With relatively few exceptions, administrators of employee benefit plans covered by the Employee Retirement Income Security Act (ERISA) have enjoyed success enforcing forum selection clauses in cases across the country. As such, employers should consider implementing a forum selection clause in their plans like the following:
Restriction on Venue. A participant or beneficiary shall only bring an action in connection with the Plan in the United States District Court in the [Federal District where administrator is located] of [State].
This simple provision should promote significant cost savings and enhance uniformity and predictability for administrators defending plan-related claims in federal court. For example, an employer headquartered in New York may have employees in Florida and Alaska that participate in the employer’s plan. Without a forum selection clause, ERISA’s default venue provision probably permits participants to bring their plan-related lawsuits in Florida or Alaska. Some actions could also be brought in a state court, depending on the claim. Having to defend lawsuits in other states would not only increase defense expenses, but also possibly lead to different results on the same issues due to differences among federal or state courts. With a forum selection clause in place, the administrator (usually the employer) could instead require that all plan-related claims be brought exclusively in a specific federal district court.
Sound too good to be true? While the Department of Labor certainly thinks so, at least 20 federal district courts, one or two federal circuit courts of appeal, and perhaps even the U.S. Supreme Court have given their blessing to forum selection clauses in ERISA Plans. In 2014, the Sixth Circuit Court of Appeals unequivocally approved a forum selection clause identical to the one described above in Smith v. Aegon Cos. Pension Plan, 769 F.3d 922 (2014)—a decision that the Supreme Court refused to reconsider earlier this year, 136 S. Ct. 791 (2016). More recently, the Eighth Circuit Court of Appeals appeared to join the Sixth Circuit when it declined to reconsider a lower court’s order enforcing the forum selection provision in In re: Lorna Clause, 8th Cir., No. 16-2607, petition for writ of mandamus denied Sept. 27, 2016.
While the success ERISA plans have enjoyed enforcing forum selection clauses in federal courts is impressive, it is not absolute. So far, four federal district courts (Northern District of Illinois (2), District of Maine, and Eastern District of Texas) have refused to enforce forum selection clauses on the theory that they violate ERISA’s venue provision and/or the underlying public policy goals of ERISA.
Therefore, administrators should bear in mind that, at least for now, some federal district courts may not enforce a forum selection clause in an ERISA plan. However, administrators should be equally mindful of the fact that the consequences of an unenforced forum selection clause are the same as not having one in the first place.