Amicus Curiae Brief — Kentucky Assn. of Health Plans, Inc. v. Miller

No. 00-1471 |} OCT 93 ogy

In the . EERE |

Supreme Court of the United States a

KENTUCKY ASSOCIATION OF

HEALTH PLANS, INC., ET AL.,

Petitioners.

2

JANIE MILLER, COMMISSIONER OF THE

KENTUCKY DEPARTMENT OF INSURANCE,

Respondent

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE STATES OF TEXAS,

CALIFORNIA, CONNECTICUT, DELAWARE,

FLORIDA, HAWAII, ILLINOIS, KENTUCKY, MARYLAND,

OKLAHOMA, UTAH AND WEST VIRGINIA,

AND THE COMMONWEALTH OF PUERTO RICO

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

JOHN CORNYN DAVID C. MATTAX

Attorney General of Texas Chief, Financial Litigation Div.

HOWARD G. BALDWIN, JR. *CHRISTOPHER LIVINGSTON

First Assistant Attorney General Assistant Attorney Gencral

JEFFREY S. BOYD Financial Litigation Division

Deputy Attorney General P.O. Box 12548

JULIE PARSLEY Austin, Texas 78711-2548

Solicitor General (512) 463-2018 Telephone

(512) 477-2348 Telecopier

*Counsel of Record COUNSEL FOR AMIC/ CURIAE

ee ee

a BEST AVAILABLE COPY

BILL LOCKYER

Attorney General

State of California

1300 I Strect, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

GREGORY D’AURIA

Associate Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0170

M. JANE BRADY

Attorney Gencral

State of Delaware

820 N. French Street

Wilmington, DE 19801

ROBERT A. BUTTERWORTH

Attorney Gencral

State of Florida

The Capitol PL-01

Tallahassee, FL 32399-1050

EARL I. ANZAI

Attorney Gencral

State of Hawaii

425 Queen Strcet

Honolulu, HI 96813

JAMES E. RYAN

Attorney Gencral

State of Illinois

500 So. Second St. -

Springfield, IL 62706

ALBERT B. CHANDLER, III

Attorney General

Commonwealth of Kentucky

The State Capitol, Ste 120

Frankfort, KY 40601

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

200 St. Paul Place

Baltimore, MD 21202

W. A. DREW EDMONDSON

Attorney General

State of Oklahoma

2300 N. Lincoln Blvd #112

Oklahoma City. OK 73105

ANNINA M. MITCHELL

Utah Solicitor General

160 East 300 South

PO Box 140854

Salt Lake City, UT 84114-

9854

DARRELL V. MCGRAW. JR.

Attorney Gencral

State of West Virginia

State Capitol, Room 26-E

Charleston, WV 25305

ANNABELLE RODRIGUEZ

Attorney General

Commonwealth of Pucrto Rico

GPO Box 9020192

San Juan, PR 00902-0192

QUESTION PRESENTED

Are state “Any Willing Provider” statutes preempted

by ERISA, or are they saved from preemption because they

are laws “which regulate insurance”?

TABLE OF CONTENTS

Page

I ene ne oes i

I a ok os oti ka bw tan aaa Wk ii

TABLE OF AUTHIORITIES ................200e: iil

INTEREST OF THE AMIC] CURIJAE .............. l

SUMMARY OF ARGUMENT .................... 2

EE o's ccakabiunuibenee en aeat to aweae oe 3

A. The Narrow Reading of the ERISA Saving

Clause that the HMOs Advance Ignores this

ST OUI vain wins 80 oeecadececcc as 3

l. ERISA’s Initial Common-Sense Test

Does Not Exempt HMOs and other

Insurers from Following State

Insurance Regulations. ............... 5

2. ERISA’s Reservation of State Laws

that “Regulate Insurance” and the

Royal Drug McCarran-Ferguson

Definition of the “Business of

Insurance” Are Not Synonymous. ..... . 11

GENE A <4 kee ddn ke pedabcnnack ae cee 14

TABLE OF AUTHORITIES

CASES Page

Cal. Div. of Labor Standards Enforcement v. Dillingham

Constr., N.A.

IID ooo oa. cvnvcusccecss 5

DeBuono v. NYSA-ILA Med. & Clinical Serv. Fund,

es ae Weare’ 5

FMC Corp. v. Holliday,

oe 5, 10

Fort Halifax Packing Co. v. Coyne,

ee re ere 10

Group Life & Health Ins. Co. v. Royal Drug Co.,

SO eee passim

Ky. Ass'n of Health Plans, Inc. v. Nichols,

227 F.3d 352 6th Cir. (2000)................ 3

Metropolitan Life Ins. Co. v. Massachusetts,

en oe hou was 465-0 passim

New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ....... i gabon save 5

Pegram v. Herdrich,

EE RE SPR ee 9

Rush Prudential v. Moran,

ED ss, wow ue ckescudi 1, 5, 8,9

Sec. & Exch. Comm. v. Nat'l Sec., Inc.,

re 6, 12

Stuart Circle Hosp. Ass'n v. Aetna Health Mgmi.,

995 F.2d 500 (4th Cir. 1993) ................ 3

Tex. Pharmacy Ass'n v. Prudential Ins. Co. of Am.,

105 F.3d 1035 (Sth Cir. 1997) ............... 3

U.S. Dep't of Treasury v. Fabe,

ee an as oe 12

Union Labor Life Ins. Co. v. Pireno,

Se I oo as Wan ve eke ob ede 4

UNUM Life Ins. Co. of Am. v. Ward,

EE nies ob no ce ead kes passim

Washington Physicians Serv. Ass'n v. Gregoire,

147 F.3d 1039 (9th Cir. 1998) ............... 9

IV

FEDERAL STATUTES

Employee Retirement Income Security Act of 1974. . passim

RG errr TTT eer rer yr 5

29 U.S.C. §1144(b)(2M(A) .. 2.2.2. 1,5,7

McCarran-Ferguson Act ................0555: passim

ME ne ee 11

V

INTEREST OF THE AMICI CURIAE

The state amici curiae, through their Attorneys

General, submit this brief in support of Kentucky Department

of Insurance Commissioner Janie Miller. States have a vital

interest in ensuring that the scope of preemption by the

Employee Retirement Income Security Act of 1974 (ERISA)

is not extended beyond Congress’ intent. The text of ERISA

and decisions of this Court evidence that Congress intended

to reserve powers to the States. Specifically, the ERISA

insurance saving clause, 29 U.S.C. § 1144(b)(2)(A),

preserves the States’ authority to regulate insurers. Last

Term this Court again affirmed that health maintenance

organizations (HMOs) are insurers subject to state insurance

regulation. Rush Prudential v. Moran, 122 S.Ct. 2151, 2163

(2002). Petitioner HMOs' attempt to distinguish between

insurance laws regulating benefits (which supposedly can be

saved) and laws regulating an insurers’ other activities (which

supposedly cannot be saved). The HMOs base that strained

dichotomy on Group Life and Health Ins. Co. v. Royal Drug

Co., 440 U.S. 205 (1979)—an antitrust case. In doing so,

they mistakenly equate the “business of insurance” antitrust

exemption with ERISA’s preservation of laws which

“regulate insurance.” Their argument contradicts this Court’s

decisions holding the McCarran-Ferguson factors to be

guideposts. See Rush, 122 S.Ct. at 2163; UNUM Life Ins.

Co. of Am. v. Ward, 526 U.S. 358, 373 (1999). Accordingly,

the Sixth Circuit’s decision should be affirmed.

' Petitioners are a Kentucky-based association of HMOs and several

individual HMOs. They are referred to herein simply as “the HMOs.”

l

SUMMARY OF ARGUMENT

This Court’s precedents directly proscribe the narrow

saving clause test that the HMOs advance. In UNUM Life

Insurance Co. of America v. Ward, 526 U.S. 358 (1999), this

Court unanimously held that the ERISA saving clause saves

California’s common-law notice-prejudice rule. This Court

rebuffed UNUM’s claims that the rule did not spread risk.

Nevertheless the HMOs now claim that a law must spread

risk to qualify as an insurance practice that comes within the

saving clause. Pet. Br. at 17. That argument defies common

sense and imposes the first McCarran-Ferguson factor as a

litmus test—which this Court has already rejected.

Essentially, the HMOs engraft a dichotomy between

laws regulating insurance benefits and laws regulating

insurers’ other activities. They assert that the former are

insurance practices that can be saved, while the latter are

beyond the scope of insurance regulation, as that term is

defined in the saving clause. Interestingly, that argument is

the exact opposite of the argument Metropolitan Life

advanced in Metropolitan Life Insurance Co. v.

Massachusetts, 471 U.S. 724 (1985). There, Metropolitan

Life claimed that only state laws that directly regulate

insurers and their business activities come within the ERISA

saving clause. The Court rejected Metropolitan Life’s narrow

reading. The HMOs’ narrow reading in this case should

likewise be rejected.

Finally, the HMOs contend that Group Life and

Health Insurance Co. v. Royal Drug Co., 440 U.S. 205

(1979), directs that Kentucky’s Any Willing Provider law

2

cannot be saved. That argument incorrectly limits the ERISA

saving clause to the McCarran-Ferguson antitrust exemption.

But the text and the purposes of those two laws are different.

This Court should again affirm that the McCarran-Ferguson

factors are relevant guideposts—not a rigid test that must be

met as the HMOs contend. The Sixth Circuit’s decision

should be affirmed.

ARGUMENT

A. The Narrow Reading of the ERISA Saving Clause

that the HMOs Advance Ignores this Court’s

Precedents.

The Sixth Circuit correctly held that Kentucky’s Any

Willing Provider (AWP) law regulates insurance and,

consequently, is saved from ERISA preemption. The

Circuit’s analysis correctly asked first whether Kentucky’s

law regulates insurance from a “common sense view of the

matter” and only then “consider[ed] three factors . . . used in

the McCarran-Ferguson Act.” Ky. Ass'n of Health Plans,

2 The state amici have not addressed the application of the three

McCarran-Ferguson factors to Kentucky's AWP law because they agree

with the Respondent and the majority of the circuits that AWP laws mect

at least two of the three factors. See Stuart Circle Hosp. Ass'n v. Aetna

Health Mgmt., 995 F.2d 500, 502-04 (4th Cir. 1993) (holding Virginia’s

law saved); Tex. Pharmacy Ass'n v. Prudential Ins. Co. of Am., 105 F.3d

1035, 1038 (Sth Cir. 1997) (holding, pre-Il/'ard, Texas’s AWP law

preempted because it meets two of the three McCarran-Ferguson

factors).

Inc. v. Nichols, 227 F.3d 352, 363 (2000) (quoting UNUM

Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 367-68 (1999)).

The HMOs challenge that the Sixth Circuit reads the ERISA

saving Clause too broadly and that this Court’s guidance is

not so clear.

The HMOs contend that the ERISA saving clause is

only meant to save a sliver of state insurance

regulation—those laws aimed at insurance practices, but not

those laws regulating insurers’ other activities. Pet. Br. at 13

(emphasis in original). Inventively, they suggest that the

common-sense test saves state laws only when those laws

regulate the spreading and underwriting of a policyholder’s

risk. /d. at 30 n.13. Moreover, in direct contradiction to this

Court’s precedents, the HMOs argue that the McCarran-

Ferguson Act is a litmus test’ rather than a “guidepost” for

determining when the ERISA saving clause save state

insurance regulations. /d. at 13. These arguments run afoul

of this Court’s precedents and gloss over the substantive

distinctions between the McCarran-Ferguson Act and ERISA.

> The “guidepost” factors are whether the law spreads risk, is an integral

part of the policy relationship, and is limited to entities within the

insurance industry. See Union Labor Life Ins. Co. v. Pireno, 458 U.S.

119, 129 (1982) (involving whether a health insurer’s use of a peer-

review committee was exempt from federal antitrust laws).

4

1. ERISA’s Initial Common-Sense Test Does

Not Exempt HMOs and other Insurers

from Following State Insurance

Regulations.

Although the ERISA express-preemption clause, 29

U.S.C. § 1144, snuffs out laws that “relate to” employee

benefit plans, Congress expressly saved state insurance laws

from that preemptive force. In almost antithetically broad

language, Congress provided that “nothing in this subchapter

shall be construed to exempt or relieve any person from any

law of any State which regulates insurance, banking, or

securities.” 29 U.S.C. §1144(b)(2)(A). Through this

provision, Congress expressed its intent that States continue

to exercise their traditional powers in the field of insurance.

Regardless whether a state statute “relates to” an ERISA plan,

the “ERISA planis.. . bound by state insurance regulations

insofar as they apply to the plan’s insurer.” FMC Corp. v.

Holliday, 498 U.S. 52, 61 (1990).

Faced with the “unhelpful” language in these two

clauses, this Court has recently reaffirmed the starting

presumption that Congress intended to ‘not supplant the

historic police powers of the States. Rush, 122 S.Ct. at 2159;

see also New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995);

Cal. Div. of Labor Standards Enforcement v. Dillingham

Constr., N.A., 519 U.S. 316, 331-32 (1997); and DeBuono v.

NYSA-ILA Med. & Clinical Serv. Fund, 520 U.S. 806, 814

(1997). Where, as here, Congress expresses its intent to save

from preemption state laws that regulate insurance, there is

no basis to impose a restrictive interpretation of the clause.

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.724,

745 (1985). A narrow, artificial reading of the term

“regulates insurance” would be inconsistent with that intent,

and finds no support in the language of the saving clause or

ERISA generally.

In Metropolitan Life, the Court rejected a narrow

interpretation of the savings clause. 471 U.S. at 745. Rather,

this Court took a “common-sense” view of the term

“regulates insurance” in determining whether a state law is

saved from ERISA preemption. 471 U.S. at 740. The issue

as defined by this Court, is not whether a particular state law

meets specific criteria, but whether the law regulates an

insurance relationship, insurance contract or insurer. Such

laws are at the “core of the insurance business.” Sec. & Exch.

Comm. v. Nat'l Sec., Inc., 393 U.S. 453, 460 (1969).

In an interesting juxtaposition to this case,

Metropolitan Life argued in the Metropolitan Life case that

only state laws that directly regulate insurers and their

business activities come within the ERISA saving clause—the

mirror-opposite stance taken by the HMOs in this case. 471

U.S. at 741. Metropolitan Life claimed that state laws

regulating the substantive terms of an insurance contract were

recent innovations more properly seen as health laws and,

therefore, outside the scope of the saving clause. /d. This

Court, however, rejected Metropolitan Life’s distinction

because it “reads the saving clause out of ERISA entirely.”

Id.

Thus, in Metropolitan Life, 471 U.S. at 740, this

Court held that a state law mandating that insurance

companies provide certain coverages “regulates insurance” as

a matter of common-sense and was thus saved from

preemption. This Court reasoned that the state mandated-

benefit law was a law regulating the terms of an insurance

contract and that Congress expressly reserved the regulation

of insurance contracts to the States. In determining whether

Congress intended for laws regulating insurance contracts to

be within the scope of laws preserved by the saving clause,

this Court referred to the deemer clause.

The “deemer clause” states that an employee-benefit

plan should not be deemed to be an insurance company “for

purposes of any laws of any State purporting to regulate

insurance companies, insurance contracts, banks, trust

companies or investment companies.” 29 U.S.C.

§1144(b)(2)(B). This Court reasoned that “[b]y exempting

from the saving clause laws regulating insurance contracts

that apply directly to benefit plans, the deemer clause makes

explicit Congress’ intention to include laws that regulate

insurance contracts within the scope of the insurance laws

preserved by the saving clause.” Metropolitan Life, 471 U.S.

at 71. The reference to insurance companies in the deemer

clause makes equally clear Congress’ intent to save from

preemption state laws that regulate insurers.*

*The Court implicitly recognized this in \fetropolitan Life when it

discussed examples of laws that regulate insurers. \/etropolitan Life,

471 U.S. at 728, n.2.

Likewise, in UNUM Life Insurance Co. of America v.

Ward, 526 U.S. 358 (1999), this Court held that California's

notice-prejudice rule regulated insurance and was saved from

ERISA preemption. 526 U.S. at 368. This Court observed

that the California rule was directed specifically at insurers

and their contracts. /d. (citing Cisneros v. UNUM Life Ins.

Co. of Am., 134 F.3d 939, 945 (9th Cir. 1998) (the common-

law rule “is directed specifically at the insurance industry and

is applicable only to insurance contracts.”)). The unanimous

Court highlighted that the McCarran-Ferguson Act

“guideposts” are “relevant” “considerations [to be] weighed”

in determining whether a state law regulates insurance. 526

U.S. at 373-74 (citations omitted). But the McCarran-

Ferguson factors were never intended to form a litmus test for

the saving clause’s applicability.

Furthermore, this Court unanimously upheld

California’s notice-prejudice rule without analyzing whether

California’s rule spread risk. Ward, 526 U.S. at 374. Saying

flatly, “[w]e need not pursue this point,” this Court found the

common-law rule to be a common-sense insurance regulation

that met the two other McCarran-Ferguson factors. Arguing

that the spreading and underwriting of a policyholder’s risk

is necessary to qualify as a common-sense insurance

regulation flies in the face of this Court’s unanimous decision

in Ward. See Pet. Br. at 30 n.13 (asserting that Rush and

Royal Drug “make clear” that the common-sense inquiry

requires that “a law is saved from preemption if and only if

it is regulating an inswrance practice,” which “are the

spreading and underwriting of a policyholder’s risk.”).

Moreover, that argument suggests that administrative

regulations, like the notice-prejudice rule in Ward, solvency

requirements, and other enforcement regulations fall outside

the ERISA saving clause because they do not spread risk

between the insurer and the insured. In the final analysis, the

HMOs argue that state laws regulating insurance benefits can

be saved, but that state laws regulating insurers’ other

activities cannot.

That argument simply defies common sense. Without

doubt, HMO subscribers believe they have health insurance.*

The subscribers, or their employer, pay money to an HMO

and, in return, expect to receive medical treatment when such

treatment is necessary. See Pegram v. Herdrich, 530 U.S.

211, 218 (2000). Common sense tells these subscribers that

they have health insurance. See Washington Physicians Serv.

Ass'n v. Gregoire, 147 F.3d 1039, 1046 (9th Cir. 1998) (“In

the end, HMOs function the same way as a traditional health

insurer: The policyholder pays a fee for a promise of medical

services in the event that he should need them. It follows that

HMOs (and HCSCs) are in the business of insurance.”).

Nevertheless, the HMOs assert that AWP laws are aimed at

the administration of their HMO practices instead of at the

benefits provided to their insureds. The HMOs then argue

that ERISA only saves from preemption laws that concern the

latter.

* As this Court has recently recognized, “HMOs have taken over much

business formerly performed by traditional indemnity insurers, and they

are universally regulated as insurers under state law.” Rush, 122 S.Ct.

at 2163.

That argument rests principally on an artificially

imposed distinction between laws regulating insurers and

laws regulating insurance practices. This argument arises

from the statement in Royal Drug, 440 US. at 211,

concerning the exemption from federal antitrust laws being

limited to the business of insurance, not the business of

insurers. Pet. Br. at 15-17. The ERISA savings clause is not

so limited.

The argued dichotomy between laws aimed at the

insurance benefits versus laws aimed at the insurers’ other

activities runs afoul of FMC Corp. v. Holliday, 498 U.S. |

(1987). There, the Court reviewed Pennsylvania’s anti-

subrogation law, a state law affecting plan administration.

Citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987),

the Court held that the law related to plans because it

interfered with a uniform administrative scheme. FMC

Corp., 498 U.S. at 60. The law fell within the insurance

saving clause, however, because it “directly controls the

terms of insurance contracts by invalidating any subrogation

provisions they contain.” /d. at 60-61. The Court then

concluded that the deemer clause exempts self-insured, but

not insured, plans from state laws regulating insurance. “An

insurance company that insures a plan remains an insurer for

purposes of state laws ‘purporting to regulate insurance’ after

application of the deemer clause. The insurance company is

therefore not relieved from state insurance regulation. The

ERISA plan is consequently bound by state insurance

regulations insofar as they apply to the plan’s insurer.” /d. at

61. Thus, so long as a state law regulates an insurer, it is

excluded from the scope of the deemer clause and, therefore,

10

falls within the saving clause. The HMOs’ reliance on Royal

Drug for a dichotomy between laws regulating insurance

practices and those regulating the insurers’ other activities is

misplaced.

2. ERISA’s Reservation of State Laws that

“Regulate Insurance” and the Royal Drug

McCarran-Ferguson Definition of the

“Business of Insurance” Are Not

Synonymous.

Royal Drug is not dispositive of the issue in this case.

The ERISA saving clause and the antitrust exemption of the

McCarran-Ferguson Act are worded differently and serve

different purposes. Saving clause analysis concerns a State’s

ability to regulate insurers, while McCarran-Ferguson

concerns a limitation of competition in violation of antitrust

laws. Applying the limits from the McCarran-Ferguson

antitrust exemption to the ERISA saving clause mistakenly

equates the two provisions.

Royal Drug addressed an antitrust claim against Blue

Shield and several pharmacists for entering into an agreement

that allegedly produced price-fixing of pharmacy drugs and

led to a group boycott of those pharmacists who were not

parties to the agreement. 440 U.S. at 207. Blue Shield

asserted that the second clause® of 15 U.S.C. § 1012(b)

exempted it from the antitrust laws. 440 U.S. at 210. The

* The second clause provides “unless such Act specifically relates to the

business of insurance.”

goal of that provision was not to grant the States broad

regulatory authority over the field of insurance, it was to

protect the insurance business itself by “carv[ing] out only a

narrow exemption . . . from the federal antitrust laws.” U.S.

Dep't of Treasury v. Fabe, 508 U.S. 491, 505 (1993).

By contrast, the ERISA saving clause preserves broad

authority for the States to regulate the insurance industry free

of preemption. Metropolitan Life, 47\ U.S. at 739. This is

more similar to the first clause of § 1012(b). The first clause

states “No Act of Congress shall be construed to invalidate,

impair, or supersede any law enacted by any State for the

purpose of regulating the business of insurance.” In Fabe,

the Court distinguished the two clauses because “the first

clause commits laws ‘enacted ... for the purpose of regulating

the business of insurance’ to the States, while the second

clause exempts only ‘the business of insurance’ itself from

the antitrust laws.” 508 U.S. at 504. The Fabe Court then

noted that the National Securities case was the only previous

case addressing the first clause. /d. at 501 (citing SEC v.

Nat'l Sec., Inc., 393 U.S. 453 (1969)). The Fabe Court

emphasized that, unlike the second clause, even state laws

indirectly aimed at regulating the insurance contract, such as

laws regulating the insurer directly, fall within the first

clause. 508 U.S. at 504. Essentially, state laws that regulate

insurance from a common-sense view prevail under the first

clause of §1012(b), but only those meeting all three

McCarran-Ferguson factors survive under the second clause.

12

poe ee Ce

In Ward, this Court applied that analysis in the ERISA

saving clause context. 526 U.S. at 367-68. First a common-

sense analysis of the state law determines whether the saving

clause applies. /d. Then, the three-factor test used to analyze

the second clause of § 1012(b) acts as a relevant guidepost,

but is not determinative. /d. at 373-74. It is relevant because

a law that directly regulates the insured-insurer relationship,

i.e., falls within the second clause, must fall within the first

clause of § 1012(b). It is not determinative, however,

because the ERISA saving clause, like the first clause of §

1012(b), captures indirect regulations—laws regulating an

insurer’s other activities. The HMOs reliance on the Roya/

Drug case incorrectly equates the ERISA saving clause with

the second clause of § 1012(b).

Although the pharmacy agreement at issue in Roya/

Drug might be thought of as threatening free competition

because it excluded certain providers from providing services

to insureds, AWP laws do not. Quite to the contrary,

proponents of AWP laws claim that these laws actually

increase competition among the providers who have

membership on an HMO’s provider list. But the merits of

that argument are of no consequence here, because the only

question is whether Congress intended to preempt the States

from enforcing those laws by providing a clause in ERISA

that saves laws which “regulate insurance.” The state amici

think congressional intent to preserve the States ability to

enforce insurance laws against insurers is based squarely on

by the broad language of the ERISA saving clause. The

HMOs ask this Court to reverse its prior decisions and hold

13

otherwise based on an antitrust exemption found in the

McCarran-Ferguson Act. That request should be denied.

Circuit.

CONCLUSION

The Court should affirm the judgment of the Sixth

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

JEFFREY S. BOYD

Deputy Attorney General for Litigation

JULIE PARSLEY

Solicitor General

DAVID C. MATTAX

Chief, Financial Litigation Division

CHRISTOPHER D. LIVINGSTON

Assistant Attorney General

Financial Litigation Division

Counsel of Record

Counsel for Amici Curiae

14