Update: Ninth Circuit Denied En Banc Review of No ERISA Preemption Ruling

[Source: Health Lawyers Weekly, March 13, 2009, Vol. VII Issue 10 (AHLA)]

The Ninth Circuit rejected March 9 the Golden Gate Restaurant Association’s (GGRA’s) petition for rehearing en banc of a three-judge panel decision that found the Employee Retirement Income Security Act (ERISA) does not preempt a San Francisco Ordinance setting new healthcare spending mandates for employers.

After a majority of the active Ninth Circuit judges declined to hear the closely watched case, GGRA said it would now finalize plans to move forward to the U.S. Supreme Court.

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Eight judges from the Ninth Circuit dissented from the majority’s decision not to grant en banc review.

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Specifically, the dissent disputed the panel’s conclusion that the Ordinance was distinguishable from the Maryland law at issue in Fielder because the Ordinance creates a municipally funded health alternative as opposed to a tax on employers that was not earmarked towards their employees’ insurance.

Continue reading.

Read the concurring and dissenting opinions in Golden Gate Restaurant Ass’n v. City and County of San Francisco, No. 07-17370 (9th Cir. Mar. 9, 2009).