In an order entered today, the United States Court of Appeals for the Third Circuit denied U.S. Airways’ petition for rehearing en banc of a panel decision originally entered on November 6, 2011. That decision, US Airways, Inc. v. McCutchen, ___ F.3d ___, 2011 WL 5557411(3d Cir. Nov. 16, 2011), was described in OnLawyering’s November 30 post “In US Airways, Inc. v. McCutchen, The Third Circuit Says Equitable Defenses Limit The Subrogation Rights of ERISA Plans.” As I suggested there, the decision is a useful weapon for personal injury lawyers and clients facing the subrogation claims of ERISA welfare benefit plans.
It seems likely that the counsel for U.S. Airways will seek United States Supreme Court review of the Third Circuit’s decision. We will have to wait and see what happens. In the meantime, McCutchen remains good law.
Rich
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