It is a light and breezy week here in California and at Your ERISA Watch. So, we have no case of the week and just a few covered decisions. Of note is an interesting attorneys’ fee decision from the Sixth Circuit, and two decision on petitions for interlocutory review under 28 U.S.C. § 1292(b), one granting the defendants’ petition in a pension annuitization case, and the other denying such a petition in a healthcare lawsuit bright by the former Seretary of Labor.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Attorneys’ Fees
Sixth Circuit
Canter v. Blue Cross Blue Shield of Mass., Inc., No. 24-3926, __ F. App’x __, 2025 WL 2058997 (6th Cir. Jul. 23, 2025) (Before Circuit Judges Moore, Griffin, and Ritz). Plaintiff-appellant Keith Canter received health insurance through an ERISA-governed healthcare plan administered by Blue Cross Blue Shield of Massachusetts, Inc. In 2015, Mr. Canter underwent back surgery and submitted two claims for $41,034 and $43,988. Blue Cross denied coverage of both claims, which prompted Mr. Canter to sue under ERISA. Mr. Canter was successful in his lawsuit and the district court granted summary judgment in his favor. It then remanded the case to Blue Cross to reconsider the benefit decision. Blue Cross reversed its benefits decision on remand and awarded Mr. Canter $85,022 for the two claims that were previously denied. Mr. Canter moved to reopen the case following the remand decision and moved for an award of prejudgment interest and attorney’s fees. The court ultimately awarded Mr. Canter $15,267.01 in prejudgment interest, $622.75 in costs, and $204,771 in attorney’s fees for work in obtaining the remand, for a total of $220,660.76, which was in addition to the Blue Cross’s $85,022 payment. Mr. Canter then filed a second motion for attorney’s fees, seeking compensation for the work his lawyer performed after the administrative remand. The district court conducted a second fee analysis wherein it considered only the work done after the remand. It then denied post-remand fees. Mr. Canter appealed that order before the Sixth Circuit. The court of appeals affirmed the district court’s post-remand order denying fees in this decision. Before discussing Mr. Canter’s arguments, the appeals court stressed that it reviews a district court’s grant or denial of a fee award for abuse of discretion and that, in general, it will “defer to a district court’s determination of a fee award, given ‘the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.’” With that being said, the Sixth Circuit could find no abuse of discretion or error in the district court’s decision. Mr. Canter first challenged the district court’s use of the Sixth Circuit’s five King factors: (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. The Sixth Circuit took no issue with the lower court’s application of these factors or its decision to undertake the King analysis in the first place. The appellate court found no issue with the district court’s division of Mr. Canter’s attorney’s work into the work that contributed to obtaining a remand and the post-remand work, or its decision to limit the scope of the fee analysis to the second category of work. As a practical matter, the district court adopted this analytical framework as a way of differentiating the second fee motion from the first. Since Mr. Canter’s two fee motions presented a clear division between the pre- and post-remand work, the Sixth Circuit concluded that it was entirely appropriate for the district court to separate them when conducting its analysis. The Sixth Circuit held, that “the court conducted a full and detailed King analysis that clearly outlined its reasons for distinguishing the post-remand work and declining to grant fees for that work.” Next, Mr. Canter argued that he was entitled to fees for litigating against Blue Cross to obtain his original fee award. Though the court of appeals acknowledged that “fees for fees” are certainly recoverable, it nevertheless emphasized that “the district court was not required to separate out fees for this kind of work from the overall post-remand litigation, which extended beyond Canter’s claim to fees for fees.” Thus, the court of appeals declined to disturb the district court’s “reasoned analysis as to the appropriateness of attorney’s fees for post-remand work in this case.” Finally, the court of appeals briefly went through alleged factual errors Mr. Canter argued were present in the district court’s decision, including its characterization of his post-remand work and its assessment of the success he achieved, and explained why in its view these arguments failed. Accordingly, the Sixth Circuit affirmed the district court’s post-remand fee decision.
ERISA Preemption
Ninth Circuit
Kenyon v. Reliance Standard Life Ins. Co., No. CV 25-11-BLG-TJC, 2025 WL 2029919 (D. Mont. Jul. 18, 2025) (Judge Timothy J. Cavan). Plaintiff Anthony P. Kenyon worked from 2004 until 2020 as a pipefitter for an employer in Montana. Through his employment Mr. Kenyon became a member of the United Steel Workers Local 11-443 union. As a union member Mr. Kenyon became a participant in a long-term disability insurance policy through Reliance Standard Life Insurance Company. By January 2020, Mr. Kenyon had to stop working due to recurrent pneumonia and infections caused by an immunodeficiency. Although it took a bit of back and forth, Reliance eventually approved Mr. Kenyon’s claim for coverage under the policy. Then in July 2020, Mr. Kenyon elected to roll a portion of his pension into an individual retirement account and took the balance as a lump sum payment. This litigation stems from Reliance’s decision to offset Mr. Kenyon’s disability benefit payments by the value of the lump sum pension payment. After unsuccessfully appealing Reliance’s determination, Mr. Kenyon brought this action against Reliance in state court in Montana. In his complaint Mr. Kenyon asserts state law claims for declaratory judgment, breach of contract, and violation of Montana’s Unfair Trade Practices Act. Reliance removed the action to federal court invoking federal question jurisdiction. Before the court were Reliance’s motion to dismiss and Mr. Kenyon’s motion to remand. Both motions turned on the issue of ERISA preemption. The court addressed the motion to remand first. As an initial matter, the court disagreed with Mr. Kenyon that the disability policy fell under the “safe harbor” exemption to ERISA. Rather, the court found that there was ample evidence that the steel workers union endorsed the plan for the purposes of the safe harbor regulation and established and maintained the plan to bring the plan within the scope of ERISA. The court noted, among other things, that the union was designated as the plan administrator, that it had the right to modify or terminate the plan, and that it had designated duties and responsibilities under the policy including issuing a certificate of insurance to each insured, maintaining records, and paying all premiums to Reliance when due under the policy. The court therefore determined that the policy is governed by ERISA. It then considered whether Mr. Kenyon’s claims are completely preempted by the federal statute, and found that they were. The court agreed with Reliance that each of the three state law causes of action could be brought as claims under ERISA, and that none of them were based on any independent legal duties. Instead, as alleged in the complaint, the claims arise from Reliance’s obligations under the policy, its actions handling Mr. Kenyon’s benefits, and its benefit calculation decision as a plan fiduciary to offset the benefit amount by the pension rollover payment. Accordingly, the court held that Reliance met its burden of showing that removal of the action was proper based on federal question jurisdiction. The court therefore denied the motion to remand. Finally, as each state law claim in the complaint was found to be completely preempted by ERISA Section 502(a), the court determined that the complaint was subject to dismissal under Rule 12(b)(6). The court thus granted Reliance’s motion to dismiss. However, it stated that it would grant Mr. Kenyon leave to file an amended complaint to amend to state a federal cause of action under ERISA.
Exhaustion of Administrative Remedies
Fourth Circuit
Young v. Western-Southern Agency, Inc., No. 2:23-cv-00764, 2025 WL 2080259 (S.D.W.V. Jul. 23, 2025) (Judge Thomas E. Johnston). Plaintiff Randy Young initially filed this lawsuit against defendant Western and Southern Life Insurance Company in state court in West Virginia. However, Western and Southern removed the case to federal court based on federal question jurisdiction. On September 20, 2024, the court determined that the Long-Term Incentive Retention plan at the center of the lawsuit is an ERISA-governed top-hat plan. Rather than dismiss Mr. Young’s action, the court permitted him to refile his complaint as an action under ERISA. Mr. Young did so. Western and Southern then filed a motion to dismiss the amended complaint. In support of its motion to dismiss, Western and Southern advanced three arguments: (1) Mr. Young’s claim for relief under ERISA is barred by his failure to exhaust administrative remedies; (2) his claim is also barred by his failure to timely file suit under the plan’s six-month deadline; and (3) Mr. Young is ineligible for the plan benefits because he was terminated for cause. In this decision the court agreed with defendant on all three points and therefore granted the motion to dismiss. First, the court stated that there was no dispute that Mr. Young failed to appeal his denial through the plan’s administrative channels. Mr. Young argued that exhausting the administrative remedies would have been futile because the same party who denied his claim would conduct the review. To this court, this “bare allegation” did not make a “clear and positive showing to warrant suspending the exhaustion requirement.” Thus, the court agreed with Western and Southern that Mr. Young’s complaint should be dismissed for failure to exhaust the internal administrative remedies. Second, the court held that the complaint should independently be dismissed for Mr. Young’s failure to timely file suit. The court noted that Mr. Young did not argue that the six-month period in the plan was unreasonable, nor did he provide an applicable statute of limitation that he believed would control. As the plan required that he file his action within six months of the final denial and because he did not commence his suit in that time, the court held that the action is time-barred. Finally, putting aside the issues of exhaustion and timeliness, the court determined that the uncontroverted evidence supports Western and Southern’s assertion that Mr. Young was ineligible for benefits under the plan because he was terminated for cause and Section 4.7 of the plan states that “[t]he contingent right of a participant or beneficiary to receive future payments hereunder with respect to both vested and nonvested performance units shall be forfeited . . . if the participant is involuntarily terminated from employment for cause by the company or any affiliate.” Mr. Young responded that the plan did not have the power to take away his vested and nonforfeitable benefits. However, the court held that ERISA’s strict vesting requirements do not apply to top-hat plans like the plan at issue. Thus, it said, “the funds do not rightfully belong to Plaintiff because they were forfeited under Section 4.7 of the LTIR plan, so unjust enrichment does not apply.” For these reasons, the court granted Western and Southern’s motion and dismissed the complaint.
Medical Benefit Claims
Second Circuit
Murphy Med. Associates, LLC v. Cigna Health and Life Ins. Co., No. 3:20-cv-1675 (VAB), 2025 WL 2022056 (D. Conn. Jul. 18, 2025) (Judge Victor A. Bolden). Plaintiffs Murphy Medical Associates, LLC, Diagnostic and Medical Specialists of Greenwich, LLC, North Stamford Medical Associates, LLC, Coastal Connecticut Medical Group, LLC, and Steven A.R. Murphy, M.D. are associated healthcare providers that operated COVID-19 testing sites. They have brought suit under ERISA and state law against Cigna Health and Life insurance Company and Connecticut General Life Insurance Company (collectively “Cigna or defendants”) to recover payment for COVID-19 testing and testing-related services that were denied reimbursement. Defendants countersued the providers for various claims related to alleged overpayments that they maintain plaintiffs collected. In previous orders the court granted in part and denied in part defendants’ motion to dismiss, and granted defendants’ motion for sanctions and precluded the plaintiffs from offering evidence in support of approximately 10,000 itemized claims. As a result of that last decision, plaintiffs were only permitted to introduce evidence to support the remaining 3,508 itemized claims. Plaintiffs moved for the court to reconsider its decision, but on September 20, 2024, the court declined to do so. Defendants subsequently moved for summary judgment on plaintiffs’ claims brought under ERISA, the Connecticut Unfair Trade Practices Act, and for tortious interference with beneficial or contractual relationships. In this decision the court granted in part and denied in part defendants’ motion for summary judgment. The court began with the ERISA claims. As an initial matter, the court agreed with defendants that in light of its order precluding plaintiffs from offering evidence as to the approximately 10,000 itemized claims, summary judgment in favor of Cigna was appropriate as to these claims. The court then focused on the remaining 3,508 itemized claims. It denied the motion to dismiss these ERISA claims. First, the court rejected defendants’ arguments challenging the validity of the assignments. It determined that the language of the assignment agreements could be interpreted to demonstrate the patients’ intent to assign any right to payment to the providers, and noted that courts in the District have found similar assignments sufficient to establish ERISA standing. Moreover, the court determined that plaintiffs’ representations to the patients that they would not seek payment from them insufficient to establish, as defendants argued, that the patients owed no debt to the providers for the medical services that could be recovered through their insurance. And while defendants argued that the assignment agreements only confer standing as to some of the providers, the court held that plaintiffs raised a genuine dispute of material fact as to the relationship between all of the providers, such that they could arguably be considered essentially a single healthcare provider. The court also declined to dismiss the ERISA claims for failure to exhaust administrative remedies owing to the fact defendants did not submit record evidence establishing that an administrative appeals process was available under the relevant plans for the itemized claims. Finally, the court concluded that dismissal of plaintiffs’ ERISA claims based on plaintiffs’ failure to post a cash price for the testing services was improper under the language of the CARES Act. For these reasons, the court denied defendants’ motion for summary judgment as to the itemized ERISA claims. However, the court granted summary judgment to Cigna on the two remaining state law causes of action. The court held that plaintiffs’ Connecticut Unfair Trade Practices Act failed because the Connecticut state legislature has not issued any statement that a violation of the COVID statutes, the FFCRA or the CARES Act, by a health plan is actionable under the Act. With regard to the tortious interference claim, the court agreed with defendants that plaintiffs presented no admissible evidence that Cigna made any defamatory statements about them. Accordingly, the motion to dismiss was granted in part and denied in part as explained above.
Sixth Circuit
Perrone v. BCBS Life Ins. Co., No. 1:24-cv-1313, 2025 WL 2027540 (W.D. Mich. Jul. 21, 2025) (Judge Hala Y. Jarbou). Plaintiff Jacob Perrone filed this action against Blue Cross Blue Shield of Michigan after the insurance company refused to cover the cost of his partial hospitalization program at an out-of-network residential mental health treatment facility during the months of March and April of 2021. Mr. Perrone asserts three causes of action in his complaint: (1) a claim for wrongful denial of benefits under Section 502(a)(1)(B); (2) a claim for equitable relief under Section 502(a)(3) based on an alleged violation of the Mental Health Parity and Addiction Equity Act; and (3) a state law claim for breach of contract. Blue Cross moved to dismiss the Parity Act violation and the breach of contract claims. The court in this order denied the motion to dismiss the claim under Section 502(a)(3), but granted the motion to dismiss the breach of contract claim. Blue Cross argued that the Parity Act violation must be dismissed because there is no private right of action available under the Mental Health Parity and Addiction Equity Act. The court, however, responded that this argument ignores the fact that Mr. Perrone explicitly invokes the Parity Act’s ERISA provision and the private right of action available to those denied plan benefits. As such, Blue Cross’s argument that Mr. Perrone lacks a remedial right to invoke the mental health parity requirement failed. The court did, however, agree with the insurer that the breach of contract claim was preempted by ERISA. The court determined that the claim self-evidently related to the benefit plan as it sought payment of benefits under the policy. As a consequence, the court found the state law breach of contract claim duplicative of ERISA’s enforcement mechanism for Mr. Perrone’s claim for recovery of benefits under the ERISA plan itself. The court therefore granted the motion to dismiss the breach of contract claim.
Pleading Issues & Procedure
Fourth Circuit
Konya v. Lockheed Martin Corp., No. 24-750-BAH, 2025 WL 2050997 (D. Md. Jul. 22, 2025) (Judge Brendan Abell Hurson). Plaintiffs in this putative class action are four retirees of defendant Lockheed Martin Corporation who allege that the defense contractor has violated ERISA in the transfer of their defined benefit pension benefits to a private and allegedly high-risk annuity with Athene Annuity & Life Assurance Company of New York through a process known as a pension risk transfer. Plaintiffs allege that the pension risk transfer was in violation of Lockheed’s statutory and fiduciary duties, and resulted in a prohibited transaction under ERISA. On March 28, 2025, the court issued an order denying Lockheed’s motion to dismiss the action. The court disagreed with defendant’s reading of the Supreme Court’s decision in Thole v. U.S. Bank, 590 U.S. 538 (2020), and their associated argument that plaintiffs do not have standing to bring suit because they have been paid all of their benefits to date. Instead, the court concluded that plaintiffs adequately alleged that Lockheed’s transfer of the plan assets and liabilities to Athene represented mismanagement so egregious that it substantially increases the risk that future pension benefits will go unpaid. This lawsuit does not exist in a vacuum, however. Other large defined pension plans in the country have also annuitized some of their pension liabilities with Athene, and retirees affected by those transfers have brought similar lawsuits concerned by the risk of future harm. On the same day this district court issued its denial of defendant’s motion to dismiss, Judge Loren AliKhan of the United States District Court for the District of Columbia granted a motion to dismiss filed by corporate defendants in a case with facts similar to the present case in Camire v. Alcoa USA Corp., No. CV 24-1062 (LLA), 2025 WL 947526 (D.D.C. Mar. 28, 2025). (Your ERISA Watch reported on both decisions in our April 9, 2025 issue.) Before the court here was Lockheed’s motion for an interlocutory appeal to address this “burgeoning split” on whether challenges to pension risk transfers involving Athene are viable in light of Thole. In this decision the court granted defendant’s motion and stayed the case pending appeal, holding that Lockheed presented a controlling question of law about which there is a substantial basis for difference of opinion among the district courts and that an order from an immediate appeal may materially advance this litigation. As to the controlling question of law, the court held that its ultimate decision rendered was a legal one “namely whether those facts, if true, represent ‘mismanagement . . . so egregious that it substantially increased the risk that [Plaintiffs’ retirement plan] would fail and be unable to pay the participants’ future pension benefits.’” Moreover, the court added that “the question is controlling in the sense that if a higher court decided the question differently, the case would not move forward in its present form.” In addition to finding that a controlling question of law exists, the court also agreed with Lockheed that there is a substantial basis for a difference of opinion on the question to be presented for appellate review, as evidenced by the two divergent district court opinions issued on the same day. It is clear, the court said that the “courts themselves disagree as to what the law is.”‘ Finally, the court determined that resolving the issue related to the application of Thole to the allegations at hand has the potential to ease future litigation by simplifying the trial and making discovery less costly and more straightforward. Accordingly, some guidance by the court of appeals, the court found, will help avoid unnecessary litigation here. For these reasons, the court found that the requirements for an interlocutory appeal under 28 U.S.C. § 1292(b) were met on the question proposed by Lockheed “namely ‘whether Plaintiffs have plausibly alleged a sufficient injury for purposes of Article III’ under the unique scenario presented here.” For those readers not familiar with interlocutory appeals under § 1292(b), the district court’s order does is a necessary but not sufficient basis for the appeal. The Fourth Circuit must now decide whether it wishes to hear the appeal and has pretty much unfettered discretion in doing so, even if it agrees with the district court that the § 1292(b) criteria are met. Full disclosure: attorneys at Kantor & Kantor represent that plaintiffs in Konya, along with attorneys from several other law firms.
Sixth Circuit
Shakespeare v. MetLife Legal Plans, Inc., No. 2:25-cv-02250-TLP-atc, 2025 WL 2051113 (W.D. Tenn. Jul. 22, 2025) (Judge Thomas L. Parker). While she was employed at Prime Therapeutics LLC pro se plaintiff Tan Yvette Shakespeare participated in a prepaid legal services plan insured by MetLife, which she alleges by its terms promised legal representation for family law matters, including divorce. But when Ms. Shakespeare requested a counsel to represent her in her divorce, she maintains that MetLife provided an attorney who did not represent her in an appropriate professional manner before abruptly withdrawing from representation in the middle of the divorce proceeding. Ms. Shakespeare says that losing her counsel caused the state court to enter default judgment against her resulting in financial harm and loss of property. In January 2025, Ms. Shakespeare sued MetLife and Prime Therapeutics in state court in connection with this experience, asserting state law claims for breach of contract, bad faith, and negligence. Defendants removed the case to federal court and then moved to dismiss the complaint. The court referred the matter to Magistrate Judge Annie T. Christoff. Judge Christoff entered a report and recommendation on April 30th recommending that the court deny defendants’ motion to dismiss. MetLife timely objected. In this decision the court found no error in the report’s analysis and adopted it in full, overriding MetLife’s objection and denying defendants’ motion to dismiss. To begin, the court agreed with Judge Christoff that without more facts about the legal services plan and more evidence about Prime Therapeutics’ conduct related to it, the court could not find that Prime endorsed the plan as a matter of law. As a result, the court agreed with the Magistrate Judge that it is too early to decide whether the plan meets ERISA’s safe harbor exemption requirements, and by extension too soon to decide the ERISA preemption issue. The court thus denied the motion to dismiss based on ERISA preemption. Moreover, the court agreed with Judge Christoff that Ms. Shakespeare’s complaint alleges enough facts supporting each element of her breach of contract, negligence, and bad faith denial of insurance claims. Accordingly, the court overruled the objections levied by MetLife. Instead, it adopted the report and recommendation, and denied the motion to dismiss.
Kraft Heinz Food Co. v. Fritz, No. 3:24 CV 1822, 2025 WL 2062250 (N.D. Ohio Jul. 23, 2025) (Judge James R. Knepp II). Decedent Larry Leo Fritz, II initially designated his two children, James E. Fritz and Larry Leo Fritz, III, as the beneficiaries of his benefits plan maintained under a Kraft Heinz savings account. However, just four days before he was involuntarily admitted to a psychiatric unit and six weeks before his death, Mr. Fritz’s online account was used to change the beneficiary of the plan to name his mother, Rita A. Fritz, as the sole beneficiary. Rita was caring for her son during this period preceding his death. One month after their father died the Fritz siblings filed a lawsuit in Huron County Probate Court in Ohio against their grandmother, Rita, to invalidate the designation, claiming incapacity or undue influence. Approximately three months later, Kraft Heinz Food Company filed this interpleader action against Rita and the siblings to facilitate payment of benefits under the plan. The Fritz siblings moved to dismiss or stay proceedings in this action under the Colorado River doctrine, claiming that the Huron County probate case is a parallel state proceeding that would resolve the underlying issue in this dispute. Kraft opposed the motion and argued that the federal court has exclusive jurisdiction over the claims at issue. The court disagreed with Kraft’s jurisdiction arguments. The court observed that under ERISA state courts “have concurrent jurisdiction of actions’ brought by a beneficiary to recover benefits, enforce rights under the plan, or clarify rights to future benefits.” It added, “[t]he Huron County Probate action is one where the Fritz Siblings are acting as beneficiaries to recover benefits under the Kraft Plan. As such, state courts have concurrent jurisdiction over the issue and a Colorado River analysis is proper.” The court then conducted an inquiry to ascertain whether abstention was appropriate under Colorado River. It concluded that it was. The court determined that the interpleader action and Huron County Probate action are parallel proceedings involving the same underlying dispute to resolve the same issues. Since the actions are parallel, the court proceeded to consider “(1) whether federal or state law provides the basis for decision of the case; (2) whether either court has assumed jurisdiction over any res or property; (3) whether the federal forum is less convenient to the parties; (4) avoidance of piecemeal litigation; and (5) the order in which jurisdiction was obtained.” As to the first factor, the court noted that ERISA does not contain any provisions regulating the problem of beneficiary designations that are forged or the result of undue influence, and that courts look to principles of state law for guidance on these issues. With regard to the second factor, the court stated that neither party indicates any court has taken jurisdiction over the property at issue. The court also found that adjudication of the Kraft plan in federal court would lead to piecemeal concurrent litigation over the same dispute in both state and federal court, which would be inconvenient and problematic. Therefore, the court determined that ongoing federal and state court proceedings are not more convenient here than just the state court proceedings. Finally, the court acknowledged that the state court action was brought before Kraft filed its complaint in federal court. Weighing all of this, the court found that the Colorado River factors favor abstention in this case. However, rather than dismiss the case, the court decided the best course of action would be to stay proceedings pending adjudication of the underlying issues in the Huron County Probate Court. The court therefore granted the siblings’ motion to stay.
Eighth Circuit
Su v. BCBSM, Inc., No. 24-99 (JRT/DLM), 2025 WL 2043663 (D. Minn. Jul. 21, 2025) (Judge John R. Tunheim). Defendant BCBSM, Inc. is a third-party administrator for several self-funded ERISA healthcare plans in Minnesota. BCBSM provides these plans with access to the Blue Cross provider network and its negotiated rates. It then administers employee claims for coverage and decides whether to approve or deny claims. If BCBSM approves a claim, it pays the negotiated amount to the provider from its own funds and then the healthcare plans reimburse it. Former Acting Secretary of Labor Julie A. Su initiated this action against BCBSM alleging that it is in violation of its fiduciary duties by charging the ERISA welfare plans for the tax that Minnesota imposes on providers’ gross revenues. BCBSM moved to dismiss the lawsuit for lack of standing and for failure to state a claim. On August 22, 2024, the court denied the motion to dismiss. It determined that the Secretary’s alleged loss in the amount of $67 million sufficient to assert standing. The court also concluded that the Secretary had plausibly alleged that BCBSM was acting as a functional fiduciary when it passed on the tax liabilities to the plans because it was exercising authority over the plan’s assets. “The Court reasoned that when BCBMS paid a claim, plan funds were automatically encumbered, meaning BCBMS was exercising control over plan assets and thus owed duties as a functional fiduciary.” In response, BCBSM moved for the court to certify its order for immediate appeal. Specifically, it moved to certify the question of whether fiduciary duties should be imposed when a third-party administrator uses its own funds rather than plan money and is subsequently reimbursed. Noting that a “motion for certification must be granted sparingly,” when the movant demonstrates “that the case is an exceptional one in which immediate appeal is warranted,” the court applied heavy scrutiny to BCBSM’s motion. It ultimately determined that while BCBSM posed a controlling question of law, one which may materially advance the ultimately termination of this litigation, it nevertheless failed to demonstrate a substantial ground for difference of opinion. In fact, the court held that the “the only potential basis for a substantial ground for difference of opinion lies in the speculation of the First Circuit.” That speculation came from a line in a decision out of the First Circuit hypothesizing that a third-party administrator could avoid fiduciary liability by adopting a reimbursement scheme similar to BCBSM here. However, as the district court here noted, “the First Circuit was not presented with the question before the Court, and it specifically described its holding as narrow…Ultimately, Massachusetts Laborers’ provides nothing more than pure conjecture about how the First Circuit may decide an issue with which it has yet to be presented.” As such, the court determined that BCBSM failed to demonstrate a substantial ground for difference of opinion on the relevant question. Accordingly, the court denied BCBSM’s motion for immediate interlocutory appeal.