# Amicus Curiae Brief — Metropolitan Life Insurance v. Massachusetts

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0387%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 929

## Text

r nenice Supreme Court, US
rFILED

JAN 25 1985

ey)

STEVAS,

IN THE sume
Supreme Cot of the United borates

OCTOBER TERM, 1984

METROPOLITAN LIFE INSURANCE COMPANY,

7 Appellant,

COMMONWEALTH OF MASSACHUSETTS,
Appellee.

TRAVELERS INSURANCE COMPANY,

“ Appellant,

COMMONWEALTH OF MASSACHUSETTS,
Appellee.

On Appeal from the Supreme Judicial Court
for the Commonwealth of Massachusetts

BRIEF FOR
THE AMERICAN PSYCHOLOGICAL ASSOCIATION,
THE ASSOCIATION FOR THE ADVANCEMENT
OF PSYCHOLOGY, AND THE
MASSACHUSETTS PSYCHOLOGICAL ASSOCIATION
AS AMICI CURIAE IN SUPPORT OF APPELLEE.

DONALD N. BERSOFF
(Counsel of Record)
KiT KINPORTS
BRUCE J. ENNIS
ENNIS, FRIEDMAN, BERSOFF
& EWING
1200 ~ 17th Street, N.W.
Washington, D.C. 20036
(202) 775-2100
Counsel for Amici Curiae
January 25, 1985

WILSON - Eres PrinTine Co.. Inc. - 7869-0096 - WASHINGTON. D.C. 20001

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGU-

MENT

ARGUMENT ......
I.

II.

ITI.

ERISA WAS NOT INTENDED TO PREEMPT
MANDATED BENEFIT STATUTES ..._.........

A. Arguably, the Massachusetts Statute “Re
lates to” Employee Benefit Plans Governed
EEC

B. The Massachusetts Statute Is a Law Regulat-
ing Insurance and Is Therefore Excepted
from ERISA’s Preemption Provision .............

C. The Massachusetts Statute Does Not Fall
Within the Scope of the “Deemer Provi-

sion”

THE McCARRAN-FERGUSON ACT WAS
INTENDED TO PRESERVE MANDATED
BENEFIT STATUTES

A. The Relevant Caselaw Compels the Conclu-
sion that Section 47B Is a Statute that Reg-
ulates the Business of Insurance

B. The Legislative History Compels the Conclu-
sion that Section 47B Is a Statute that Regu-
lates the Business of Insurance

APPELLANTS’ NARROW READING OF
THE INSURANCE SAVINGS CLAUSE IS
UNSUPPORTABLE ...

A. The Statutory Language, Legislative His-
tory, and Judicial Construction of the Rele-
vant Statutes Do Not Support Appellants’
Reading of the Insurance Savings Clause...

Page
iii

11

14

16

19

ii

TABLE OF CONTENTS—Continued

Page
B. The Relevant Policy Considerations Do Not
Support Appellants’ Reading of the Insur-
ance Savings Clause ............... re 24

CONCLUSION 28

iii

TABLE OF AUTHORITIES
Cases: Page

Addrisi v. Equitable Life Assurance Soc’y of
United States, 503 F.2d 725 (9th Cir. 1974),

cert. denied, 420 U.S. 929 (1975) ...............--.. 18
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504

(1981) i tcencemectones 2, 3, 5, 22
American Progressive Life & Health Ins. Co. v.

Corcoran, 715 F.2d 784 (2d Cir. 1983) ............... 11
Anglin v. Blue Shield, 693 F.2d 315 (4th Cir.

1982) iat aciatineeciamenpmenencnonece 18
Attorney General v. Travelers Ins. Co., 385 Mass.

608, 488 N.E.2d 1228 (1982) —............................ 4
Cate v. Blue Cross & Blue Shield, 434 F. Supp.

SS ) 14
Cochran v. Paco, Inc., 606 F.2d 460 (5th Cir.

a ncemsssnoncnncoces 21
Dawson v. Whaland, 529 F. Supp. 626 (D.N.H.

EE SSL 18
Eversole v. Metropolitan Life Ins. Co., 500 F.

Supp. 1168 (C.D. Cal. 1960) ................................ 14
Feinstein v. Nettleship Co., 714 F.2d 928 (9th Cir.

1983), cert. denied, 104 S. Ct. 2346 (1984) ....... 17
General Split Corp. v. Mitchell, 523 F. Supp. 427

I eseurnenene 14

Grant v. Erie Ins. Exchange, 542 F. Supp. 457
(M.D. Pa. 1982), aff'd mem., 716 F.2d 890 (3d

Cir.), cert. denied, 104 S. Ct. 349 (19838) ............. 18
Group Life & Health Ins. Co. v. Royal Drug Co.,

I sessnemenanoce 16, 17, 24
Haynes v. United States, 353 U.S. 81 (1957)........ 24

Hewlett-Packard Co. v. Barnes, 425 F. Supp. 1294

(N.D. Cal. 1977), aff'd, 571 F.2d 502 (9th Cir.)

(per curiam), cert. denied, 439 U.S. 831 (1978).. 13-14
Hewlett-Packard Co. v. Barnes, 571 F.2d 502 (9th

Cir.) (per curiam), cert. denied, 439 U.S. 831

LEAL 21
Insurance Comm’r v. Metropolitan Life Ins. Co.,

296 Md. 334, 463 A.2d 793 (1983) .............. 10, 11, 14, 26

‘iv
TABLE OF AUTHORITIES—Continued

Page
John Hancock Mutual Life Ins. Co. v. Commis-
sioner of Ins., 349 Mass. 390, 208 N.E.2d 516
RSE PS SRR MP ss RA 22
Lowe v. Aarco-American, Inc., 586 F.2d 1160 (7th
A. SI Wccatiihicheneninisinadilisibinsbalilit et de 18
Malone v. White Motor Corp., 485 U.S. 497
eNO a SN Ee See Sto ae Oe ee 22
Marks v. United States, 161 U.S. 297 (1896)........ 16
McDonald v. Thompson, 305 U.S. 263 (1938) ........ 14
Mcllhenny v. American Title Ins. Co., 418 F. Supp.
ee eee 18
McLaughlin v. Connecticut General Life Ins. Co.,
565 F. Supp. 484 (N.D. Cal. 1983) 0.0.0.0. 14, 16
Metropolitan Life Ins. Co. v. Whaland, 119 N.H.
894, 410 A.2d 635 (1979) (per curiam).....11, 14,16, 26

Michigan United Food & Commercial Workers
Unions v. Baerwaldt, 572 F. Supp. 943 (E.D.
Mich. 1983), appeal docketed, No. 83-1570 (6th
Cir. Aug. 16, 1983) _.. 11
New Hampshire-Vermont Health Service v.
Whaland, 119 N.H. 886, 410 A.2d 642 (1979)

(per curiam) ................ 18
North Haven Board of Education v. Bell, 456 U.S.
Ne I tied titidein ce itesetntecien cee tiated eae 11, 138, 24

Perry v. Fidelity Union Life Ins. Co., 606 F.2d
468 (5th Cir. 1979), cert. denied, 446 U.S. 987
FE OEE DERE rth Set seaC 18
Pierucci v. Continental Casualty Co., 418 F. Supp.

a Paes 18-19
Polish Nat’l Alliance v. NLRB, 322 U.S. 648

(1944) ae SESE RPE ICI ANS MAD 21, 25
Prudential Ins. Co. v. Benjamin, 328 U.S. 408

SO teeihcdhesiciititctneseciideiti haat at 19, 20, 21, 27
Russo v. Boland, 103 Ill. App. 3d 905, 431 N.E.2d

SS CUNT cectncnchvteninlbbiniliclaciadscsiiiisiea ete tre ei Te. 14
SEC v. National Securities, Inc., 398 U.S. 453

SIIIEED. ssliniasienmmihebiideaicahainionaseitintadnceeibematiiaiiatee REA TEL 17

SEC v. Variable Annuity Life Ins. Co. of America,
ok 5 ae ae ee See 15, 23

v

TABLE OF AUTHORITIES—Continued

Page
Shaw v. Delta Air Lines, Inc., 103 S. Ct. 2890
CROIB) aneeeeeseecncenncrrsecnceenenevenescccseccneceeveornrensnencesenanaoeness 8, 4, 7
St. Paul Elec. Workers Welfare Fund v. Markman,
490 F. Supp. 931 (D. Minn. 1980) -..................---- 11
St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S.
S| ae orn 20
Standard Oil Co. v. Agsalud, 442 F. Supp. 695
(N.D. Cal. 1977), aff'd, 633 F.2d 760 (9th Cir.
1980), aff'd mem., 454 U.S. 801 (1981) -............. 27
Standard Oil Co. v. Agsalud, 633 F.2d 760 (9th
Cir. 1980), aff’d mem., 454 U.S. 801 (1981)-....... 4
Stone & Webster Engineering Corp. v. Ilsley, 690
F.2d 323 (2d Cir. 1982), aff'd mem., 103 S. Ct.
a) | en 4,5
Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119
§ | enon 16, 17

Wadsworth v. Whaland, 562 F.2d 70 (1st Cir.
1977), cert. denied, 435 U.S. 980 (1978) _...4, 11, 14, 21

Wayne Chemical, Inc. v. Columbus Agency Service
Corp., 426 F. Supp. 316 (N.D. Ind.), modified,

Be, | fy, |? S|) 9, 21

Wayne Chemical, Inc. v. Columbus Agency Service

Corp., 567 F.2d 692 (7th Cir. 1977) ..................... 11

Western & Southern Life Ins. Co. v. State Board

of Equalization, 451 U.S. 648 (1981) .................. 19, 20

Women in City Gov’t United v. City of New York,

515 F. Supp. 295 (S.D.N.Y. 1981) -.....................- 22
Statutory Materials:

McCarran-Ferguson Act, 15 U.S.C. § 1011 et seg... 2,14
15 U.S.C. § 1011............... sapenalileidibanslidaidmaiibaamuiiicané 15
RR ee 15
I aiiccctntcnentniiinniceieniitianesindtiatenseneey 21
I nc ee 21

National Labor Relations Act, 29 U.S.C. § 151 et
BOE cectannanen we .

vi

TABLE OF AUTHORITIES—Continued

Page
Employee Retirement Income Security Act of 1974,
FF eee eae 1
a ETS 26
o>» Sa ee es 10, 28
ee 2
29 U.S.C. § 1003 (b) (3) 0 27
Re 2,7
29 U.S.C. § 1144(b) (2) (A) 5
29 U.S.C. § 1144(b) (2) (B) .. 12
29 U.S.C. § 1144(b) (5) (A) 11
29 U.S.C. § 1144(d) ietitiedinics 16
CAL. INS. CODE § 10277 (West 1972)... 9
CONN. GEN. STaT. ANN. § 88-174d (West Supp.

FEE EAE of NC 9
MD. ANN. Cope art. 48A, § 477E (1979)... 9
Mass. ANN. Laws ch. 175, § 22 (Michie/Law. Co-

of re CREE EES PRES ea ae 8
Mass. ANN. Laws ch. 175, § 47B (Michie/Law. Co-

op. 1977) a ee ee a ee 1
Mass. ANN. Laws ch. 175, § 47C (Michie/Law. Co-

EEE See eee tar ale ie 1,9
Mass. ANN. LAWS ch. 175, § 108(2) (a) (8)

(Michie/Law. Co-op. 1977) ................ 8
Mass. ANN. Laws ch. 175, §110D (Michie/Law.

RA A ARN ad, dl 8
Mass. ANN. LAws ch. 175, § 110(H) (Michie/

I I 8
Mass. ANN. Laws ch. 175, §118C (Michie/Law.

EE a ae ae Se, ea 9
MAss. ANN. Laws ch. 175, § 118L (Michie/Law.

SOIT ciccinclesiecciehesdikmstmnanliaitle lta Se Simm 9
Mass. ANN. Laws ch. 175, § 182(1) (Michie/Law.

ERE EE Ne ere rae 9
Mass. ANN. LAws ch. 175, § 182(6) (Michie/Law.

ene eer ey ee 9

Mass. ANN. Laws ch. 175, § 134(4) (Michie/Law.
ant Rae eid eee tice at Sp nel 8

vii

TABLE OF AUTHORITIES—Continued

Page
Mass. ANN. Laws ch. 175, § 142 (Michie/Law.

IE TD cactintiscedetiienictsiaiancngintmansinencniidatniimecgene 9
MINN. STAT. ANN. § 62A.149 (West Supp. 1984) .. 10
VA. CODE § 38.1-848.1 (1981) .........---2 2... eee eee 9
pf GS EE) 9
Wis. StaT. ANN. § 632.89 (West 1980)... 9
Wis. STAT. ANN. § 632.90 (West 1980) _..... 10

Legislative Materials:

H.R. Rep. No. 873, 78th Cong., Ist Sess. (1943) -... 15
H.R. REP. No. 148, 79th Cong., 1st Sess., reprinted

in 1945 U.S. Cope Conc. & AD. NEws 670........ 15
H.R. Rep. No. 1280, 93d Cong., 2d Sess., reprinted
in 1974 U.S. CoDE Conc. & AD. NEws 5038........ 6, 12

H.R. Rep. No. 1785, 94th Cong., 2d Sess. (1977).. 12, 13
S. 209, 96th Cong., Ist Sess., 125 Conc. REc. 933
I a a aia gla batiteentinaindnen 11
S. Rep. No. 1112, 78th Cong., 2d Sess. (1944) _....... 15, 20
S. REP. No. 127, 93d Cong., Ist Sess. (1973), re-
printed in 1974 U.S. CopE Conc. & AD. NEws
II, chntiniccrniciigainciiitinnsiinensacebiassiieiiiabatianiaticctiniactinesimnes 6
SENATE CoMM. ON LABOR AND HUMAN RESOURCES,
96TH CONG., LEGISLATIVE CALENDAR (final ed.

I iti enrtcteicaisnigdebiiinaeiaseninimmnpieninnts 11
89 ConG. REc. (1943)
i A oe rR 15
90 ConG. REc. (1944)
Na irninerteertiininchcttaslnnnintibidttaeetledigeiantatiatt 20

PRPVPP PUPP"
R
&
—_
wo

viii

TABLE OF AUTHORITIES—Continued

Page
SGT ee En ee Te TO PE 26
eC TS me a F - 20, 27
TE ee CO ee ae OE 27
IR ae Cn ee ITS aae 19
ESE ee we ae eR re 20
ES SI A ae Te ae a 19
91 CoNnG. REc. (1945)
ES ee ee eR 19
EERE ECTS SENS See a on One 21
heii eek aan aiden 20
EN A a a Pe cl 21
ISS ee On OC 19-20, 20
120 Conc. REc. (1974)
aa al lls 7
«nc 6, 7, 27
ya ees ae a 7
125 Conc. REG. (1979)
TE ee 11
General Court Joint Committee on Insurance, Ad-
vances in Health Insurance in Massachusetts
ARE A Ae CRO AS EC 7-8, 16

Texts, Treatises, and Other Authorities:

P. AREEDA, ANTITRUST LAW: AN ANALYSIS OF
ANTITRUST PRINCIPLES AND THEIR APPLICATION
I aD 18
Brummond, Federal Preemption of State Insurance
Regulation Under ERISA, 62 IowA L. REV. 57
SISNET Titi re eS dae es Bit 6, 13, 19, 25
Comment, ERISA Preemption and Indirect Regu-
lation of Employee Welfare Plans Through State
Insurance Laws, 78 COLUM. L. REV. 1536 (1978)... 6, 7,
14, 25
Manno, ERISA Preemption and the McCarran-
Ferguson Act: The Need for Congressional Act-
tion, 52 TEMPLE L.Q. 51 (1979) ........................ 9, 18, 19

1X

TABLE OF AUTHORITIES—Continued
Page

Okin, Preemption of State Insurance Regulation

by ERISA, 13 FoRuM 652 (1978) ..............--.-..----- 6, 9, 28
Peel, Regulatory Developments in Minimum Stand-

ards for Health Insurance Policies, 13 FORUM

GED CIID arcecccecrnrcerecscsnnscencmcncsascenccnniencenemmnecceceen 8, 10
Weller, The McCarran-Ferguson Act’s Antitrust

Exemption for Insurance: Language, History

and Policy, 1978 DUKE L.J. 587 ..................---------- 21, 25

INTEREST OF AMICI CURIAE

The American Psychological Association (APA) is a
voluntary nonprofit, scientific, a: professional organiza-
tion with more than 60,000 members. It has been the
major association of psychologists in the United States
since 1892. The APA’s purpose, as reflected in its by-
laws, is to “advance psychology as a science and profes-
sion, ard as a means of promoting human welfare.”

The Association for the Advancement of Psychology
(AAP) is a nonprofit corporation supported by the vol-
untary contributions of 6,000 psychologists. AAP seeks
to inform the three branches of government of the ethical,
professional, and scientific views of the psychological com-
munity.

The Massachusetts Psychological Association, with over
1650 members, is a state affiliate of the APA. It repre-
sents the scientific and professional interests of psycholo-
gists within Massachusetts, including psychologists work-
ing in academic and professional settings, both in public
and private institutions.

Amici file this brief pursuant to Rule 36.2 of the Rules
of this Court. The parties have consented to the filing of
the brief; their consents have been filed with the Clerk.

INTRODUCTION AND SUMMARY OF ARGUMENT

In 1973, the Massachusetts legislature enacted an in-
surance statute requiring all group health insurance pol-
icies to provide specified coverage for mental health bene-
fits. See Mass. Ann. Laws ch. 175, § 47B (Michie/Law.
Co-op. 1977) (Section 47B). The Massachusetts Supreme
Judicial Court—properly in the view of amici—rejected
appellants’ arguments that this statute is preempted by
the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001 et seg., and by the National
Labor Relations Act (NLRA), 29 U.S.C. § 151 et seg.

Although Section 47B arguably relates to employee
benefit plans and therefore falls within the scope of
ERISA’s preemption provision, it is excepted from pre-
emption by ERISA’s insurance savings clause, which was
meant to preserve the long line of state statutes, includ-

2

ing Section 47B, that regulate the contents of insurance
policies. The one exception to the insurance savings
clause, which prohibits States from deeming employee
benefit plans to be insurers, does not apply to Section
47B, which regulates only insurance companies.

The decision below is additionally supported by the
McCarran-Ferguson Act, 15 U.S.C. § 1011 et seg., which
represents Congress’ judgment that, as a matter of fed-
eral policy, insurance regulation should be performed by
the States.

This case does not involve a conflict between Section
47B and ERISA, as appeilants would have this Court be-
lieve. Rather, any conflict that does exist is between
ERISA and the McCarran-Ferguson Act. For this rea-
son, this Court’s usual reluctance to weigh conflicting pol-
icy considerations is particularly appropriate here.

ARGUMENT

I. ERISA WAS NOT INTENDED TO PREEMPT MAN-
DATED BENEFIT STATUTES.

ERISA’s preemption provision, § 514(a), 29 U.S.C.
§ 1144(a), provides that the Act “shall supersede any and
all State laws insofar as they may now or hereafter re-
late to any employee benefit plan described in section
1003(a) of this title and not exempt under section
1003(b) of this title.”

There is no question that the benefit plans at issue here
are “employee benefit plans” as defined in 29 U.S.C.
§ 1003. The only issues are whether Section 47B “re-
lates to” employee benefit plans within the meaning of
§ 1144, and, if so, whether the statute falls within one of
the express exceptions to § 1144.

A. Arguably, the Massachusetts Statute “Relates to”
Employee Benefit Plans Governed by ERISA.

In Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504
(1981), the Court held that ERISA preempted a state
statute prohibiting the reduction of a retiree’s pension
benefits by the amount of workers’ compensation awards

3

the retiree received subsequent to retirement. After find-
ing that Congress had actually contemplated and ap-
proved such an offset of pension benefits, the Court con-
cluded that the statute “ ‘relate[s] to pension plans’ gov-
erned by ERISA because it eliminates one method for
calculating pension benefits . . . permitted by federal
law.” Id. at 524.

The Court’s conclusion was not altered by the fact that
the statute “intrudes indirectly, through a workers’ com-
pensation law rather than directly, through a statute
called ‘pension regulation.’” Jd. at 525. Rather, the
Court concluded that “even indirect state action bearing
on private pensions may encroach upon the area of ex-
clusive federal concern.” /d.

Then, in Shaw v. Delta Air Lines, Inc., 103 S. Ct. 2890
(1983), the Court held that the New York Human Rights
Law and the State’s Disability Benefits Law “related to”
pension plans governed by ERISA. The Court reasoned
that “[a] law ‘relates to’ an employee benefit plan, in
the normal sense of the phrase, if it has a connection
with or reference to such a plan.” Jd. at 2900. Applying
this definition, the Court concluded that “the Human
Rights Law, which prohibits employers from structuring
their employee benefit plans in a manner that discrimi-
nates on the basis of pregnancy, and the Disability Bene-
fits Law, which requires employers to pay employees spe-
cific benefits, clearly ‘relate to’ benefit plans.” Jd.

ERISA does not specify which benefits must be included
in employee benefit plans. Accordingly, Section 47B does
not conflict with any provision of ERISA so as to “relate
to” benefit plans in the sense in which that term was used
in Alessi. But Alessi does suggest that the fact that the
mandated benefit statute is nominally an insurance law,
rather than a benefits plan law—and therefore bears on
benefit plans only indirectly—would not save the Massa-
chusetts statute from preemption under ERISA. And be-

1 Although Section 47B does require employee benefit plans to
provide the mental health benefits specified in the statute, there has

4

cause Section 47B does require that insurance policies is-
sued to benefit plans provide specified mental health bene-
fits, it arguably “relates to” those employee benefit plans
just as the Disability Benefits Law did in Shaw.

The Massachusetts statute can, however, be distin-
guished from the New York laws at issue in Shaw. New
York’s Human Rights Law had been interpreted by the
state courts to prohibit any employer from maintaining
an employee benefit plan that treated pregnancy differ-
ently from other nonoccupational disabilities. See 103
S. Ct. at 2895. The Disability Benefits Law expressly
required all employers to provide the same benefits for
pregnancy-related disabilities as for any other disability.
See id. at 2896. The Massachusetts statute, by contrast,
requires that mental health benefits be provided to only
certain employees—those whose benefit plan is covered by
an insurance policy. The statute thus “relates to” only
those employee benefit plans, and not to benefit plans gen-
erally. Arguably, the statute’s indirect relation to only a
subset of employee benefit plans governed by ERISA takes
it outside the scope of the preemption provision.

Most of the courts that have considered ERISA’s effect
on mandated benefit statutes have, however, concluded
that such statutes do “relate to” employee benefit plans
governed by ERISA.* Accordingly, although the point is

been no attempt to enforce Section 47B against employee benefit
plans and the Commonwealth apparently concedes that that part of
the statute is preempted by ERISA. The Massachusetts Supreme
Judicial Court, relying on state law, found that the portion of Sec-
tion 47B applicable to employee benefit plans was severable from the
portion applicable to insurance policies. See Attorney General v.
Travelers Ins. Co., 385 Mass. 598, 601, 483 N.E.2d 1223, 1225
(1982), reprinted in App. to Juris. Stmts. at 18a, 15a-16a. This
state law ruling is binding on this Court; accordingly, the only
question before the Court is the effect of ERISA on the portion of
Section 47B regulating insurance policies.

2 See, e.9., Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d
323, 329 (2d Cir. 1982), aff'd mem., 108 S. Ct. 3564 (1983) ; Stand-
ard Oil Co. v. Agsalud, 683 F.2d 760, 766 (9th Cir. 1980}, aff’d
mem., 454 U.S. 801 (1981); Wadsworth v. Whaland, 562 F.2d 70,
77 (1st Cir. 1977), cert. denied, 485 U.S. 980 (1978).

5

not free from doubt, amici will assume here that Section
47B does “relate to” employee benefit plans.

B. The Massachusetts Statute Is a Law Regulating
Insurance and Is Therefore Excepted from ERISA’s
Preemption Provision.

Even if Section 47B “relates to” employee benefit plans
within the terms of the ERISA preemption provision, the
statute is not preempted if it falls within one of the ex-
press exceptions to the reach of the preemption provision.
The relevant exception here, the so-called insurance sav-
ings clause, is set forth in 29 U.S.C. § 1144(b) (2) (A):

“Except as provided in subparagraph (B), nothing
in this subchapter shall be construed to exempt or
relieve any person from any law of any State which
regulates insurance... .”

This Court’s prior decisions are of little assistance in
determining whether Section 47B is a law which regulates
insurance within the meaning of this savings clause. In
both cases, the Court noted that state laws regulating in-
surance are excepted from ERISA’s broad preemption
provision.* But the insurance savings clause was not at
issue in either case, and therefore the Court did not
elaborate on the reach of that provision. In fact, the
Court made clear in Alessi that it was not ruling on the
applicability of ERISA’s preemption provision in cases
such as this. See 451 U.S. at 525 n. 21.

Congress’ intent in excepting state laws regulating in-
surance from the scope of the ERISA preemption provi-
sion cannot be determined from the language of that
statute. Nowhere in ERISA does Congress define the
phrase “law . . . which reg..ates insurance” or give any
clue to its meaning. But it should be noted that Congress
used very broad language in the insurance savings
clause: it preserves “any law of any State which regu-
lates insurance... .” (Emphasis added.)

8 See Shaw v. Delta Air Lines, Inc., 108 S. Ct. 2890, 2897 (1983) ;
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 n. 19 (1981).

6

The legislative history does not address the scope of the
insurance savings clause. Until the ERISA bill emerged
from confererence, every prior version of the preemption
provision had superseded state law only in the specific
areas regulated by ERISA. The Conference Committee
broadened the preemption provision to include all state
laws that relate to pension plans, rather than only those
dealing with subjects regulated by ERISA, but the Com-
mittee did not comment on the reasons for the change.
See H.R. Rep. No. 1280, 93d Cong., 2d Sess., reprinted in
1974 U.S. Code Cong. & Ad. News 5038, 5162. With re
spect to the insurance savings clause, the Conference Re-
port merely states: “The preemption provisions of title I
are not to exempt any person from any State law that
regulates insurance... .” Id.*

Moreover, the Conference Committee’s changes were not
disclosed until the Conference Reports were filed with Con-
gress fewer than ten days before the statute was passed
in August 1974. See Brummond, Federal Preemption of
State Insurance Regulation Under ERISA, 62 Iowa L.
Rev. 57, 115-16 (1976). Thus, “the present language of
section 514 was inserted by the Conference Committee at
a very late hour, after no congressional hearings, and
with little explanatory comment... .” Jd. at 116.°
®

* The legislative history of prior versions of the preemption provi-
sion is similarly unenlightening. See, e.g., S. REP. No. 127, 93d
Cong., Ist Sess. 35, 47 (1973), reprinted in 1974 U.S. CoDE CONG.
& AD. NEWS 4838, 4871, 4883.

5In addition, Congress was preoccupied during this period with
the issues arising from President Nixon’s resignation on August 9,
1974. See 120 Conc. REc. 29,933 (1974) (remarks of Sen. Javits).
“fI]t would be naive to suppose that during this period any serious
attention could have been devoted to such matters as the status
of an obscure preemption provision in a 250-page federal statute.”
Brummond, Federal Preemption of State Insurance Regulation
Under ERISA, 62 Iowa L. REv. 57, 116 (1976); see also Okin,
Preemption of State Insurance Regulation by ERISA, 13 ForuM
652, 678 (1978) ; Comment, ERISA Preemption and Indirect Regu-
lation of Employee Welfare Plans Through State Insurance Laws,
78 CoLum. L. REv. 1536, 1542 & n. 42 (1978) (hereafter cited as
ERISA Preemption Comment).

7

The few substantive comments concerning preemption
made during the debate on the Conference Reports
focused on the scope of § 1144(a), not on the exceptions
to preemption like the insurance savings clause. See
ERISA Preemption Comment, supra note 5, at 1542 &
n. 42. And the three veiled references that were made to
the savings clause during the debate on the Conference
Reports are not helpful in ascertaining the intended
reach of that clause. See 120 Cong. Rec. 29,942 (1974)
(remarks of Sen. Javits) (referring merely to “certain
exceptions .. .”) ; see also id. at 29,197 (remarks of Rep.
Dent) ; id. at 29,933 (remarks of Sen. Williams). There
is no indication in ERISA’s legislative history that Con-
gress recognized the tension between the preemption pro-
vision itself, which preempted any state law relating to
employee benefit plans, and the insurance savings clause,
which preserved all state laws regulating insurance. Thus,
there is absolutely no indication that Congress intended
to preempt state statutes such as this one.

The language and legislative history of the insurance
savings clause therefore require a presumption that Con-
gress intended to give the clause its ordinary meaning:
the Court “must give effect to this plain language unless
there is good reason to believe Congress intended the lan-
guage to have some more restrictive meaning.” Shaw v.
Delta Air Lines, Inc., 103 S. Ct. at 2900.

Interpreting the insurance savings clause according to
its plain meaning indicates clearly that Massachusetts’
mandated benefit statute is a law that regulates insurance
within the meaning of that clause. Section 47B is con-
tained in the chapter of the state statutes that pertains
to insurance. It was proposed by the legislature’s Joint
Committee on Insurance. It was enacted because the leg-
islature found that “[a] need . . . exists for all people
to be safeguarded against the high and sometimes crip-
pling costs of professional mental health care today” and
that “in order for the cost to be reasonable, insurance for
mental illness must be a mandatory feature on all policies
sold in the state.” General Court Joint Committee on In-

8

surance, Advances in Health Insurance in Massachusetts
9, 5 (Aug. 1974). And it operates by regulating the
contents of insurance policies. Certainly, these factors
suggest that Section 47B is a law that regulates insurance.

This conclusion is corroborated by the tradition of state
insurance regulations—begun long before ERISA was en-
acted—that, like Section 47B, govern the contents of in-
surance policies in an effort to protect the interests of the
insured. One commentator has noted that the first man-
dated benefit legislation was enacted in California in
1949. See Peel, Regulatory Developments in Minimum
Standards for Health Insurance Policies, 18 Forum 680,
682 (1978). Since that time, state legislatures have
passed a wide variety of mandated benefit legislation.

In Massachusetts, for example, since at least 1956 all
group life insurance policies have been required to guar-
antee that any insured who leaves the group will remain
insured under the policy for a certain period unless he
is otherwise entitled to similar benefits. See Mass. Ann.
Laws ch. 175, § 134(4) (Michie/Law. Co-op. 1977). A
similar provision governing group health insurance pol-
icies was enacted in 1967. See id. §110D. In 1960, the
legislature enacted a statute requiring insurance policies
to provide coverage for those hospitalized or receiving
treatment in a state soldiers’ home. See id. § 22. In 1962,
the Commonwealth required all health insurance policies
that provide for termination of a dependent child’s cover-
age at a specified age to continue coverage if the child is
“mentally or physically incapable of earning his own liv-
ing on the termination date... .” Id. § 108(2) (a) (3).
In 1973, in addition to enacting Seciton 47B, the legisla-
ture required all group health insurance policies to pro-
vide certain specified benefits for the treatment of al-
coholism. See id. §110(H). These are only some of the
many provisions in the Massachusetts statutes regulating
insurance that have been in existence since ERISA was
enacted and that mandate specific insurance benefits.*

® See also, e.g., MASS. ANN. LAWS ch. 175, § 22 (Michie/Law.
Co-op. 1977) (prohibiting certain insurance policy provisions;

9

Thus, “a myriad of state enactments . . . have provided
for years the guidance as to what is and is not permissi-
ble in the writing of insurance for employee groups.”
Manno, ERISA Preemption and the McCarran-Ferguson
Act: The Need for Congressional Action, 52 Temple L.Q.
51, 56 (1979). See also Okin, supra note 5, at 656 (“State
insurance departments have long exercised jurisdiction
over the content of individual and group accident and
health policies issued in their state by insurance car-
riers.”’) .”

adopted before 1960) ; id. §47C (requiring all group health insur-
ance policies to provide coverage for newborn infants and adopted
children, including coverage of birth abnormalities; adopted on
August 9, 1974) ; id. §§ 118C, 118L (requiring all automobile insur-
ance policies to include certain coverage; adopted in 1968); id.
§ 182(1) (requiring life insurance policies to contain a provision
providing that the insured is entitled to a thirty-day grace period
within which to pay any premium due after the first year; adopted
by 1983); id. §§ 182(6), 142 (requiring life insurance policies to
include a provision entitling the insured to a loan on the policy at a
specified interest rate; adopted by 1943).

7 California, Florida, Michigan, Missouri, and Virginia enacted
legislation between 1968 and 1972 that requires insurers to extend
major medical coverage to dependents who are disabled when they
reach the age where they would otherwise be terminated from
coverage under the terms of the policy. See Wayne Chemical, Inc. v.
Columbus Agency Service Corp., 426 F. Supp. 316, 324 n. 8 (N.D.
Ind. 1977), modified on other grounds, 567 F.2d 692 (7th Cir. 1977) ;
Va. Cope § 38.1-348.1 (1981). In 1971, Wisconsin required group
health insurance policies to provide coverage for treatment of alco-
holism, see Wis. STAT. ANN. § 632.89 (West 1980), and Connecticut
required such policies to provide mental health benefits, see CONN.
GEN. STAT. ANN. § 38-174d (West Supp. 1984). Since 1971, Cali-
fornia has required that any group hospital, medical, or surgical
policy provide coverage for mentally or physically handicapped de-
pendents of the insured after the dependents reach the age of major-
ity. See CaL. INS. Cope § 10277 (West 1972). In 1973, the Virginia
legislature passed a statute requiring all plans for furnishing pre-
paid medical services to pay for services rendered by licensed
psychologists, podiatrists, chiropractors, and optometrists. See
Va. Cope § 38.1-824 (1981). Since 1973, Maryland has required all
health insurance policies to provide mental health benefits, see MD.
ANN. Cope art. 48A, § 477E (1979); Minnesota has required that

10

When ERISA was enacted, therefore, there was already
a long tradition of state regulation of the contents of in-
surance policies. Congress must have been aware of that
fact—especially since at that very time insurance com-
panies and state insurance commissioners were develop-
ing policies on mandated benefit statutes.* And Congress
was obviously aware that some pension plans might pur-
chase insurance because ERISA defines “employee wel-
fare benefit plan” as a plan that provides certain benefits
“through the purchase of insurance or otherwise... .”
29 U.S.C. § 1002(1). If Congress had intended to end the
States’ longstanding tradition of regulating the contents
of insurance policies, it would likely have limited the in-
surance savings clause in some fashion. See Insurance
Comm’r v. Metropolitan Life Ins. Co., 296 Md. 334, 340,
463 A.2d 793, 796 (1983).° The fact that it did not sug-

all health insurance policies provide coverage for treatment of alco-
holism and drug dependence, see MINN. STAT. ANN. § 62A.149
(West Supp. 1984); and Wisconsin has required that every group
health policy offer certain coverage for treatment of tuberculosis,
see Wis. STAT. ANN. § 632.90 (West 1980).

8In fact, state mandated benefit statutes were sufficiently com-
mon prior to the enactment of ERISA to attract considerable atten-
tion by the insurance industry. In late 1971, the Health Insurance
Association of America (HIAA), which filed an amicus brief in
support of appellants’ jurisdictional statements, appointed a Task
Force on Minimum Standards for Health Insurance Policies. The
National Association of Insurance Commissioners (NAIC) began
deliberations on minimum standards legislation in late 1972; in
December 1973, the NAIC adopted a model mandated benefit
statute. In early 1974, the HIAA Task Force then began to
develop its recommendations for a model statute and, in May
1974, submitted a draft to the NAIC. See Peel, 18 Forum at 682-
86. The amicus brief filed by HIAA in this case indicates that the
association has a membership of 327 private insurance companies,
including both appellants, and that these companies write more than
eighty-five percent of the health insurance policies written by pri-
vate insurance companies in this country. See Brief Amicus Curiae
of Health Insurance Association of America in Support of Jurisdic-
tional Statements at 1. HIAA’s Vice President and General Counsel
is Joe W. Peel, the author of the article cited above.

* In fact, a bill was introduced in 1979 to amend ERISA to provide
that state mandated benefit statutes are not preserved by the insur-

11

gests that the insurance savings clause was actually in-
tended to mean what it says and thus to preserve state
laws like Section 47B.

The overwhelming majority of courts that have con-
sidered this issue have concluded that mandated benefit
laws are laws that regulate insurance and thus within the
scope of the insurance savings clause.’®

C. The Massachusetts Statute Does Not Fall Within
the Scope of the “Deemer Provision.”

Although Section 47B must be considered a state law
regulating insurance, it is nonetheless preempted by

ance savings clause. See S. 209, 96th Cong., Ist Sess. § 155, 125
Conc. REc. 933, 937 (1979). The bill was intended to overrule the
court’s decision in Wadsworth v. Whaland, 562 F.2d 70 (1st Cir.
1977), cert. denied, 485 U.S. 980 (1978). See 125 Conc. REc. 947
(1979) (remarks of Sen. Javits). Although the bill was reported to
the Senate, it apparently died without ever being debated. See
SENATE COMM. ON LABOR AND HUMAN RESOURCES, 96TH CONG.,
LEGISLATIVE CALENDAR 108, 111 (final ed. Jan. 4, 1981).

Admittedly, Congress’ failure to pass this bill does not necessarily
demonstrate its intent that the insurance savings clause exempt
mandated benefit statutes from preemption under ERISA. But this
postenactment history does indicate that Congress was at least
aware of the courts’ interpretation of the insurance savings clause,
and “it lends weight to the argument... .” that the savings clause
was intended to except mandated benefit statutes. North Haven
Board of Education v. Bell, 456 U.S. 512, 534 (1982). Moreover, “the
relatively insubstantial interest given [this portion of S. 209] seems
particularly significant since Congress has proceeded to amend .. .”
ERISA’s preemption provision in another respect proposed by S. 209.
Id. Compare S. 209, 96th Cong., Ist Sess. § 155, 125 Conc. REc. 937
(1979), with 29 U.S.C. § 1144(b) (5) (A).

10 See, e.g., American Progressive Life & Health Ins. Co. v.
Corcoran, 715 F.2d 784, 787 (2d Cir. 1983); Wayne Chemical, Inc.
v. Columbus Agency Service Corp., 567 F.2d 692, 700 (7th Cir.
1977) ; Wadsworth v. Whaland, 562 F.2d at 77; St. Paul Elec.
Workers Welfare Fund v. Markman, 490 F. Supp. 981, 933 (D.
Minn. 1980) ; Insurance Comm’r v. Metropolitan Life Ins. Co., 296
Md. 334, 344-45, 463 A.2d 793, 798 (1983); Metropolitan Life Ins.
Co. v. Whaland, 119 N.H. 894, 901-02, 410 A.2d 635, 640 (1979)
(per curiam). But see Michigan United Food & Commercial Work-
ers Unions v. Baerwaldt, 572 F. Supp. 943 (E.D. Mich. 1983), appeal
docketed, No. 83-1570 (6th Cir. Aug. 16, 1983).

12

ERISA if it falls within the scope of the one exception
to the insurance savings clause. That exception, the so-
called “deemer provision,” provides that an employee
benefit plan may not “be deemed to be an insurance com-
pany or other insurer, . . . or to be engaged in the busi-

ness of insurance .. . for purposes of any law of any
State purporting to regulate insurance companies [or]
insurance contracts... .” 29 U.S.C. § 1144(b) (2) (B).

The plain meaning of that provision indicates that it
does not apply to the statute in question here. The
deemer provision clearly states only that a State may
nut deem an employee benefit plan to be an insurance
company and thereby attempt to apply its insurance
laws to the benefit plan.

No legislative history suggests that the deemer provi-
sion was intended to mean anything other than what it
says. The Report explaining the Conference Committee’s
amendments to the. preemption provision merely restates
the language of the deemer provision without clarifying
its meaning. See H.R. Rep. No. 1280, 93d Cong., 2d Sess.,
reprinted in 1974 U.S. Code Cong. & Ad. News 5038,
5162. And there was no mention of the deemer provision
either during the debate on the Conference Report or in
prior Committee Reports.

Subsequent legislative history does, however, confirm
that the deemer provision should be interpreted accord-
ing to its plain meaning. An activities report issued in
1977 by the Subcommittee on Labor Standards of the
House Committee on Education and Labor explains: “the
‘deemed’ language was utilized to create an irrebuttable
presumption that these [employee benefit] plans are not
insurance ... for purposes of state regulation. ... The
irrebuttable presumption would not be overcome even if
an employee benefit plan engages in activities which
bring it within the insurance . . . activities generally
regulated by a state.” H.R. Rep. No. 1785, 94th Cong.,
2d Sess. 47 (1977). Thus, the Report makes clear that,
even though self-insured employee benefit plans may have
some of the characteristics of insurance, the deemer pro-

13

vision prohibits a state from applying its insurance regu-
lations to such benefit plans on the ground that they are
engaged in the business of insurance.“ The Report then
goes on to point out that an insurance policy sold to an
employee benefit plan is subject to state regulation:
“'Cljertain entrepreneurs have undertaken to mar-
ket insurance products to employers and employees
at large, claiming these products to be ERISA cov-
ered plans. .. . The entrepreneur will then argue
that his enterprise is an ERISA benefit plan which
is protected, under ERISA’s preemption provision,
from state regulation. ... [T]hese plans are...
no more ERISA plans than is any other insurance
policy sold to an employee benefit plan.
“To the extent that such programs fail to meet the
definition of an ‘employee benefit plan,’ state regu-
lation of them is not preempted by section 514, even
though such state action is barred with respect to
the plans which purchase these ‘products.’” Id. at
48 (emphasis added). .
This subsequent history is not conclusive evidence of the
deemer provision’s meaning, but it does provide evidence
of Congress’ intent, especially in the absence of contem-
poraneous legislative history. See, e.g., North Haven
Board of Education v. Bell, 456 U.S. 512, 5385 (1982).

Thus, the courts have interpreted the deemer provision
to prohibit States from regulating self-insured employee
benefit plans under their insurance laws.” But the ma-

11 See, e.g., Brummond, supra note 5, at 77, 90-91; Manno, ERISA
Preemption and the McCarran-Ferguson Act: The Need for Con-
gressional Action, 52 TEMPLE L.Q. 51, 59 (1979). Because no self-
insured benefit plans are involved here, the Court need not rule on
the proper application of the ERISA preemption provision in cases
involving self-insured plans—for example, whether the deemer pro-
vision prohibits a state from applying its insurance regulations to
a self-insured benefit plan if additional factors, aside from the mere
fact of self-insurance, indicate that the plan is engaged in the
business of insurance. Likewise, the Court need not attempt to
define Srecisely what is a self-insured plan.

12 See, e.g., Hewlett-Packard Co. v. Barnes, 425 F. Supp. 1294,
1800 (N.D. Cal. 1977), aff'd, 571 F.2d 502, 504 (9th Cir.) (per

14

jority of courts have also concluded that the deemer pro-
vision does not apply to mandated benefit statutes, like
Section 47B, that regulate the contents of insuran + poli-
cies sold to employee benefit plans.

If the deemer provision is interpreted more broadly to
bar state regulation of insurance policies issued to em-
ployee benefit plans, it would nullify the insurance sav-
ings clause. ERISA preempts all state insurance laws
that “relate to” employee benefit plans, unless they are
excepted by the savings clause. And the deemer provision
prohibits States from directly regulating employee bene-
fit plans. If the deemer provision is also interpreted to
preempt all state laws that regulate the contents of in-
surance policies purchased by benefit plans, no state in-
surance laws relating to benefit plans would be left for
the savings clause to save—rendering the savings clause
superfluous, in violation of the well-established principle
that legislation should be construed so as to give effect
to each part. See, e.g., McDonald v. Thompson, 305 U.S.
263, 266 (1938). Thus, the deemer provision cannot be
read to preempt Section 47B, and that statute must fall
within the scope of the insurance savings clause.

Il. THE McCARRAN-FERGUSON ACT WAS INTENDED
TO PRESERVE MANDATED BENEFIT STATUTES.

Any doubt about ERISA’s effect on mandated benefit
statutes is laid to rest by the McCarran-Ferguson Act,
15 U.S.C. § 1011 et seg., which provides in relevant part:

curiam), cert. denied, 439 U.S. 831 (1978); Russo v. Boland, 103
Ill. App. 3d 905, 909-10, 431 N.E.2d 1294, 1298 (1982).

13 See Wadsworth v. Whaland, 562 F.2d at 77-78; McLaughlin v.
Connecticut General Life Ins. Co., 565 F. Supp. 434, 448-44 (N.D.
Cal. 1983) ; Eversole v. Metropolitan Life Ins. Co., 500 F. Supp. 1162,
1169 (C.D. Cal. 1980); Cate v. Blue Cross & Blue Shield, 434
F. Supp. 1187, 1190 & n. 5 (E.D. Tenn. 1977); Insurance Comm’r
v. Metropolitan Life Ins. Co., 296 Md. at 344-45, 463 A.2d at 798;
Metropolitan Life Ins. Co. v. Whaland, 119 N.H. at 902-03, 410 A.2d
at 640; ERISA Preemption Comment, supra note 5, at 1540-41. But
see, e.g., General Split Corp. v. Mitchell, 528 F. Supp. 427, 430
(E.D. Wis. 1981).

15

“The business of insurance, and every person engaged
therein, shall be subject to the laws of the several States
which relate to the regulation or taxation of such busi-
ness.” Jd. § 1012(a).

The first paragraph of the Act declares the congres-
sional policy that “the continued regulation and taxation
by the States of the business of insurance is in the public
interest.” Jd. § 1011. Thus, the Act represents Congress’
judgment that, as a matter of federal policy, the regula-
tion of insurance should be performed by the States.”
Congress recognized that the States had traditionally ex-
ercised this power” and wanted to ensure the preserva-
tion of such authority in the States,’* which, in Congress’
view, were best able to undertake such regulation.’” As
this Court noted in SEC v. Variable Annuity Life Ins.
Co. of America, 359 U.S. 65, 68 (1959), “l[w]hen the
States speak in the field of ‘insurance,’ they speak with
the authority of a long tradition.”

The McCarran-Ferguson Act is helpful in determining
the reach of ERISA’s preemption provision for two ad-
ditional, independent reasons. First, the meaning of the
McCarran-Ferguson Act’s reference to state “laws...
which relate to the regulation . . . of [the] business [of
insurance],” 15 U.S.C. §1012(a), aids in defining the
meaning of the similar phrase, state “law which regu-

14 See, e.g., H.R. REP. No. 143, 79th Cong., 1st Sess. 3, reprinted in
1945 U.S. CopE Conc. & AD. NEws 670, 672; S. Rep. No. 1112, 78th
Cong., 2d Sess. 3, 7 (1944) ; 90 Conc. Rec. 6525 (1944) (remarks of
Rep. Walter); SEC v. National Securities, Inc., 393 U.S. 458, 458
(1969).

15 See, e.g., H.R. REP. No. 148, 79th Cong., Ist Sess. 2, reprinted
in 1945 U.S. CopE Conc. & AD. NEws 670, 670-71; S. Rep. No. 1112,
78th Cong., 2d Sess. 2 (1944) (noting that the States “have regu-
lated insurance for over 90 years ...’’).

16 See, e.g., H.R. REP. No. 873, 78th Cong., Ist Sess. 6 (1943); 89
CoNnéG. REc. 10,659 (1943) (remarks of Rep. Miller).

17 See, e.g., S. REP. No. 1112, 78th Cong., 2d Sess. 5, 7 (1944);
90 Conc. REc. 6524 (1944) (remarks of Rep. Walter).

16

lates insurance,” found in the insurance savings clause."
Second, the final paragraph of ERISA’s preemption pro-
vision indicates that Congress expressly intended that
ERISA not alter or impair any federal statute, including
the McCarran-Ferguson Act. See 29 U.S.C. § 1144(d).

A. The Relevant Caselaw Compels the Conclusion that
Section 47B Is a Statute that Regulates the Business
of Insurance.

This Court’s decisions interpreting the McCarran-
Ferguson Act have identified three criteria relevant in
determining whether a particular practice falls within
the Act’s reference to the “business of insurance”: “first,
whether the practice has the effect of transferring or
spreading a policyholder’s risk; second, whether the prac-
tice is an integral part of the policy relationship between
the insurer and the insured; and third, whether the prac-
tice is limited to entities within the insurance industry.”
Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129
(1982) (emphasis in original). Mandated benefit stat-
utes like Section 47B satisfy all three criteria.

The first criterion was set forth in detail in Group Life
& Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 212,
211 (1979), where the Court noted that one “indispensa-
ble characteristic of insurance” is “the spreading and
underwriting of a policyholder’s risk.” Section 47B un-
questionably relates to the spreading and underwriting
of risk. The statute reflects a legislative judgment that
the costs of mental health care should be underwritten by
health insurance policies and that the risk of costly mental
health care should be shared. See General Court Joint
Committee on Insurance, Advances in Health Insurance
in Massachusetts 5 (Aug. 1974); Superior Court Find-
ings & Conclusions, reprinted in App. to Juris. Stmts. at
36a, 50a-51a. It therefore requires that insurance policies
insure against “the risk that policyholders will be unable

18 See, e.g., Marks v. United States, 161 U.S. 297, 302 (1896);
McLaughlin v. Connecticut General Life Ins. Co., 565 F. Supp. 434,
443 (N.D. Cal. 1983); Metropolitan Life Ins. Co. v. Whaland, 119
N.H. 894, 901, 410 A.2d 635, 639 (1979) (per curiam).

17

to pay for [the cost of mental health care] during the
period of coverage.” Royal Drug, 440 U.S. at 218. By
requiring certain coverage in all insurance policies, Sec-
tion 47B “defines the scope of risk assumed by the in-
surer from the insured” and has a direct impact on “the
measure of the risk” that is transferred to the insurer.
Pireno, 458 U.S. at 131, 130.

The second criterion was set forth in detail in SEC v.
National Securities, Inc., 393 U.S. 4538, 460 (1969),
where the Court noted that the McCarran-Ferguson Act
‘was concerned with the type of state regulation that cen-
ters around the contract of insurance... . The rela-
tionship between insurer and insured, the type of policy
which could be issued, its reliability, interpretation, and
enforcement—these were the core of the ‘business of in-
surance.’” Congress’ “focus,” the Court continued, “was
on the relationship between the insurance company and
the policyholder. Statutes aimed at protecting or regulat-
ing this relationship, directly or indirectly, are laws regu-
lating the ‘business of insurance.’ ” Id.

Section 47B clearly falls within the scope of this cri-
terion. The statute “centers around the contract of in-
surance” by prescribing terms that must be included
within that contract, and it determines “the type of
policy which [can] be issued.” And Section 47B is an
attempt by the legislature to “secure the interests of those
purchasing insurance policies,” id., by requiring that the
insurer provide certain safeguards to all policyholders.
Unlike Pireno, therefore, this case involves a statute that
is “an integral part of the policy relationship between the
insurer and insured.” 458 U.S. at 131.

The third criterion is likewise present in this case.
Mandated benefit statutes impose requirements solely on
insurers, and their purpose is to affect only the relation-
ship between insurers and their policyholders; they do
not “inevitably involve[] third parties wholly outside the
insurance industry... .” Id. at 132.’°

19 See also, e.g., Feinstein v. Nettleship Co., 714 F.2d 928, 932
(9th Cir. 1983), cert. denied, 104 S. Ct. 2846 (1984) (noting that

18

Thus, this Court’s prior decisions interpreting the
scope of the McCarran-Ferguson Act indicate clearly that
Section 47B is a law that regulates the business of in-
surance and is not to be superseded by any federal stat-
ute. This conclusion has likewise been reached by the
vast majority of courts which have considered the ques-
tion whether the type of benefits offered by an insurance
policy fall within the scope of the McCarran-Ferguson
Act. In Grant v. Erie Ins. Exchange, 542 F. Supp. 457
(M.D. Pa. 1982), aff'd mem., 716 F.2d 890 (3d Cir.),
cert. denied, 104 S. Ct. 349 (1983), for example, the
plaintiffs challenged the defendant insurance companies’
refusal to provide insurance coverage for work loss bene-
fits to persons who died in automobile accidents. Noting
that “‘[m]atters of .. . extent of coverage... go to the
very heart of the relationship between the insurance
company and the policyholder ... ,’” the court held that
the McCarran-Ferguson Act was applicable in that case.
Id. at 462 (quoting Mcllhenny v. American Title Ins.
Co., 418 F. Supp. 364, 369 (E.D. Pa. 1976) ).”

the term “entities within the insurance company” includes insurers
and insureds).

20 Likewise, in Anglin v. Blue Shield, 693 F.2d 315 (4th Cir.
1982), the plaintiff challenged Blue Shield’s refusal to offer him a
policy protecting himself and his minor child; Blue Shield would
offer such a policy only if it also covered the plaintiff’s wife. The
court concluded that the McCarran-Ferguson Act was anplicable
because “[t]he allegations in the plaintiff’s complaint are the very
essence of the relationship between insurer and policyholder. He has
alleged that Blue Cross/Blue Shield has refused to offer the exact
coverage that he prefers.” Jd. at 320.

See also, e.g., Perry v. Fidelity Union Life Ins. Co., 606 F.2d 468,
476 (5th Cir. 1979), cert. denied, 446 U.S. 987 (1980) ; Lowe v. Aarco-
American, Inc., 5386 F.2d 1160, 1162 (7th Cir. 1976); Addrisi v.
Equitable Life Assurance Soc’y of United States, 503 F.2d 725 (9th
Cir. 1974), cert. denied, 420 U.S. 929 (1975); Dawson v. Whaland,
529 F. Supp. 626, 682 (D.N.H. 1982) ; Pierucci v. Continental Cas-
ualty Co., 418 F. Supp. 704 (W.D. Pa. 1976); New Hampshire-
Vermont Health Service v. Whaland, 119 N.H. 886, 893, 410 A.2d
642, 647 (1979) (per curiam); P. AREEDA, ANTITRUST Law: AN

19

B. The Legislative History Compels the Conclusion
that Section 47B Is a Statute that Regulates the
Business of Insurance.

The legislative history of the McCarran-Ferguson Act
provides further confirmation that Congress intended
that federal laws like ERISA should not interfere with
state statutes like Section 47B. Although the phrase
“laws ... which relate to the regulation . . . of [the]
business [of insurance]” is not defined in the legislative
history of the McCarran-Ferguson Act, that history in-
dicates that Congress clearly understood that the Act
would protect state laws regulating the terms and con-
tents of insurance policies and the types of coverage and
benefits offered. For example, Sen. Ferguson, one of
the sponsors of the Act, observed that “a state law relat-
ing to... the fixing of the terms of a contract of insur-
ance ... would be permitted... .” 91 Cong. Rec. 480
(1945) .2* As this Court noted in Prudential Ins. Co. v.
Benjamin, 328 U.S. 408, 430 (1946), “Congress must
have had full knowledge of the nation-wide existence of
state systems of regulation and taxation . . .” when it
enacted the McCarran-Ferguson Act.

Moreover, that Act was intended to give the States
very broad power to regulate the business of insurance.
“The unequivocal language of the Act suggests no excep-
tions.” Western & Southern Life Ins. Co. v. State Board
of Equalization, 451 U.S. 648, 653 (1981) (emphasis
added). Thus, Sen. Ferguson noted that the Act gave
the States “full power to act by legislation... .” 91

ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION 43
(1982 Supp.) ; Brummond, supra note 5, at 104; Manno, supra note
11, at 538.

21 See also, e.g., 90 CONG. REC. 6561 (1944) (remarks of Rep.
Anderson) (“the States [do] have a right to control risks . . . and
all the other things which the average insurance men recognize come
under State regulations’) ; id. at 6528 (remarks of Rep. Miller) ;
id. at 6536 (remarks of Rep. Howell) ; id. at 6538 (remarks of Rep.
Springer) ; id. at 6546 (remarks of Rep. Voorhis) ; id. at 6556 (re-
marks of Rep. Graham).

20

Cong. Rec. 1481 (1945).% And throughout the legislative
history, the observation was frequently made that the Act
was meant to give the States broad discretion “to regu-
late insurance as they each see fit.” S. Rep. No. 1112,
78th Cong., 2d Sess. 5 (1944).*

Moreover, the latitude given the States to regulate the
business of insurance was not meant to apply only to the
precise forms of state regulation in existence in 1945
when the McCarran-Ferguson Act was passed. Rather,
the Act was intended to permit the States to take steps
to resolve any unforeseeable problems that might face
the insurance industry in the future. See 91 Cong. Rec.
483 (1945) (remarks of Sen. Radcliffe). Congress there-
fore recognized that the States would continue to make
use of “experimentation” in regulating insurance, S.
Rep. No. 1112, 78th Cong., 2d Sess. 6 (1944), to ensure
“[(pjrogress in insurance,” which “can be made only by
constantly liberalizing coverage and constantly reducing
costs.” 90 Cong. Rec. 6550 (1944) (remarks of Rep.
Ploeser). Thus, “enactment of the McCarran-Ferguson
Act ‘put the full weight of [Congress’] power behind ex-
isting and future state legislation... .’” Western &
Southern Life Ins. Co. v. State Board of Equalization,
451 U.S. at 654 (quoting Prudential Ins. Co. v. Ben-
jamin, 328 U.S. at 431) (emphasis added).

The McCarran-Ferguson Act was also meant to protect
state insurance laws from preemption by federal statutes
that might later be enacted. Thus, Sen. Ferguson ex-
plained, “if Congress should tomorrow pass a law relating
to interstate commerce, and should not specifically apply
the law to the business of insurance, it would not be an
implied repeal of this bill, and this bill would not be af-

22 See also, e.g., 91 CONG. REc. 483 (1945) (remarks of Sen.
Radcliffe) ; 90 Conc. REc. 6559 (1944) (remarks of Rep. Sumners) ;
St. Paul Fire & Marine Ins. Co. v. Barry, 488 U.S. 581, 551 (1978)
(referring to “the overall framework of plenary state regula-
tion ...”).

23 See also 91 CONG. REc. 1481 (1945) (remarks of Sen. Fergu-
son); 90 ConG. REc. 6418 (1944) (remarks of Rep. Allen).

21

fected ... .” 91 Cong. Rec. 481 (1945).% The Mc-
Carran-Ferguson Act therefore “remov([ed] obstructions
[to state regulation of insurance] which might be thought
to flow from [Congress’] power, whether dormant or
exercised, except as otherwise expressly provided in the
Act itself or in future legislation.” Prudential Ins. Co.
v. Benjamin, 328 U.S. at 429-30 (emphasis added) .*

24 Although the McCarran-Ferguson Act provides that a federal -
law that “specifically relates to the business of insurance” may be
construed to preempt state insurance regulations, 15 U.S.C. § 1012(b)
(emphasis added), that provision is not applicable in this case.
ERISA is not a law that specifically relates to the business of insur-
ance. Rather, ERISA specifically relates to employee benefit plans.
Moreover, it is difficult to understand how ERISA can be viewed as
a statute explicitly designed to repeal the McCarran-Ferguson Act
and to preempt state insurance regulations when ERISA expressly
indicates no intent to displace state insurance laws and no intent to
supersede the McCarran-Ferguson Act. See Cochran v. Paco, Inc.,
606 F.2d 460, 464 (5th Cir. 1979) ; Wadsworth v. Whaland, 562 F.2d
70, 78 (1st Cir. 1977), cert. denied, 485 U.S. 980 (1978).

Two courts have found that some portions of ERISA do specifically
relate to the business of insurance within the meaning of the
McCarran-Ferguson Act. See Hewlett-Packard Co. v. Barnes, 571
F.2d 502, 505 (9th Cir.) (per curiam), cert. denied, 439 U.S. 831
(1978) ; Wayne Chemical, Inc. v. Columbus Agency Service Corp.,
426 F. Supp. 316, 320 n. 1 (N.D. Ind. 1977), modified on other
grounds, 567 F.2d 692 (7th Cir. 1977). But neither court articu-
lated a persuasive rationale for its conclusion.

25 The portion of the McCarran-Ferguson Act providing that
the Act does not “affect in any manner the application to the
business of insurance .. .” of the NLRA is not relevant to this
case—even though some of the employee benefit plans that pur-
chase insurance policies from appellants are the result of col-
lective bargaining. 15 U.S.C. § 1014. That provision was meant
to codify this Court’s decision in Polish Nat'l Alliance v. NLRB, 322
U.S. 648 (1944), which held that the iabor relations of insurance
companies are subject to the NLRA. See, e.g., 91 Conc. Rec. 1090
(1945) (remarks of Rep. Gwynne); 90 Conc. REc. 6419 (1944)
(remarks of Rep. Allen); Weller, The McCarran-Ferguson Act’s
Antitrust Exemption for Insurance: Language, History and Policy,
1978 DUKE L.J. 587, 594. Thus, that section provides only that the
McCarran-Ferguson Act does not “jeopardize the rights of insur-
ance workers . . .” under the NLRA;; it therefore has no application

22

Thus, the McCarran-Ferguson Act was drafted to pro-
tect the long tradition of state regulation of the business
of insurance. Because mandated benefit statutes like Sec-
tion 47B regulate the business of insurance within the
meaning of the McCarran-Ferguson Act, that statute re-
quires, as a matter of federal policy, that such state stat-
utes be preserved. Thus, this case involves more than a
conflict between a state law—Section 47B—and a federal
law—ERISA. Rather, it involves a conflict between two
federal laws—ERISA and the McCarran-Ferguson Act.
Resolution of such a conflict might be difficult if Con-
gress had not indicated on two separate occasions in
ERISA that the important policies underlying the Mc-
Carran-Ferguson Act should prevail. Given the two ex-
press exceptions to the reach of ERISA’s preemption pro-
vision—the insurance savings clause and the provision
indicating that ERISA is not intended to impair any
federal law—any conflict between ERISA and the Mc-
Carran-Ferguson Act must be resolved in favor of the
latter, and therefore in favor of mandated benefit statutes
like Section 47B.

to this case. 90 CoNG. REc. 6526 (remarks of Rep. Brehm). See
also, e.g., Women in City Gov’t United v. City of New York, 515
F. Supp. 295, 304 (S.D.N.Y. 1981) ; John Hancock Mutual Life Ins.
Co. v. Commissioner of Ins., 349 Mass. 390, 397-98, 208 N.E.2d 516,
522 (1965).

Likewise, the NLRA does not itself preempt Section 47B. See
Malone v. White Motor Corp., 435 U.S. 497, 504-05 (1978) (noting
that “nothing in the NLRA ... expressly forecloses all state regula-
tory power with respect to those issues, such as pension plans, that
may be the subject of collective bargaining,” and that in another
statute, the predecessor to ERISA, Congress had “recognized and
preserved state authority to regulate pension plans. . .” without dis-
tinguishing those established by collective bargaining); see also
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 526 n. 28 (1981)
(noting that where Congress preserves the States’ role, the NLRA
does not preempt state regulation).

23

Ill. APPELLANTS’ NARROW READING OF THE IN-
SURANCE SAVINGS CLAUSE IS UNSUPPORT-
ABLE.

Appellants propose that ERISA’s insurance savings
clause be construed to preserve only “the traditional

areas of state insurance regulation . . .”—for example,
“licensing and examination of insurers, . . . minimum
capital and surplus requirements, ... [and] general over-

sight of insurance companies.” Brief for Appellant
Metropolitan Life Insurance Co. at 34-35. There is ab-
solutely no support for this exceedingly narrow reading
of the savings clause.

A. The Statutory Language, Legislative History, and
Judicial Construction of the Relevant Statutes Do
Not Support Appellants’ Reading of the Insurance
Savings Clause.

Appellants’ proposed construction of the savings clause
distorts the plain meaning of that clause, which broadly
preserves “any law of any State which regulates insur-
ance... .” It cannot be read to preserve only those
insurance laws that are to appellants’ liking.

Moreover, appellants’ interpretation of the insurance
savings clause renders it completely superfluous. ERISA’s
preemption provision supersedes only those state laws that
“relate to” employee benefit plans. But the types of in-
surance regulations appellants consider “traditional” are
in no way related to employee benefit plans. Rather, they
relate solely to insurance companies. If the insurance
savings clause is interpreted to preserve only those types
of insurance regulations, it has no meaning whatsoever
because such regulations are not even arguably preempted
by ERISA.

In addition, there is no support for appellants’ limited
definition of traditional areas of state insurance regula-
tion. In fact, there is a very long tradition of state
statutes, like Section 47B, that prescribe the contents of
insurance policies and that mandate that certain benefits
be included in those policies. See SEC v. Variable An-
nuity Life Ins. Co. of America, 359 U.S. 65, 79 (1959)

24

(acknowledging “[t]he traditional state insurance de-
partment regulation of contract terms...”). That tradi-
tion was solidly established when ERISA was enacted in
1974—and even when the McCarran-Ferguson Act was
enacted in 1945. If Congress had meant to exclude such
tradition.) forms of state insurance regulation from the
savings clause, it certainly would have so stated and
would not have applied that clause to “any law of any
State which regulates insurance... .” *°

B. The Relevant Policy Considerations Do Not Support
Appellants’ Reading of the Insurance Saviags
Clause.

Because appellants’ construction of the insurance sav-
ings clause is not supported by the relevant statutory
language, legislative history, or caselaw, they perforce
rely on policy considerations supposedly favoring their
reading of that clause. But “[t]hese policy considera-
tions were for Congress to weigh, and [this Court is]
not free to ignore the language and history of [ERISA
and the McCarran-Ferguson Act] even were [the Court]
to disagree with the legislative choice.” North Haven
Board of Education v. Bell, 456 U.S. 512, 536 n. 26
(1982). Moreover, “[r]eferral to the legislators is par-
ticularly appropriate in this case, as the policy aspects
may not be as one-sided as those painted by [appel-
lants].” Group Life & Health Ins. Co. v. Royal Drug Co.,
440 U.S. 205, 256 n. 26 (1979) (Brennan, J., dissenting).

26 In a case similar to this one, this Court rejected the Federal
Government’s narrow reading of the term “health insurance” as it
appeared in another federal statute. The Court relied on the ab-
sence of a definition of the term in the statute or legislative history,
and on the lack of support for the limited definition in the statutory
language or legislative history. Accordingly, the Court concluded
that the Federal Government had “offer[ed] no persuasive reasons
why the term ‘health insurance’ in [26 U.S.C.] § 22(b) (5) should be
limited to the particular forms of insurance conventionally made
available by cormmercial companies.” Haynes v. United States, 353
U.S. 81, 84 (1975). Similar reasoning requires rejection of appel-
lants’ narrow definition of the term “insurance” in the insurance
savings clause.

25

Leaving the task of balancing the relevant policies to
Congress is additionally appropriate in this case because
it involves a conflict between two federal statutes and
because Congress has already rejected attempts to amend
ERISA so as to preempt state mandated benefit laws.
See note 9, supra. Because amici believe that this Court
should not involve itself in weighing the conflicting pol-
icy considerations at issue in this case, we discuss them
only briefly and limit the discussion to points not ad-
dressed in the amicus brief of the Committee for Compre-
hensive Insurance Coverage.

Appellants’ construction of the insurance savings clause
would create an immense regulatory vacuum in the field
of insurance. It would result in the preemption of all
state statutes prescribing the contents of insurance pol-
icies—at least insofar as those statutes applied to policies
sold to employee benefit plans governed by ERISA. For
example, the statutes cited at pages 8-10 above would all
be subject to preemption.*’ There is no federal system for
the regulation of insurance to replace this comprehensive
and traditional scheme of state regulation. And ERISA
does not attempt to control the substance of health and
welfare benefits. In fact, the bulk of ERISA is directed
at pension plans, not at welfare plans like those at issue
in this case.** Ceasing all governmental regulation of
welfare benefit plans, other than ERISA’s disclosure and

27 Appellants’ attempt to dismantle the traditional state regula-
tion of the contents of insurance policies, leaving no federal regula-
tion in its place, is the latest in a long line of attempts by the
insurance companies to avoid regulation. See, ¢.g., Polish Nat'l
Alliance v. NLRB, 322 U.S. 643, 648-49 (1944); 90 Conc. REC.
6537-38 (1944) (remarks of Rep. Celler); Weller, supra note 25,
at 590, 592, 614.

*8 The statute's title suggests that Congress was primarily con-
cerned with pension benefit plans. Moreover, the scarcity of regula-
tory provisions applicable to welfare benefit plans and the congres-
sional hearings indicate that reform of private pension plans was
Congress’ main objective. See Brummond, supra note 5, at 61-638,
114, 115; ERISA Preemption Comment, supra note 5, at 1536 n. 4,
1546 n. 70.

26

fiduciary requirements, is completely inconsistent with
the legislative history of the McCarran-Ferguson Act,
which indicates that Congress wished to avoid “the grave
danger, unless something is done at once, that the insurance
companies will be absolutely unregulated.” 90 Cong. Rec.
6548 (1944) (remarks of Rep. Hobbs). It is likewise in-
consistent with the legislative history of ERISA, which
indicates that Congress wished to preserve the existing
scheme of state insurance regulation, and that Congress
was concerned with the inadequacy of governmental regu-
lation of employee benefit plans, see, eg., 29 U.S.C.
§ 1001.”

Appellants’ proposal would be exceedingly difficult to
administer. In defining “the traditional areas of state
insurance regulation,” they suggest a distinction between
“the wide range of state laws designed to protect the in-
surance purchaser from improper or imprudent conduct
by the insurance company” and “state laws whose purpose
and effect is to control plan content or the relationship
between the plan itself and the plan’s beneficiaries.”
Brief for Appellant Metropolitan Life Insurance Co. at
34. Not only is state control over the content of insurance
policies a traditional area of state insurance regulation,
but the very purpose of such control is to protect the pur-
chaser of insurance. Accordingly, appellants’ attempted
distinction has no meaning. Even appellants concede that
their construction of the insurance savings clause may
lead to “difficult line-drawing problems.” Jd. at 35.

In addition to ignoring the substantial policies dis-
served by their reading of the insurance savings clause,
appellants exaggerate the importance of the policies al-
legedly supporting their proposal. Appellants argue, for
example, that mandated benefit statutes make it more dif-
ficult for interstate employers to provide uniform benefits

29 See also Insurance Comm’r v. Metropolitan Life Ins. Co., 296
Md. 334, 343-44, 463 A.2d 793, 798 (1983); Metropolitan Life Ins.
Co. v. Whalond, 119 N.H. 894, 903, 410 A.2d 635, 640 (1979) (per
curiam).

27

and therefore create increased administrative costs for
such employers. Although Congress may have wished to
minimize the need for interstate employers to administer
their plans differently in different states, it was also will-
ing to sacrifice that interest to accommodate the States’
interests. For example, ERISA permits continued en-
forcement of state laws relating to workmen’s compensa-
tion, unemployment compensation, and disability insur-
ance, although they vary substantially from state to state.
See 29 U.S.C. § 1003(b) (3). Moreover, the insurance
savings clause permits the States to enforce at least some
insurance laws relating to employee benefit plans, even
though those laws likewise differ among the States. Thus,
“(mJere incantation of the congressional goal of uni-
formity in regulation cannot resolve this question of statu-
tory construction.” Standard Oil Co. v. Agsalud, 442 F.
Supp. 695, 706 (N.D. Cal. 1977), aff'd, 633 F.2d 760 (9th
Cir. 1980), aff'd mem., 454 U.S. 801 (1981).

Moreover, because state laws have traditionally pre-
scribed the contents of insurance policies, diversity in
this area has long been the norm for interstate employee
benefit plans. And it was precisely such diversity that
the McCarran-Ferguson Act was intended to preserve.”
There is no evidence in ERISA’s legislative history that
Congress intended to sacrifice this diversity; in fact, Con-
gress’ concern for uniformity appears to have been
limited to regulation of benefit plans, and not to regula-
tion of insurance companies selling policies to those plans.
See, e.g., 120 Cong. Rec. 29,933 (1974) (remarks of Sen.
Williams) .

® See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 481
(1946) (“Congress intended to declare, and in effect declared, that
uniformity of regulation, and of state taxation, are not required in
reference to the business of insurance by the national public inter-
est, except in the specific respects otherwise expressly provided
for”) ; 90 ConG. REC. 6418-19 (1944) (remarks of Rep. Allen) ; id. at
6550 (remarks of Rep. Robsion); id at 6551 (remarks of Rep.
Ploeser).

28

Appellants also argue that mandated benefit statutes
encourage employee benefit plans to become self-insured.
However, there is no evidence in ERISA’s language or
legislative history that self-insurance is contrary to Con-
gress’ intent. In fact, Congress clearly recognized that
some employee welfare benefit plans would not purchase
insurance policies. See 29 U.S.C. § 1002(1). Moreover,
the States have every incentive to discourage self-
insurance to maximize the impact of mandated benefit
statutes and other state insurance regulations, as well as
to prevent “a loss of revenue from the traditional state
source of insurance company taxation, the premium tax
... -” Okin, supra note 5, at 671.

Thus, although judicial balancing of the countervailing
policy considerations is especially inappropriate in this
case and should instead be left for Congress, the relevant
policies support the decision below.

CONCLUSION
Amici urge this Court to affirm the decision below.

Respectfully submitted,

DONALD N. BERSOFF
(Counsel of Record)

KIT KINPORTS

BRUCE J. ENNIS
ENNIS, FRIEDMAN, BERSOFF

& EWING

1200 - 17th Street, N.W.
Washington, D.C. 20036
(202) 775-8100

Counsel for Amici Curiae
January 25, 1985

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0387%3A19. Public record. Not legal advice.