Whether a service provider must have a preexisting relationship with a plan to qualify as a 'party in interest' under ERISA § 406(a)

QUESTION PRESENTED The Employee Retirement Income Security Act (ERISA) bars a plan fiduciary from causing the plan to engage in certain transactions with a “party in interest.” 29 U.S.C. § 1106(a). “Congress defined ‘party in interest’ to encompass those entities that a fiduciary might be inclined to favor at the expense of the plan’s beneficiaries.” Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 242 (2000). Among those included in the statutory definition is “a person providing services to such plan.” 29 U.S.C. § 1002(14)(B). Consistent with that definition, the U.S. Court of Appeals for the Tenth Circuit has held that for a thirdparty service provider to qualify as a “person providing services” to the plan and thus a “party in interest,” the service provider must have a relationship with the plan that preexists, and is independent of, the relationship created by the allegedly prohibited transaction. Ramos v. Banner Health, 1 F.4th 769, 786-87 (10th Cir. 2021). Breaking with the Tenth Circuit, the U.S. Court of Appeals for the Fourth Circuit held below that OptumHealth Care Solutions, a non-fiduciary service provider that had no preexisting relationship with Respondent Sandra Peters’s health plan, could qualify as a “party in interest” by contracting with the plan’s claims administrator and getting paid under those contracts. The question presented is For a service provider to qualify as a “party in interest” under 29 U.S.C. § 1106(a), must the service provider have a preexisting relationship with the plan ii that is independent of the relationship created by the allegedly prohibited transaction?