We previously reported that a split Sixth Circuit panel enforced a venue selection clause in an ERISA plan. In so ruling, the Court rejected the U.S. Department of Labor's attempt to regulate by amicus brief and reasoned that the Department's brief was "an expression of mood." The Department, according to the Sixth Circuit: (i) had no more experience than the Court with respect to determining whether federal statutes prohibit venue selection, and (ii) had not previously pursued an enforcement action, promulgated a regulation, or issued interpretive guidance relating to an ERISA plan's venue selection clause. Observing that Congress could have proscribed such clauses if it chose to do so, the Court found that "[i]t is illogical to say that, under ERISA, a plan may preclude venue in federal court entirely [via an arbitration clause], but a plan may not channel venue to one particular federal court."
With a petition for certiorari pending, the U.S. Supreme Court has asked the Solicitor General to file a brief expressing the government's views on whether "ERISA's special venue provision, § 1132(e)(2), and a plaintiff's choice of venue under that provision, may be abrogated by a more restrictive venue-selection clause in an ERISA plan." The case is Smith v. Aegon Cos Pension Plan, 769 F.3d 922 (6th Cir. 2014), petition for cert. filed, (U.S. Mar. 13, 2015) (No. 14-1168).
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