Anderson Kill Recalls Justice Ginsburg’s First Opinion as a Supreme Court Justice


In mourning the death of Supreme Court Justice Ruth Bader Ginsburg, Anderson Kill recalls the first case for which Justice Ginsburg wrote for the majority of the Supreme Court.  On October 12, 1993, one of Anderson Kill’s founding shareholders, Larry Kill, argued on behalf of the plaintiff in John Hancock Mutual Life Insurance Company v. Harris Trust and Savings Bank,N o. 92-1074, United States Supreme Court (December 13, 1993). Justice Ginsburg’s lifelong focus on the interests and needs of ordinary citizens and commitment to law enacted to protect those interests was evident in that first opinion just as it was throughout her career.

At issue was whether insurance companies owe a fiduciary duty under the Employee Retirement Income Security Act (ERISA) in their management of the so-called “free funds” thrown off by group annuities held by pension funds – i.e., funds in excess of those required to pay guaranteed benefits to individual retirees.Writing for the majority, Justice Ginsburg held, “Because the…free funds are "plan assets," Hancock's actions in regard to their management and disposition must be judged against ERISA's fiduciary standards.” Rejecting Hancock’s argument that the McCarran-Ferguson Act reserving the regulation of insurance to the states pre-empted ERISA in this case, Justice Ginsberg held:

There is no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional preemption analysis. Thus, ERISA leaves room for complementary or dual federal and state regulation, and calls for federal supremacy when the two regimes cannot be harmonized or accommodated.

The decision was particularly noteworthy in that the Department of Labor supported the insurance company in the case. Lawrence Kill recalls that Justice Ginsburg “asked me near the end of my oral argument why they should not give the usual deference to the views of the Department of Labor since it is the agency entrusted with the administration of ERISA.”

Kill responded, he recalls now, to the effect that “the ordinary deference should not be accorded the DOL position here since it flies in the face of the very clear language of ERISA, is inconsistent with several previous administrative opinions interpreting ERISA  and most critically it would result in significant damage to the pension rights and entitlements of the employees protected under ERISA. “  The Court majority led by Justice Ginsberg accepted those arguments.

About Anderson Kill

Anderson Kill, celebrating its 50th anniversary in 2019,  is a full-service law firm best known for its work in insurance recovery. Clients include Fortune 1000 companies, small and medium-sized businesses, governmental entities, and nonprofits as well as personal estates. Based in New York City, the firm also has offices in Philadelphia, PA, Stamford, CT, Washington, DC, Newark, NJ and Los Angeles, CA.

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