In the coming months, the Fifth Circuit Court of Appeals is expected to issue an en banc decision in Access Mediquip LLC v. UnitedHealthcare Insurance Co. that could result in the reversal of two decades worth of the court’s ERISA preemption precedent, or, at a minimum, provide clarification regarding the contours of ERISA-preemption within the Fifth Circuit.

Access Mediquip, a third-party medical service provider, asserted myriad state law and ERISA §§ 502(a)(1)(B) & 502(a)(3) claims in a mass action challenging the accuracy of United’s pre-authorization coverage communications related to medical services provided to more than 2,000 ERISA-governed plan participants and beneficiaries. Access Mediquip asserted its claims both in its individual capacity and, for purposes of the ERISA claims, as an assignee of plan participants. The district court holding, that all of Access Mediquip’s state law claims were preempted under ERISA, was affirmed in part and reversed in part by the Fifth Circuit.

In its now withdrawn decision, the Fifth Circuit held that because Access Mediquip’s misrepresentation-based claims challenge only the accuracy of United’s pre-authorization communications, rather than its ultimate coverage decisions, the claims do not relate to ERISA-governed plans for purposes of preemption. The court noted that unlike Access Mediquip’s unjust enrichment and quantum meruit claims, the misrepresentation-based claims are not dependent on, and do not derive from, the participants’ rights to recover ERISA-governed benefits and therefore are not preempted.

United petitioned for and was granted rehearing en banc. During supplemental briefing, the Department of Labor submitted an amicus curiae brief in support of Access Mediquip, while America’s Health Insurance Plans submitted an amicus curiae brief (co-authored by Jorden Burt) in support of United, as did numerous Blue Cross Blue Shield entities. Oral argument was held on September 19, 2012.