Does an administrator hired by an ERISA plan act as a fiduciary when it controls prices paid by the plan or its participants?

QUESTIONS PRESENTED ERISA imposes fiduciary duties to the extent that an actor performs a function enumerated in 29US.C. . § 1002(21)(A) (defining fiduciary status in terms of the administration or management of a plan or its assets). ; Until 2010, no circuit disputed that a party hired by an ERISA plan is a fiduciary when it controls the prices paid by the plan or its participants. Then, a split Sixth Circuit panel created an extra-textual exception for third-party administrators whose “business” is to control prices. See DeLuca v. Blue Cross Blue Shield of Mich., 628 F.3d 743, 747 (6th Cir. 2010). Judge Keth; ledge dissented. In this case, the Second Circuit joined the Sixth Circuit on the wrong side of a lopsided circuit split. It then extended that error on a second important issue. . The Questions Presented are: . : 1. Does an administrator hired by an ERISA plan act as a fiduciary when it controls prices paid by the plan or its participants (as the Fourth, Fifth, Sev. enth, Eighth, and Ninth Circuits hold) or is control over pricing exempt from the definition of “fiduciary” (the DeLuca exception) if the administrator is in the “business” of setting prices for its clients (as the Second and Sixth Circuits maintain)? , il ; QUESTIONS PRESENTED—Continued : 2. If the DeLuca exception is, in fact, a proper gloss on ERISA based on this Court’s decision in Pegram v. Herdrich, 530 U.S. 211 (2000), does it exempt 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? \ iii :