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Doe 1 v. Express Scripts, Inc.

Pending petition
Docket No. Op. Below Argument Opinion Vote Author Term
21-471 2nd Cir. TBD TBD TBD TBD TBD

Issues: (1) Whether an administrator hired by a plan under the Employee Retirement Income Security Act of 1974 acts as a fiduciary when it controls prices paid by the plan or its participants (as the U.S. Courts of Appeals for the 4th, 5th, 7th, 8th, and 9th Circuits hold) or whether control over pricing is exempt from the definition of “fiduciary” (the exception from DeLuca v. Blue Cross Blue Shield of Michigan) if the administrator is in the “business” of setting prices for its clients (as the U.S. Courts of Appeals for the 2nd and 6th Circuits maintain); and (2) whether, if the DeLuca exception is, in fact, a proper gloss on ERISA based on the Supreme Court’s decision in Pegram v. Herdrich, it exempts from fiduciary status a third-party benefit manager that exercises ongoing discretion over the actual prices charged to the plans pursuant to a contract with the plan administrator.

DateProceedings and Orders (key to color coding)
Jun 25 2021Motion (21M3) for leave to file a petition for a writ of certiorari with the supplemental appendix under seal filed.
Jun 25 2021Petition for a writ of certiorari filed. (Response due November 3, 2021)
Jul 07 2021MOTION (21M3) DISTRIBUTED for Conference of 9/27/2021.
Oct 04 2021Motion (21M3) for leave to file a petition for a writ of certiorari with the supplemental appendix under seal Granted.
Nov 03 2021Brief of respondent Express Scripts, Inc. in opposition filed.
Nov 03 2021Brief of respondent Anthem, Inc. in opposition filed.
Nov 03 2021Brief amicus curiae of Pension Rights Center filed.
Nov 18 2021Reply of petitioners John Doe 1, et al. filed.
Nov 23 2021DISTRIBUTED for Conference of 12/10/2021.
Dec 13 2021The Solicitor General is invited to file a brief in this case expressing the views of the United States.