As of March 1, an en banc decision of the U.S. Court of Appeals for the Fifth Circuit is suddenly making ERISA a sexy practice area. The decision is Ariana M. v. Humana Health Plan of Texas. The opinion has it all: a life-and-death fact pattern; passionate dissents; a repudiation of once sacrosanct precedent. Just like an episode of “Empire” (a much updated version of “Dallas”).

Let’s start with basics. The Employee Retirement Income Security Act was enacted in 1974 in the devastating wake of pension plan bankruptcies. ERISA imposed fiduciary duties upon pension plan administrators in order to avoid future disasters. Fair enough. But as long as Congress was at it, it also tacked on protection for welfare benefit plans, imposing the same fiduciary duties upon plan administrators for those plans. What is a welfare benefit plan? Health insurance, disability insurance, severance pay, life insurance. After all, what could possibly happen? Back then, employees got paid and in exchange they did a job. Simple. Fringe benefits as part of a comp package? An employer in the ‘70s would ask: What’s a comp package? (By the way, the in vogue HR term is “total awards.”) Fast-forward to the late 1980s. More employees are getting fringe benefits. Plan administrators are the ones who get to decide if a benefit is granted. But there is a catch. The plan administrator is either the employer or an insurance company that funds the plan. See the ethical Waldo in this brew? That’s right legal eagles, the plan administrator is conflicted: Every dollar saved in a payout of a benefit is one more dollar in the pocket of the employer or the insurance company. (I teach law to students but I also teach human nature and am fond of quoting Oscar Wilde to the effect that he could resist everything except temptation.)