Michael Spielman, on Behalf of Himself and All Other Similarly Situated Persons v. Merrill Lynch, Pierce, Fenner & Smith, Incorporated

I add these words to the comprehensive discussion in Judge Parker’s opinion, in which I concur, to offer a framework for disentangling the concepts of preemption, complete preemption, jurisdiction, and the “merits” in a case such as this one.

The plaintiff has filed in state court a suit based on state law grounds, including common law fraud. The defendant contends that the state law basis for the plaintiffs suit is preempted by federal law, and has removed the suit to federal court. If we were concerned with the usual form of preemption, the defendant’s assertion of preemption would be a…