Golden Gate Rest. Assoc. v. City and Cny of San Francisco

M. SMITH, Circuit Judge, with whom KOZINSKI, Chief Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges,

join dissenting from the denial of rehearing en banc:

I respectfully dissent from our court’s denial of rehearing this case en banc. Our decision in this case creates a circuit split with the Fourth Circuit Court of Appeals, renders meaningless the tests the Supreme Court set out in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), conflicts with other Supreme Court cases establishing ERISA1 preemption guidelines, and, most…