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JAMA Study Highlights Healthcare Spending Waste

"The study points to six main areas ... [1] Failure of care delivery ­­­ -- $68.8 billion; [2] Failure of care coordination -- $33.9 billion; [3] Overtreatment or low-value care -- $20.7 billion; [4] Pricing failure -- $86.3 billion; [5] Fraud and abuse -- $26.8 billion; [6] Administrative complexity -- $265.6 billion."

More Americans Struggle with Health-Care Costs, According to Study Published in JAMA

Excerpt: More Americans are forced to spend more of their family income on health care, and more middle-class Americans are joining the ranks of those spending a disproportionate share of their budget on such expenses, a new study finds.

Top Hat Plans Should Use a Forum Selection Clause to Avoid Confusion (PDF)

"Cases have examined virtually every portion of the phrase 'maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.' ... [W]hile it would appear that the factors of 'primarily', 'select group', 'management' and 'highly compensated' seem to be independent, courts often merge them in their analysis. [This article] will examine each of these factors and the case law addressing them ... [DOL Opinion Letter 90-14A] has led to a split in the federal circuits as to the test for top hat group status.... [A] forum selection clause might be used to avoid the lack of certainty in the area."

Ninth Circuit Enforces Forum Selection Clause in 401(k) Plan

"The Ninth Circuit denied the 'extraordinary remedy' of mandamus, holding that the plan's forum-selection clause was enforceable. The Court emphasized the presumptive validity of forum-selection clauses and reasoned that nothing in ERISA prohibits plans and participants from agreeing on a forum for litigating their disputes." [Becker v. U.S. District Court for the Northern District of California, Oakland, No. 20-72805 (9th Cir. Apr. 1, 2021)]

Seventh Circuit: Plan's Forum-Selection Clause Is Not Precluded by ERISA (PDF)

"With support from the Secretary of Labor, Mathias argues that forum-selection clauses in plan documents are categorically invalid because they deprive plan participants and beneficiaries of the right to select from the menu of venue options offered by Section 1132(e)(2).... [F]orum-selection clauses promote uniformity in plan administration and reduce administrative costs and in that sense are consistent with the broader statutory goals of ERISA.... The forum-selection clause in the Caterpillar plan chooses from among the venue options listed in Section 1132(e)(2), and nothing in the statute makes that choice invalid. Accordingly, we hold that the plan's forum-selection clause is enforceable." [In re Mathias, No. 16-3808 (7th Cir. Aug. 10, 2017)]

The Enforceability of ERISA Forum Selection Clauses: Two Recent 'Against-The-Trend' Cases and an Uncertain Future

"For those interested in the law of ERISA forum selection clauses, 2016 has been a year to remember. The majority of courts to address this issue have ruled in favor of enforcing forum selection clauses. However, going against the trend, two federal district courts recently determined that forum selection clauses are automatically invalid and unenforceable within the ERISA context ... Prior to these summer cases, only two reported district court cases held that forum selection clauses in ERISA plans are inconsistent with the statute and therefore unenforceable."

The Enforceability of ERISA Forum Selection Clauses: Two Recent 'Against-The-Trend' Cases and an Uncertain Future

"The majority of courts to address this issue have ruled in favor of enforcing forum selection clauses. However, going against the trend, two federal district courts recently determined that forum selection clauses are automatically invalid and unenforceable within the ERISA context ... [At] the beginning of this year, the U.S. Supreme Court declined to review a [third] case in which the Sixth Circuit Court of Appeals had ruled in favor of enforcing a plan's forum selection clause.... The [DOL] without any success thus far, has consistently filed amicus briefs in support of the view that forum selection clauses in ERISA plans are invalid and unenforceable."

District Court Finds Forum Selection Clause Unenforceable in ERISA Action

"ERISA provides that an action 'may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found.' ... [The court] determined that the word 'may,' as used in this context, could be read as either allowing a plaintiff to file suit in multiple districts or 'as providing a right to ERISA plaintiffs to file their action in the most suitable of these locations.' The court ... identified ERISA's public policy of providing plaintiffs 'ready access to the Federal courts' as a guide for determining the enforceability of the forum section clause.... [T]he court held that ... the most persuasive interpretation protects plaintiffs' option of bringing suit in a convenient forum and determined that the forum selection clause was unenforceable." [Harris v. BP Corp. North America Inc., No. 15-10299 (N.D. Ill. July 8, 2016)]

It's Never Too Late to Add a Forum Selection Clause

"[The federal district court in Kentucky] confirms that ... a forum selection clause ... may be applied broadly, even to persons who retired before the date of the amendment.... The court identified the factors to be evaluated in determining whether a forum selection clause is enforceable, namely '(1) whether the clause was obtained by fraud, duress, or other unconscionable means; (2) whether the designated forum would ineffectively or unfairly handle the suit; and (3) whether the designated forum would be so seriously inconvenient such that requiring the plaintiff to bring the suit there would be unjust.'" [Smith v. Aegon Companies Pension Plan, 3-12-CV-697-H (W.D. Ky., Jan. 28, 2013)]

Forum Selection Clause Enforced in ERISA Claim Litigation

The Plaintiff presented three reasons that the Court should not enforce the forum selection clause: #1 the SPA's forum selection clause is not explicit enough to be enforceable because it was 'buried' in the SPA and does not specifically reference Plaintiff's severance agreement; #2 forum selection clauses are not enforceable under ERISA; and #3 the forum selection clause was unreasonable.

District Court Transfers Venue of ERISA Action from Residence Forum of Participant's Trustee to Residence Forum of Plan Participant

"Plaintiff, who resides in San Francisco, is the successor trustee of Mr. Morrison's trust and the co-conservator of his estate.... Plaintiff was not the plan participant, and instead only administered the plan benefits via a Connecticut special-needs trust.... [T]he alleged underpayment of plan benefits harmed the plan participant in Connecticut. As such, the overall factual context shows that the operative facts occurred in Connecticut and that state has a far greater local interest in the controversy." [Hammer v. JP Morgan Chase Long-Term Disability Benefit Plan, No. 22-6886 (N.D. Cal. June 16, 2023)]

Emerging Case Law Supports Forum-Selection Clauses in ERISA Plans

"A recent decision by the Ninth Circuit upholds the enforceability of forum-selection clauses in ERISA plans.... The Ninth Circuit joins the Sixth and Seventh Circuits in this regard, and district courts in other circuits such as the Third and Fourth Circuits have also followed suit, although their respective circuit courts have yet to decide the issue." [Becker v. U.S. District Court for the Northern District of California, Oakland, No. 20-72805 (9th Cir. Apr. 1, 2021)]

Ninth Circuit Approves ERISA Plan Forum Selection Clause

"ERISA jurisprudence is not uniform, raising the risk of inconsistent interpretations by different courts.... The Court noted that a forum selection clause can support the important ERISA goal of uniform plan administration by having the same court interpreting the plan." [Becker v. U.S. District Court for the Northern District of California, Oakland, No. 20-72805 (9th Cir. Apr. 1, 2021)]

Text of Ninth Circuit Opinion Upholding ERISA Forum Selection Clause and Denying Writ of Mandamus (PDF)

From the summary by the court: "Agreeing with other Circuits, the panel held that even though provision of 'ready access to the Federal courts' is among ERISA's goals, ERISA does not bar forum selection clauses. Thus, the plan properly designated, from among venues permitted by the statute, the venue where the plan was administered." [Becker v. U.S. District Court for the Northern District of California, Oakland, No. 20-72805 (9th Cir. Apr. 1, 2021)]

Court Upholds ERISA Plan's Forum Selection Clause

"Explaining that 'forum-selection clauses should control except in unusual cases,' the court stated that in the absence of fraud it was irrelevant that she was unaware of the forum selection provision when she filed suit. The court also rejected the employee's argument that compelling the case to be litigated in Wisconsin contravened ERISA's legislative intent and public policy by denying the employee 'ready access to federal courts.' " [Manuel-Clark v. ManpowerGroup Short-Term Disability Plan, No. 19-147 (E.D.N.C. Oct. 28, 2019; notice of appeal filed Oct. 28, 2019)]

Situs of Benefit Plan's Signing May Be Key in Determining Class Action Forum

"The Northern District of Washington ... ruled that the plaintiff's choice was less important because the case was a putative class action, meaning that it has not yet been certified by the court as a class. [The court gave] a fair amount of weight to the fact that the plan was negotiated and executed in Georgia, claiming these actions made for a 'considerable technical connection' to making the forum for the lawsuit Georgia. Further, choosing Georgia reduced litigation and travel costs on both sides." [Mayfield v. ACE American Ins. Co., No. 18-1695 (W.D. Wash. May 13, 2019)]

Law Professors Ask SCOTUS to Limit 'Forum Selection' Plan Provisions

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

Expanding Retirement Security Through Public and Private Innovation: Second Annual Aspen Leadership Forum on Retirement Savings (PDF)

23 pages. "The 2018 Forum picked up on the discussions that began at last year's inaugural meeting, advancing earlier progress in identifying the key barriers to retirement security and potential solutions ... Many of the same themes emerged, including the challenges posed by increases in longevity and Americans' overall financial fragility. But the second chapter of this conversation went further in finding common ground and building momentum around the paths forward. Many participants voiced support for programs such as 'rainy-day savings accounts' and displayed a new openness toward policies that would make saving universal."

Seventh Circuit: Forum Selection Clause Enforceable Under ERISA (PDF)

"Inclusion of a forum selection clause in an ERISA plan document is consistent with best practices, and, as the Appeals Court noted in its decision, may reduce plan administrative costs and promote uniformity in plan administration. While a minority of district courts have ruled in favor of participants as it relates to the enforceability of forum selection clauses, the only two Circuit Courts of Appeals to rule on the matter (and the majority of district court cases) have held that these clauses will be enforced by a court of law." [In re Mathias, No. 16-3808 (7th Cir. Aug. 10, 2017)]

Seventh Circuit Enforces ERISA Forum Selection Clause

"[T]he Seventh Circuit found the Sixth Circuit's reasoning ... to be convincing. The court was not persuaded by Mathias' citation to 'an obscure decision of the Supreme Court' ... that is often relied upon by plaintiffs in forum selection clause cases. In 2016, the same issue was raised in a petition for writ of mandamus to the Eighth Circuit under facts similar to Mathias. The Eighth Circuit denied the petition without explanation.... The secretary of labor filed an amicus brief in support of the participants in each of the three appellate cases, but none of the circuit courts were persuaded." [In re Mathias, No. 16-3808 (7th Cir. Aug. 10, 2017)]