MIARA v. FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY

MEMORANDUM AND CERTIFICATION

I. INTRODUCTION

How's this for a problem on a first year torts or civilprocedure exam?

Plaintiff A sues Defendant B in state court for misrepresentation and other state causes of action in the sale of a product that Plaintiff A alleges does not function in the manner represented. Misrepresentation claims have been recognized in common law courts in the United States and throughout the English-speaking world for centuries. The product in question is a pension plan/profit sharing plan that falls within the ambit of the Employee Retirement Income Security Act ("ERISA"). Defendant B is the insurance agent and agency who sold Plaintiff A the policy. Defendant B removes the case to federal court on the ground that ERISA preempts the jurisdiction of the state courts. What is more, Defendant B moves to dismiss the case on the ground that, notwithstanding Plaintiff A's viable misrepresentation and other state claims, ERISA provides no remedy for such claims and, in fact, extinguishes them in this context. Compare Andrews-Clarke v. Travelers Ins. Co. 984 F. Supp. 49 (D. Mass. 1997) (ERISA extinguishes insurer's liability for otherwise viable state wrongful death claim). Plaintiff A moves to remand the case to state court where the claims will at least remain alive.What ought the Court do?

A. Remand the case, it's only fair.

B. Remand the case, it does not "arise under" federal law. C. Remand the case, Congress never intended ERISA preemption to sweep so broadly. D. Remand the case, the Supreme Court never intended its preemption jurisprudence to reach so far and work such an unjust result. E. All of the above.The correct answer is "E." Maybe.

A. Facts

The following recitation of facts is taken from the Plaintiff'sFirst Amended Complaint and Jury Demand ("Pl.'s First Am.Compl.") [Doc. No. 1, Attach. 1], Pl.'s Mem. in Supp. of Pl.'sMot. to Remand ("Pl.'s Mem.") [Doc. No. 6], and Defendants Bakerand Baker Associates Opp'n to Pl.'s Mot. to Remand ("BakerOpp'n") [Doc. No. 9]. The facts are largely uncontested. ThePlaintiff Maria Miara ("Miara") and her husband Richard Miara(together, the "Miaras") owned a company called New England ChainLink Fence Co., Inc. Pl.'s Mem. at 1. In 1989, Miara contactedthe defendant Gary Baker ("Baker") of the defendant company nowknown as Baker Associates Insurance Agency, Inc. ("Baker Associates"). Id. She "inquire[d] about establishing a pensionplan or profit sharing plan for the company." Id. Baker broughtin defendant Joseph Bonasera ("Bonasera") from what is now FirstAllmerica Financial Life Insurance Company ("First Allmerica,"and collectively with Baker, Baker Associates, and Bonasera, the"Defendants") to discuss various plans with the Miaras. Id.Baker, Bonasera and the Miaras met on at least two occasions.Id. at 2. Miara claims that she "and her husband repeatedlyexplained that whatever plan they chose must have spousalsurvivor benefits, particularly for the [benefit] of [Miara], whowas considerably younger than her husband." Id. at 2.

Baker and Bonasera suggested the Miaras use a Defined BenefitsPlan. Id. Miara contends that "[t]hey represented that althoughthe plan was more expensive to administer, it had a greatadvantage over alternative plans because the Pension BenefitGuaranty Corp (`[Pension Benefit]') guaranteed the plan." Id.;see also Baker Opp'n ¶ 2 (agreeing that Pension Benefit did"guarantee? the plan"). Miara specifies that "[t]hey assured[her] and her husband that [Pension Benefit] guaranteed 100%spousal benefits in the event that anything were to happen toeither [Miara] or her husband," without qualification. Pl.'s Mem.at 2. Miara claims that she relied on these representations and,accordingly, chose the recommended Defined BenefitsPlan,1 id., effective September 1, 1989. Baker Opp'n ¶ 1.

Unfortunately, Miara's husband died in an automobile accidenton August 22, 1996. Pl.'s Mem. at 2; Baker Opp'n ¶ 3. Miaraclaims Bonasera told her "that in order to get the [PensionBenefit] survivor benefits, she would have to close the companyand put it into bankruptcy." Pl.'s Mem. at 2. She asserts that,again relying on Bonasera's advice, she "liquidated the company'sassets and filed for Chapter 7 bankruptcy protection." Id.Miara subsequently received several written notifications of thespousal death benefits available to her. See id. In anOctober 8, 1996 letter, First Allmerica informed Miara that shecould collect $1,382.80 per month as of September 1, 1996, or$2,457.27 per month if she deferred her collection until February1, 2002. Id.; Baker Opp'n ¶ 4. At this time, asserts Miara,Bonasera "reiterated that [Miara] would get the full spousalbenefit regardless of which option she chose because of [PensionBenefit]'s guaranty." Pl.'s Mem. at 2. On December 4, 1996, Miarainformed First Allmerica that she elected to defer the receipt ofbenefits until February 2002. Id.

The second notification, dated January 6, 1997, informed Miara"of an error in the October 8, 1996 death benefit information."Id. at 3. First Allmerica notified Miara that though thecalculation of $1,382.80 per month as of September 1, 1996, remained the same, deferring payment until February 1, 2002would result in a monthly benefit of $1,952.97, and deferringuntil February 1, 2006 would result in receipt of a monthlybenefit of $2,664.35. Id.; Baker Opp'n ¶ 5. The letter furtherstated, according to Miara, that monthly benefit payments wouldbegin "on February 1, 2006, unless written consent to commencepayments as of an earlier date is received." Pl.'s Mem. at 3(internal quotations omitted); Baker Opp'n ¶ 5. Miara elected toreceive the benefits as of February 1, 2006 and, as such,expected she would receive $2,664.35 every month as of that date.Pl.'s Mem. at 3.

The third communication, dated more than five years later onJune 12, 2002, yet again modified the amount Miara was toreceive. Id. "To her great shock and chagrin," Miara wasinformed "that she was entitled to a monthly survivor payment ofjust $531.76 a month if she deferred payment until February 1,2006, and only $415.84 a month if she opted for an earlyretirement option — more than $2,000 less than what FirstAllmerica had assured her she would receive." Id.; Baker Opp'n¶ 6. This was Miara's first notification that she would notreceive the full spousal benefits Baker and Bonasera hadallegedly promised her. Pl.'s Mem. at 3. Miara appealed PensionBenefit's determination, which was denied by letter dated June12, 2003. Pl.'s First Am. Compl. ¶ 18; Pl.'s Mem. at 3; BakerOpp'n ¶ 7. Pension Benefit informed Miara that the reduction in benefits was due to the fact that "she and her husband were`substantial owners' of the company and the plan had terminatedearly."2 Pl.'s First. Am. Compl. ¶ 18; Pl.'s Mem. at 3.Miara contends that "[Pension Benefit]'s `substantial owner'limitations were, or should have been, well known by Baker, BakerAssociates, Bonasera and [First] Allmerica" and that "[e]ach ofthe defendants should have disclosed the limitations to [Miara]and her husband prior to their purchasing the plan, but did not."Pl.'s First. Am. Compl. ¶ 20. Miara contends she was repeatedlyassured, even after her husband's death, that there were nolimitations on her benefits, and that she purchased the plan"specifically in reliance upon the representations by Baker andBonasera that they were guaranteed to receive full spousalbenefits." Id. ¶¶ 21-22.

Miara's complaint, "consists of [seven] state-law claims, eachof which targets Defendants' alleged misrepresentations inprocuring the . . . policy." See Giannetti v. Mahoney,218 F. Supp. 2d 8, 10 and n. 2 (D. Mass. 2002) (Neiman, M.J.); Pl.'sFirst Am. Compl. ¶¶ 23-55. The state law claims are: (1) promissory estoppel (2) negligent misrepresentation (3) malpractice (4) breach of contract (5) breach of guaranty (6) breach of the covenant of good faith and fair dealing, and (7) violation of Massachusetts General Laws chapter 93A.Pl.'s First Am. Compl. ¶¶ 23-55. The Defendants raiseaffirmative defenses in their answers, one of which is thatfederal ERISA law preempts Miara's state claims. Accordingly, onOctober 19, 2004, Baker and Baker Associates removed this matterto federal court. Notice of Removal to the United States DistrictCourt [Doc. No. 1]. Arguing that her state law claims are notpreempted by ERISA, Miara asks this court to remand the matter tothe Massachusetts Superior Court on the ground that this Courtlacks subject matter jurisdiction. Pl.'s Mot. to Remand [Doc. No.5]. Parties have filed memoranda in support of their respectivepositions.3 See Pl.'s Mem.; Baker Opp'n; Def. BonaseraOpp'n to Pl.'s Mot. to Remand [Doc. No. 12] ("Bonasera Opp'n").This Court must now decide whether it has jurisdiction over thismatter or whether it ought remand the case to the courts of theCommonwealth.

II. DISCUSSION

A. Removal of State Cause of Action and Federal Jurisdiction

1. Removal

Defendants may remove from state court actions over which original jurisdiction is granted to the federal courts.Franchise Tax Bd. v. Construction Laborers Vacation Trust,463 U.S. 1, 10 (1983) (explaining that original jurisdiction mustbe established by plaintiff's claims). "A removing defendantbears the burden of establishing the existence of federaljurisdiction." Tapscott v. MS Dealer Serv. Corp.,77 F.3d 1353, 1356 (11th Cir. 1996). In the context of ERISA, whereCongress deliberately and "completely preempt[ed] a particulararea . . . [claims are] necessarily federal in character."Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64(1987). Accordingly, defendants may, by statutory dictate, removea case "arising under" or "relating to" ERISA to federalcourt.4 28 U.S.C. § 1441.

2. ERISA Preemption

The Supreme Court has identified two kinds of ERISA claims,those which arise under ERISA's civil enforcement provision,28 U.S.C. § 1132(a),5 and those claims against ERISAentities that are "run-of-the-mill state-law claims," Memorial Hosp. Sys. v.Northbrook Life Ins. Co., 904 F.2d 236, 243, 248 (5th Cir.1990) (quoting Mackey v. Lanier Collection Agency & Serv.Inc., 486 U.S. 825, 833 (1988)), the latter of which are notpreempted. Cromwell v. Equicor-Equitable HCA Corp.,944 F.2d 1272, 1284 (6th Cir. 1991) (citing Mackey, 486 U.S. at 833);see also Children's Hosp. Corp. v. Kindercare LearningCtrs., Inc., 360 F. Supp. 2d 202, 207 (D. Mass. 2005) (Saris,J.) ("[C]onflict preemption is a defense to a state claim anddoes not create subject matter jurisdiction." (citing Danca v.Private Health Care Sys., Inc., 185 F.3d 1, 4-5 (1st Cir.1999)).6 As the First Circuit explained,

ERISA is a comprehensive statutory scheme that governs employee benefit plans. . . . [ERISA] contains an express preemption clause providing that it shall "supersede any and all State laws insofar as they may now or hereafter relate to any ". . . employee benefit plan." Thus, when state-law claims "relate to" ERISA plans, those claims are transmuted into ERISA claims. In that situation, "any civil complaint raising such a state law claim . . . is of necessity so federal in character that it arises under federal law for purposes of 28 U.S.C. § 1331 and permits removal to federal court." (internal citations and alterations omitted) (alterations and emphasis added). Carpenters Local Union No. 26 v. United States Fid. & Guar.Corp., 215 F.3d 136, 139 (1st Cir. 2000).

B. Remand to State Court: Standard of Review

Where federal jurisdiction is lacking, a federal court mayremand a matter on its own motion, see Wisconsin Dep't ofCorr. v. Schacht, 524 U.S. 381, 392 (1998) (indicating a courthas the authority to remand a matter sua sponte) or, as here, ona motion of either party. "[U]pon a motion to remand, the burdenis upon the removing party to show that federal subject matterjurisdiction exists." Giannetti, 218 F. Supp. 2d at 10(citing BIW Deceived v. Local S6, Indus. Union of Marine &Shipbuilding Workers of Am., 132 F. 3d 824, 830-31 (1st Cir.1997) and Bally v. National Collegiate Athletic Ass'n,707 F. Supp. 57, 58 (D. Mass. 1998)). Generally, "[d]oubts aboutthe propriety of removing an action should be resolved in favorof remand." Giannetti, 218 F. Supp. 2d at 10 (citationomitted).

C. Significance of the Remand Decision

Should this Court decide to grant the motion to remand, suchdecision may not be appealed. 28 U.S.C. § 1447(d) ("An orderremanding a case to the State court from which it was removed isnot reviewable on appeal or otherwise"); but see Class Action Fairness Act of 2005, Pub.L. No. 109-2 (2005)7 ThisCourt likewise understands the gravity of its decision for Miara,as denial of the motion to remand will, in effect, terminate herclaims, "slam the courthouse doors in her face[,] and leave herwithout any remedy." Andrews-Clarke, 984 F. Supp. at 53. "[I]tis," indeed, "widely recognized that the absence of a comparableremedy under ERISA does not alter the analysis concerningpreemption of the state law claims." Id. at 55 n. 26 (citinge.g. Turner v. Fallon Cmty. Health Plan, 127 F.3d 196,198-200 (1st Cir. 1997)). Nevertheless, this Court recognizesthat if her claims are preempted, "[t]he result ERISA compels[this Court] to reach means [Miara] has no remedy, state orfederal, for what may have been a serious mistake."Andrews-Clarke, 984 F. Supp. at 53 (quoting Turner v.Fallon Cmty. Health Plan, 953 F.Supp 419, 424 (D.Mass. 1997)(Gorton, J.) aff'd 127 F.3d 196 (1st Cir. 1997). This hardlyseems just.8 See id. at 52. III. ERISA

A. The Purpose of ERISA

In a preemption analysis, one must be cognizant of the originalpurposes of ERISA. New York State Conf. of Blue Cross & BlueShield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)("Since pre-emption claims turn on Congress's intent, we begin aswe do in any exercise of statutory construction with the text ofthe provision in question, and move on, as need be, to thestructure and purpose of the Act in which it occurs." (internalcitations omitted)); Fort Halifax Packing Co., Inc. v. Coyne,482 U.S. 1, 8 (1987) (indicating that the intent of Congress whenenacting ERISA is the "ultimate touchstone" in the determinationof preemption); Spalding v. Reliance Standard Life Ins. Co.,835 F. Supp. 23, 29 (D. Mass. 1993) (citing the First Circuitdecision in McCoy v. Massachusetts Inst. of Tech.,950 F.2d 13, 17-18 (1st Cir. 1991), for the principle that, "to the extentthat grey areas exist, the policy rationale[s] permeating ERISA`afford sound guidance' in assessing the scope of preemption."). The purposes of ERISA have been fully articulated.9ERISA is a "comprehensive statute designed to promote theinterests of employees and their beneficiaries in employee benefit plans."Shaw v. Delta Air Lines, 463 U.S. 85, 90 (1983) (citationsomitted); see also id., 463 U.S. at 99 (indicating one purpose ofERISA was to "eliminat[e] the threat of conflicting orinconsistent State and local regulation of employee benefitplans" (quoting Senator Williams, 120 Cong. Rec. 299, 33(1974))); Boston Children's Heart Found., Inc. v.Nadal-Ginard, 73 F.3d 429, 439 (1st Cir. 1996) (explainingCongressional intention to "ensure uniformity in [ERISA-governed]plans by preventing states from imposing divergent obligationsupon them."); Crespo v. Candela Laser Corp., 780 F. Supp. 866(D. Mass. 1992) (explaining ERISA's "two-fold intent: to protectemployees from the consequences of underfunding of pension andwelfare benefit plans, as well as to protect employers frominconsistent state and local regulation of suchplans").10

ERISA was not intended to

protect? plan participants and their beneficiaries by requiring employers to provide any given set of minimum benefits, but instead controls the administration of benefit plans, as by imposing reporting and disclosure mandates, participation and vesting requirements, funding standards, and fiduciary responsibilities for plan administrators. It envisions administrative oversight, imposes criminal sanctions, and establishes a comprehensive civil enforcement scheme. It also pre-empts some state law. Travelers, 514 U.S. at 651 (internal citations omitted) (emphasis added); Massachusetts v. Morash, 490 U.S. 107, 112 (1989) ("ERISA was passed by Congress . . . to safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits." (emphasis added)). Yet, over time, "ERISA has evolved into a shield of immunity which thwarts the legitimate claims of the very people it was designed to protect." Andrews-Clarke, 984 F. Supp. at 56. ERISA has, in fact, "gone conspicuously awry from its original intent.11 Id. at 65.

The Supreme Court has recognized that the issue of ERISApreemption has resulted in "an avalanche of litigation in thelower courts." De Buono v. NYSA-ILA Med. & Clinical Servs.Fund, 520 U.S. 806, 809 n. 1 (1997). This is due partially tothe existence of confusion within the bar, and "becomes yetanother illustration of the glaring need for Congress to amendERISA." Andrews-Clarke, 984 F. Supp. at 53 (footnoteomitted).12 This Court is intrigued by the argument made by Baker's counsel that"it would be very much in the interests of all . . . involved inthis kind of work to get an answer [from] the First Circuit tothe question whether these kind of misrepresentation[and otherstate] claims are preempted or not." Tr. of Mot. Hr'g of January13, 2005, at 11.

B. ERISA PREEMPTION AND THE "RELATE TO" REQUIREMENT13

The Supreme Court has explained that it has: [A]ddresed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. Indeed, in [the preemption context] . . . where federal law is said to bar state action in fields of traditional state regulation we have worked on the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.Travelers, 514 U.S. at 654-55 (internal citations omitted)(emphasis added). One may well question whether it was, in fact,the "clear and manifest purpose" of Congress to preempt state lawclaims such as Miara's. Indeed, "for the first time in ourhistory, business has a good chance of opting out of the legalsystem altogether." William G. Young, An Open Letter to U.S.District Court Judges, The Fed. Law., July 2003, at 33 ("An Open Letter").

This Court must determine whether Miara's claims arise out ofor "relate to" the benefit plan such that they are preempted bysection 514 of ERISA. 29 U.S.C. § 1144(a).14 "There is nobright line test for determining when claims `relate to' anemployee benefit plan; each case must be decided on itsparticular facts." Trans-Lease Group, Inc. v. Spiegel,7 Mass. L. Rptr. 330, 1997 WL 564366, at *3 (Mass.Super.Ct. Sept.2, 1997) (Cratsley, J.) (citing Pace v. Signal Tech. Corp.,417 Mass. 154, 160 n. 5 (1994)). "The type [of] relationship anygiven state law-based legal claim is required to have with anemployee benefit plan in order to apply ERISA's preemptionprovision has been the subject of a fair amount of debate."Parisi v. Trustees of Hampshire Coll., 711 F. Supp. 57, 61(D. Mass. 1989) (Freedman, C.J.); Trans-Lease Group, 1997 WL564366, at *3 (noting "there is considerable authority on bothsides of the preemption issue").

The Supreme Court in Ingersoll-Rand, Co. v. McClendon setthe standard in determining whether a state claim "relates to" anERISA-covered plan. 498 U.S. 133, 139-42 (1990); Hampers v.W.R. Grace & Co, Inc., 202 F.3d 44, 49 (1st Cir. 2000) (explaining"[e]xpress ERISA preemption analysis . . . involves two centralquestions: (1) whether the plan at issue is an employee benefitplan and (2) whether the cause of action relates to thisemployee benefit plan." (quoting McMahon v. Digital Equip.Corp., 162 F.3d 28, 36 (1st Cir. 1998)) (internal quotationmarks omitted) (emphasis added)).

C. Supreme Court Jurisprudence

1. Expansive Application of ERISA's "Relate To" Language

The Supreme Court's initial expansive reading of the ERISApreemption provisions is to blame for the breadth of the ERISApreemption doctrine today.15 To reiterate, the analysisis twostep: first, a court must determine that a plaintiff has standing tosue as a "participant" or "beneficiary" of an employee benefitsplan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 116(1989) (referring to the subjacent circuit court decision). AsMiara meeting this requirement is not in dispute, the nextquestion is whether her claims are sufficiently "related to" theplan in order for ERISA preemption to apply. This latter phrasehas contributed a great deal to the current state of confusion. Doricent v. American Airlines, Inc.,No.CIV.A.91-13084-Y, 1993 WL 437670, at *7 (D. Mass. Oct. 19,1993) (Over time, the "relate to" language has become"essentially meaningless" and resulted in "havoc.").

Hitherto, the Supreme Court had stated that a state law claim"relates to" an employee benefit plan "if it has a connectionwith or reference to such a plan." Shaw, 463 U.S. at 96-97. Itis troubling that a plaintiff's claims and remedies are at themercy of such unfettered language. As the Supreme Courtacknowledged: The governing text of ERISA is clearly expansive. . . . [O]ne might be excused for wondering, at first blush, whether the words of limitation ("insofar as they . . . relate") do much limiting. If "relate to" were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course for, [r]eally, universally, relations stop nowhere . . . [W]e have to recognize that our prior attempt to construe the phrase "relate to" does not give us much help drawing the line here.Travelers, 514 U.S. at 655 (citation omitted). Congress maywell have used broad language to "establish pension planregulation as exclusively a federal concern." Pilot Life Ins.Co. v. Dedeaux, 481 U.S. 41, 46 (1987) (quoting Alessi v.Raybestos-Manhattan, Inc., 451 U.S. 504 (1981)); FraminghamUnion Hosp. v. Travelers Ins. Co., 721 F. Supp. 1478, 1490 (D.Mass. 1989) (Skinner, J.) (citing Pilot Life, 481 U.S. 41). Itis simply beyond belief, however, that Congress actually intendedthe "broadly sweeping arm" of ERISA, Turner, 953 F. Supp. at 424, to envelope any andall state law claims, no matter how remote, effectivelyextirpating years of common law consumer protection in one fellswoop.

The Supreme Court, recognizing the existing obfuscation,narrowed its "relate to" jurisprudence in Travelers and itsprogeny. 514 U.S. 645. To emphasize that "the mere existence of afederal regulatory or enforcement scheme . . . does not by itselfimply pre-emption of state remedies," Ingersoll-Rand,498 U.S. at 142 (quoting English v. General Elec. Co., 496 U.S. 72, 87(1990) (indicating one "must look for special features warrantingpre-emption") (internal quotations and citation omitted)), to put"relate to" preemption in a proper context, and to curb theswelling confusion of such preemption, the Supreme Courtannounced a new,16 "pragmatic approach" to the "relateto" framework. It indicated that one should begin, as "in anyexercise of statutory construction[,] with the text of theprovision in question, and move on, as need be,17 tothe structure and purpose of the Act in which it occurs." Id.at 655 (citing Ingersoll-Rand, 498 U.S. at 138 (footnoteadded)). The Supreme Court further stated, "[w]e simply must gobeyond the unhelpful text . . ., and look instead to the objectives of theERISA statute as a guide to the scope of the state law thatCongress understood would survive." Travelers, 514 U.S. at 656;Coyne v. Delany Co., 98 F.3d 1457, 1468 (4th Cir. 1996).

2. Supreme Court Jurisprudence Applicable to Miara's State LawClaims

To begin, it is worth noting that the Supreme Court hasaddressed, however marginally, the situation before this Court.In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724(1985), the Supreme Court stated that state "laws that regulateonly the insurer, or the way in which it may sell insurance,do not `relate to' benefit plans." Id. at 741 (emphasisadded). The matter sub judice does not involve state regulationper se; nevertheless, traditional common law misrepresentationand malpractice claims, certainly address the manner in which aninsurer may sell insurance. The question which seemingly gets tothe heart of the preemption issue present in both MetropolitanLife and here is this: do laws that address the manner in whichan insurer sells insurance sufficiently "relate to" ERISA plans?After Metropolitan Life, the answer seems to be "no." Thoughanalogous only, Metropolitan Life is persuasive in this Court'spreemption determination.

D. A Review of the Decisions of the United States Courts ofAppeals Prior to reviewing First Circuit case law, it is helpfulbriefly to summarize the decisions of other circuits that thisCourt has considered in arriving at its decision. Such decisionsprovide insight into the "relate to" language and address casesakin to this situation. Specifically, the Second, Third, Fourth,Fifth, Eighth, Ninth, Tenth and Eleventh Circuits have all heldthat state law claims, identical or sufficiently similar toMiara's state causes of action, do not "relate to" an employeebenefit plan and that preemption is improper. Though the Sixthand Seventh Circuits18 have seemingly spoken in a manneradverse to Miara's position, this Court views such case law asdistinguishable from Miara's situation.

a. Second Circuit

In Rebaldo v. Cuomo, 749 F.2d 133 (2d Cir. 1984), theSecond Circuit held that a state law regulating how muchhospitals could charge employee benefit plans "related to" suchplans in "too tenuous, remote or peripheral a manner to warrant"preemption. Id. at 138 ("[The] suggestion that, because thisregulation affects pension plans in their dealings with hospitalsby increasing their costs of doing business, it must be foundpreempted, proves altogether too much. . . . That argument doesnot withstand scrutiny. So too, for example, do State laws andmunicipal ordinances regulating zoning, health, and safety increase the operational costs of ERISA trusts, but no one couldseriously argue that they are preempted." (internal citations andquotation marks omitted)); United Wire, Metal and Mach. Healthand Welfare Fund v. Morristown Mem'l Hosp., 995 F.2d 1179,1193-1196 (3d Cir. 1993) (explaining that, despite the SupremeCourt's decision in Ingersoll-Rand, the "touchstone" of theanalysis in Rebaldo still applies); accord AmericanProgressive Life & Health Ins. Co. v. Corcoran, 715 F.2d 784,787 (2d Cir. 1983) (explaining that "the State's purportedregulatory actions are not directed at any particular plans or atemployee benefit plans in general . . . [but] at the businessconduct of a company that happens to sell insurance policies toERISA plans. . . . [W]hatever slight effect the Regulation mayhave on benefits is extrinsic to the aim of the Regulation and soperipheral to ERISA plans that it cannot justifiably becharacterized as an attempt to govern such plans under the guiseof state insurance regulation.").

In Gilbert v. Burlington Indus., Inc., conversely, theSecond Circuit held that unlike in American Progressive, thestate claims did "relate to" an employee benefit plan because"the state law claims seeking to enforce the severance pay policywould determine whether any benefits are paid, and directlyaffect the administration of benefits under the plan. . . . [T]heplaintiffs here were employed in 16 different states. The policy favoring national uniformity in this field, therefore, stronglysupports preemption." 765 F.2d 320, 327 (2d Cir. 1985). Such amatter is readily distinguishable from the case before thisCourt. Unlike Gilbert, preemption here would not support theapplication of uniform benefits or encourage employer compliancewith law. See id. at 329.

b. Third Circuit

In Painters of Phila. Dist. Council No. 21 Welfare Fund v.Price Waterhouse, 879 F.2d 1146 (3d Cir. 1989) (involving, inrelevant part, a determination of the existence of an impliedfederal common-law cause of action under ERISA), the ThirdCircuit held that causes of action for professional malpracticeare rooted in state law. Id. at 1152-1153. The Third Circuitfirst emphasized that ERISA was intended to benefit thebeneficiaries of employee benefit plans. Id. at 1152. It thencogently continued to expound upon professional liability claimsas being the traditional domain of state law, not federal, byemphasizing that "state law has traditionally prescribed thestandards of professional liability and, in the absence of clearindicia in the act or legislative history, we are reluctant toascribe to Congress an intention to intrude in this area." Id.at 1152-1153 (explaining the lack of indication that Congressintended to create a cause of action for professional malpracticeclaims under ERISA) (emphasis added). Unpersuaded by appellant's preemption argument, the ThirdCircuit, citing the Supreme Court decision in Mackey,486 U.S. 825 (1988), stated that: lawsuits against ERISA plans for run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan — are relatively commonplace. . . . [T]hese suits, although obviously affecting and involving ERISA plans and their trustees, are not preempted by ERISA § 514(a).Painters, 879 F.2d at 1153 n. 7 (quoting Mackey,486 U.S. at 833) ("We feel that professional malpractice actions brought by aplan are directly analogous to the situation in Mackey, andthat, in the absence of an explicit corresponding provision inERISA allowing a professional malpractice cause of action,Congress did not intend to preempt a whole panoply of state lawin this area. Thus, we conclude that ERISA does not generallypreempt state professional malpractice actions."). It isdifficult to believe that preemption would be warranted in thesituation presented here, involving not the plan but a remote,third-party insurance agent and company.

In United Wire, 995 F.2d 1179 (ruling New Jersey's hospitalrate regulation scheme was not preempted by ERISA), the ThirdCircuit provided an extremely thorough and helpful analysis ofERISA's "relate to" provision. Id. at 1191-1196 (describingfederal ERISA preemption as a "thorn[y]" question). Though issuedprior to the Supreme Court decision in Travelers, the Third Circuit's guidance presciently anticipates its theme: "Arule of law relates to an ERISA plan if it is specificallydesigned to affect employee benefit plans, if it singles out suchplans for special treatment, or if the rights or restrictions itcreates are predicated on the existence of such a plan." Id. at1192 ("Where there is no direct nexus between a state statute andERISA plans, no effect on the manner of such plans' conductingbusiness or their ability to operate in interstate commerce,statutes have been upheld despite the fact that they may have theindirect ultimate effect of increasing plan costs." Id. at1193.).

The Third Circuit also provided an analogy that resonates withthis Court: "Where," like the matter before this Court, "areference to an ERISA plan can be excised without altering thelegal effect of . . . [state law] in any way, we believe thereference should be regarded as without legal consequence for §514(a) purposes. Thus, for example, a state statute providingthat no employer, including an ERISA plan, shall discriminate ongrounds of race or gender[,] would not be preempted despite itsreference to an ERISA plan." Id. at 1192 n. 6 (internalquotation marks and citation omitted) (emphasis added).

c. Fourth Circuit

The Fourth Circuit has spoken compellingly and definitively onthe preemption of state law claims when "non-fiduciary . . . insurance professionals" in the role of "designers of . . .insurance plans" are involved. Coyne & Delaney Co. v. Selman,98 F.3d 1457, 1460, 1464 (4th Cir. 1996). The Fourth Circuit inCoyne held that, "[i]n light of the Supreme Court's recent (andnarrowing) interpretation of the scope of ERISA preemption in[Travelers,]" the "malpractice claim is not preempted becauseit does not `relate to' an employee benefit plan within themeaning of ERISA's preemption provision." Id. at 1466-67(citations and footnote omitted). The Fourth Circuit restated theview articulated by the Supreme Court in Travelers that "courtsnever `assume? lightly that Congress has derogated stateregulation," but "[i]nstead courts `address claims of preemptionwith the starting presumption that Congress does not intend tosupplant state law." id. at 1467 (quoting Travelers,514 U.S. at 654). The Fourth Circuit emphasized that "[t]his isespecially true in cases involving fields of traditional stateregulation." Id. (emphasis added).

The Fourth Circuit, guided by the "pragmatic" Supreme Courtdecision in Travelers, next looked to Congressional intent whenenacting ERISA, and the three specific areas in which Congresscould have been said to have intended preemption. Id. at 1468(noting the three areas were: (1.) preemption of state laws that"mandate employee benefit structures or their administration;"(2.) "preemption of state laws that bind employers or plan administrators to particular choices or preclude uniformadministrative practice, thereby functioning as a regulation ofan ERISA plan itself;" and (3.) preemption of "state lawsproviding alternative enforcement mechanisms for employees toobtain ERISA plan benefits." (internal quotation marks andcitations omitted)) . The court concluded that, "[b]y contrast . . .Congress did not intend to preempt `traditional state-basedlaws of general applicability [that do not] implicate therelations among the traditional ERISA plan entities,'including the principals, the employer, the plan, the planfiduciaries and the beneficiaries." Id. at 1469 (quotingCuster v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996) andnoting the consistency of its decision with case law of the Fifthand Sixth Circuits and other courts) (emphasis added, alterationin original).

The Fourth Circuit stated that with respect to the malpracticeclaim in that case, "[t]he gravamen of the claim is thatdefendants, in their capacities as insurance professionals,negligently failed to obtain a replacement insurance plan . . .that provided the same coverage and benefits as the [current]policy." Coyne, 98 F.3d at 1470 (emphasis added). The FourthCircuit concluded: Permitting . . . [the] claim to go forward in no way threatens ERISA's objectives of protecting the interests of participants in employee benefit plans and their beneficiaries, by establishing standards of conduct, responsibility, and obligation for fiduciaries and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. Allowing . . . [the] claim to survive is fully consistent with the purposes of ERISA's preemption provision. [The] . . . claim does not subject plan administrators and plan sponsors to conflicting directives among States or between States and the Federal Government. Nor does it create the potential for conflict in substantive law requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. [The] . . . state law claim simply does not threaten Congress's goal of nationally uniform administration of employee benefit plans. Thus, a finding of preemption in this case is not necessary to protect the objectives of ERISA. . . . . . . . There is no question that [the state] . . . claim is rooted in a field of traditional state regulation. Common law professional malpractice, along with other forms of tort liability, has historically been a state concern. Moreover, a common law professional malpractice claim is a generally applicable law that makes no reference to, or functions irrespective of, the existence of an ERISA plan.Id. at 1470-1471 (ruling state law claims were not preempted)(internal quotation marks, citations, omissions and alterationsomitted).

d. Fifth Circuit

The Fifth Circuit in Perkins v. Time Ins. Co., a decisionrendered prior to the Supreme Court's decision in Travelers,stated that "[w]hile ERISA clearly preempts claims of bad faithas against insurance companies for improper processing of aclaim for benefits under an employee benefit plan," the courtwas "not persuaded that this logic should extend to immunizeagents from personal liability for their solicitation ofpotential participants in an ERISA plan prior to its formation. 898 F.2d 470, 473 (5th Cir. 1990) (emphasis added). The Fifth Circuit held"that a claim that an insurance agent fraudulently induced aninsured to surrender coverage under an existing policy, toparticipate in an ERISA plan which did not provide the promisedcoverage, `relates to' that plan only indirectly . . . [and] isnot preempted by ERISA." Id. at 473 (concluding, with respectto the liability of an insurance agent when solicitingparticipants in an ERISA plan prior to its formation, that "anagent for a disclosed principal may be held liable personallywhere it can be shown the agent engaged in fraud or similarconduct." Id. at 474.) (citations omitted).

In another case, Memorial Hosp. Sys. v. Northbrook Life Ins.Co., the Fifth Circuit reviewed a claim for unfair and deceptivetrade practices, a claim the lower court characterized as a"derivative claim for plan benefits." 904 F.2d at 243. The FifthCircuit, holding that the claim was not preempted by ERISA,stated: [T]he preemption clause of ERISA must be read in context with the Act as a whole, and with Congress's goal in creating an exclusive federal enclave for the regulation of benefit plans. The Court has also cautioned that "ERISA preemption analysis `must be guided by respect for the separate spheres of governmental authority preserved in our federalist system.'"Id. at 244 (quoting Fort Halifax, 482 U.S. at 19). The FifthCircuit in Memorial Hosp. also reiterated the importance of therelationship of the parties in the preemption determination. 904 F.2d at 249 (citing its earlier decisions in Perkins,898 F.2d at 473, and Sommers Drug Stores Co. Employee Profit SharingTrust v. Corrigan Enters. Inc., 793 F.2d 1456, 1467-68(1987)).

The Fifth Circuit once again persuasively addressed preemption,in a case factually similar to the one before this Court, in its2003, post-Travelers decision in Hobson v. Robinson,75 Fed.Appx. 949, slip op. (5th Cir. 2003) (unpublishedopinion).19 Hobson involved a suit for state law claimsof fraud, misrepresentation and breach of contract. Id. at 950.These claims were filed in state court and later removed tofederal court.20 Id. The district court held the statelaw claims preempted and, accordingly, dismissed the entire case.Id. at 951. Initially, the Fifth Circuit held that, underPilot Life, 481 U.S. at 43, the breach of contract claims wereappropriately "preempted because those claims involve theinterpretation of the ERISA policy." Id. at 952. Yet, theimportant distinction is, unlike Miara's claim, the breach ofcontract claims in Hobson were for "contract actions asserting [the] improper processing of a claim."2175 Fed.Appx. at 952 (emphasis added).

The Fifth Circuit also held that the "claims for fraud andmisrepresentation" were not to be preempted "because theunderlying conduct occurred in the inducement of an ERISApolicy, not in its administration." Id. at 952 (emphasisadded). The Fifth Circuit in Hobson provided a cogent summaryof the problematic nature of the "relate to" language and theSupreme Court's mandate to look to the purpose of ERISA whendetermining preemption. It then articulated a preemption test: [T]his Court applies a two-prong test; that is, this Court asks: (1) whether the claim addresses areas of exclusive federal concern and not of traditional state authority, such as the right to receive benefits under the terms of an ERISA plan, and (2) whether the claim directly affects the relationship among traditional ERISA entities — the employer, the plan and its fiduciaries, and the participants and beneficiaries.Id. at 953 (footnote omitted) The Fifth Circuit concluded, "theprimary legal question in this case is whether ERISA preempts . . .claims for fraudulent? induc[ement] . . . to procurecoverage." Id. at 953. It held it did not. Id at 955.

It is important to note that the Fifth Circuit indicated thatneither the timing of the purported violations of state law (i.e., pre- or post-plan formation), id. at 954, nor whether aninsurance agent was an independent agent or was employed by acompany, id., were dispositive. The Fifth Circuit,reemphasizing its decision in Perkins, 898 F.2d at 473, heldinstead that "the critical determination [is] whether the claimitself created a relationship between the plaintiff anddefendant that is so intertwined with an ERISA plan that itcannot be separated." Hobson, 75 Fed.Appx. at 954 (providing anoverview of its previous cases and highlighting once again thatthe Fifth Circuit decisions since Perkins22 reaffirmthe importance of the relationship between the parties.

e. Sixth Circuit

The Sixth Circuit in Perry v. P*I*E* Nationwide Inc.,rather interestingly, first held "that preemption should apply toa state law claim only if Congress has provided a remedy for thewrong or wrongs asserted." 872 F.2d 157, 162 (6th Cir. 1989)(basing its decision on the Eighth Circuit decision inDependahl v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir.1981), which held that preemption is appropriate where Congresshas occupied the entire field and has provided a remedy for the assertedwrong). Two years later, in a matter in large part factuallydissimilar to the one before this Court, the Sixth Circuit wentthe other way, ruling state law claims were preempted by ERISA.Cromwell, 944 F.2d at 1275. In Cromwell, a health careprovider was seeking the payment of unpaid insurance claims.Id. The plaintiff brought various state claims for breach ofcontract, promissory estoppel, negligence and breach of goodfaith. Id. Cromwell argued that the reason for its claims was"their reasonable reliance on [the defendant's] oral assurancesof coverage" which were provided in response to inquiries onwhether the health care provided would be covered by the plan.Id. at 1274-75. Here, the Sixth Circuit, noting that it hadpreviously "repeatedly recognized that virtually all state lawclaims relating to an employee benefit plan are preempted byERISA," id. at 1276 (citations omitted), stated that "[i]t isnot the label placed on a state law claim that determines whetherit is preempted, but whether in essence such a claim is for therecovery of an ERISA plan benefit." Id.

Judge Suhrheinrich's concurring opinion in Cromwell cites thefactors considered by the Sixth Circuit as important in thepreemption determination in Firestone Tire & Rubber Co. v.Neusser, 810 F.2d 550 (6th Cir. 1987). Cromwell,944 F.2d at 1279 (Suhrheinrich, J. concurring); Firestone Tire, 810 F.2d at 555-56 (establishing the three-part inquiry: (1.) Whether "thestate law represents a traditional exercise of state authority"(2.) Whether the state law "affects relations among the principalERISA entities — the employer, the plan, the plan fiduciaries,and the beneficiaries", and (3.) What are the effects of statelaw on the plan?). Judge Jones dissented. Cromwell,944 F.2d 1272. Judge Suhrheinrich said the problem with the dissentingopinion was its lack of consideration for the third-prong of thetest. 944 F.2d at 1279 (Suhrheinrich, J. concurring) (noting thatthe dissent's failure could result in negative effects including:the plan will have to pay the judgment, "payment of the awardwill require actuarial adjustments," "assessment of suchjudgments against a plan may reduce the amount available to theplan's beneficiaries and increase administrative costs," and that"the plan will . . . be subject to the laws of the individualstates concerning the types of damages recoverable in tort.").These concerns, of course, are not applicable here. ThoughCromwell may seem to run counter to Miara's interests, it isdistinguishable in that: (1.) here, Miara does not seek thepayment of benefits under the plan but restitution for herreliance on the alleged misrepresentations of the Defendants,(2.) payment of damages by the insurance agent, agency or companywill not affect the plan in any way, and (3.) Cromwell wasdecided prior to the Supreme Court's instructive and constrictingdecision regarding ERISA preemption in Travelers. 514 U.S. at 645.

Judge Jones's dissenting opinion is especially compelling.Explaining that the plaintiff did not even have initial standingto sue under ERISA, he states: In affirming the district court in this case, the majority approves a procedure through which a district court may engage in a preemption analysis under ERISA before verifying the basis of its jurisdiction, or even before determining whether the complaint states a claim under ERISA at all. . . . [T]his procedure is emblematic of what seems to be an overzealous readiness in the federal courts to bar all state-law claims which even smell of ERISA under the broad umbrella of preemption without engaging in the complex case-by-case analysis which the statute and precedent require. As in this case, the result of such a boiler-plate unreflective approach to ERISA preemption is to frequently leave deserving claimants without recourse in state or federal court. It is clear that Congress intended ERISA preemption to be broad in scope. However, some state actions may affect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that ERISA preemption is applicable. It is my view that the proper procedure in this case would have been for the district court, once it accepted removal jurisdiction, to do a thorough analysis of the basis of its jurisdiction . . . before engaging in an analysis of the merits of the claims, including preemption. . . . Had the district court engaged in the standard blackletter practice of first addressing jurisdictional issues, it would have recognized that the plaintiff had no standing to sue under ERISA because it was neither a participant nor a beneficiary of an employee benefits plan. The court would then have properly turned to whether any of plaintiff's claims were sufficiently related to the benefits plan to require preemption despite the fact that plaintiff could not claim under the plan. In my view, this procedure would have led the court to a different conclusion than it reached in this case-namely, that none of the plaintiff's claims either stated a claim under the plan or were sufficiently related to the plan to warrant preemption. . . . . . . . [A] complex [analysis] is mandated by law to ensure that valid claims by deserving parties are not summarily dismissed with broad strokes by essentially presuming preemption of any claim vaguely connected to an employee benefits plan.Id. at 1279-1280, 1286 (Jones, J. dissenting) (internalcitations, quotation marks, and alterations omitted) (emphasis inoriginal). The dissent, applying the three-prong test, noted thatpreemption remained inappropriate. Id. at 1285 (Jones, J.dissenting) (noting, in its detailed analysis that Cromwell wasnot a participant or beneficiary with standing to sue, and thatthe monies she sought to recover were "for services independentof any coverage under the plan"). This Court agrees with JudgeJones's assertion

that the courts have become consumed in a fervor of preemption, sometimes avoiding admittedly difficult and complex analysis, by simply presuming preemption to apply. The problematic nature of such a practice is exemplified in the case at bar. The plaintiffs in this case, good-faith health care providers who provided care in reliance upon a plan's verification of benefits, cannot seek a remedy in either state or federal court. . . . Thus, perhaps inadvertently the majority has enabled plan administrators, either intentionally or not, to give misinformation of coverage and avoid any inquiry into the validity of a health care provider's claims against them.Id. at 1286 (Jones, J. dissenting) (citation and footnoteomitted).

f. Seventh Circuit

The Seventh Circuit, in a case that mirrors Cromwell, addressed a situation where a plan administrator confirmedcoverage of psychiatric medical treatment sought by plaintiffsfor their young daughter and the plaintiffs, in reliance on theconfirmation, agreed to the treatment. Pohl v. NationalBenefits Consultants, Inc., 956 F.2d 126, 127 (7th Cir. 1992).The Seventh Circuit held that the plaintiff's common lawnegligent misrepresentation claim was preempted by ERISA. Id.at 128. In so doing, the Seventh Circuit emphasized that [o]ne of ERISA's purposes is to protect the financial integrity of pension and welfare plans by confining benefits to the terms of the plans as written, thus ruling out oral modifications. . . . This purpose would be thwarted if participants could maintain suits under state law against a plan administrator that were based on oral representations of coverage.Id. (citations omitted). The Seventh Circuit does, indeed,state that the plaintiffs were "not seeking to enlarge coverageas such; but any money they obtained from this suit would befunctionally a benefit to which the written terms of their plando not entitle them. This type of end run is regularly rebuffed."Id. This could, arguably, be said of Miara's claims. ThisCourt, however, disagrees with that characterization. The primarydifference between Miara's claims and those in Pohl is thatMiara's suit is not based only on oral representations ofcoverage; at a minimum, the letters sent subsequent to theformation of the plan repeatedly confirmed the benefit shepurportedly was due. Further, Miara does not bring suit against any entity in its capacity as a plan administrator, guarantor, orfiduciary, but against the insurance company, agency, and agentfor their respective roles in the sale of the inadequate,insufficient and misrepresented policy to the Miaras.

g. Eighth Circuit

In Wilson v. Zoellner, 114 F.3d 713 (8th Cir. 1997), theEighth Circuit decided a case factually similar to the matterbefore this Court. Wilson involved a suit brought against aninsurance agent for negligent misrepresentation. Id. at 715.Wilson purchased a health insurance policy, seeking one thatprovided coverage for work injuries. Id. As in the matterbefore this Court, Zoellner allegedly misrepresented that thepolicy included the specific coverage Wilson sought. Id. WhenWilson had an accident at work which left her severely injuredand paralyzed, benefits were denied and Wilson was told that thepolicy did not cover work-related injuries. Id. Wilson's suitagainst Prudential in federal court was fruitless as the EighthCircuit held that Prudential properly denied benefits. Id.Wilson then sued Zoellner, the insurance agent, in state courtfor negligent misrepresentation. Id. The district court heldthat the state law was preempted by ERISA. Id.

The Eighth Circuit reversed the district court's decision.Id. The court began by reviewing ERISA preemption generally,id. at 715-716, and then stated that the law of negligent misrepresentation in Missouri was a general law, with no specificreference to an ERISA plan. Id. at 716-17. The Eighth Circuit,quoting the Supreme Court's decision in California Div. of LaborStandards Enforcement v. Dillingham, 519 U.S. 316, 325 (1997),noted that "the Supreme Court has directed [it] . . . to `lookboth to the objectives of the ERISA statute as a guide to thescope of the state law that Congress understood would survive, aswell as to the nature of the effect of the state law on ERISAplans.'" Wilson, 114 F.3d at 717. The Eighth Circuit thenoutlined the factors it considered when determining "the effectof a state law on an ERISA plan": [1] whether the state law negates an ERISA plan provision, [2] whether the state law affects relations between primary ERISA entities, [3] whether the state law impacts the structure of ERISA plans, [4] whether the state law impacts the administration of ERISA plans, [5] whether the state law has an economic impact on ERISA plans, [6] whether preemption of the state law is consistent with other ERISA provisions, and [7] whether the state law is an exercise of traditional state power.Id. at 717 (quoting Arkansas Blue Cross & Blue Shield v. St.Mary's Hosp. Inc., 947 F.2d 1341, 1344-45 (8th Cir. 1991)(alteration in original). In applying the seven factors, theEighth Circuit "conclude[d] that no provisions in Prudential'spolicy with [Wilson's employer] would be negated by allowingWilson's tort action to proceed against Zoellner for his allegedmisrepresentation of the scope of coverage of the policy." Id.at 717-718. As Wilson was "not seeking benefits under the . . . policy," preemption was improper. Id. at 718 (emphasis added).The court also held that it was "apparent that . . . [the] tortclaim neither affects the relations between primary ERISAentities nor impacts on the structure of the ERISA plan." Id.at 718. The Eighth Circuit specifically bifurcated Prudential'sdual roles and stated that

[i]f Prudential [were to] incur? any liability as a result of th[e] suit, it w[ould] do so only as the employer of a tortfeasor, and not as a plan fiduciary. . . . Because Prudential does not face any liability incurred by its role as an ERISA entity, its relationship with other ERISA entities cannot be effected by Wilson's suit.Id. The court also decided that Wilson's suit had no directeconomic impact on the ERISA plan, and that "it is apparent thatMissouri exercises a `traditional state power' in adjudicatingclaims of negligent misrepresentation in its courts . . . [as it]has long recognized the tort of negligent misrepresentation."Id. at 719-720. The Eighth Circuit held that:

[w]eighing these various factors together, we conclude that this Missouri state common-law action against an insurance agent for his alleged negligent misrepresentation of the scope of coverage of an employee benefit plan does not have a sufficient connection to the ERISA plan to require a finding of preemption. We believe that this is particularly true in light of the declared purpose of ERISA: "to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries." . . . 29 U.S.C. § 1001(b). Id. at 720.23 A state's "efforts to prevent sellers ofgoods and services, including benefit plans, from misrepresenting. . . the scope of their services is `quite remote from the areaswith which ERISA is expressly concerned — reporting, disclosure,fiduciary responsibility and the like." Id. (quotingDillingham, 519 U.S. at 330). In light of the "totality of thecircumstances," the Eighth Circuit accordingly held that thenegligent misrepresentation claim was related to the plan in "tootenuous, remote, or peripheral," id. at 721 (quoting Shaw,463 U.S. at 100 n. 21), a manner to warrant preemption.24 h. Ninth Circuit

In The Meadows v. Employers Health Ins., 47 F.3d 1006 (9thCir. 1995), the Ninth Circuit addressed misrepresentations madeby an ERISA entity. The Meadows, involved a suit for damagesbased on misrepresentations made as to the scope of benefits andcoverage rather than for the payment of benefits under a plan.Id. at 1008. Employers Health Insurance removed the case tofederal court claiming the state claims were preempted by ERISA.Id. The district court decided the state claims were notpreempted by ERISA. Id. The Ninth Circuit affirmed thedecision. Id. at 1009 ("We hold that the district courtcorrectly concluded that the independent state law claims of TheMeadows, a third-party provider, lie outside the bounds of theERISA `relates to' standard because neither The Meadows nor the[employees] had any existing ties to the ERISA plan [at the timeof the misrepresentations].").

The Ninth Circuit rejected outright the argument that an ERISAplan was sufficiently involved because one needed to consult thepolicy in order to determine coverage. Id. at 1010. The NinthCircuit explained that "The Meadows' state law claims formisrepresentation and estoppel `make no reference to' and`function irrespective of' the existence of an ERISA plan." Id. The Ninth Circuit, citing the Fifth Circuit's decision inMemorial Hosp., 904 F.2d at 247, emphasized that "insulatingplan fiduciaries from the consequences of their ownmisrepresentations to third-party providers does not further anyof ERISA's objectives." The Meadows,47 F.3d at 1010).25

i. Tenth Circuit

The Tenth Circuit examined state law claims26 by anemployer against an insurer for fraud and unfair trade practicesin Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999). In Woodworker's, the disagreementbetween the parties arose from inadequate rate determinations andthe failure to disclose the method used to determine such rates,resulting in unanticipated charges and rate increases for theemployer. Id. at 989. The Tenth Circuit noted that "ERISA doesnot preempt all state law claims. It has no bearing on those[state law claims] `which do not affect the relations among theprincipal ERISA entities, the employer, the plan, the planfiduciaries and the beneficiaries as such.'" Woodworker's,170 F.3d at 990 (quoting Hospice of Metro Denver, Inc. v. GroupHealth Ins. of Okla. Inc., 944 F.2d 752, 756 (10th Cir. 1991))(citation and alterations omitted). The Tenth Circuit alsoexplained that claims affecting relationships between an ERISAentity and a non-ERISA entity "similarly escape preemption."Woodworker's, 170 F.3d at 990 (quoting Airparts,28 F.3d at 1065). "While the scope of ERISA preemption may be broad,"emphasized the court, "it is certainly not boundless."Woodworker's, 170 F.3d at 990 (citing Monarch Cement Co. v.Lone Star Indus. Inc., 982 F.2d 1448, 1452 (10th Cir. 1992)).

The Tenth Circuit, in arriving at its holding, cited case lawfrom other circuits denying preemption for suits against an"insurance professional for misrepresentations that induced planparticipation," namely the decisions of the Fourth Circuit,Coyne, 98 F.3d at 1457, Fifth Circuit, Perkins,898 F.2d at 470, Eighth Circuit, Wilson, 114 F.3d at 713, and Eleventh Circuit,Morstein, 93 F.3d at 717-18. Woodworker's, 170 F.3d at 991(distinguishing cases challenging the allocation of benefitsunder an ERISA plan). Notably, the Tenth Circuit also stated, Allowing Woodworker's claims to proceed is consistent with Congress' purpose in enacting ERISA, that is, to protect the interests of employees and other beneficiaries of benefit plans and establish uniform standards regulating such plans. Holding insurers accountable for pre-plan fraud does not affect the administration or calculation of benefits, nor does it alter the required duties of plan fiduciaries. Conversely, were ERISA to preempt such claims, employees, whom Congress sought to protect, would find themselves unable to make informed choices regarding available benefit plans. We agree . . . that a state's efforts to prevent sellers of goods and services, including benefit plans, from misrepresenting the scope of their services is quite remote from the area with which ERISA is expressly concerned — reporting, disclosure, fiduciary responsibility, and the like.Id. at 991-92 (internal citations, quotations and alterationsomitted).

Finally, the Tenth Circuit indicated that an insurance companycannot seek refuge under a theory that it is a plan fiduciary andthat, as such, ERISA should preempt because it was being sued"with respect to its pre-plan activity in its role as seller ofinsurance, not as an administrator of an employee benefits plan."Id. at 991. The Tenth Circuit emphasized its view that: In enacting ERISA, Congress intended to protect the integrity of employment benefit plans, not insurance companies. It explicitly defined a plan fiduciary in terms of the function it performed for the plan, not whether it was an insurance company. Courts have repeatedly held that insurers are not necessarily ERISA entities. Moreover, [the Seventh Circuit] has indicated that an insurance company may suffer liability in a misrepresentation suit. Quite simply, we see no principled basis for distinguishing insurance companies from insurance professionals in this type of action. We hold that ERISA does not preempt Woodworker's pre-plan fraud claims against its insurer, and affirm the district court on this point.Id. at 992 (internal citations omitted) (emphasis added).

j. Eleventh Circuit

The Eleventh Circuit addressed the preemption of state lawclaims against insurance agents and agencies in what has become abedrock case in this area, Morstein v. National Ins. Servs.Inc., 93 F.3d 715 (11th Cir. 1996) (en banc). Though certainlynot a problem confined to that circuit, the Eleventh Circuit inMorstein admitted that its "decisions in the ERISA preemptionarea have been neither consistent nor clear." Id. at 718.

Morstein, who had a total hip replacement operation, brought asuit claiming that an insurance agent and agency fraudulentlyinduced her to purchase a health care policy and forego majormedical coverage. Morstein, 93 F.3d at 717. Morstein alsoalleged the negligent processing of her claims. Id. Morsteinsued in state court for negligence, malfeasance,misrepresentations, and breach of contract. Id. The defendantsremoved the action to federal court arguing ERISA preemption.Id. The district court found in favor of the insurance agentand agency. Id. The appellate panel, bound by the then prevailingprecedent in the Eleventh Circuit in Farlow v. Union Cent.Life Ins. Co., 874 F.2d 791 (11th Cir. 1989), affirmed thedistrict court's decision. Morstein, 93 F.3d at 717. TheEleventh Circuit granted en banc review of the case. Morsteinv. National Ins. Servs., Inc., 81 F.3d 1031 (11th Cir. 1996).

The Eleventh Circuit proceeded to provide an exacting overviewof the development of ERISA preemption law. Morstein,93 F.3d at 718-722 (outlining, in particular, the legislative history ofERISA, the original purpose of ERISA, and Supreme Court caselaw). Having found the Fifth Circuit decision in Perkinspersuasive (as does this Court), the Eleventh Circuit indicatedthat it would overrule its previous decisions and "adopt the[Perkins] rationale." Id. at 722. Accordingly, it held that"when a state law claim brought against a non-ERISA entity doesnot affect relations among principal ERISA entities as such, thenit is not preempted by ERISA." Id. ("Congress did not intendfor ERISA preemption to extend to state law tort claims broughtagainst an insurance agent."). Further, the court stated that acomparison of what was received under the current plan ascompared to what would have been received under the old plan wasinsufficient to establish preemption. Id. at 723 (citingForbus v. Sears Roebuck & Co., 30 F.3d 1402, 1406-1407 (11thCir. 1994) ("[T]he mere fact that the plaintiffs' damages may be affected by a calculation of pension benefits is notsufficient to warrant preemption."), and Travelers,514 U.S. at 645 (establishing that economic impact alone is insufficient towarrant preemption of state law)). The court continued, inlanguage this Court finds exceedingly persuasive: [T]he possibility that insurance premiums will be higher or that insurance will be more difficult to obtain because independent agents will have less incentive to sell insurance to employers whose employee benefit plans will be governed by ERISA, does not provide a reason to preempt state laws that place liability on agents for fraud. These same agents currently face the threat of state tort claims if they make fraudulent misrepresentations to individuals and entities not governed by ERISA. To hold these agents accountable in the same way when making representations about an ERISA plan merely levels the playing field. . . . Allowing preemption of a fraud claim against an individual insurance agent will not serve Congress's purpose for ERISA. As we have discussed, Congress enacted ERISA to protect the interests of employees and other beneficiaries of employee benefit plans. To immunize insurance agents from personal liability for fraudulent misrepresentation regarding ERISA plans would not promote this objective. If ERISA preempts a beneficiary's potential cause of action for misrepresentation, employees, beneficiaries, and employers choosing among various plans will no longer be able to rely on the representations of the insurance agent regarding the terms of the plan. These employees, whom Congress sought to protect, will find themselves unable to make informed choices regarding available benefit plans where state law places the duty on agents to deal honestly with applicants.Morstein, 93 F.3d at 723-24 (reversing the grant of summaryjudgment and concluding that the "claims do not fall withinERISA's broad preemptive scope, as they do not have a sufficientconnection with the plan to `relate to' the plan.") (emphasis added) (citation omitted).

k. First Circuit

The First Circuit has not ruled on "whether ERISA preemptsstate law claims against an insurer, an insurance agency, and aninsurance agent stemming from misrepresentations made by theinsurance agent (acting on behalf of the insurer) prior to theestablishment of the employee benefit plan in question."Stetson v. P.F.L. Ins. Co., 16 F. Supp. 2d 28, 31 (D. Me.1998). The First Circuit has acknowledged that "[d]rawing theline between those state laws that `relate to' ERISA-regulatedplans, and those that are only `tenuous, remote or peripheral'has proven to be considerably difficult in practice." Hampers,202 F.3d at 49 (quoting De Buono, 520 U.S. at 809 n. 1 andnoting such difficulty has resulted in an "avalanche oflitigation"). This circuit has emphasized the strain betweencourts on either side of the preemption issue. Carlo v. ReedRolled Thread Die Co., 49 F.3d 790, 793 (1st Cir. 1995) ("Courtshave struggled over whether ERISA preempts claims ofmisrepresentation regarding the scope or existence of benefits,and `there is ample, well reasoned authority which would supporteither position.'" (quoting Pace, 417 Mass. 154).

The First Circuit has stated that the "[c]ourts finding thatmisrepresentation claims are not preempted have reasoned that themere fortuity that the misrepresentation involved pension benefits is insufficient to cause the `axe of federal preemptionto fall.'" Carlo, 49 F.3d at 793 (quoting Greenblatt v. BuddCo., 666 F. Supp. 735, 742 (E.D. Pa 1987) and citing Pace,417 Mass. at 156 which stated that where "resolution of state lawclaims will neither `determine whether any benefits are paid' nor`directly affect the administration of benefits under the plan,'the claims do not `relate to' ERISA and accordingly are notpreempted."). The "promise to provide the plaintiff withcertain benefits . . ., upon which plaintiff could reasonablyrely, is the essence of the [misrepresentation] alleged."Carlo, 49 F.3d at 794 (quoting Greenblatt,666 F. Supp. at 742) (emphasis added) (alteration in original). Those courts thatfind preemption inappropriate when applied to these state lawcauses of action are "troubled" that preemption in benefit suitsinvolving misrepresentation acts as a "shield" for employers and"often leaves plaintiffs remediless" against employers. Carlo,49 F.3d at 794 (citing Pace, 417 Mass. at 160). On the otherhand, in ruling the state law claims preempted in Carlo, theFirst Circuit stated that courts on the other side of thestruggle hold sacrosanct the sweeping preemption provisionincluded in ERISA. Carlo, 49 F.3d at 794 (quoting Pilot Life,481 U.S. at 46).

Defendants place their principal reliance on Carlo,49 F.3d 790, 794, and Vartanian v. Monsanto Co., 14 F.3d 697, 700(1st Cir. 1994). In these two cases, the First Circuit decided statelaw claims were preempted by federal law and explained that therelevant inquiry in deciding preemption is whether a state claim"relates to" an ERISA plan. Carlo, 49 F.3d at 794; Vartanian,14 F.3d at 700. Both Carlo and Vartanian, however, arereadily distinguishable from the case before this Court.

In Vartanian, (a 1994, pre-Travelers case), the FirstCircuit held a state law action against a fiduciary for unlawfuldiscrimination and misrepresentation preempted by ERISA.14 F.3d at 698, 700.27 In Carlo, 49 F.3d 790 (a 1995pre-Travelers case), the First Circuit held that an employee'ssuit against an employer for negligent misrepresentation of thebenefits they would receive under an early retirement plansufficiently "related to" the plan to warrant ERISA preemption. 49 F.3d at 794.28

In Carlo, the First Circuit held that "[d]espite the? cogentarguments against preemption in misrepresentation claims," ERISApreempted the Carlos's claims as such claims "related to" anemployee benefit plan, id. (citing the purpose of ERISA andlegislative history in support of its holding), and have "aconnection with or reference to" the early retirement plan. Id.The First Circuit continued: [t]o compute these damages would require the court to refer to the [plan] as well as the misrepresentations allegedly made by [the employer]. Thus, part of the damages to which the Carlos claim entitlement ultimately depends on an analysis of the [plan]. To disregard this as a measurement of their damages would force the court to speculate on the amount of damages. Consequently, . . . the court's inquiry must be directed to the plan.Id. at 793-794 (internal citations and quotation marks omitted)

Unlike Carlo (involving an employee and employer) andVartanian (involving a retired employee andemployer/fiduciary), this case involves a suit against insuranceagents and insurance companies, not employers, underwriters, orfiduciaries. Compare Giannetti, 218 F. Supp. 2d at 13 ("Plaintiffs' complaint doesnot target the insurance company that underwrote the ERISA plan . . .but, as indicated, consists of run-of-the-millmisrepresentation claims against the agent and agency whoallegedly procured the wrong plan." (emphasis added)) withDudley Supermarket, Inc. v. Transamerica Life Ins. and AnnuityCo., 302 F.3d 1, 4 (1st Cir. 2002) (holding preemption of stateclaims where "it [wa]s clear that . . . Transamerica breached itsfiduciary duty under ERISA to provide competent investmentadvice and services rather than, as appellants argue . . . [a]violat[ion of] run-of-the-mill state laws that are largelytangential to and not preempted by ERISA." (emphasis added)(footnote omitted).

One need not exert a great deal of energy in distinguishingVartanian from the case before this Court. Vartanian himselfseemed to acknowledge inherently that the claims related to aplan as he "exhausted all administrative procedures and planappeal procedures in his claim for benefits." Vartanian,14 F.3d at 699.29 Miara has not so attempted here. Further,in Carlo, the First Circuit did state that "part of the damages to whichthe Carlos claim entitlement ultimately depends on an analysis ofthe [plan]. To disregard this as a measurement of their damageswould force the court to speculate on the amount of damages" tobe received. 49 F.3d at 794. Yet, here one need not look at theplan as the Defendants have made numerous representationsregarding the benefits to which Miara believes she is entitled.

It is meaningful to note that the First Circuit decisions inVartanian and Carlo were made prior to the Supreme Court'sdecision in Travelers, 514 U.S. 645. In Travelers, asdiscussed supra, the Supreme Court narrowed the preemptive strikeof ERISA, instructing that courts need to "look . . . to theobjectives of the ERISA statutes as a guide to the scope of thestate law that Congress understood would survive." Id. at 656.Given this newly-articulated guidance, would the First Circuithave arrived at the same holding post-Travelers? While thisCourt treats the precedent of all of the circuits as persuasiveauthority, and of course abides by its obligation to comply withthe binding precedent of the First Circuit, in this case thisCourt follows as its primary mandate the precedent of the SupremeCourt, namely its most recent decision in Travelers. Id. at668. As this Court has noted on previous occasions, this Court cannot "`simplydisregard its sworn oath' to comply with the binding opinions ofthe Supreme Court." Putnam v. Town of Saugus, Mass.,365 F. Supp. 2d 151, 182 (D. Mass. 2005) (quoting Andrews-Clarke,984 F. Supp. at 60). As this Court stated in In re Bernstein, the doctrine of stare decisis ought not be . . . lightly discarded. Where the Supreme Court has spoken to an issue, it is the duty of the lower federal courts to follow that analysis without regard to arguably changed conditions. Indeed, the First Circuit has . . . acknowledged the duty of the lower federal courts to follow the Supreme Court's "directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the [Supreme] Court the prerogative of overruling its own decisions."81 F. Supp. 2d 176, 181 (D. Mass. 1999) (quoting NationalForeign Trade Council v. Natsios, 181 F.3d 38, 59 (1st Cir.1999) (alterations in original).

Though Defendants seek to convince this Court of theapplicability of the two First Circuit cases to the matter beforethis Court, it concludes those cases are distinguishable from thematter here. Moreover, this Court agrees with Judge Bownes'sgeneral characterization in Golas v. HomeView, Inc.,106 F.3d 1, 4-6 (1st Cir. 1997) (Bownes, J. concurring)30 that theFirst Circuit has "never held that Carlo sweeps all state-lawmisrepresentation claims into the ERISA corner merely because anemployee benefit plan exists." Id. at 6; Giannetti,218 F. Supp. 2d at 14.

Oddly, not one party here cited in their briefs or referred atoral argument to Hampers, a First Circuit decision this Courtfinds particularly compelling. 202 F.3d 44(involving the terms ofan employment agreement and an employee's right to be enrolled ina plan and receive plan benefits). In Hampers, the FirstCircuit decided that a state law contract claim sufficientlyrelated to an employee benefit plan to be preempted by ERISA.Id. 53-54. In so holding, however, the First Circuitacknowledged that its decision turned on defendant's role as "anERISA employer and fiduciary" who "exercised discretion and authority or controlrespecting the management, disposition and administration of the[plan]." Id. at 53 (internal quotation marks omitted).

Most persuasive to this Court is the First Circuit's review ofthe decisions of the other circuits, from which decisions itdistinguished Hampers: [T]his is not a case where the defendant is being sued for wrongful conduct committed in its individual capacity, see, e.g., Wilson v. Zoellner, 114 F.3d 713, 715 (8th Cir. 1997) (claim of misrepresentation against an insurance agent); Stetson v. PFL Ins. Co., 16 F. Supp. 2d 28, 29 (D.Me. 1998) (same); see also Golas v. HomeView Inc., 106 F.3d 1, 4 (1st Cir. 1997) (Bownes, J., concurring) (claim brought against insurance broker acting in his individual capacity), nor is this a case where the defendant is a third party insurer or service provider who is not an ERISA entity — plan, employer, participant, beneficiary, fiduciary — at all, see, e.g., Woodworker's Supply Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 991 (10th Cir. 1999) (claims against insurer for misconduct in selling life insurance); Geweke Ford v. St. Joseph's Omni Preferred Care, Inc., 130 F.3d 1355, 1357 (9th Cir. 1997) (contract claims against third party provider of insurance and administrative services); . . . Coyne & Delaney Co. v. Selman, 98 F.3d 1457, 1460-61 (4th Cir. 1996) (malpractice claim against insurance professionals).Hampers, 202 F.3d at 53 (emphasis added). As the First Circuitcites Judge Bownes's concurring opinion in Golas asdistinguishable from Hampers, it can properly be inferred thatthe First Circuit would not have held preemption appropriateunder the factual situations presented in Wilson, 114 F.3d 713,Woodworker's, 170 F.3d 985, and Coyne, 98 F.3d 1457, or, forthat matter, here. Further still, the First Circuit in its 2002 decision inDudley specifically acknowledged the distinctions and notedthat it had, in that case,

examined the many cases . . . [in] support of the? assertion that claims based essentially on professional malpractice are not preempted by ERISA even though the claims involve in some way a plan governed by ERISA. These cases, as significant here, simply indicate that the malpractice claims against the defendants there, who were not fiduciaries with respect to an ERISA plan, were not preempted.302 F.3d at 4-5 (citations and internal quotations omitted)(emphasis added). Finally, in McCoy v. Massachusetts Inst. ofTech., 950 F.2d 13 (1st Cir. 1991), the First Circuit said that"to the extent that gray areas exist, the policy rationales thatpermeate ERISA and its preemption clause can afford soundguidance in determining what state laws may survive." Id. at17-18. This Court infers that the First Circuitprecedent31 requires a ruling that preemption is unwarranted and improper inthe matter before this Court.

1. District of Massachusetts Case Law

In addition to the First Circuit cases and the persuasive caselaw of the other circuits, there also exists persuasive case lawon point in the courts of this district. In Cuoco v. NYNEXInc., 722 F. Supp. 884 (D. Mass. 1989) (Skinner, J.), Cuocosought relief for denial of coverage following her formerhusband's passing in reliance on promises made to her by NYNEX.Judge Skinner held that Cuoco's "claims arise not from thedeprivation of any rights under the NYNEX plan but from theseries of promises and misrepresentations which were allegedlymade to her. . . ." Id. at 886 (explaining that Cuoco "waslured into a false sense of security as to her health insuranceand was prevented from seeking other arrangements"). JudgeSkinner, distinguishing the case from Pilot Life, 481 U.S. 41,a case involving the improper processing of benefit claims,emphasized that "common law claims are preempted only if the relationshipbetween the plaintiff and defendant is based on a plan governedby ERISA." Cuoco, 722 F. Supp. at 886-887 (noting, as argued byMiara here, that Cuoco's claims focused not on the plan but onthe misrepresentations made and did not warrant preemption, id.at 887.).

Judge Skinner again addressed a similar situation inFramingham Union Hosp. v. Travelers Ins. Co.,721 F. Supp. 1478 (D. Mass. 1989) (Skinner, J.). Framingham Union Hosp.involved, in part, the failure to disclose disadvantages of anERISA plan. Id. at 1482. Judge Skinner again held that statelaw claims for professional malpractice, misrepresentation,negligence, and Chapter 93A of the Massachusetts General Lawswere not preempted by ERISA. Id. at 1490 ("None of these causesof action purports to impact the administration of the Plan,provision of benefits or any like concern of ERISA. Thepossibility that the terms of ERISA or the Plan may be evidenceof certain aspects of the claim do not mandate theirpreemption.").

In Industrial Tech. Servs. v. Phoenix Home Life Mut. Ins.Co., 866 F. Supp. 48 (D. Mass. 1994) (Ponsor, J.), claims ofcontract breach and statutory violation were held not to bepreempted. Id. Judge Ponsor held that there was no need for thecourt "to probe the internal workings of defendant's plan" butsimply had to "compare its components, viewed externally, with the competitor's offering." Id. at 51. In a zestful andcolorful opinion, Judge Ponsor, holding preemption was notwarranted, expressed the court's perspective on ERISA preemptionof state claims. Id. at 49-51 (describing ERISA's preemptionprovision as a "semantic gremlin" that "should be exiled from theterminology of the law . . .," explaining that "[i]n some cosmicsense, just about everything might be said to `relate to'everything else," and noting that the matter before the court didnot involve "activities at the heart of the administration of thebenefit plan;" rather, "[t]he claim is simply that the plaintiffgot snookered at the initial sale.").

Miara relies largely upon the recent decision in Giannetti v.Mahoney, 218 F. Supp. 2d 8 (D. Mass. 2002) (Neiman, M.J.), anaction against an insurance agent and agency involvingmisrepresentations in connection with a group disabilityinsurance plan. Id. at 9-10, 13; Pl.'s Mem. at 5.32Magistrate Judge Neiman concluded that the claims were"run-of-the-mill misrepresentation claims" that did not "relateto" an ERISA plan, and remanded the case to state court.Giannetti, 218 F. Supp. 2d at 13, 15. In Giannetti,Magistrate Judge Neiman provided an overview of existing circuitcase law, noting that "[a]t least five circuits, in opinions which this court finds convincing,have held that section 514 does not preempt claims againstinsurance professionals sued for misrepresentations inprocuring an ERISA policy or inducing policy participation."Id. at 14-15 (emphasis added) (referring to the Fourth, Fifth,Eighth, Tenth and Eleventh Circuits). Compare Lion's VolunteerBlind Ind., Inc. v. Automated Group Admin., Inc., 195 F.3d 803(6th Cir. 1999) (holding that since the claim required the courtto calculate the benefits due to the beneficiary under the plan,that it sufficiently related to ERISA). Magistrate Judge Neimanaccordingly held that all of the claims were related to thedefendants' alleged misrepresentations and were thus notpreempted. Giannetti, 218 F. Supp. 2d at 13 (explaining that"each [claim] . . . targets Defendants' allegedmisrepresentations in procuring the . . . policy. Id. at 10.).

In recent months, Judge Saris in Children's Hosp. Corp. v.Kindercare Learning Ctrs., 360 F. Supp. 2d 202 (D. Mass. 2005)(Saris, J.), decided that state law claims33 brought by ahospital against a self-insured employer and an administrator formisrepresentations regarding the scope of treatment coverage were not preempted by ERISA.34 Children's Hospital argued thata breach of "a duty owed to it by intentionally or negligentlymisrepresenting the existence of coverage," like Miara'ssituation, could not be brought as a claim under section 502.Id. at 206. After reviewing the Supreme Court's decision inAetna Health Inc. v. Davila, 542 U.S. 200 (2004) (reviewingremoval to federal court in an ERISA context and enunciating acomplete preemption analysis), the court stated that the casecould be removed "only if (1) Children's Hospital could havebrought any of its state-law claims under § 502, and (2) no otherindependent legal duty supports the claim(s)." Children's Hosp.Corp., 360 F. Supp. 2d at 205. Judge Saris also decided that thecontract claim35 was not preempted as the contractallegedly breached "[did] not involve the ERISA plan, but an independentcontract between the two entities." Id. at 206 (emphasisadded). This Court considers the decisions36 of JudgesSkinner, Saris and Ponsor and Magistrate Judge Neiman on pointand persuasive.37

(1) District Court Decisions in the First Circuit and Elsewhere

A decision from the District of Maine is particularlypersuasive. Stetson, 16 F. Supp. 2d 28. Stetson involved theexact issue this Court decides here: "whether ERISA preemptsstate law claims against an insurer, an insurance agency, and aninsurance agent stemming from misrepresentations made by theinsurance agent (acting on behalf of the insurer) prior to theestablishment of the employee benefit plan in question." Id. at31. The analysis of applicable case law and the holding of thecourt in Stetson resonates with this Court: "[W]here liabilityis predicated upon events preceding in time the existence of the. . . ERISA plan, and where imposition of liability will have noimpact upon the ERISA plan or its administration, . . . [theclaims are not] sufficiently `related to' the ERISA plan togenerate preemption." Id. at 35. The court cited Judge Bownes'sconcurring opinion in Golas, 106 F.3d at 4-9. In Golas, JudgeBownes articulated "eight reasons" for concluding preemption wasunwarranted: (1) No ERISA benefits are sought and no ERISA rights or obligations are asserted. (2) Defendant . . . would be personally responsible for any money damages awarded to plaintiff. (3) Defendant . . . is not an ERISA entity, nor does the alleged misrepresentation claim affect the relationship between ERISA entities. (4) None of the three categories of state laws that Travelers holds Congress intended to pre-empt are implicated. (5) The common-law claim of misrepresentation is a state law of general application. Moreover, tort law in general is traditionally an area of state regulation. It is therefore unlikely that Congress intended to intrude into this area by pre-emption. (6) Congress did not intend to shield tortfeasors from liability for misrepresentation where ERISA benefits, rights, obligations, and core concerns are not implicated. (7) State common law imposes a duty of care relative to representations made by insurance professionals which does not in any way depend upon ERISA. (8) The alleged misrepresentation occurred prior to the time when the ERISA plan would have taken effect.106 F.3d at 10 (Bownes, J. concurring); see also Metayer v.PFL Life Ins. Co., No.CIV.A.98-177-P-C, 1999 WL 33117063 (D.Me. July 15, 1999) (unreported decision) (adopting the reasoningin Stetson).

This Court is also persuaded by the decision of the District ofNew Hampshire38 in Berlin City Ford, Inc. v. RobertsPlanning Group, 864 F. Supp. 292 (D.N.H. 1994) (identifying theissue in that case as "whether a plan administrator's state lawprofessional negligence claims against a non-fiduciary `relate to' an ERISA regulated plan within the meaning of29 U.S.C. § 1144(a)" Id. at 295.). In Berlin City Ford, the administratorof an ERISA-covered plan alleged that a non-fiduciary planadvisor provided inadequate and negligent assistance andguidance. Id. at 293. Though decided prior to the Travelerscase, 514 U.S. 645, Judge Barbadoro approached the matter as ifguided by the Supreme Court's narrowing iteration in Travelers,namely that "[i]n the final analysis, `the question whether acertain state action is pre-empted by federal law is one ofcongressional intent.'" Berlin City Ford, 864 F. Supp. at 294(quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208(1985) (discussing the parallel preemption provision found insection 301 of the Labor Management Relations Act)) (emphasisadded). The court held that, given

the nature of the suit at issue . . . [the] state law negligence claims do not arise from the administration of the plan itself, or the provision of any plan benefits. Likewise the suit does not involve parties whose relationships are governed by ERISA such as relations among the plan's beneficiaries, administrators or fiduciaries. In short, . . . [the] state law claims have little or nothing to do with the operation of the plan itself. Accordingly . . . [the state law] claims . . . must be remanded to state court because they do not relate to an ERISA plan.Id. at 296 (emphasis added).

One of the most recognized and relied upon decisions is thedistrict court decision in Greenblatt v. Budd Co.,666 F. Supp. 735 (E.D.Pa. 1987). Greenblatt involvedmisrepresentations made by employers in their non-fiduciarycapacity regarding available pension benefits "in the ordinary course of business". Id. at742. The court held that: The cause of action for misrepresentation alleged by the plaintiff . . . should not be preempted because, simply put, the premise underlying this action was that plaintiff was deceived by the verbal statements made and the actions taken by his employer. That the subject of the deception concerned pension benefits is only incidental and not essential to the plaintiff's cause of action. . . . . . . . [T]he case law suggests and this Court is persuaded that the plaintiff would be without a remedy under ERISA. As such, it would defy logic to presume that Congress intended to preempt the common law action of fraud in a situation of this type.Id. (citations omitted) (emphasis added). The Court agrees withthe Greenblatt characterization of the claims as applied to thecase before it. This Court's review of the decisions inStetson, Berlin City Ford, and Greenblatt has informed itsdecision in this matter.39 (2) Precedent in the Commonwealth of Massachusetts and OtherJurisdictions

This Court has also considered the decision of the SuperiorCourt of Massachusetts in Trans-Lease Group, Inc. v. Spiegel,7 Mass. L. Rptr. 330, 1997 WL 564366 (Mass.Super.Ct. Sept 2,1997) (Cratsley, J.). There, Justice Cratsley held, in amisrepresentation case against an insurance agent in which theplan in question no longer existed, that: [e]ven if the Plan was still in existence, the plaintiff's claims relate to alleged misrepresentations made by the defendants and they do not relate to the administration of the Plan or to the calculation of any benefits under the Plan. The Plan is incidental to the plaintiff's claims . . . [and] any award against the defendants will not directly affect the administration of benefits under the Plan.Id. at *3-4 (paragraph structure altered). The court inTrans-Lease relied on the seminal Massachusetts SupremeJudicial Court decision in Pace v. Signal Tech. Corp.,417 Mass. 154, 159-60 (1994). Pace involved a suit brought againstan employer by an employee alleging that misrepresentations weremade as to long-term disability coverage. Id. at 154-155.Though decided prior to the Supreme Court's decision inTravelers, 514 U.S. 645, the Supreme Judicial Court prescientlyindicated that one must look to the actual intent of Congresswhen enacting ERISA in order to properly to determine preemption.Pace, 417 Mass. at 156. Acknowledging the expanse of ERISA preemption, the SupremeJudicial Court indicated in Pace that the claims there were tooremote to "relate to" the plan. Id. at 159-60 (citing, inarriving at its decision, the decision in Cuoco,722 F. Supp. 884). This Court likewise deems compelling the Massachusettsstate court decisions in Trans-Lease and Pace.

In Holroyd v. Requa, 361 S.C. 43 (S.C.Ct.App. 2004), itwas held that an insured's misrepresentation, fraud andnegligence claims against an insurance agent who providedinadequate services and information were not preempted. Id. at57. In Holroyd, Justice Cureton held that: Like the malpractice claims in Heaitley and Medical Park,40 these common law claims do not impact — even in a tenuous fashion — employee benefit structures or their administration, bind employers or plan administrators to particular choices, or preclude uniform administrative practice. Furthermore, [the] claims are not aimed at obtaining ERISA benefits. Rather, the? . . . action [was brought] seeking damages proximately caused by . . . misrepresentations in marketing the [plan] and [the] negligent failure to apprise [insureds] of the [p]lan's financial and regulatory difficulties. . . . [The insurance professional] will be liable in his individual capacity for his negligence. . . .Holroyd, 361 S.C. at 57-58 (emphasis added). Justice Cureton'sopinion is extremely convincing.41

The abiding precedent in the First Circuit, and the decisionsand rationale of other circuit courts,42 the District ofMassachusetts, and other jurisdictions lead this Court toconclude that Miara's state claims, discussed individually infra,are not to be preempted by ERISA. E. Applying the Legal Framework to the Allegations in thisCase — Do Miara's State Law Claims "Relate To" an ERISA ProtectedPlan?

Prior to addressing Miara's specific claims, there are a fewpreliminary matters that this Court addresses.

1. General Considerations

a. Need to Consult the Plan to Determine Damages

Miara emphasizes that she "does not challenge the planitself43 nor the administration of the plan. Rather, shechallenges the `procurement of the plan,' [and] that thedefendants should have known that spousal survivor benefits for`substantial owners' were subject to substantial limitations butfailed, either deliberately or negligently, to disclose suchlimitations." Pl.'s Mem. at 4 (citing Giannetti,218 F. Supp. 2d at 12) (footnote added); See Tr. at 13. As indicated inGiannetti, the plan — procurement of the plan difference "is acrucial distinction." 218 F. Supp. 2d at 12. The focus of theseclaims is on the promise, not on the plan. Likewise, Miara's"claims are not aimed at obtaining ERISA benefits." Holroyd,361 S.C. at 58. Her action seeks "damages proximately caused" bythe Defendants sale of the plan and misrepresentations. Id.Further, the Defendants "will be liable in their individual capacity for . . . negligence." Id. (emphasis added). Miaraclaims that Baker and Bonasera: repeatedly led [her] to believe that there were no . . . limitations, and that upon her death or upon the death of her husband, the surviving spouse was guaranteed by [Pension Benefit] to receive 100% spousal survivor benefits. Even after the death of [her] husband, [First] Allmerica and Bonasera assured [her] that she was entitled to full spousal monthly benefits exceeding $2,000. [Miara] and her husband purchased the plan specifically in reliance upon the representations by Baker and Bonasera that they were guaranteed to receive full spousal benefits if one or the other died.Pl.'s Mem. at 4. Such assurances were apparently made both orallyand in writing. See id.

As Miara's attorney responded, when asked by this Court at oralargument why the plan need not be consulted and how damages couldbe considered to be already calculated: we've already got the determination by [Pension Benefit], the Pension Benefit Guaranty Corporation, that she's going to receive $541 a month beginning February of 2006. That's what she's entitled to under the plan. Now you've got Bonasera — or you've got First Allmerica's representation that she's going to get two thousand and four hundred and some dollars a month beginning in February 2006. They've already made the determination for us, fortunately, so you don't have to refer to the plan. Even if they hadn't done that calculation, your Honor suggested the alterative yourself by suggesting that its up to the fiduciary to determine what the damages would be. You don't have to refer to the plan.Tr. at 13-14; see also id. at 6-7 (transcribing this Court'shypothetical proposal: "suppose we just try the case. If she winsshe gets a hundred percent of the spousal benefits under the plan. Just calculate it out, we'll defer to the plan fiduciariesto figure out what the spousal benefits are and there are ourdamages, we don't have to fool with the plan."); Pl.'s Mem. at 3(stating that, First Allmerica informed Miara in an October 8,1996 letter that she could collect, as Miara in fact opted,$2,457.27 if she deferred her collection until February 1, 2002,and, as referred to by Miara's counsel at oral argument, informedher a January 6, 1997 letter that she could collect, once againas Miara in fact opted, $2,664.35 if she deferred her collectionuntil February 1, 2006).

This Court rules that given the written confirmations ofpromised benefits and the nature of Miara's claims, any referenceto the plan to calculate damages, if such reference even need bemade, would be remote and incidental. See Morstein,93 F.3d at 723-724 ("If ERISA preempts a beneficiary's potential cause ofaction for misrepresentation, employees, beneficiaries, andemployers choosing among various plans will no longer be able torely on the representations of the insurance agent regarding theterms of the plan. These employees, whom Congress sought toprotect, will find themselves unable to make informed choicesregarding available benefit plans where state law places the dutyon agents to deal honestly with applicants.").

b. ERISA Entities or Relationships

The Defendants here are not Miara's employers, see Carlo, 49 F.3d 790, or plan administrators. Likewise, there exist nofiduciary duties between the Defendants and Miara.44Compare Dudley, 302 F.3d at 4 (noting, unlike the matter subjudice, that in that case "it [wa]s clear that the gravamen ofthe complaint is . . . [a breach of] fiduciary duty under ERISAto provide competent investment advice and services rather than . . .[a violation of] run-of-the-mill state laws that are largelytangential to and not preempted by ERISA.") (internal quotationsand footnote omitted).

To hold that insurers may never be sued in connection withERISA plans for misrepresentations made would grant de factoimmunity to all insurers, or to any entity or anyone, in any way,shape or form involved with a plan, all at the expense of theemployee. See Cromwell, 944 F.2d at 1286 (Jones, J.dissenting) (warning that "perhaps inadvertently the majority hasenabled plan administrators, either intentionally or not, to give misinformation of coverage and avoid any inquiry into thevalidity of . . . claims against them"); Berlin City Ford,864 F.Supp at 296 (indicating that courts should not "construe ERISAto protect non-fiduciaries from state laws of generalapplicability that are intended to ensure that professionalservices are rendered with reasonable diligence").

c. Timing of the Alleged Misrepresentations

Several cases have addressed the "timing" of themisrepresentations made. "The timing of plan formation is not thecrucial factor in ERISA preemption." Hobson,75 Fed.Appx. at 954.45 It is rather the extent to which a claim "relatesto" ERISA that determines preemption. Id. This Court concludesthat the existence of a "relationship . . . based on a plangoverned by ERISA," Cuoco, 722 F. Supp. at 886-87, is morecritical to the preemption determination than is the timing ofthe alleged misrepresentation.

2. Misrepresentation

Miara contends her claims are "run-of-the-millmisrepresentation claims" that do not "relate to" an employeebenefit plan and do not establish a basis for federal jurisdiction. Giannetti, 218 F. Supp. 2d at 13. Miara relies onGiannetti and asserts that "[a]s in Giannetti, [her] claimsare based on the defendants' misrepresentations . . . [and t]heclaims do not and will not affect the plan itself and,accordingly, are not preempted by ERISA." Pl.'s Mem. at 5;Giannetti, 218 F. Supp. 2d at 8. She also relies on IndustrialTech., 866 F. Supp. 48 (Ponsor, J.) and argues that she was"lured into a false sense of security about the contents ofits benefit package . . . [and that she was] snookered at theinitial sale. The plan itself was not what defendantrepresented it to be." Id. at 50 (emphasis added). Further,relying on Cuoco, Miara argues, her claims "arise not from thedeprivation of any rights under the . . . plan but from theseries of promises and misrepresentations which were allegedlymade to her by defendants." 722 F. Supp. at 886-887 (emphasisadded).

The crux of the Defendants' argument in opposition to themotion to remand is that Miara's causes of action "relate to" anemployee benefit plan, and, as such, the claims are preempted bysection 514 of ERISA. Baker Opp'n at 3; Bonasera Opp'n at 2.Further, as in Vartanian, defendants here argue, the "claims[are] preempted by ERISA because `the existence of the . . . planis inseparably connected to any determination of liabilityunder the state common law of misrepresentation.'" Bonasera Opp'nat 2 (citing Vartanian, 14 F.3d at 700) (emphasis added)(second alteration in the original); Baker Opp'n at 3-4. They furtherassert that the "terms of the plan and the money received by[Miara] pursuant to the plan are directly at issue in this case[as it] . . . involve[s] the calculation of the benefits" to bepaid to the plaintiff and hence involves the administration ofthe plan.). Bonasera Opp'n at 3 (citing Carlo, 49 F.3d at 794).The Defendants press upon this Court that "to make determinationsregarding her alleged damages, the Court would be forced to referto . . . the benefits as set-forth in the plan, the benefits sheultimately received, and the alleged misrepresentations of thedefendants." Bonasera Opp'n at 3. Baker further argues, insupport of the Defendants' argument, that as one need consult theplan to determine damages the claims "relate to" the plan, andthat "the sole issue in dispute is whether [Miara's] claims forpension benefits payable under a Defined Benefits Plan should bebased on the figures provided to the plaintiff in 1996 and in1997 or on figures provided to the plaintiff in 2002." BakerOpp'n at 6 (emphasis added). Not only does this seem amischaracterization of the issue, but it fits incongruous withthe Defendants' argument, as it conceivably lends support forMiara's position that the figures provided to her in thecorrespondence are all one need consult. See Tr. at 13-14("[W]e've already got the determination by [Pension Benefit] . . .that she's going to receive $541 a month beginning February of2006. Now you've got Bonasera — or you've got First Allmerica's representation that she's going to get two thousand and fourhundred and some dollars a month beginning in February 2006.They've already made the determination for us, fortunately, soyou don't have to refer to the plan."). Miara's argument hasgreater merit.

Miara's misrepresentation claim should not be preempted. It isuseful to consider, as only one example, the seven factorsconsidered by the Eighth Circuit as articulated inWilson.46 114 F.3d at 717. These factors reflect thepurpose of ERISA in an instructive and succinct application ofexisting case law in this circuit. In the case sub judice,Miara does not seek ERISA benefits, seek to negate an ERISAprovision, or assert rights under ERISA. The Defendants are notERISA entities,47 nor does there exist a relationshipbetween ERISA entities. See Coyne, 98 F.3d at 1469 ("Congressdid not intend to preempt traditional state-based laws of general applicability that do not implicatethe relations among the traditional ERISA plan entities,including the principals, the employer, the plan, the planfiduciaries and the beneficiaries.") (citation, internalalterations and internal quotation marks omitted). The stateclaims do not impact plan structure or administration and thereis no economic effect on a plan. Travelers, 514 U.S. at 662(explaining that laws with only an indirect economic effect onthe relative costs of various health insurance packages in agiven State are a far cry from those "conflicting directives"from which Congress meant to insulate ERISA plans). Any moneydamages awarded would not affect an ERISA plan but would be theresponsibility of the defendants. The claims Miara raises,including misrepresentation and breach of contract, aretraditional state claims. More importantly, they cannot beconsidered the type of claims that Congress intended to preemptin enacting the ERISA statute.

"None of the three categories of state laws that Travelersholds Congress intended to pre-empt are implicated." Golas,106 F.3d at 10; see Travelers, 514 U.S. at 646 (identifying threeareas Congress intended to preempt: (1) "state laws thatmandate? employee benefit structures or their administration,"id. at 658-59, (2) "state laws providing alternative enforcementmechanisms," id. at 658, and (3) state laws that bind plan administrators to a "particular choice and thus function as aregulation of an ERISA plan itself" id. at 659.). It is hard toimagine, in earnest, that Congress intended to preempt such abroad, historic, and traditional area of state law.

3. Promissory Estoppel

Miara's claims include a promissory estoppel claim. SeeTreadwell v. John Hancock Mut. Life Ins. Co,666 F. Supp. 278, 286 (D. Mass 1987) (Caffrey, J.) (ruling promissory estoppelclaims are allowed in Massachusetts). Miara alleges that "Bakerand Bonasera made promises that they reasonably should haveexpected to induce action," and that in fact did, she alleges,"induce? . . . such action" on the part of Miara. Pl.'s FirstAm. Compl. ¶¶ 24-25. Miara claims that her reliance on thesepromises and the breach of such promises caused her harm. Id.¶¶ 26-27.

"[T]he Supreme Judicial Court eschewed the term `promissoryestoppel,' stating that promises enforceable by virtue ofreliance would be treated as `contracts' pursuant to traditionalcontract theory." Treadwell, 666 F. Supp. at 286-87 (quotingLoranger Constr. Corp. v. E.F. Hauserman, Co., 376 Mass. 757,761 (1978)); see also McAndrew v. School Comm. ofCambridge, 20 Mass. App. 356, 363-64 & n. 11 (1985) (explainingthis theory in terms of section 90(1) of the Restatement (Second)of Contracts to detail the elements of this contractual theory,namely that "[a] promise which the promissor should reasonably expect to induceaction or forbearance on the part of the promisee or a thirdperson and which does induce such action or forbearance isbinding if injustice can be avoided only by enforcement of thepromise.").

In Cromwell, the Sixth Circuit held that ERISA preempted apromissory estoppel claim. See 944 F.2d at 1275. This Court,however, considers the dissenting opinion of Judge Jones the morepersuasive of the opinions in Cromwell. 944 F.2d at 1279-86(noting the "overzealous readiness in the federal courts to barall state-law claims," id. at 1279 (Jones, J. dissenting)).Moreover, the Eleventh Circuit in Morstein indicated that"[w]hen a state law claim involves the reliance on an insurer'spromise that . . . particular [coverage is provided] under apolicy . . . a claim of promissory estoppel is not `related to'the benefits plan." Morstein, 93 F.3d at 723 (citationomitted).

This Court does not reach the merits of Miara's promissoryestoppel claim but rules it is possible to determine the meritsof the claim without reviewing the plan itself. Miara allegesthat she relied on misrepresentations that were repeatedly made,including representations that the plan included full spousalbenefits, that she would have to sell (and did sell) her businessin order to receive benefits, and subsequent representations viacorrespondence as to the amount of benefits she would receive. The allegations do not sufficiently "relate to" the ERISA plan soas to preempt Miara's promissory estoppel claim.

4. Malpractice

Miara argues that "defendants owed [her] a duty of care . . .to exercise reasonable skill, care and diligence in procuring anappropriate retirement and pension plan" which duty they "failedto exercise" as would those "ordinarily employed by members oftheir profession." Pl.'s First Am. Compl. ¶¶ 39-40. Indeed, inthis instance, state common law would, with respect to themalpractice claim for example, "impose? a duty of care relativeto representations made by insurance professionals which does notin any way depend upon ERISA." Golas, 106 F.3d at 10. InDudley, the First Circuit addressed48 the preemption ofprofessional malpractice claims.

We have examined the many cases . . . [which indicate] that claims based essentially on professional malpractice are not preempted by ERISA even though the claims involve in some way a plan governed by ERISA. These cases . . . indicate that the malpractice claims against . . . [those] who were not fiduciaries with respect to an ERISA plan, were not preempted.302 F.3d at 4-5 (citing Berlin City Ford, 864 F. Supp. at 295) (internal quotations omitted) (emphasis added). Moreconvincingly, here there are no fiduciary obligations.

The Fourth Circuit in Coyne addressed specifically thepreemption of a professional malpractice claim.

There is no question that [the state] . . . claim is rooted in a field of traditional state regulation. Common law professional malpractice, . . . has historically been a state concern. Moreover, a common law professional malpractice claim is a generally applicable law that makes no reference to, or functions irrespective of, the existence of an ERISA plan. The state law at issue in this case imposes a duty of care on all professionals, including all insurance professionals. Common law imposes the duty of care regardless of whether the malpractice involves an ERISA plan or a run-of-the-mill automobile insurance policy. Thus, the duty of care does not depend on ERISA in any way. Finally, the state law malpractice claim does not affect relations among the principal ERISA entities. . . . [The] claim is asserted . . . against the [insurers] . . . in their capacities as insurance professionals, not in their capacities as ERISA fiduciaries.98 F.3d at 1471 (emphasis added) (internal citations,alterations, quotations omitted) (involving insurers who laterbecame ERISA fiduciaries). In considering Miara's claim, "thecourt's inquiry will be centered on whether the defendants'conduct comported with the relevant professional standard ofcare." Coyne, 98 F.3d at 1472. The Court does not reach themerits of the claim but rules that Miara's malpractice claim isnot "related to" the ERISA plan. See Painters,879 F.2d at 1152-53 (indicating argument for preemption of a state lawprofessional malpractice case was preempted by ERISA wasunpersuasive) ("[I]n the absence of an explicit correspondingprovision in ERISA allowing a professional malpractice cause of action, Congress did not intendto preempt a whole panoply of state law in this area. Thus, weconclude that ERISA does not generally preempt state professionalmalpractice actions." Id. at 1157 n. 7.). Such preemption wouldbe improper.

5. Breach of Contract

Contract law "is the very bedrock of our notion of individualautonomy and property rights. It was among the first precepts ofthe common law to be recognized in the courts of the Commonwealthand has been zealously guarded by the state judiciary from thatday to this." Andrews-Clarke, 984 F. Supp. at 53 (footnoteomitted). While Congress indeed intended to preempt certain areasof law when enacting ERISA, preemption of deeply-rooted stateclaims is only proper if the intention is "clear and manifest."See Travelers, 514 U.S. at 655 ("[W]here federal law is saidto bar state action in fields of traditional state regulation wehave worked on the `assumption that the historic police powers ofthe States were not to be superseded by the Federal Act unlessthat was the clear and manifest purpose of Congress.'" (quotingRice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(emphasis added)).

Miara is not suing for a breach of the plan, which plan couldalso be viewed as a contract under state law. See Socia,16 F. Supp. 2d at 70 (deciding preemption appropriate when state law claim sought to enforce the "contractual terms of an ERISAplan"). Rather, Miara is suing an insurance agent and company fora breach of their agreement to recommend to the Miaras a planwith full spousal survivor benefits. Her claims are not for theenforcement or interpretation of plan terms, Hobson,75 Fed.Appx. at 952 (finding breach of contract claim preemptedbecause the claim required interpretation of a policy), oragainst an employer or administrator for failure to provide herthe terms provided in a plan. See Hampers, 202 F.3d at 53(explaining that the defendant in Hampers was "acting in itscapacity as an ERISA employer and fiduciary with responsibilityover the administration of the plan" and, unlike here, was "anERISA employer with direct control over the administration andoperation" of the employee benefit plan). Id. Nor does Miaraseek "inclusion in [a plan]" as a remedy. Hampers,202 F.3d at 52.

A contract must be interpreted "with reference to the situationof the parties when they made it and to the objects sought to beaccomplished." Shea v. Bay State Gas Co., 383 Mass. 218,222-23 (quoting Bryne v. Gloucester, 297 Mass 156, 158 (1937)(internal quotations omitted); see Tory A. Weigand, The Dutyof Good Faith and Fair Dealing in Commercial Contracts inMassachusetts, 88 Mass. L. Rev. 174, 178 (2004) (noting thatcontract construction should promote "justice, common sense and the probable intention of the parties") (alteration omitted).Miara's claims are against an insurance provider who allegedlymisrepresented and failed to provide the type of plan Miaradesired.49 Accordingly, her claims are outside the scopeof the provisions of ERISA.

6. Breach of Guaranty

Miara alleges in her complaint that the "Defendants' conduct,including their guaranties that [p]laintiff would receive fullspousal benefits under the plan and their failure to provide aplan that did in fact guarantee such payments constitutes abreach of guaranty." Pl.'s First Am. Compl. ¶ 47. A "guaranty" isdefined as "[a] promise to answer for the payment of some debt,or the performance of some duty, in case of the failure ofanother who is liable in the first instance." Black's LawDictionary 724 (8th ed. 2004). On the record before this Court,there is insufficient evidence to determine whether an actualguaranty was made not by Pension Benefits but by the Defendantsto "answer for the . . . performance of some duty, in case of thefailure of another who is liable in the first instance," in otherwords, to show that the Defendants promised to pay Miara fullspousal benefits if no such benefits are paid under the plan.50 Though this Court expresses doubt as tothe viability of this claim, the inquiry into the existence of aguaranty and any related breaches are the proper province of theMassachusetts courts, as the claim does not sufficiently "relateto" the plan so as to warrant preemption or grant this Courtjurisdiction.

7. Breach of the Covenant of Good Faith and Fair Dealing

This Court has recently had occasion to consider the Covenantof Good Faith and Fair Dealing. Christensen v. Town ofKingston, 360 F. Supp. 2d 212, 225-230 (D. Mass. 2005). Unlike aguaranty, any obligations under the covenant arise out of an"implied promise."51 See Wood v. Lucy, LadyDuff-Gordon, 222 N.Y. 88 (1917) (Cardozo, J.); Weigand at 175.Justice Cardozo expressed the meaning of this implied promise: "Apromise may be lacking and yet the whole writing may be `instinctwith an obligation,' imperfectly expressed." Wood,222 N.Y. at 91. This "belief that contracts can be `instinct withobligation,' comprised the foundation for the recognition of anobligation of `good faith' in a variety of transactions." Weigandat 176 (explaining that in Massachusetts, the 1919 case Eatonv. Eaton, 233 Mass. 351, 376 (1919), first indicated the "equity in theinterest of good faith and fair dealing" and that Eaton andother decisions demonstrate the "equitable doctrines engrafted onwritten instruments silent upon the subject because consonantwith fundamental ethical rules of right and wrong").

The covenant of good faith and fair dealing provides that"neither party shall do anything that will have the effect ofdestroying or injuring the right of the other party to receivethe fruits of the contract." AccuSoft Corp. v. Palo,237 F.3d 31, 45 (1st Cir. 2001) (quoting Druker v. Roland Wm. JutrasAssoc., 370 Mass 383, 348 (1976) (internal quotations omitted).The covenant has been described as "an indispensable measure ofcontractual morality." Rooney v. Weeks, 290 Mass 18, 27(1935); see Weigand at 174. In Gleason v. Smith, theSupreme Judicial Court stated "there is read into the contractthe rule that, that which the law says a party ought to besatisfied with, the law will say he is satisfied with."63 Mass. 484, 486 (1852). If the Miaras were promised full spousalbenefits, it seems the "contractually moral" thing to do is toensure they receive what they expected, were promised, and "oughtbe satisfied with," and to require the Defendants to live up totheir end of the bargain. Id. Yet, isn't this breach ofcovenant claim, both in this case and in general practice, anattempt to take another bite at the apple when a breach ofcontract claim is actually the appropriate remedy? Christensen, 360 F. Supp. 2d at 228-229(noting claims for breach of contract and claims for breach ofthe implied covenant of good faith and fair dealing ought notbecome "automatic bedfellows").

Nevertheless, this Court expresses no opinion in deciding thismotion to remand on the merits of Miara's breach of covenantclaim. The only question this Court must answer is whether thebreach of covenant claim sufficiently "relates to" the plan so asto be preempted. This Court answers the question in the negative.Any reference to the plan is purely tangential.

8. Massachusetts General Laws Chapter 93A

Miara alleges that the Defendants, who are engaged in trade andcommerce in Massachusetts, "intentionally and willfully"committed unfair or deceptive trade practices in violation ofchapter 93A of the Massachusetts General Laws. Pl.'s First Am.Compl. ¶¶ 51-54. It may be true that "the possibility ofproviding remedies for double and treble damages underchapter 93A directly undermines the remedies expressly provided byCongress for denial of benefits claims under section1132(a)(1)(B)." Spalding, 835 F. Supp. at 30. Yet, unlikeSpalding, Miara's claims are not related to the denial ofbenefits under a plan. See id.; compare Andrews-Clarke v.Lucent Tech., Inc., 157 F. Supp. 2d 93, 104 (D. Mass. 2001)(holding claims were preempted because they depended directlyupon the employee benefit plan).

The Supreme Court has stated that "[t]he six carefullyintegrated civil enforcement provisions found in § 502(a) of thestatute . . . provide strong evidence that Congress did notintend to authorize other remedies that it simply forgot toincorporate expressly." Massachusetts Mut. Life Ins. Co. v.Russell, 473 U.S. 134, 146 (1985). It is true that where ERISAappropriately preempts a plaintiff's claims, chapter 93A reliefwould likely constitute "alternative forms of relief." PaulRevere Life Ins. Co. v. Payne, No.CIV.A.94-2575, 2000 WL424499 at *6 (Mass.Super.Ct. Mar. 17, 2000) (Fecteau, J.)(citing Best v. AGFA Compugraphic, No.CIV.A.91-13406-Z, 1992WL 390713 at *2 (D. Mass. Dec. 9, 1992) (Zobel, J.) (unreporteddecision), and noting that applying chapter 93A "would likelycreate precisely the type of individualized, potentiallyconflicting local analysis and regulation that ERISA was designedto eliminate"). Here, however, the plan simply does not relate tothe alleged unfair trade practices by the Defendants. SeeCuoco, 722 F.F. Supp. at 887 (chapter 93A claim did not relateto an ERISA-governed plan and was not preempted); FraminghamUnion Hosp., 721 F. Supp. at 1490 (same). As Judge Sarissuccinctly stated, conflict preemption is a defense only to astate action and does not grant the federal court jurisdiction aswould complete preemption. Children's Hosp. Corp.,360 F. Supp. 2d at 207 ("[C]onflict preemption is a defense to a state claim and doesnot create subject matter jurisdiction." (emphasis added)).Preemption of the chapter 93A claim is inappropriate.

F. Remand Would Promote the Goals of ERISA.

Preemption in this case would not promote the purposes ofERISA. Rather, remanding this matter will promote ERISA's goalsof protecting employee interests in benefit plans. Despite theDefendants' urgings to the contrary, remand would not have anaffect on the plan nor on the ability of plans and sponsors torely on a uniform body of benefits law, nor will it negativelyimpact the ability of employers, employees, and beneficiaries torely on the terms of benefits plans. Considered in light of allof the case law ruminated by this Court: • Benefits law is not involved; rather, this matter involves alleged misrepresentations made by an insurance agent and company in the sale of a plan. • "[N]one of these state-law categories are implicated here." Golas, at 106 F.3d at 7 (Bownes, J., concurring). • "The damages claimed" here are not "dependent . . . on analysis of a qualified ERISA plan." Carlo, 49 F.3d at 795. • Miara does not seek "benefits under the" plan. Holroyd, 361 S.C. at 56-57; Cromwell, 944 F.2d at 1285 (Jones, J. dissenting). • Miara does not allege she is "entitled to participate in the [plan]" or want Defendants to "enroll" her in a plan. Hampers, 202 F.3d at 52; Trans-Lease Group, 1997 WL 564366, at *4; Andrews-Clarke, 984 F. Supp. at 55. • Miara does not want to "enforce" or "clarify" any rights under the plan. Hampers, 202 F.3d at 52; Andrews-Clarke, 984 F. Supp. at 55. • The terms of the plan are not at issue or challenged52 nor is an employer or administrator of a plan being sued "for what is in essence a plan administrator's refusal to pay allegedly promised benefits." Turner, 127 F.3d at 199. • One need not evaluate or interpret the terms of the plan or Miara's rights under the plan to determine whether Defendant's misrepresented the policy to Miara. Trans-Lease Group, 1997 WL 564366, at *3 (holding that "[a]llowing . . . claims in state court would not require interpretation of the terms of the ERISA plan."). • "[N]one of the underlying purposes of ERISA preemption is served by application of the [preemption] doctrine." Stetson, 16 F. Supp. 2d at 35.

"An unfortunate consequence of ERISA preemption is . . . thatplan beneficiaries or participants who bring certain kinds ofstate actions . . . may be left without a meaningful remedy."Turner, 953 F. Supp. at 424. After careful consideration, thisCourt determines that the "broadly sweeping arm" of ERISA doesnot grasp Miara's state claims. Id. It is important "to ensurethat valid claims by deserving parties are not summarilydismissed with broad strokes by essentially presuming preemptionof any claim vaguely connected to an employee benefits plan."Cromwell, 944 F.2d at 1286 (Jones, J. dissenting). This Court, in line with the decisions of Magistrate JudgeNeiman and Judges Skinner and Ponsor, First Circuit dicta, thedecisions of the Second, Third, Fourth, Fifth, Eighth, Ninth,Tenth and Eleventh Circuits, and, most importantly, the precedentof the highest court of our land, concludes that Miara's stateclaims against the Defendants involve the plan in "too tenuous,remote or peripheral a manner" and do not "relate to" an employeebenefit plan. The persuasive language Stetson reverberates:

Thus, if the congressional intent spurring the enactment of ERISA was to provide protection for the interests of participants and beneficiaries of employee benefit plans, it is difficult to view such a purpose as being fostered or furthered by preemption of state law claims by participants or beneficiaries targeting misconduct by an insurer and its agents that occurred prior to the establishment of the employee benefit plan, when the action has no demonstrable effect on the administration, structure, or fiscal wellbeing of the plan. The Court, therefore, concludes that no congressional purpose is served by preemption of [Miara's] claims.16 F. Supp. 2d at 35. This Court is in unmitigated agreement. Acursory and uncritical reference to a plan that is not at all indispute or at issue cannot be said to pull all of Miara's stateclaims under the "long shadow" of ERISA preemption. McCoy,950 F.2d at 17; Stetson, 16 F. Supp. 2d at 35 ("No provisions ofthe plan are in dispute, and although resolution of the . . .claims may require reference to the terms of the . . . policy,the claims do not impact upon the administration orinterpretation of the policy."). As such, preemption would beimproper. "Quite clearly, there must be a point beyond which ERISA was notdesigned to reach." Crespo, 780 F. Supp. at 875 (quotingTotton v. New York Life Ins. Co., 685 F.Supp 27, 30 (D.Conn.1987)) (internal quotations omitted). This is precisely one ofthose points. A ruling that ERISA does not preempt the stateclaims does not threaten the goals of ERISA.

II. Certification to the First Circuit Court of AppealsPursuant to 28 U.S.C. § 1292(b).

At oral argument, counsel for defendant Baker, acknowledgingboth the lack of appeal if this Court remands the case to statecourt and the existing confusion within this circuit regardingthe preemption of traditional state law claims, pleaded: There is no appeal. . . . and that's the problem with the case, that we have to try to figure out a way to get around it. Because I submit . . . that it would be very much in the interests of all of us involved in this kind of work to get an answer by the First Circuit to the question whether these kind[s] of misrepresentation? claims are preempted or not.Tr. at 11. Baker's counsel suggested to this Court that itcertify this matter to the First Circuit, pursuant to28 U.S.C. § 1292(b) (2005), for resolution and guidance. Section 1292(b)provides, in pertinent part, that: [w]hen a district judge, in making in a civil action an order not otherwise appealable . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.28 U.S.C. § 1292(b). The First Circuit has explained that

[o]nly rare cases53 will qualify for the statutory anodyne; indeed, it is apodictic in this circuit that interlocutory certification of this sort `should be used sparingly and only in exceptional circumstances, and where the proposed intermediate appeal presents one or more difficult and pivotal questions of law not settled by controlling authority.In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988) (quoting McGillicuddy v. Clements,746 F.2d 76, 76 n. 1 (1st Cir. 1984)) (footnote added).

It is true that based on First Circuit precedent and thelanguage of section 1292(b), "the instances where section 1292(b)may appropriately be utilized will, realistically, be few and farbetween." San Juan Dupont, 859 F.2d at 1010 n. 1. NeverthelessBaker's counsel has argued, rather compellingly, that undersection 1292(b) this Court ought certify the controlling questionto the First Circuit for resolution. Tr. at 11. Yet consider,does this matter "involve? a controlling question of law as towhich there is substantial ground for difference of opinion andthat an immediate appeal from [this] order may materially advancethe ultimate termination of the litigation"? 28 U.S.C. § 1292(b).

The matter here is "sufficiently . . . important," San JuanDupont, 859 F.2d at 1010 n. 1, "constitutes an open question[,]and . . . the litigation would benefit from prompt resolution ofth[e] question." Camacho v. Puerto Rico Ports Auth.,369 F.3d 570, 573 (1st Cir. 2004). The Court here may be "fairly describedas grappling with `an important and unsettled question ofcontrolling law.'" In re Bank of New England Corp.,218 B.R. at 643, 652 (1st Cir. BAP 1998) (quoting United States v.Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979)). The case lawrelied upon in this Court's opinion indicates the existence of a"substantial ground for difference of opinion." 28 U.S.C. § 1292(b);Camacho, 369 F.3d at 573. Further, this litigation wouldcertainly "benefit from prompt resolution" of this unsettledquestion, as Miara's claims will survive or, in effect, beterminated and leave her without recourse.

True, this Court has concluded that the state claims do notsufficiently "relate to" an ERISA-governed plan to warrantpreemption. Moreover, this outcome, based on legal precedent inthis circuit and in other circuits, seems apparent to thisCourt.54 Nevertheless, the rationale of this court servesas persuasive authority only, and, as Baker's counsel indicated,binding direction from the First Circuit would clarify and put torest the existing and abiding confusion in this circuit in thisarea of law.

This Court indicated its position during the parties' oralargument, and reiterates here, that it is "always eager to have . . .the district court[`s] work? validated or corrected by ahigher court." Tr. at 12; see Stark, 894 F. Supp. at 560("Given th[e] equivocal outcome and faced by an impending seriesof extraordinarily complex and costly expert depositions, allparties urge this Court to certify the accuracy of its . . .analysis to the Federal Circuit for definitive resolution pursuant to 28 U.S.C.? § 1292(b). This Court readilyagrees.").55 This Court awaits, as do the members of thebar practicing in this area, a definitive decision from the FirstCircuit to put to rest any confusion in this area once and forall.56

There is, however, the question of the delay certification willcause Miara's timely resolution of her state claims. While thisCourt does not "want to delay the case," Tr. at 12,57 and [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] is confident of its own analysis of the matter, it is of opinionthat the issue here warrants a section 1292(b) interlocutoryappeal and certification to the United States Court of Appealsfor the First Circuit is appropriate.

Therefore, pursuant to 28 U.S.C. § 1292(b), the Defendantsshall have ten (10) days from the date of the entry of thisMemorandum and Certification to appeal to the Court of Appealsfor the First Circuit. The controlling question of law worthy ofFirst Circuit review and certified to the First Circuit is: doesERISA preempt state law claims against an insurer, an insuranceagency, and an insurance agent stemming from misrepresentationsand assurances made by the insurance agent (acting on behalf ofthe insurer) in connection with the establishment of an employeebenefit plan.58 It is that court, and not this, whichultimately ought balance the importance of the certification question, andthe relative certainty or lack thereof as to its answer on thepresent state of the law against the delay an appeal will causeMiara. The Defendants are ordered to provide notice of suchappeal, if any, to this Court. The First Circuit may thenexercise its statutory discretion to allow an immediate,interlocutory appeal with respect to the preemption issue andcontrolling question of law. 28 U.S.C. §§ 1292(b) and (c)(1). If,however, Defendants fail so to appeal in the statutory ten-dayperiod, or if the First Circuit demurs and elects, in itsrightful discretion, not to entertain an interlocutory appeal,then this Court will promptly remand Miara's state claims to theMassachusetts Superior Court sitting in and for the County ofSuffolk for appropriate resolution of such claims on the merits.

SO CERTIFIED AND ORDERED.

1. The parties do not contest that the policy obtained byMiara is in fact an employee benefit plan under ERISA. See29 U.S.C. §§ 1002 (1), (3); Wickman v. Northwestern Mut. LifeIns. Co., 908 F.2d 1077, 1082-1083 (1st Cir. 1990).

2. Survivor benefits for a "substantial owner" are"substantially" limited when a plan is terminated early. A"substantial owner" holds more than five percent of a company'sstock. Pl.'s First. Am. Compl. ¶ 19; Pl.'s Mem. at 3.

3. First Allmerica has not filed an opposition to the motionto remand. Bonasera's brief opposition does not include arecitation of facts but focuses instead on the legal argument.

4. "Defendant can remove a case when plaintiff relies onfederal law for its claim, though plaintiff is perfectly willingto entrust the federal claim to a state court, but neitherparty can take the case to federal court if defendant relies onfederal law as a defense to a nonfederal claim by plaintiff. . . .[This] is now so firmly entrenched that only a statutoryamendment could change it." Charles Alan Wright and Mary KayKane, Law of Federal Courts at 226 (6th ed. 2002) (emphasisadded).

5. "In certain areas . . . Congress has demonstrated such astrong intent to preempt that any claims brought in that area(even if purportedly raising only state law claims) arenecessarily federal in character and may be removed. This isknown as complete preemption." Nahigian v. Leonard,233 F. Supp. 2d 151, 165 (D. Mass. 2002). "In addition tocomprehensively regulating certain employees welfare benefitplans, ERISA specifically preempts most state laws that `relateto' plans covered under ERISA." Fitzgerald v. Codex Corp.,882 F.2d 586, 587-88 (1st Cir. 1989).

6. In Danca, the First Circuit explained complete preemptionand emphasized fundamental ERISA section 514 conflict preemptionprinciples: At times, as in Miara's case, "the state courtcomplaint allege[s] only causes of action under state law. On itsface, . . . the complaint presents no federal question. But there is an exception to this practice of focusing on the face of the complaint. Where a claim, though couched in the language of state law, implicates an area of federal law for which Congress intended a particularly powerful preemptive sweep, the cause is deemed federal no matter how pleaded. This exception to the well-pleaded complaint rule is called "complete preemption." We pause here to emphasize the difference between complete preemption, a concept associated with jurisdiction, and the affirmative federal defense of ERISA § 514 preemption. Standing alone, the likelihood or even certainty of defendants' raising a colorable ERISA § 514 preemption defense is no basis for federal jurisdiction. ERISA preemption, without more, does not convert a state law claim into an action arising under federal law. . . . ERISA § 514 is not relevant to the complete preemption analysis; courts look instead only to ERISA § 502(a) [for complete preemption determinations], which contains ERISA's exclusive civil enforcement provisions. To establish complete preemption, defendants must show that the state cause of action falls within the scope of ERISA § 502(a).185 F.3d 4-5 (internal citations omitted) (emphasis added); seealso Hotz v. Blue Cross & Blue Shield of Mass., Inc.,292 F.3d 57, 59 (1st Cir. 2002) ("[U]nder the doctrine of `completepreemption,' ERISA's civil enforcement provisions,29 U.S.C. § 1132(A), have been interpreted to establish federal removaljurisdiction over any state law claims that in substance seekrelief that is otherwise within the scope of those ERISA remedyprovisions."); id. ("[F]ederal defenses including preemptiondo not by themselves confer federal jurisdiction over awell-pleaded complaint alleging only violations of state law."). This Court explained that "[i]n the ERISA context, state lawclaims are completely preempted and thus removable only if: 1)they are preempted by ERISA because they `relate to' anemployee benefit plan and 2) they fall `within the scope' ofSection 502(a) of ERISA i.e. ERISA's exclusive civil enforcementprovision." Nahigian, 233 F. Supp. 2d at 165 (decidingpreemption issue after determining plaintiff's standing)(citations omitted) (emphasis added). As this is not the casehere, Miara's claims must be reviewed for conflict preemption.

7. The Class Action Fairness Act of 2005 provides a possibleappeal, at the discretion of the court of appeals, of a districtcourt's decision to remand a class action to state court.28 U.S.C. § 1453(c) (2005). An appellant must apply "not less thanseven days" after the remand order for such appeal, id. §1453(c)(1), and the court of appeals must decide on the matterwithin sixty days, id. at § 1453(c)(2) (or 70 if a ten-day goodcause or agreed upon extension applies, id. at § 1453(c)(3)) ofthe filing of appeal. Should the court of appeals fail to reviewand decide such appeal within said time period, the appeal isdenied. Id. at § 1453(c)(4).

8. That a law may be unjust does not, of course, allow thecourts to ignore it. This Court does not hesitate to implementpreemption where appropriate and required by law. See, e.g.,Iwata v. Intel Corp., 349 F. Supp. 2d 135, 157 (D. Mass. 2004)(holding Iwata's discrimination claim preempted by ERISA);Metropolitan Life Ins. Co. v. Socia, 16 F. Supp. 2d 66, 70(D. Mass. 1998) (enforcing preemption as "it is well establishedthat state law actions to enforce the contractual terms of anERISA Plan are preempted by the federal statutory scheme"(citations omitted)); Andrews-Clarke, 984 F. Supp. at 59(declaring, despite the "absurd result," that preemption wasmandated); Pariseau v. Albany Int'l. Corp., 822 F. Supp. 843,846 (dismissing state claims for unfair and deceptive acts andpractices as preempted by ERISA).

9. The Supreme Court's explanation in Fort Halifax,482 U.S. 1, of the intent of Congress when enacting ERISA's preemptionclause may be the most notable elucidation: [The statements of ERISA's sponsors] reflect recognition of the administrative realities of employee benefit plans. [A]n employer that makes a commitment systematically to pay certain benefits undertakes a host of obligations, such as determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of funds for benefit payment, and keeping appropriate records in order to comply with applicable reporting requirements. The most efficient way to meet these responsibilities is to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits. Such a system is difficult to achieve, however, if a benefit plan is subject to differing regulatory requirements in differing States. A plan would be required to keep certain records in some States but not in others; to make certain benefits available in some States but not in others; to process claims in a certain way in some States but not in others; and to comply with certain fiduciary standards in some States but not in others. . . . . It is . . . clear that ERISA's pre-emption provision was prompted by recognition that employers establishing and maintaining employee benefit plans are faced with the task of coordinating complex administrative activities. A patch-work scheme of regulation would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them. Pre-emption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations.Id. at 9, 11. Some have gone so far as to describe ERISA as "anemancipation proclamation" for employees. 120 Cong. Rec. 29,193(Aug. 20, 1974) (statement of Sen. Biaggi); Andrews-Clarke,984 F. Supp. at 56 n. 28.

10. In Andrews-Clarke, this Court clarified its memorandumin Crespo, 780 F. Supp. 866, and emphasized "that the secondobjective is ancillary to the first." 984 F. Supp. at 58 n. 44.

11. See DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442,459-60 (3d Cir. 2003) (Becker, C.J. concurring) (noting thisCourt's "clear frustrat[ion]" in Andrews-Clarke andemphasizing, in the context of HMOs, that "[i]t is noexaggeration to say that the federal courts have struggledmightily to maintain fidelity to ERISA's expansive `relates to'preemption clause while avoiding the wholesale foreclosure ofparticipants' causes of action against their HMOs. . . . [O]ursearch for a middle ground has proved to be a judicial snipehunt, and we are no closer to success today than we were a decadeago. [The Third Circuit's] own decisions illustrate the quagmirein which courts find themselves.").

12. In Andrews-Clarke, this Court addressed the view of somethat, in instances where no remedy exists, courts are to fashionremedies that promote the employee-focused purposes of ERISA.This Court specifically emphasized the Supreme Court precedentmanifesting an "unwillingness to infer causes of action in theERISA context." 984 F. Supp. at 60 and n. 54 quoting Mertens,508 U.S. at 254); see Aetna Health Inc. v. Davila,542 U.S. 200, 124 S.Ct. 2488, 2503 (2004) (Ginsburg, J. concurring)(directing attention to the concurring opinion of Chief JudgeBecker in DiFelice, 346 F.3d at 453, and agreeing with, asChief Justice Becker described, "the rising judicial chorusurging that Congress and the Supreme Court revisit what is anunjust and increasingly tangled ERISA regime," id.). ERISA wascertainly not enacted with a noli me tangere proclamationimposed upon it for all eternity; rather, it is theresponsibility of Congress to address any existingdeficiencies. As such, this Court reiterates that it "can neithersimply disregard its sworn oath to comply with the opinions ofthe Supreme Court, nor can it legislate by judicial decree norapply a statute, such as ERISA, other than as drafted byCongress." Andrews-Clark, 984 F. Supp. at 60 (internalquotations and citations omitted). Despite precedent to the contrary, Mauser v. Raytheon Co.Pension Plan for Salaried Employees, 239 F.3d 51, 57 (1st Cir.2001) (noting that "[t]he Supreme Court has directed that federalcourts may engage in interstitial rule-making when it is in theinterests of justice"), the judicial branch is to interpret,not to reform, amend or redraft, laws. See The Federalist No.78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961)("The interpretation of the laws is the proper and peculiarprovince of the courts." (emphasis added)). In fact, thejudiciary, originally viewed as the "weakest" branch, 1 Baron deMontesquieu, The Spirit of Laws 167 (J.V. Prichard, ed. & ThomasNugent, trans. 1914) ("Of the three powers . . ., the judiciary . . .is next to nothing."), is now described by some as "animportant legal and political institution," Thomas G. Walker &Lee Epstein, The Supreme Court of the United States: AnIntroduction 21-22 (1993). It is the position of this Court, however, that "the task ofreforming ERISA `so that it may continue to serve its noblepurpose of safeguarding the interests of employees' fallssquarely upon the shoulders of Congress." Andrews-Clarke,984 F. Supp. at 60 (citing Corcoran, 965 F.2d at 1338-39); seeBerlin City Ford, Inc. v. Roberts Planning Group,864 F. Supp. 292, 296 (D.N.H. 1994) (stating that courts should not"create a new federal common law remedy").

13. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987)(citing legislative history reflecting the view of a key sponsorof ERISA, Representative John H. Dent, who described ERISA'spreemption provision as its "crowning achievement"); Crespo,780 F. Supp. at 869 n. 5.

14. Section 514(a) provides that ERISA will "supersede any andall State laws insofar as they may now or hereafter relate toany employee benefit plan." 29 U.S.C. § 1144(a) (emphasis added)."State law" includes "statutory mandates, court decisions, andall other sources of state law." Andrews-Clarke,984 F. Supp. at 56 n. 30; 29 U.S.C. § 1144(c)(1).

15. This Court addressed the problem with expansive ERISApreemption in Alshrafi v. American Airlines, Inc.: The sweeping nature of recent Supreme Court preemption jurisprudence has been the subject of considerable comment, much of it critical. See, e.g., Andrews-Clarke v. Travelers Ins. Co., 984 F. Supp. 49, 53 & n. 20 (D. Mass. 1997) (noting with frustration that under ERISA preemption jurisprudence, it "had no choice but to pluck [the plaintiff's] case out of the state court in which she sought redress (and where relief to other litigants is available) and then, at the behest of [the defendants], to slam the courthouse doors in her face and leave her without any remedy"); Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L.Rev. 559, 561 (1997) (commenting that "corporations have attempted to turn [federal statutes] from regulatory swords into private shields"); Calvin Massey, "Joltin' Joe Has Left And Gone Away": The Vanishing Presumption against Preemption, 66 Alb. L.Rev. 759, 759 (2003) (commenting that the Supreme Court's preemption jurisprudence has reduced the "presumption against preemption" into merely a "ceremonial federalism"); Caleb Nelson, Preemption, 86 Va. L.Rev. 225, 229 (2000) (noting that "conservative advocates of federalism and liberal advocates of government regulation have joined in arguing that the current tests for preemption risk displacing too much state law"); David G. Owen, Federal Preemption of Products Liability Claims, 55 S.C. L.Rev. 411, 412 (2003) (observing that "[d]espite the best efforts of courts and commentators to bring order to the chaos, the law on federal preemption has obstinately refused to set anchor in enduring principles" (footnote omitted)); Donald P. Rothschild, A Proposed "Tonic" with Florida Lime to Celebrate Our New Federalism: How to Deal with the "Headache" of Preemption, 38 U. Miami L.Rev. 829, 830-31 & n. 3 (1984) (noting that "present preemption doctrines interfere with a state's right to supplement federal regulation in order to afford greater protection for citizens residing within its borders"); see also Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 309 n. 460 (2003) (noting that a majority of the Supreme Court has been willing to override state law in preemption cases). Still, it is bedrock that Supreme Court decisions bind the analysis of this Court, and this Court follows such precedents respectfully and completely.Alshrafi, 321 F. Supp. 2d 150, 156 n. 7 (D. Mass. 2004)(emphasis added).

16. This is actually a clarification and reiteration of priorSupreme Court decisions, which, perhaps rather nebulously, hadpreviously articulated the same objectives of ERISA preemption.The Supreme Court summarized this in Travelers: As we have said before, § 514 indicates Congress's intent to establish the regulation of employee welfare benefit plans as "exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 . . . (1981). We have found that in passing § 514(a), Congress intended ?to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government . . ., [and to prevent] the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the law in each jurisdiction." Ingersoll-Rand, 498 U.S. at 142, 111 S.Ct. at 484 This objective was described in the House of Representatives by a sponsor of the Act, Representative Dent, as being to "eliminat[e] the threat of conflicting and inconsistent State and local regulation." 120 Cong.Rec. 29197 (1974). Senator Williams made the same point, that "with the narrow exceptions specified in the bill, the substantive and enforcement provisions . . . are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans." Id., at 19933. The basic thrust of the pre-emption clause, then, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.514 U.S. at 656-57 (alternations in original). The Supreme Court also indicated, in Ingersoll-Rand: Particularly disruptive is the potential for conflict in substantive law. It is foreseeable that state courts, exercising their common law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that Congress sought to implement.498 U.S. at 142. Such concerns are absent in the matter beforethis Court.

17. It is interesting to observe that the Travelers approachmirrors the position articulated by the Supreme Court a decadeearlier with regard to preemption under section 301 of the LaborManagement Relations Act. See Allis-Chalmers Corp. v.Lueck, 471 U.S. 202, 208 (1985) ("[T]he question whether acertain state action is pre-empted by federal law is one ofcongressional intent." (emphasis added)).

18. And, arguably, the First Circuit.

19. This Court continues to regard unpublished opinions ofother circuits as persuasive authority. For this Court's recentlyarticulated explication, see Corrigan v. Barnhart,352 F. Supp. 2d 32, 44 n. 3 (D. Mass. 2004) ("This Court . . . willtreat the holding of unpublished opinions as persuasiveauthority, as it has done in the past.").

20. Shortly thereafter, the plaintiffs in Hobson also fileda separate federal action to receive unpaid benefits, after whichpoint defendants moved for removal. 75 Fed.Appx. at 951.

21. While this Court need not, and does not, reach the meritsof Miara's breach of contract claim, as will be discussed infra,Miara asserts a breach of her contract with Defendants becauseshe never received, as allegedly promised, a plan with 100%spousal benefits.

22. See Smith v. Texas Children's Hosp., 84 F.3d 152,155 (5th Cir. 1996) (holding "a claim escape[d] preemption" as itdid "not necessarily depend upon the scope of . . . rights under[the] . . . ERISA plan."); Hubbard v. Blue Cross & Blue ShieldAss'n, 42 F.3d 942, 944 (5th Cir. 1995) (emphasizing that, inthe determination of ERISA preemption, the important question iswhether the claim "require[s] an inquiry into . . . questions[that] are intricately bound up with the interpretation andadministration of the ERISA plan." Id. at 946.)

23. In so holding, the court cited the Eleventh Circuitdecision in Morstein v. National Ins. Servs. Inc.,93 F.3d 715 (11th Cir. 1996) (en banc), discussed infra. See Wilson,114 F.3d at 720-721 (quoting the Eleventh Circuit decision inMorstein, 93 F.3d at 723-24, and citing also the Fifth Circuitdecision in Perkins, 898 F.2d 470, and the Sixth Circuitdecision in Perry, 872 F.2d 157).

24. The Eighth Circuit reached a different conclusion inShea v. Esensten, 107 F.3d 625 (8th Cir. 1997), a case thatinvolved a tort claim against a plan administrator that hadfailed to disclose a limitation on a plan. Id. at 627. TheEighth Circuit in Shea held that preemption was in line withits previous holdings that tort claims against administratorswere preempted and that the outcome would have affected planadministration and compliance with individual state disclosurerequirements. Id.; see also Dependahl, 653 F.2d at 1215-16(indicating that, unlike Miara's case where no remedy has beenprovided, that "the thrust of the former executives' argumentagainst federal preemption of the state tortious interferencewith contract cause of action focuses on the lack of substantialdamage such a cause of action would have on the overall purposeof ERISA. This argument, however, misses the point. If Congresshas already provided a remedy for the violation of the formerexecutives' benefit plans, then once Congress has expressed itsintention to occupy the field, the state law is preempted,regardless of whether or not a conflict exists which involves adirect interference by the state law with the substantive federallegislation. Here, Congress has provided a remedy for thewrong allegedly done." (emphasis added)).

25. This Court has also considered the Ninth Circuit decisionsin Farr v. U.S. West Communications, Inc., 151 F.3d 908, 911,912-913 (9th Cir. 1998) (deciding preemption of state fraud andmisrepresentation claims appropriate in a suit against anemployer with fiduciary duties for misrepresenting taxconsequences resulting from an ERISA plan); Geweke Ford v. St.Joseph's Omni Preferred Care Inc., 130 F.3d 1355 (9th Cir. 1997)(holding that a state breach of contract claim by an employeragainst a third party plan administrator for failure to reimburseemployer as required by contract was not preempted by ERISA).

26. In determining whether ERISA preempted the state lawclaims, the Tenth Circuit delineated the four causes of action that "relate to" a benefit plan for purposes of ERISA preemption. They involve (1) laws regulating the type of benefits or terms of ERISA plans; (2) laws creating reporting, disclosure, funding or vesting requirements for such plans; (3) laws providing rules for calculating the amount of benefits to be paid under such plans; and (4) laws and common-law rules providing remedies for misconduct growing out of the administration of such plans.Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co.,170 F.3d 985, 990 (10th Cir. 1999) (citing Airparts Co., Inc.v. Custom Benefit Servs. of Austin, 28 F.3d 1062, 1064-1065(10th Cir. 1994) and National Elevator Indus. v. Calhoon,957 F.2d 1555, 1558-59 (10th Cir. 1992)).

27. Vartanian was a participant in a 1986 employee pensionplan. 14 F.3d at 698. Under the 1986 plan, Vartanian had severalretirement options from which to choose. Id. He opted for alump sum distribution and submitted the request at least one yearbefore his retirement took effect. Id. A few months prior tohis effective retirement date, Vartanian heard that his employerwas going to implement an employee retirement plan that wasfavorable to employees. Id. Upon repeated inquiries to theemployer, Vartanian was assured and reassured that no new planswere to be put in place. Id. at 698-699. Yet, only about twomonths after Vartanian's retirement date, at the end of June,1991, the employer indeed put in place the preferred, employeeincentive plan. Id. at 699. Vartanian alleged that he was notallowed to make a reasoned, informed decision as a result of theemployer's statements and "fail[ure] to disclose itsconsideration of an enhanced severance program." Id.

28. Carlo was offered early retirement and told by theemployer the amount of benefits available to him under the plan.Id. at 792. Six months later, Carlo was informed that hisbenefits were approximately twenty percent less than that whichthe employer had earlier represented to him. Id. The employeradmitted in writing the error in calculating the benefits andapologized. Id. He offered Carlo the opportunity to return towork in the position he had held. Id. Carlo did not accept theoffer by the given deadline, and was presumed to reject theoffer, thus accepting the erroneously calculated early retirementbenefits. Id.

29. This Court pauses also to address the oft-quoted languagein Vartanian that "[t]here is simply no cause of action ifthere is no plan." 14 F.3d at 700 (citing Ingersoll-Rand,498 U.S. at 140). The language, however, is particular to thosecases. Ingersoll-Rand involved a wrongful discharge to avoidcontribution to, and payment of, pension plan benefits.498 U.S. at 139-40. Vartanian, though admittedly more tenuous, likewiseinvolved an examination of the new, more favorable 1991 planwhich, by virtue of its coming into existence, gave rise toVartanian's claims. 14 F.3d at 700; see also McMahon,162 F.3d at 38-39 (finding, in a case distinguishable from the onenow before this Court, preemption of state claims where plaintiffhad to prove "the existence of, or specific terms of, an ERISAplan," and where defendants were responsible for decidingeligibility for short-term disability leave).

30. The district court in Golas had adopted therecommendation of the magistrate to grant the motion to dismissall of the state law causes of action as preempted by ERISA andto deny the plaintiff's motion to amend the complaint.106 F.3d at 2. In its 1997 decision in Golas, id., the First Circuit,affirmed a decision that state claims for emotional distress andloss of consortium against a disability insurer and an employerwere preempted by ERISA, yet never reached the preemption issue.Id. at 3. Golas turned largely on procedure: Golas did notappeal the preemption claims; rather, "[p]laintiff wished to adda defendant to a case which was being dismissed as to the twooriginal defendants." Id. at 2-3. Though this Court does notreiterate the entire procedural context here, it notes that theappeal before the First Circuit was based on the decision of thedistrict court to deny Golas the opportunity to amend hercomplaint to add an insurance broker as a party to the case.Id. at 3. The majority in Golas emphasized that it"express[ed] no opinion on the preemption issue . . . [and] doesnot, as the concurrence claims, uphold the district court'spreemption decision sub silencio." Id. (noting that "[i]f amotion is made to add [the insurance broker] to the ERISA action,the court will have the ability to consider the preemption issueanew in light of the facts that have been developed indiscovery."). The First Circuit, noting review on these groundswas for abuse of discretion, explained that even under de novoreview, it could affirm the decision of the district court ifthere was "any legal ground supported in the record." Id.

31. Also noteworthy is Nash v. Trustees of Boston Univ.,946 F.2d 960 (1st Cir. 1991). Though factually unrelated anddecided prior to the Supreme Court's decision in Travelers andalso prior to the First Circuit'sVartanian-Carlo-Golas-Hampers-Dudley line of cases, thedecision has persuasive value nonetheless. In Nash, BostonUniversity claimed a defense of fraud in the inducement of anERISA plan by Nash, the beneficiary of that plan. The FirstCircuit, in what is seemingly a variation, or the converse of,the case here, stated: [t]here is no clear indication in the language, structure, purpose or policy of ERISA, in its legislative history, or in the case law construing the statute, that Congress intended to eliminate the most elemental prerequisite to the formation of an enforceable contract — the meeting of the minds. Moreover, were we to conclude that so fundamental a principle as fraud in the inducement may not be asserted in defense to a claim for the enforcement of a putative ERISA benefit plan, the congressional purpose in chartering federal court development of a body of ERISA-related federal common law would be diminished to insignificance. We conclude that Congress did not intend to preclude development of an ERISA-related body of federal common law incorporating traditional common law standards governing whether the formation of an alleged ERISA benefit plan was fraudulently induced by its would-be beneficiary.Id. at 966-967. It would seem that the "meeting of the minds"concept would apply irrespective of which party was inducing andwhich was being induced.

32. In Giannetti, the plaintiff's complaint set forth elevenstate law causes of action (in response to an alleged breach of apromise to provide a policy based on certain income rather thanon actual earnings). Giannetti, 218 F. Supp. 2d at 10-11.

33. Paralleling Miara's claims, the state law claims inChildren's Hosp. Corp. included causes of action for fraud,negligent misrepresentation, promissory estoppel, breach ofcontract, and a violation of Massachusetts General LawsChapter 93A. 360 F. Supp. 2d at 203.

34. Judge Saris cites Home Health, Inc. v. Prudential Ins.Co. of Am., 101 F.3d 600, 604 (8th Cir. 1996), in which theEighth Circuit observed that the precedent in most circuits isthat state law misrepresentation claims brought by planadministrators or for by third-party health care providers arenot preempted. Children's Hosp. Corp., 360 F. Supp. 2d at 206.It stands to reason that if claims concerning misrepresentationsmade by plan administrators with fiduciary duties are notpreempted, the claims here against non-fiduciary insuranceagents, agencies or companies likewise ought not be preempted.

35. Judge Saris took particular care to address theChapter 93A claim. Children's Hosp. Corp., 360 F. Supp. 2d at 207.Judge Saris indicated that an argument that the "obstruction ofMrs. Doe's payments by asserting that Kindercare would not accepther form of payment . . . is the rub because it appears tocollaterally challenge the plan's decision not to providebenefits and the claim may affect the relationship between theparticipants and the principals." Id. (indicating that thoughthis may appear to "trigger the conflict preemption analysisunder § 514(a)," nevertheless, "conflict preemption is a defenseto a state claim and does not create subject matterjurisdiction." Id. (citing Danca, 185 F.3d at 4-5)).

36. The Court also directs attention to its own decision inAndrews-Clarke, 984 F. Supp. 49. Though that decision in no waydrives the decision of this Court here, to apply preemption inthis situation would lead this Court, as in Andrews-Clarke, to"throw" yet another potentially wronged individual "out ofcourt." 984 F.Supp at 53 n. 20. The consequences for Miara, givenher reliance and the sale of her business based on theinstructions she was given by Bonasera, would be devastatingindeed. The "practical impact" of ERISA preemption would indeed"immunize" insurance agents and agencies from liability. Id. at55. Unlike the outcome in Andrews-Clarke, where this Court wasconstrained to apply ERISA preemption, to apply it here appearsto this Court an overly expansive reading of the phrase "relatesto."

37. This Court has carefully considered additional District ofMassachusetts cases. Though summarizing each case here mightprove useful, in the interest in salvaging whatever brevity maystill exist, the Court refers generally to Utility Workers,Local 369 v. NSTAR Elec. & Gas Corp., 317 F. Supp. 2d 69, 72(D. Mass. 2004) (Harrington, J.) (holding, on factsdistinguishable from this case, that the "state law breach ofcontract and misrepresentations claims" were preempted because"both relate to NSTAR's alleged representation that theplaintiffs' benefit plans would not change" after a merger ofBoston Edison Co. and Commonwealth), Tuohig v. Principal Ins.Group, 134 F. Supp. 2d 148 (D. Mass. 2001) (Gorton, J.)(deciding preemption applies where spouse claimed emotionaldistress and unfair trade practices "arising out of" a denial ofmedical benefits), and Spalding v. Reliance Standard Life Ins.Co., 835 F. Supp. 23 (D. Mass. 1993) (holding, in a matterdistinguishable from Miara's case, that state law claims againstan insurance company and an independent insurance broker for anemployer were preempted by ERISA as such a matter arose out of adenial of benefits and improper processing of claims under anERISA plan).

38. The District of New Hampshire also addressed ERISApreemption in Macomber v. Digital Equip. Corp.,865 F. Supp. 65, 71 (D.N.H. 1992) (ruling ERISA preemption for a claimregarding pre-plan misrepresentations made was proper).865 F. Supp. at 71. Judge McAuliffe indicated that he was persuaded, inmaking this 1994 decision, by the Eleventh Circuit decision inFarlow, 874 F.2d 791, and the Sixth Circuit decision inCromwell, 944 F.2d 1272. It is important to note, however, thatJudge McAuliffe's decision preceded the Eleventh Circuit's 1996en banc decision in Morstein, 93 F.3d 715 (11th Cir. 1996) (enbanc), which overruled Farlow, 874 F.2d 791. Furthermore, asexplained in the discussion of Sixth Circuit law supra, thisCourt believes Cromwell to be distinguishable from the matterbefore this Court: Miara does not seek benefits under the plan,the suit is against a insurance agent and agency and not anemployer. Guided by the Supreme Court's decision in Travelers,514 U.S. 645, a finding of preemption would run counter to theoriginal purpose of, and Congressional intent when enacting,ERISA.

39. Here too, this Court has weighed cases beyond thosedecisions cited and discussed in the text in forming its opinion.For example, this Court notes a decision from the District ofConnecticut. DiPietro-Kay Corp. v. Interactive BenefitsCorp., 825 F. Supp. 459 (D.Conn. 1993) (involving an employer'sstate claims relating to misrepresentation and concealment). InDiPietro, Judge Dorsey, while noting that "[l]egislative intentnotwithstanding, the circuits are split as to whether ERISApreempts misrepresentation claims that arise from the sale ofbenefits plans," id. at 421, held that the state law claimswere not preempted by ERISA. Id. at 462 (focusing on the factthat "preemption of [the] misrepresentation claims by ERISA wouldnot advance any of the purposes that preemption was designed toserve"). See also Moore v. Yellow Book USA, Inc.,343 F. Supp. 2d 539, 542, 545 (N.D. Miss. 2004) (holding state lawclaims for fraudulent misrepresentation of the scope of benefitswere not preempted by ERISA); Massey v. Stanley-Bostich,Inc., 255 F. Supp. 2d 7, 13 (D.R.I. 2003) (holding breach ofcontract and promissory estoppel claims against planadministrator and former employer in connection with a retirementplan to be preempted).

40. The Court of Appeals of South Carolina previously hadaddressed ERISA preemption of state law claims. See id. at55-56 (citing Heaitley v. Brittingham, Dial & Jeffcoat,320 S.C. 466, 460-70 (S.C.Ct.App. 1995) (finding no preemption in asuit alleging misrepresentation and professional negligence by awidow against deceased husband's business partnership forwrongfully accepting life insurance premiums while he was stillliving), and Medical Park OB/GYN, P.A. v. Ragin,321 S.C. 139, 145 (S.C.Ct.App. 1996) (finding preemption improper inlight of the purpose of ERISA in a suit alleging professionalnegligence, negligent misrepresentation and breach of fiduciaryduties by a doctor's office in the formation of an ERISA plan)).

41. This Court has also considered Finn v. Nachreiner BoieArt Factory, 201 Wis.2d 549 (Wis.Ct.App. 1996) (holding statefraud in the inducement and misrepresentation claims againstinsurance agent and insurer preempted by ERISA) in arriving atits decision.

42. The District of Columbia Circuit's interpretation comportswith that of the other circuits. Ruling ERISA preemptionappropriate in a case involving a settlement agreement, the D.C.Circuit stated that "general common law causes of action, such asbreach of contract, which were not specifically intended to applyto benefit plans covered by ERISA, will . . . be preemptedinsofar [as] they affect ERISA-protected rights." See Boardof Trs. of Hotel and Rest. Employees Local 25 v. The MadisonHotel, Inc., 97 F.3d 1479 (D.C. Cir. 1996) (citing Boren v.N.L. Indus., Inc., 889 F.2d 1463, 1466 (5th Cir. 1989) for theproposition that "even if a state law does not expressly concernan employee benefit plan, it will still be preempted insofar asthe law applies to a benefit plan in particular cases.")(emphasis added); Shaffer v. Veneman, 325 F.3d 370, 372 (D.C.Cir. 2003) (explaining that a settlement agreement directlyinvolves rights under a benefits plan and noting that thesettlement agreement in Madison Hotel, "almost inevitablyrequire[d] construction and application of specific ERISAprovisions which define the scope of . . . obligations and . . .legal entitlements. . . ." (emphasis added)).

43. Since Miara does not challenge the plan, she accordingly,and appropriately, has not included Pension Benefit, theguarantor of the plan, as a party to this suit.

44. Counsel for Baker attempted to argue at oral argumentthat: "I would . . . respectfully suggest that under ERISA theemployer has actual obligations to . . . retirees under ERISAplans. This is contrasted with my client, Baker, who [has] noobligation under ERISA. So we have the ironic circumstance herethat in the First Circuit it would appear that if the employerwho [has] obligations makes a misrepresentation is preempted, butsomeone who has no obligations under an ERISA plan, no financialresponsibility" are not preempted. Tr. at 9-10. This Court emphasized, and again emphasizes, the problem withthe current state of ERISA preemption, namely that "[p]reemptionused to mean which forum would entertain the cause of action. Inthe strange world of ERISA, preemption is, as the cases refer toit, an act. It cuts off. Because Congress never thought ofthis. ERISA cuts off liability." Tr. at 10.

45. Indeed, the issue of timing is especially unimportant hereas Miara alleges that the misrepresentations were made at thetime the Miaras were discussing the procurement of the plan andcontinued in correspondence delineating the benefits Miara wouldreceive after Mr. Miara's unfortunate accident.

46. The District Court of Maine, in Stetson, outlined theEighth Circuit's "multi-factorial test" in determining whetherstate claims are preempted. 16 F. Supp. 2d at 33 (citing anddiscussing the test as articulated by the Eighth Circuit inWilson, 114 F.3d at 713. Though the First Circuit has neveradopted this test, this Court considers its factors likewiserelevant as they pertain to the general purposes of ERISA. SeeFort Halifax, 482 U.S. at 8 (indicating that Congressionalintent in enacting ERISA is the "ultimate touchstone" in thepreemption determination). Miara's claims would also pass muster under the Sixth Circuit'stest in Firestone Tire, falling under the "remote andperipheral" exception to ERISA preemption. Firestone,810 F.2d at 554.

47. Indeed, Miara does not even bring suit against the ERISAentity.

48. This Court, in Andrews-Clarke, also addressed preemptionin a malpractice context, and held a professional malpracticeclaim was preempted by ERISA. 984 F. Supp. at 54 n. 23. Thatmatter is distinguishable, however, as it was a medicalmalpractice claim involving the medical decisions made indetermining the availability of benefits under a plan. Suchclaims would "relate to" an ERISA-covered plan and, as such,warrant preemption.

49. The Miaras might even be viewed as "employers" rather thanemployees in their negotiation of the terms with the insurancecompany.

50. To the contrary, any guaranties made were made by PensionBenefit, a non-party.

51. For an extensive overview of the covenant of good faithand fair dealing in Massachusetts, see Weigand at 174-196.

52. What Miara seeks is recovery upon an an "independentcontract" or relationship with the Defendants, Children's Hosp.Corp., 360 F. Supp. 2d at 206, and is "independent of anycoverage under the plan." Cromwell, 944 F.2d at 1285 (Jones, J.dissenting).

53. This Court appreciates that section 1292(b) certification"should be used sparingly and only in exceptional circumstances."Stone ex. rel. Estate of Stone v. Frontier Airlines, Inc.,256 F. Supp. 2d 28, 47 (D. Mass. 2002) (denying Section 1292(b)certification); Fierro v. I.N.S., 81 F. Supp. 2d 167 (D.Mass. 1999) (certifying under section 1292(b) in the interest ofjudicial economy and efficiency primarily because, there, thematter properly should have been brought before the Court ofAppeals in the first place). Certain instances, however, warrant section 1292(b)certification. See Canty v. Old Rochester Reg'l Sch. Dist.,54 F. Supp. 2d 66, 77 (D. Mass. 1999) ("The stark division amongthe six circuits to consider Title IX preclusion of section 1983actions certainly demonstrates sufficient difference ofopinion."); Stark v. Advanced Magnetics, Inc.,894 F. Supp. 555, 560 (D. Mass. 1995), rev'd on other grounds 119 F.3d 1551(Fed. Cir. 1997), (certifying matter to Federal Circuit in caseinvolving a controlling legal question as to which there wasmarked room for varying opinion where ultimate termination of thesuit was advanced, and where substantial costs and resourceswould have been saved by confirmation of this Court's analysis);Cabral v. Sullivan, 757 F. Supp. 107 (D. Mass. 1991)(allowing, where the Court had granted a new trial, opportunityfor interlocutory appeal where appeal was unavailable, as a newtrial which could result in waste of resources and energy);Pahlandjian v. Pahlavi, 614 F. Supp. 1569, 1577 (D. Mass.1985) (allowing section 1292(b) certification to ensure uniformtreatment in parallel lawsuits).

54. In the prudence of Cecily, when this Court sees a spade,it calls it a spade. Oscar Wilde, The Importance of BeingEarnest.

55. Stark is an example of the value of the section 1292(b)certification or interlocutory appeal. 894 F. Supp. at 560.There, the Federal Circuit, accepting the interlocutory appealpursuant to this Court's section 1292(b) certification, Starkv. Advanced Magnetics, Inc., 79 F.3d 1165 (Fed. Cir. 1996),reversed this Court's ruling. Stark v. Advanced Magnetics,Inc., 119 F.3d 1551 (Fed. Cir. 1997) (determining this Court'sreading of the patent law allowing for correction of inventorshipwas "too restrictive," id. at 1556.).

56. See Stark, 79 F.3d 1165 (considering as a factor inexercising its discretion whether the district court desiresreview).

57. The careful reader will note that this opinion issprinkled with references to the transcript of the oral argumenton the motion to remand, eight to be exact. Ready reference tothe transcript of such arguments has been of inestimable value inthe preparation of this and other judicial opinions. The Court here acknowledges the enormous contribution made bythe official United States Court Reporter assigned to thissession, Mr. Donald Womack, to its substantive legal work. As anexample of his superb professionalism, Mr. Womack prepares realtime transcripts of all such arguments and provides themelectronically (absent court order and without any transcriptorder having been placed by counsel) in full text searchableformat to this court and its law clerks on a publically availablewebsite. His innovation and devotion to the public good areunexcelled and exemplify the finest traditions of our dedicatedUnited States Court Reporters, a public-private partnership thatfuels the many of the most important technological advanceswithin the federal judiciary. It is actually being bruited that, notwithstanding thecontrolling statute, 28 U.S.C. § 753 (1996), budget difficultiesmay well deprive federal judges of court reporters altogether infavor of cheaper tape recorders. See Remarks of the Hon. JohnLungstrom, Chair of the Court Administration and Case ManagementCommittee of the Judicial Conference at the Annual Meeting ofDistrict Court Chief Judges, Washington, April 14, 2005. If the federal judiciary is actually contemplating abandoningthe benefits of daily copy, real time reporting, full textsearchable databases, providing jurors with pre- and post-trialjury charges in writing in the actual language used by the judge,and transcript when requested by the jury, see e.g. OscarCriner, Professor of Organizational Behavior, Remarks to theAmerican Board of Trial Advocates (Apr. 2005) (emphasizing theimprovement in the quality of justice were transcripts to beprovided to deliberating jurors); All Things Considered: AmericanBar Association Studies Lead to New Principles for Juries (NPRNews radio broadcast, Jun. 9, 2005) (noting that Professor Criner"was foreperson of the jury that convicted accounting firm ArthurAndersen on charges relating to the Enron scandal."); see alsoArthur Andersen LLP v. United States, 125 S.Ct. 2129 (2005),then shallow rhetoric about a judicial "crisis" is yesterday'snews and the "crown jewel" of the world's trial court systems —the United States District Courts — is banking into a steepdecline in the quality of support it affords the American juryand the quality of justice it offers our citizens. The consequences for American democracy cannot be overstated.See Mark Galanter, The Hundred-Year Decline of Trials and theThirty Years War, 57 Stan. L. Rev. 1255, 1272-1274 (2005) ("Therecent accelerated decline in the number of trials is . . . partof a much broader turn from law, a turn away from the definitiveestablishment of public accountability in adjudication. . . . Itis embedded in the changing work habits of judges and lawyers whorarely engage in trials. . . . The recent decline of trials isnot likely to be reversed without reversal of the larger turnaway from the law. To a great extent, the turn is based on a setof misperceptions about judges, trials, and juries that is sharedby courts and lawyers as well as businesspeople andpoliticians. . . . The animus against trials is not just anobjection to generous or individuated remedies; it also involvesan aversion to the determination of corporate accountability inpublic forums. The trial is a site of `deep accountability' wherefacts are exposed and responsibility assessed, a place where theordinary politics of personal interaction are suspended and thefictions that shield us from embarrassment and moral judgment arestripped away. There is no formula that will yield the rightnumber or percentage of trials. But if we want a legal system inwhich judges and juries devise public standards and assessaccountability, particularly that of powerful actors, we needenough trials to do that job." (footnotes omitted)); William G.Young, An Open Letter at 33 ("For decades, our civil juries havebeen incessantly disparaged by business and insurance interests,without the courts offering any defense of the single institutionupon which their moral authority ultimately depends, with thepredictable result that bipartisan majorities in the Congresshave severely restricted access to the American jury. Theseinterests know what they are doing. The most sophisticated recentanalysis has led one commentator to conclude, `a civil justicesystem without a jury would evolve in a way that more reliablyserve[s] the elite and business interests.' [Valerie G. Hans,Business on Trial: The Civil Jury and Corporate Responsibility226-227 (2000)]." (footnotes omitted, internal citation added));id. at 32 ("Whenever Congress extinguishes a right thatheretofore has been vindicated in the courts through citizenjuries, there is a cost. It is not a monetary cost. It is a costpaid in rarer coin — the treasure of democracy itself. Whenpeople recognize that they have been cut off from theiropportunity to govern directly through citizen juries, the senseof government as community — as a shared commonwealth — isseverely diminished. Jury service is the citizen's only directexperience of government at the federal level. Severing thatshared bond, of course, leaves citizens with their right to votebut, inevitably, as the government draws away from its citizenry,that right seems less valuable. It is not too much to say that,as our government is the ultimate teacher, its devaluation ofdirect citizen participation carries the implicit message thatcommunitarian efforts are simply not worth very much in an age ofindividual self-seeking. Nor is this all. As those institutionsthat empower and reinforce community efforts fray at the edgesand fall into desuetude, economic powers to which the law grantsan advantage naturally tend to use that advantage, unchecked bythe jury's common sense. Without juries, the pursuit of justicebecomes increasingly archaic, with elite professionals talking toothers, equally elite, in jargon whose elegance is in directproportion to its unreality. Juries are the great leveling anddemocratizing element in the law. They give it its authority andgeneralized acceptance in ways that imposing buildings andsonorous openings cannot hope to match. Each step away fromjuries is a step that ultimately weakens the judiciary as thethird branch of government. Indeed, it may be argued that themoral force of judicial decisions — and the inherent strength ofthe third branch of government itself — depends in no smallmeasure on the shared perception that democratically selectedjuries have the final say over actual fact-finding." (footnotesomitted)). Some there are who are apparently pleased with this tailspin.Peter Wallsten, 2 Evangelicals Want to Strip Courts' Funds, L.A.Times (Apr. 22, 2005) (quoting House Majority Leader Tom Delay assaying, "We set up the courts. We can unset the courts. We havethe power of the purse," and James C. Dobson, founder of Focus onthe Family, as saying, "Very few people know this, . . . thatCongress can simply disenfranchise a court[.] They don't have tofire anybody or impeach them or go through that battle. All theyhave to do is say the 9th Circuit doesn't exist anymore, and it'sgone."). "But let that bide." Captain Abel Jones, HQ Army of thePotomac, Late Sergeant, 24th Foot (South Wales Borderers) (fromOwen Parry, Faded Coat of Blue (Avon Books, 1999)).

58. Virtually the same question was previously pondered by theDistrict Court of Maine in Stetson, 16 F. Supp. 2d at 30-31.This, together with the case law from other circuits and fromwithin this circuit, is further evidence of the value of adecision from the First Circuit on this matter.