DOL Comes Up Short in Battle Against Forum Selection Clauses

By Jacklyn Wille

Sept. 28 — The Labor Department struck out once again in its ongoing effort to stop employers from forcing lawsuits over workers’ benefits into the employer’s preferred court ( In re: Lorna Clause , 8th Cir., No. 16-2607, petition for writ of mandamus denied 9/27/16 ).

The U.S. Court of Appeals for the Eighth Circuit denied an Arizona woman’s request to undo a court order forcing her to seek disability benefits from her employer in a Missouri federal court. The woman argued that the forum selection clause in her employer’s disability plan—which required litigation over plan benefits to be brought in Missouri—violated the Employee Retirement Income Security Act and should be struck down as unenforceable.

The Labor Department has a long and unsuccessful history of arguing against forum selection clauses in ERISA-governed benefit plans. Despite filing four separate briefs on this topic over the past eight years—including in this case—the department lacks a single court victory to show for its efforts. The only appellate court to have squarely addressed this issue rejected the DOL’s arguments in a 2014 decision upholding a forum selection clause in a plan sponsored by Aegon Cos.

In the department’s view, forum selection clauses contradict ERISA’s goal of providing workers with “ready access to the Federal courts.” By contractually forcing workers to litigate in jurisdictions they have no connection with, employers violate the ERISA-guaranteed right of workers to seek benefits in the venue they select, the department contended.

The Eighth Circuit announced its decision Sept. 27 in a one-sentence order by Judges Steven M. Colloton and Jane Kelly and Senior Judge Morris S. Arnold.

In 2015, it looked as though the enforceability of forum selection clauses in ERISA plans was poised for U.S. Supreme Court review. After fielding a petition from the unsuccessful Aegon Cos. worker, the justices called for the U.S. solicitor general to weigh in. The justices ultimately declined to hear the dispute after the solicitor recommended waiting until a circuit split had developed.

In recent months, courts have enforced forum selection clauses in plans sponsored by NCR Corp., Bank of New York Mellon, AXA Equitable Life Insurance Co., Ascension Health Alliance and Caterpillar Inc.

At least one judge recently issued a decision declining to follow suit. In July, an Illinois federal judge refused to enforce a forum selection clause in a plan sponsored by BP Corp. North America Inc., citing the “strong public policy set forth in ERISA.”

The Arizona woman who sought relief from the Eighth Circuit was represented by Stris & Maher in Los Angeles and Dallas. Her employer and benefit plan administrator were represented by Greensfelder Hemker & Gale P.C.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com

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