Wednesday, February 8, 2006
I guess I have always felt that it was inevitable that Maryland's Wal-Mart law would be challenged on ERISA preemption grounds given the uncertainty over whether such preemption actually exists.
As readers of this blog know, I have written that I believe that such Fair Share laws are preempted, but other prominent commentators and academics have put forward equally sound arguments why ERISA preemption should not apply to the Maryland law. Rather than reiterating the competing legal analyses here, I am re-posting my analysis (which includes the Maryland Attorney General's opposite conclusion), as well as a helpful overview of this issue on The ERISA Blog a month or so back.
To me, what is more surprising about this case is that the Retail Industry Leaders Association brought this cause of action against the Maryland Fair Share law (and against a similar law in Suffolk County, NY), rather than Wal-Mart itself. In particular, I wonder whether the Trade Association has standing to challenge this law since it is unclear to me how the law imposes an injury on the Association which the law can redress. And even though Wal-Mart is one of the members of this group, Wal-Mart is the only entity that is impacted by the Maryland law. (The Wall Street Journal has more on the RILA and its close relationship with Wal-Mart).
Of course, I can see why Wal-Mart would rather act as part of a larger group to show that other retailers are in solidarity with it on this matter, but I am at a loss to see how relief to the group in this case would benefit anyone but Wal-Mart.
Now, I'm no expert on standing law, so I would particularly appreciate comments from readers who can shed some light on this issue.