USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1440

ALVAN H. WOLF,

Plaintiff, Appellee,

v.

RELIANCE STANDARD LIFE INSURANCE COMPANY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

James A. Young with

_______________

whom

Michael J. Burns, Christie, Pabar

_________________ ________________

Mortensen & Young, P.C. and Cheri L. Crow were on brief for appella
_______________________
_____________
William E. Bernstein
____________________

with whom Barbara S. Liftman and

__________________

Bernstein & Burwick, P.C. were on brief for appellee.

_________________________

Weinste
_______

____________________

December 11, 1995

____________________

STAHL,
STAHL,

Circuit
Circuit

Judge.
Judge.

Plaintiff-appellee

Alvan

______________

Wolf prevailed

in

his jury-tried

contract

defendant-appellant Reliance Standard Life

("Reliance") for

denial of

disability

appeals the trial court's ruling

action

against

Insurance Company

benefits.

Reliance

that ERISA preemption is an

affirmative defense which Reliance waived by failing to plead

it timely.

We affirm.

I.
I.
__

BACKGROUND
BACKGROUND
__________

We begin by

reciting the facts

favorable to the verdict.

in the light

See Aetna Cas. Sur. Co.

___ ___________________

Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).

________

most

v. P & B
_____

Wolf

founded

("Brookfield"), a

Brookfield's

Brookfield

now-defunct chain of shoe

heyday, Wolf

month as its President

fall

of

1988,

Factory

he

earned

Outlet,

Inc.

stores.

During

approximately $8,000

and Chief Executive Officer.

was diagnosed

with

severe

per

In the

depression,

apparently resulting from business and personal difficulties.

In

the

requiring

continued

spring

of

brief

1989, Wolf

experienced

hospitalization.

to work until April

heart

problems

Thereafter,

24, 1989, when

Wolf

he suffered a

massive heart attack.

From the

time

of Wolf's

1988

until his heart attack

$500

per

week

of

his

depression diagnosis

in 1989, he

$8,000

per

in

actually drew only

month

salary

due

to

-22

Brookfield's

ongoing

conflicting testimony

was entitled

to the

financial

at trial

problems.

as to whether

unpaid remainder

of his

There

was

Wolf actually

salary, which

Wolf asserted the company owed him as a debt payable.

recovery

The

insurance

took

effect

policy

on

under

February

1,

which

1985.

Wolf

sought

The

policy

provided a monthly

benefit to a

sixty percent of "covered

insured's

on the

September 1990,

Reliance

neither

to

monthly earnings," defined as "the

basic monthly salary

day just before

disabled employee equal

received from [the employer]

the date of

total disability."

Wolf filed a claim

In

for disability benefits.

denied the claim in May 1991, stating that Wolf had

proved

became disabled

that he

was

nor that he

a full-time

employee

was totally disabled,

when he

and that

Wolf was late giving notice of his claim.

In

January

1992, Wolf,

Massachusetts citizen,

sued Reliance in Massachusetts state court alleging breach of

contract and

corporation

unfair trade practices.

with

its

principal

Reliance, an Illinois

place

of

business

in

Pennsylvania, removed

United

States

Massachusetts.

The

Magistrate Judge

the suit,

District

28 U.S.C.

parties

Court

based on diversity,

for

to the

the

District

trial

before

of

1441, 1332.

consented

to

Charles B. Swartwood

-33

III.

On

U.S.

October 25,

1994,

one

week

before

motions,1

each asserting,

state law

claims were

trial,

Reliance

for the

filed

first time,

preempted by the

that Wolf's

Employee Retirement

Income

Security Act of 1974

1461.

The trial court denied the motions, ruling that ERISA

preemption was

by

29

an affirmative defense which

failing to plead it in a

then denied

("ERISA").

several

Reliance leave

timely manner.

to amend its

U.S.C.

1001-

Reliance waived

The trial court

pleadings, finding

undue delay by Reliance and significant prejudice to Wolf if,

on

the eve

entire

of trial,

Reliance were

allowed to

change the

legal basis for its opposition to Wolf's claim by its

introduction of an ERISA preemption defense.2

The breach of contract claim was tried to a

on November

2-4, 1994,

resulting in

a special

Wolf.

The jury found

that Wolf's basic

$8,000

per

the

disabled.

month

on

The trial court

the unfair

before

memorandum

verdict for

monthly salary was

he

became

totally

entered judgment for Reliance

trade practices claim,

from that judgment.

day

jury

and Wolf does

on

not appeal

In December 1994, the trial court issued

decision

calculating

Wolf's

damages

to

be

____________________

1.

Specifically,

Reliance

filed

motions

to

dismiss

for

failure to state a claim, to strike Wolf's jury trial demand,

and to apply an arbitrary and capricious standard of review.

2.

The

only

preemption

previous

argument in

indication

of

this litigation

any

possible

was an

ERISA

exchange of

letters dated May 31, 1991 and July 29, 1991 between Reliance
and Wolf's
to ERISA.

attorney, each making a

single passing reference

-44

$196,606.72

plus

interest and

then filed a renewed motion

Reliance

for judgment as a matter

and, alternatively, a motion

denied.

future payments.3

for a new trial, and

This appeal followed.

II.
II.
___

of law

both were

DISCUSSION
DISCUSSION
__________

The

principal issue

before

preemption is jurisdictional, and thus

point in

abused its

related issue is

discretion

is whether

ERISA

may be raised at

litigation, or an affirmative

not pleaded timely.

court

us

in denying

any

defense, waivable if

whether the

trial

Reliance leave

to

amend its pleadings to add an ERISA preemption defense.

A. ERISA Preemption
____________________

Whether ERISA

waivable

preemption

is jurisdictional

affirmative defense is a pure

we review de novo.
__ ____

or

question of law that

See Correa v. Hospital San Francisco, No.

___ ______
______________________

95-1167, 1995 WL 627505, at *6 (1st Cir. Oct. 31, 1995).

Reliance argues that because there is a "compelling

policy"

claim,

in favor of application of federal ERISA law to this

ERISA

preemption

is

jurisdictional4

and therefore

____________________

3.

The parties stipulated that

if Reliance was found liable

to Wolf, the trial court would calculate the damages.

4.

We note

that

although Reliance

did

not use

the

"jurisdictional," that is the thrust of its argument.

-55

term

nonwaivable.5

broad

The

foundation

preemption provision: ERISA

exceptions] "shall

as they may now

plan .

. .

history,

29 U.S.C.

was to

nationally

benefit

[with a

1144(a).

encourage

by

plans.6

few inapplicable

employee benefit

One of

Congress's

as divined through legislative

the growth

replacing

uniform federal

ERISA's

State laws insofar

or hereafter relate to any

. "

plans

argument is

supersede any and all

intentions in enacting ERISA,

benefit

of the

diverse

common

Treating

of private

state

laws

law regulating

ERISA

preemption

employee

with

employee

as

non-

jurisdictional

goes,

and therefore waivable would, so the argument

frustrate

plans to

that

regulation and

bodies of state law.

under non-uniform

and

intent, subjecting

litigation under

benefit

fifty non-uniform

The costs of adapting to and litigating

state law and the

damages beyond

employee

that permitted

employers from enacting benefits

potential for liability

under ERISA

plans.

would deter

Thus, courts should

____________________

5.

See
___

Insurance Corp. of Ireland, Ltd. v.

__________________________________

Compagnie des
_____________

Bauxites de Guinee, 456 U.S. 694, 702 (1982) (explaining that

__________________
subject

matter jurisdiction

George Lee Flint, Jr.,

39 U. Kan.

L. Rev.

is nonwaivable);

see generally
___ _________

ERISA: Nonwaivability of Preemption,

____________________________________

297 (1991) (arguing

that courts

should

hold ERISA preemption nonwaivable).

6.

ERISA's House sponsor, Representative Dent, described the

"reservation

to Federal

authority

[of] the

sole power

to

regulate

the field

"crowning

of

employee benefit

achievement."

120

Cong.

plans" as
Rec.

29197

Senator Williams commented that ERISA's preemption

the

effect

of "eliminating

inconsistent State
plans."

the

threat

and local regulation

ERISA's
(1974).
will have

of conflicting

or

of employee benefit

Id. at 29933.
___

-66

hold

that

ERISA

preemption

is

jurisdictional

waivable, consistent with the congressional intent

and

not

to create

and apply

a uniform federal law

regulating employee benefit

plans.

While the

it

foregoing argument is not without merit,

is precluded by precedent.

length

the legislative

The Supreme Court analyzed at

history

behind

ERISA's

preemption

provision in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44___________________
_______

46, 52-57 (1987), focusing on the civil enforcement scheme of

502(a) of ERISA

(29 U.S.C.

participant can bring

concluded

a suit

that Congress

1132(a)), under which

for benefits due.

intended

to

create

The

an

a plan

Court

exclusive

federal remedy, with a "pre-emptive force . . . modeled after

301"

U.S.C.

of the

185.

Labor Management

Pilot Life,
__________

Relations Act

481 U.S. at 52.

("LMRA"), 29

Accordingly, the

Court held that ERISA preempts all state law causes of action

for benefits due under an ERISA plan.

did not present the

made clear

preemption

guidance.

Pilot Life
__________

question whether ERISA preemption was

jurisdictional matter or a

Court

Id. at 57.
___

waivable defense, but the Supreme

that courts

should

look

deciding

to LMRA

the scope

preemption

of ERISA

decisions

for

Id. at 54-55.
___

The

Pilot Life
___________

preemption

clause

displaced

state law

and

decision

civil

causes

explains

enforcement

of action

-77

that

scheme

for benefits

ERISA's

entirely

claims

under

ERISA

"displaced,"

plans.

then

jurisdiction over

due.

Id.
___

at

arguably

there

a state law

Lack of subject

55-57.

is

If

no

state

law

subject

is

matter

cause of action

for benefits

matter jurisdiction is,

of course, a

nonwaivable defense and may be raised at any time.

Insurance
_________

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

_______________________
_________________________________

456 U.S. 694,

702 (1982).

That jurisdictional argument

is

unavailing, however, because

that LMRA preemption is

__

926

this Circuit has squarely

waivable.

held

Sweeney v. Westvaco Co.,

_______
_____________

F.2d 29, 40 (1st Cir.) (Breyer, C.J.), cert. denied, 502

_____ ______

U.S. 899 (1991).

explicitly

Given that

directed courts

the Supreme Court in Pilot Life

__________

to treat

ERISA

preemption like

LMRA preemption, 481 U.S. 51-56, Judge (now Justice) Breyer's

analysis

in

Sweeney
_______

leads

us

to

conclude

that

ERISA

preemption is also waivable.

The

preemption

preemption.

rationale behind

is waivable

The Sweeney
_______

applies

Sweeney's holding
_________

with equal

court began

International Longshoremen's Ass'n

___________________________________

with

v. Davis,
_____

that LMRA

force to

ERISA

an analysis

476

of

U.S. 380

(1986), a

case.

Court

See 29
___

held

therefore

choice

National Labor

U.S.C.

that

NLRA

Relations Act

157, 158.

preemption

nonwaivable, because NLRA

("NLRA") preemption

In Davis,
_____

is

the Supreme

jurisdictional,

and

preemption dictates the

of forum (i.e., whether a court or the National Labor

_____

Relations Board ("NLRB") has

the power to hear the

-88

case) as

opposed to simply the

choice of law (i.e., whether

___

federal law applies).

that the

in

Supreme Court itself carefully

Davis to
_____

Sweeney,
_______

See id. at 398-99.

___ ___

926

and 8 of the NLRA

F.2d

at

38.

state or

Sweeney stressed
_______

limited its holding

and not other statutes.

Those

sections

evidence

Congressional intent to "refuse[] to permit parties to submit

such

dispute

to

the

themselves wished to do so."

court

determined

preemption, "concerns

that

courts

even

where

Id. at 38-39.
___

LMRA

parties

In Sweeney, this
_______

preemption,

what law a decision

___

the

unlike

NLRA

maker must apply,

not what

Based

forum must decide

_____

on that

converse of

premise,

the dispute."

the panel

in

926 F.2d

at 39.

Sweeney applied
_______

the Davis rule, holding that

_____

the

LMRA preemption is

waivable because it affects the choice of law, not the choice

of forum.

Id. at 39-40.
___

Like

benefits-due

LMRA

preemption,

action does

not

ERISA

preemption

affect the

choice of

in

forum,

because ERISA's jurisdictional provision provides that "State

courts of

competent jurisdiction and district

courts of the

United States shall have concurrent jurisdiction of actions,"

__________ ____________

29

U.S.C.

participant

1132(e)(1)

or beneficiary

(emphasis added),

to

"brought

recover benefits

due."

by

29

U.S.C.

1132(a)(1)(B).

us that

if a plaintiff

state court and the

The plain language of

brought a

1132 tells

"benefits-due" action

in

defendant pleaded ERISA preemption, this

-99

would not deprive the court of

matter; rather,

ERISA

jurisdiction over the subject

preemption in

that

situation

would

dictate the applicable law.

ultimately

"a matter

Preemption is, as Sweeney says,

_______

of Congressional intent,

as embodied,

explicitly or implicitly, in

a particular federal

Sweeney, 926 F.2d at 38.

_______

considering that intent, we are

In

guided by a number of factors.

necessarily

dispositive,

Sweeney,
_______

is a choice

statute.

We

which

It is instructive, though not

that ERISA,

of law rather

also believe that

Congress hoped

statute."

to serve

like

than a

the

choice of forum

the interests in

in ERISA

permitting defendant corporations,

did not

often more

statute in

uniformity

extend to

sophisticated

about ERISA than individual plaintiffs, to sit on their hands

and

not

claim

the defense

until

the

last

minute.

Cf.
___

Williams
________

Cir.)

v. Ashland Eng'g Co., Inc., 45 F.3d

________________________

(emphasizing the importance

strategic

use of

a last

cert. denied, 116 S.

_____ ______

to enjoy the benefits

of protecting against the

minute ERISA

Ct. (1995).

588, 593 (1st

preemption defense),

That employers

were meant

of uniformity did not mean

they could

not forego those benefits.

Other

courts,

Circuits have held

including

the

that ERISA preemption

Fifth

is waivable.

Dueringer v. General Am. Life Ins. Co., 842

_________
___________________________

(5th Cir. 1988) (holding

Gilchrist
_________

and

F.2d 127,

Ninth

See
___

130

that ERISA preemption is waivable);

v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497

__________________________

-10-

10

(9th Cir. 1986) (same); Rehabilitation Inst. of Pittsburgh v.

__________________________________

Equitable Life Assur. Soc'y,

____________________________

131 F.R.D. 99,

101 (W.D.

Pa.

1990) (same), aff'd, 937 F.2d 598 (3d Cir. 1991).

_____

An apparent majority of state courts addressing the

question have

reached the

same conclusion.

See
___

Gorman v.
______

Life Ins. Co. of N. Am., 811

_______________________

that

state

ERISA preemption is waivable when it does not deprive a

court of

(1991); Curry
_____

701,

S.W.2d 542, 546 (Tex.) (holding

jurisdiction),

cert. denied,
_____ ______

502 U.S.

v. Cincinnati Equitable Ins. Co.,

______________________________

824

834 S.W.2d

703 (Ky. Ct. App. 1992) (same); Hughes v. Blue Cross of

______
_____________

N. Cal., 263 Cal. Rptr. 850, 861 (Cal. Ct. App. 1989) (same),
_______

cert. dismissed, 495 U.S. 944

_____ _________

Claeys, 533
______

(1990); Associates Inv. Co. v.

___________________

N.E.2d 1248, 1251 (Ind. Ct. App. 1989).

Chestnut-Adams Ltd. Partnership

________________________________

v. Bricklayers and Masons

________________________

Trust Funds of Boston, Mass., 612

_______________________________

1993) (holding

that the

enacting ERISA is so

But see
_______

N.E.2d 236,

preemption intended by

broad as to make it

238 (Mass.

Congress in

jurisdictional and

therefore nonwaivable); Barry v. Dymo Graphic Sys., Inc., 478

_____
_______________________

N.E.2d 707, 712 (Mass. 1985) (same).7

Accordingly,

benefits-due action is

we hold

that ERISA

preemption in

waivable, not jurisdictional, because

____________________

7.

We are, of course, not bound by the Massachusetts Supreme

Judicial Court's

interpretation of a federal

Congressional intent behind it.

-1111

statute or the

it

concerns

the

choice of

substantive

law

but does

not

implicate the power of the forum to adjudicate the dispute.8

We

preemption

Federal

now

must

Rule

of

turn

be

as

Civil

well

as

the

pleaded

responsive pleading set

defenses

to

question

as

Procedure

5 Charles

affirmative

8(c)

requires

ERISA

defense.

that

forth certain enumerated affirmative

"any

other

avoidance or affirmative defense."

generally
_________

an

whether

A. Wright

matter

constituting

an

Fed. R. Civ. P. 8(c); see

___

& Arthur R.

Miller, Federal
_______

Practice and Procedure

______________________

for

whether

a given

1271 (1990).

defense

"residuary" clause is whether

characteristic of

falls

The First Circuit test

within

a bar to the right of recovery even if the

more or less admitted

v.

520 F.2d

Mass. Port Auth.,

_________________

ERISA preemption

claim

even

Therefore

action

Wolf

8(c)

the defense "shares the common

general complaint were

would bar

the Rule

shares

we hold

813 (1st

this characteristic

from recovering

if

810,

Reliance

on his

admitted

that ERISA

to."

Cir. 1975).

insofar as

state law

Wolf's

preemption in

Jakobsen
________

it

contract

allegations.

a benefits-due

is an affirmative defense and, as such, it is subject

to waiver if not timely pleaded.

____________________

8.

Our holding

due

actions.

is limited to ERISA
ERISA permits

preemption of benefits-

several other

types of

civil

actions (e.g., for injunctive relief, for breach of fiduciary

duty, etc.) subject to

exclusive jurisdiction in the federal

courts rather than concurrent jurisdiction.

See 29 U.S.C.
___

1132(a)(1)(A), 1132(a)(2)-(6), 1132(e)(1).

-1212

Several courts, including

this Circuit in

dictum,
______

have held that ERISA

preemption in benefits-due actions must

be pleaded timely as an affirmative defense.

Ashland Eng'g Co., Inc., 45 F.3d

________________________

(stating, in dictum, that

______

See Williams v.
___ ________

588, 593 & n.7

(1st Cir.)

ERISA preemption is an affirmative

defense, but finding no waiver when pleaded six months before

summary

judgment),

cert.
_____

denied,
______

116 S.

Dueringer, 842 F.2d at 129-130 (5th Cir.

_________

ERISA preemption must be

Rehabilitation Inst.,
____________________

(same), aff'd,
_____

S.W.2d

937

51

(1995);

1988) (holding that

pleaded as an affirmative defense);

131 F.R.D.

F.2d 598

at 546 (Tex. 1991)

Ct.

(3d

at 100-01 (W.D.

Cir. 1991);

(same); Curry, 834

_____

Pa. 1990)

Gorman,
______

811

S.W.3d at 703

(Ky.

Ct.

App. 1992)

(same);

N.E.2d at 238 (Mass. 1993)

but
___

see Chestnut-Adams,
___ ______________

612

(holding that ERISA preemption is

jurisdictional and therefore not waivable).

B. Amendment of the Pleadings

______________________________

Having

affirmative

correctly

preemption

pleadings.9

concluded

defense,

it

treated

as

that

ERISA

follows

Reliance's

motion

We now address

preemption

is

an

that

the

trial

court

attempt

to

raise

ERISA

seeking

leave

to

whether the trial

amend

the

court abused

its discretion in denying Reliance leave to amend.

____________________

9.

At

oral argument on

conceded the true goal

the eleventh-hour motions, Reliance

of the motions: "It's not

to dismiss

the complaint per se,

___ __

it's just to substitute ERISA

for the

breach of contract under state law."

-1313

Whether

or

not

to

grant

leave

to

amend

the

pleadings is within the discretion of the trial court and the

court's

decision will

be reversed

abuse of that discretion.

only upon

a showing

Manzoli v. Commissioner, 904

_______
____________

of

F.2d

101, 107 (1st Cir. 1990).

Failure to

results in waiver of

case.

plead an affirmative

the defense and its exclusion

Conjugal Partnership
____________________

391, 400 (1st

Cir. 1994).

pleaded in the

answer in

notice

defense generally

from the

v. Conjugal Partnership, 22 F.3d

____________________

An affirmative

order to give

of the defense and

a chance to

the opposing

be

party

develop evidence and

offer arguments to controvert the defense.

v. Sylvania Shoe Mfg. Corp.,

_________________________

defense must

Knapp Shoes, Inc.

_________________

15 F.3d 1222,

1226 (1st

Cir.

1994).

Reliance

preemption was

conceded

at

oral

an affirmative defense.

that having raised in its answer a

argument

that

ERISA

It argued, however,

broad "failure to state a

claim

Civ.

upon which relief may be granted" defense, see Fed. R.

___

P. 12(b)(6), this defense

allowed it to

later, a week

before trial, raise the specific defense of ERISA preemption.

Cf.
___

Williams, 45
________

enunciated a

defense of

12(b)(6),

F.3d

at 593.

In Williams,
________

test to determine when

failure to state

as Reliance

preserve the affirmative defense

-1414

court

a general, non-specific

a claim,

originally

this

see Fed.
___

filed, is

R. Civ.

P.

sufficient

to

of ERISA preemption.

"[A]n

inquiring

court

circumstances

about

whether

and make

Rule

safeguard against

vindicated."

must

examine

the

a practical,

8(c)'s core

totality

In

the

commonsense assessment

purpose

--

surprise and unfair prejudice

Id.
___

of

Williams, the defendant

________

to

act as

-- has been

raised ERISA

preemption well before the close of discovery, and six months

prior to

Id.
___

the filing

The issue was

of cross-motions for

summary judgment.

briefed by both sides on summary judgment

and thus we found that no "ambush" had occurred.

Id.
___

In the

instant

case,

preemption

pretrial

however,

Reliance

in its answer,

memoranda, or

rather

raised it

Circuit

recently

chronology

timeliness."

at any

said in

case

Correa v.
______

not

at the pretrial

only five

of the

did

raise

hearings, in the

point during

days before

another

case

speaks volumes

ERISA

discovery, but

trial.10

As this

of waiver,

about

"[t]he

the lack

of

Hospital San Francisco, No. 95-1167,

______________________

1995 WL 627505, at *8 (1st Cir. Oct. 31, 1995).

The trial

the

court denied

undue delay by Reliance

leave to amend

in raising the

because of

issue11 and the

____________________

10.

Reliance argues that the previously

referenced exchange

of letters was sufficient to put Wolf on notice that Reliance

intended to

pursue an ERISA

preemption defense.

See supra

___ _____
note 2.

We cannot agree that the passing references in those

letters

are the

legal equivalent of

pursuing a

defense in

court.

11.

When the trial judge asked Reliance at oral argument why

ERISA preemption
"I

sat

down

was not raised earlier,

a

couple

instructions and things

weeks

ago

in the case

to

counsel explained:
start

doing

jury

and realized that

this

-1515

substantial prejudice to Wolf if amendment

were allowed.

It

is well within

a court's discretion to find

the amendment "substantially changes

case

preparation."

be required to engage

See 6 Wright & Miller,

___

supra,
_____

1487, at 623.

five days before trial, which

Wolf to conduct

preparation

based

in significant new

is precisely such a case: Reliance sought to change the

theory of the case

forced

the theory on which the

has been proceeding and is proposed late enough so that

the opponent would

This

prejudice where

on

on the

these

additional discovery,

ERISA-related issues.12

considerations,

there

was

would have

research, and

We

no

hold that,

abuse

of

discretion in denying leave to amend.

C. Reliance's Other Arguments

______________________________

We have considered appellant's other

assertions of

error and find them to be without merit.

III.
III.
____

CONCLUSION
CONCLUSION
__________

For the foregoing reasons, the judgment of the

trial court is Affirmed.

Affirmed
________

Costs to appellees.
Costs to appellees
__________________

____________________

was a case that

myself . . .
weeks.

12.

should be done by ERISA . . .

I had made

knowledgeable about ERISA in the last couple of

It's not an area of my normal practice."

Despite the

ERISA preemption,

briefing by both
we have

parties on the

no occasion to

merits of

reach the

because we find that the argument was waived.

issue,

-1616