Doe 1 v. Express Scripts, Inc.

(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. CVSG: 5/24/2022