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Publications
Making Strategic Arguments For and Against ERISA Preemption Based on Inconsistent and Ever-Evolving Legal Standards
May 2011
Sedgwick partner Michael Bernstein presented on a panel at the ACI Advanced Forum on Managed Disputes and Care Litigation. The panel featured discussion on the following points:
- Identifying arguments plaintiffs are typically making now
to avoid preemption
- Determining when your case favors preemptions versus
when it does not
- Defining the litigation issues that arise when the provider
is suing as an assignee (or where member is suing).
- Understanding the significance of Aetna v. Davila as
it relates to the provider’s ability to bring a direct claim
against the plan
- Analyzing the direction that the federal courts appear
to be taking on the scope and breadth of preemption
- getting an ERISA benefits case into federal court
- Determining whether substantive preemption (under §514)
is required for complete preemption removal (under §502)
- Resolving disputes in accordance with ERISA rules
on litigation
- limited recoveries available
- prescribed remedies
- Attacking on non-ERISA grounds
failing to provide an adequate list of providers
- Interpreting state subrogation laws and behavioral
health claims
- Recognizing the statutory exceptions to preemption
For more information, please visit the ACI website.
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