“And if the Wind is Right You Can Sail Away and Find Tranquility…” – Unless You Are Forced to Litigate in an Unwanted Forum!

This is the first post by PLUS Blog contributor José M. Jara, a partner at FisherBroyles, LLP. Mr. Jara has over 20 years of ERISA and employee benefits law experience. In the field of employee benefits law, he provides innovative solutions to his clients by incorporating into his guidance a business and practical perspective.  In addition, he understands the triad relationship between the law firm, the client, and the insurance carrier and in litigation matters manages the relationships to produce optimal results for the trio involved.  He has also acted as monitoring counsel and coverage counsel.  


sunset_sailingOver 20 years ago the Supreme Court found that, even though there was unequal bargaining power between the parties, a forum selection clause on cruise tickets was reasonable and valid, requiring a couple from Washington State to litigate in Florida personal injuries sustained on a cruise from L.A. to Mexico. Carnival Cruise Lines, Inc., v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed. 2d 622 (1991). Recently, a court has held that a forum selection clause added to the company’s retirement plans was invalid because, unlike the plaintiffs in Carnival Cruise Lines — who could have chosen another cruise line for their travels — in this case the plaintiff could not simply have chosen to work for another employer. Dumont v. PepsiCo, Inc., 2016 U.S. Dist. LEXIS 84853 (D. ME., June 29, 2016).

In reaching its decision, the court in Dumont focused on the fact that the plaintiff had worked 31 years for the company, was already vested in his retirement benefits, did not negotiate the terms of the plans, and did not sign off on any clauses in the plans. Thus, when the plan sponsor amended the plans in 2011 to include a forum selection clause, the plaintiff at that time “could [not] have walked away with impunity if [he] did not want to be bound by the forum selection clause.” Dumont, at *13.

In providing broad access to the federal courts, ERISA’s venue provision provides that an action “may be brought in the district (1) where the plan is administered, (2) where the breach took place, or (3) where a defendant resides or may be found. ERISA 502(e)(2). The Court in Dumont noted that the clause “where the breach took place” has been interpreted to mean “where benefit payments are received” and, thus, allowed the plaintiff to keep his claim in Maine.

As with most areas of ERISA, the case law is not settled. In another recent case, a court ruled that ERISA forum selection clauses are not per se invalid and transferred the case to the court designated in the forum selection clause.  Malagoli v. AXA Equitable Life Ins. Co., 2016 U.S. Dist. LEXIS 39112 (S.D.N.Y. Mar. 24, 2016). Yet, in another recent case, a court “decline[d] to endorse the legal fiction that all the terms of ERISA plans are freely negotiated ….” Harris v. BP Corp. N. Am., 2016 U.S. Dist. LEXIS 89593, at *23 (N.D. Ill., July 8, 2016). In doing so, the Court found the forum selection clause unenforceable because, while the language of ERISA 502(e)(2) is ambiguous, ERISA’s overriding purpose of guaranteeing participants ready access to federal courts and legislative history is not. Id. at *25-26.

More often than not, the choice of forum matters. In ERISA cases, it appears that while judges are not against forum selection clauses in ERISA plan documents per se, plan sponsors should nonetheless review their plan documents to assess whether the forum selection clause bears a reasonable relationship to the plan and its participants.

– José M. Jara

Kevin Gadbois Talks About Bad Faith Litigation and Underwriters at the 2014 PLUS Conference

Kevin Gadbois, Executive Vice President of the Executive Liability Division of Great American Insurance Group talks about the increase of bad faith litigation being forced on underwriters, how underwriters can protect themselves, and how these trends will evolve.

What is your role in PLI Claims or Litigation?

In this clip from the 2014 Professional Risk Symposium session “What is Your Role in PLI Claims or Litigation,” Elizabeth A. Roussel, Esq. and Louis Castoria look at an E&O claim hypothetical around policy renewal.

If E&O coverage is your area of specialty you definitely won’t want to miss the 2014 PLUS Conference, November 5-7 at Caesars Palace in Las Vegas. A number of educational sessions at the PLUS Conference will focus on E&O cover, including:

  •  What’s New for Accountants and Lawyers PLI?
  • Legalized Marijuana: Will the PL Insurance Industry Inhale?
  • Top Ten Tips for Design Professionals
  • ACA Professional Liability Exposures: Not Just Medical PL

Don’t miss it – register today on the PLUS website.

PLUS members can view this entire session in the PLUS Multimedia Library.