                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2648
SHANNON CRUTHIS,
                                             Plaintiff-Appellee,
                              v.

METROPOLITAN LIFE INSURANCE COMPANY,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
           No. 03 C 139—Michael J. Reagan, Judge.
                        ____________
  ARGUED JANUARY 7, 2004—DECIDED FEBRUARY 2, 2004
                    ____________


  Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
  FLAUM, Chief Judge.         Metropolitan Life Insurance
Company (“MetLife”) appeals the district court’s remand of
this ERISA case to Illinois state court, and argues that the
case should be heard in federal court. For the reasons
stated herein, we reverse.


                     I. BACKGROUND
  Shannon Cruthis alleges that she became disabled in
2001. She therefore sought to recover the benefits she be-
2                                                No. 03-2648

lieved were due under the terms of her employee benefit
plan. However, her insurer, MetLife, refused to pay the
benefits.
  Cruthis subsequently filed suit against MetLife in Illinois
state court, alleging violations of the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1001 (1974)
(“ERISA”). MetLife removed the action to the United States
District Court for the Southern District of Illinois on the
basis of federal question jurisdiction, and Cruthis then filed
a motion to remand the case back to the state court. The
district court granted the motion to remand in April 2003.
MetLife now appeals the remand order.
  The district court’s remand order was based upon what it
considered to be a forum selection clause in the summary
plan description of the employee welfare benefit plan
provided to Cruthis by MetLife. The clause stated:
              STATEMENT OF ERISA RIGHTS
    The following statement is required by federal law and
    regulation . . . . Under ERISA, there are steps you can
    take to enforce the above rights. For instance, if you
    request materials from the Plan and do not receive
    them within 30 days, you may file suit in a federal
    court. In such a case, the court may require the Plan
    administrator to provide the materials and pay you up
    to $110.00 a day until you receive the materials, unless
    the materials were not sent because of reasons beyond
    the control of the administrator. If you have a claim for
    benefits which is denied or ignored, in whole or in part,
    you may file suit in a state or federal court.
MetLife argues that this statement is not a forum selection
clause, but is rather a disclosure of the employee’s rights
that is mandated by ERISA.
No. 03-2648                                                      3

                        II. DISCUSSION
  State and federal courts have concurrent jurisdiction over
ERISA claims brought by employees to recover benefits,
enforce rights, or clarify rights under employee benefit
plans. See 29 U.S.C. § 1132(e)(1). Therefore, Cruthis’s suit
to recover benefits from her employee benefit plan is the
type of suit that may be filed in either state or federal court.
It is also the type of suit that typically could be removed
from state court to federal court at the defendant’s behest.
See 28 U.S.C. § 1441(a) (stating that defendants may
remove civil actions filed in state court to federal district
court if the district court had original jurisdiction over the
cause of action). However, Cruthis argues that MetLife
waived its right to remove the case to federal court by
stating within the summary plan description that Cruthis
had the right to file suit in state or federal court. We
disagree and hold that the phrase, “you may file suit in a
state or federal court” is a statutorily mandated disclosure
of ERISA rights rather than a forum selection clause.1
  Forum selection clauses, like all other contractual pro-
visions, will be upheld if they are a freely negotiated part of
the contract between the parties. See AAR Int’l, Inc. v.
Nimelias Enters. S.A., 250 F.3d 510, 525 (7th Cir. 2001). In
this case, there is no evidence that MetLife’s statement of
ERISA rights was freely negotiated or part of the contract
between the parties. Rather, all of the evidence shows that
MetLife was merely complying with federal law by inform-


1
 As a preliminary matter, we note that although a district court’s
remand order that is based on the absence of jurisdiction is not
reviewable by an appellate court, a remand that is based on the
interpretation of a forum selection clause may be reviewed. See
Autoridad de Energia Electrica de Puerto Rico v. Ericsson, Inc.,
201 F.3d 15, 16 (1st Cir. 2000); see also Matter of Skupniewitz, 73
F.3d 702, 705 (7th Cir. 1996).
4                                               No. 03-2648

ing Cruthis of her right under ERISA to initiate suit in
either state or federal court.
  Under ERISA, plan providers must notify employees of
the remedies available to them if they are denied benefits.
Specifically, ERISA provides that the “summary plan
description shall contain the . . . remedies available under
the plan for the redress of claims which are denied in whole
or in part.” See 29 U.S.C. § 1022(b). The Code of Federal
Regulations sets forth a “model statement” for plan drafters
to use to ensure that their summary plan descriptions
comply with ERISA’s disclosure requirements. One section
of the model statement reads: “If you have a claim for
benefits which is denied or ignored, in whole or in part, you
may file suit in a state or Federal court.” See 29 C.F.R. §
2520.102-3(t)(2).
   We conclude that MetLife’s statement clearly was made
to comply with ERISA’s disclosure requirements. Signi-
ficantly, MetLife copied the model statement quoted above
verbatim. Moreover, there is no evidence that the statement
was intended to be part of the contract between the parties.
The clause began with the capitalized title “STATEMENT
OF ERISA RIGHTS” and the first sentence states that
“[t]he following statement is required by federal law and
regulation.” The statement further specified that “[u]nder
ERISA, there are steps you can take to enforce the above
rights.” Thus, the plain language of the statement indicates
that it is a disclosure of applicable law rather than a
substantive contract provision.
  Furthermore, there is no evidence that the drafters of
ERISA intended this disclosure statement to act as a sub-
stantive contract provision and eliminate the right of
removal provided by 28 U.S.C. § 1441(a). “ERISA contains
no express provision against removal,” and there “is also no
indication in ERISA’s legislative history that Congress
intended to prevent removal of employee actions filed in
No. 03-2648                                                   5

state courts.” See Clorox Co. v. U.S. Dist. Court for the
Northern Dist. of California, 779 F.2d 517, 521 (9th Cir.
1985) (holding that the phrase, “you may file suit in a state
or federal court” should be interpreted as a statutorily re-
quired disclosure rather than a forum selection clause). If
this Court interprets the phrase, “you may file suit in a
state or federal court” as a waiver of the right to remove, it
would result in the virtual elimination of removal in ERISA
cases because every employer covered by ERISA is required
to make such a disclosure.
  Moreover, the language in the disclosure statement does
not compel a finding of waiver. The right to file suit in a
particular forum is not equivalent to the right to avoid re-
moval from that forum. Cruthis was granted the right to file
suit in either state or federal court, and she exercised that
right. This is not inconsistent with MetLife’s power to
remove the case to federal court once it has been filed.
   For these reasons, we join the several courts that have
addressed this issue by holding that the phrase, “you may
file suit in a state or federal court” is a statutorily required
disclosure of an employee’s ERISA rights rather than a
forum selection clause. See, e.g., Clorox Co. v. U.S. Dist.
Court for the Northern Dist. of California, 779 F.2d 517, 521
(9th Cir. 1985); Fanney v. Trigon Ins. Co., 11 F. Supp. 2d
829, 831 (E.D. Va. 1998); Yurcik v. Sheet Metal Workers’
Int’l Ass’n, 889 F. Supp. 706, 707 (S.D.N.Y. 1995);
Satterfield v. Fortis Benefits Ins. Co., 225 F. Supp. 2d 1319,
1321-22 (M.D. Ala. 2002). The district court’s finding that
this statement was a forum selection clause is therefore
reversed.


                      III. CONCLUSION
  For the foregoing reasons, we REVERSE the decision of the
district court and REMAND this case for further proceedings
consistent with this opinion.
6                                        No. 03-2648

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—2-2-04
