justices who reached the issue were split as to whether the RIA Employees were offered comparable employment with a “successor” of Tyco and, in turn, whether Tyco breached the RIAs. Id. at 774; see also id. at 779-80 (Sharp, J., dissenting in part). One justice would have held that the claims were preempted by ERISA and thus concurred in the court’s take-nothing judgment for Tyco. Id. at 777 (Massengale, J., concurring). We granted the Gimpel Employees’ petition for review. II. ERISA Preemption of State-Law Claims We first address whether ERISA preempts the Gimpel Employees’ breach-of-contract claims. As applied to this case, ERISA preemption is an affirmative defense on which Tyco bore the burden of proof at trial. See Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.1991) (<HOLDING>); 29 U.S.C. § 1132(a)(1)(B), (e)(1) (giving
holding that when erisas preemptive effect results in change of applicable law rather than choice of forum preemption is an affirmative defense that must be set forth in defendants answer or it is waived holding that erisas preemption of state contract claims in a benefitsdue action is an affirmative defense subject to waiver recognizing that federal preemption is affirmative defense as to which defendant has burden of proof holding that the state law of preclusion must be followed even when federal jurisdiction over the subject matter of a claim is exclusive holding that erisa preemption is an affirmative defense where erisas preemptive effect would result only in a change of the applicable law and would not subject the claim to exclusive federal jurisdiction