption defense appears to be giving way to a wave of state insurance regulation preventing insured ERISA plans from giving Firestone discretion to fiduciaries of insured plans. This article examines some recent case law on the preemption issue[.]
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