Courts have not uniformly resolved whether state common fund doctrines are expressly preempted by ERISA; some courts have found express preemption, while others have not. Many courts have simply concluded, without even performing a preemption analysis, that plan language can invalidate otherwise applicable state law establishing the common fund doctrine.
Applying the Common Fund Doctrine to an ERISA-Governed Employee Benefit Plan’s Claim for Subrogation or Reimbursement, 61 Fl. L. Rev. 55 (2009)
Thanks to Richard Bales at the Workplace Prof Blog for calling attention to this important work by Farish Percy (Mississippi) on the common fund doctrine as it may apply in ERISA cases. The subject is complex, and Farish makes a commendable effort to render it intelligible.