an untrue statement of material fact; (6) failed to state a material fact necessary to make other statements not misleading; and (7) made a statement in such a manner as to mislead a reasonably prudent person to a false conclusion of a material fact. (Compl. ¶ 32.) Plaintiff bases these claims both on Walker’s alleged misrepresentations during the enrollment phase and on Walker’s or another Paychex employee’s alleged fraudulent alteration of Mr. Kersh’s enrollment form. (Id. ¶ 31.) Defendants argue that these claims, like all others in the Complaint, relate to the Salto Plan and are therefore subject to conflict preemption. (MTD at 19.) While some claims brought under the Texas Insurance Code are preempted by ERISA, see, e.g., Hansen v. Continental Ins. Co., 940 F.2d 971 (5th Cir.1991) (<HOLDING>), such preemption is not automatic. Instead,
holding negligent misrepresentation claim was not preempted because it neither sought benefits under plan nor alleged improper processing of benefits holding that erisa did not preempt hospitals claims against erisa plan administrator for misrepresentation under texas insurance code because hospitals claims were not dependent on or derived from the beneficiarys right to recover benefits under the plan holding plaintiffs statelaw claims alleging common law misrepresentation and statutory misrepresentation under the texas insurance code art 2121 not preempted because they were not dependent on  the right to recover benefits under the erisa plan holding that claims for misrepresentation under texas insurance code were preempted because the plaintiffs sought to recover benefits under an erisa plan holding that claims for misrepresentation fraud and texas dtpa violations brought pursuant to article 2121 of the texas insurance code were completely preempted by erisa even if the result left the plaintiff with no adequate remedy for fraud