Bluecross Blueshield of Tennessee, Inc. v. Christopher R. Nicolopoulos

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0120p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BLUECROSS BLUESHIELD OF TENNESSEE, INC.,
Plaintiff-Appellant,
v.
CHRISTOPHER R. NICOLOPOULOS,
Defendant,
DAVID J. BETTENCOURT, in His Official Capacity as
Commissioner of the New Hampshire Insurance
Department,
Defendant-Appellee.
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No. 24-5307
Appeal from the United States District Court for the Eastern District of
Tennessee at Chattanooga.
No. 1:21-cv-00271—J. Ronnie Greer, District Judge.
Argued: December 11, 2024
Decided and Filed: May 8, 2025
Before: KETHLEDGE, LARSEN, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York,
for Appellant. Samuel R.V. Garland, NEW HAMPSHIRE DEPARTMENT OF JUSTICE,
Concord, New Hampshire, for Appellee. ON BRIEF: Karin A. DeMasi, CRAVATH,
SWAINE & MOORE LLP, New York, New York, Anthony F. Shelley, Dawn E. Murphy-
Johnson, MILLER & CHEVALIER CHARTERED, Washington, D.C., for Appellant. Anthony
J. Galdieri, Nathan W. Kenison-Marvin, NEW HAMPSHIRE DEPARTMENT OF JUSTICE,
Concord, New Hampshire, for Appellee.
>

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 2
_________________
OPINION
_________________
LARSEN, Circuit Judge. BlueCross BlueShield of Tennessee (BlueCross) is both the
insurer and fiduciary for an ERISA-governed group health insurance plan. A plan member in
New Hampshire sought coverage for medical treatments she received. Because the plan did not
cover such treatments, BlueCross denied the claims. The Commissioner of the New Hampshire
Insurance Department brought an enforcement action against BlueCross, alleging that BlueCross
did not cover medical treatments required under New Hampshire law. BlueCross sought to
enjoin the state regulatory action on the grounds that it threatened BlueCross’s fiduciary duties
under ERISA. The district court denied relief and granted summary judgment to the
Commissioner. BlueCross appeals. For the following reasons, we AFFIRM.
I.
Factual Background. BlueCross is a nonprofit Tennessee corporation licensed to issue
health insurance policies in Tennessee. PhyNet Dermatology, LLC (PhyNet), is a
Tennessee-based company with employees in various states, including New Hampshire. In 2020
and 2021, BlueCross sold and issued a group health insurance policy to PhyNet, forming an
employee welfare benefit plan (Plan). The Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001, et seq., governs the Plan. BlueCross is not licensed to do business or issue
health insurance policies in New Hampshire.1
BlueCross administers the Plan. As an administrator, BlueCross determines whether the
Plan covers claims that Plan participants submit. In this role, BlueCross acts as a Plan fiduciary.
The Plan specifies that Tennessee law applies where federal law does not.
1To cover claims by New Hampshire residents BlueCross participates in the “BlueCard Program,” whereby
another designated insurance network covers BlueCross policy members’ medical claims and BlueCross reimburses
that network. BlueCross’s sister network in New Hampshire is Anthem Health Plans of NH, Inc. So, a policy
member in New Hampshire obtains medical services from a provider at Anthem’s rates. The provider bills Anthem,
who then sends the claim to BlueCross. BlueCross consults the Plan’s terms and informs Anthem whether the
policy covers the claim and in what amount. Anthem pays the provider for the expenses covered under the policy,
and BlueCross reimburses Anthem.

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 3
B.C., a PhyNet employee and Plan member in New Hampshire, submitted claims for
fertility treatments that she received in 2020 and 2021. Because the Plan deliberately excludes
fertility treatments from coverage, BlueCross, acting as a fiduciary, denied B.C.’s claims. This
would have been all well and good under Tennessee law, which does not mandate health
insurance coverage for fertility treatments. But New Hampshire law does. So, after learning
about BlueCross’s denial of B.C.’s claims, the Commissioner of the New Hampshire Insurance
Department reached out to BlueCross.2 The Commissioner informed BlueCross that, as an issuer
of a group health policy to an employer with employees in New Hampshire, its coverage must
follow New Hampshire’s insurance mandates. BlueCross nevertheless refused to cover B.C.’s
fertility treatments.
Following BlueCross’s refusal, the Commissioner issued an Order to Show Cause and
Notice of Hearing to BlueCross. The Show-Cause Order noted that New Hampshire law
requires insurance plans to “provide coverage for medically necessary fertility treatment,” but
that BlueCross had nonetheless denied B.C.’s claims for such treatment. R. 20-1, Pls.’ Ex. 1,
PageID 475. It required BlueCross to attend an evidentiary hearing to determine whether
BlueCross violated its laws. And it requested that BlueCross be ordered “to pay a penalty no
less than $52,500” and “to cease and desist from offering health insurance in [New Hampshire].”
Id. at 476. In response, BlueCross filed suit in federal court, relying on ERISA to ward off the
New Hampshire administrative proceeding.
ERISA. ERISA is a “uniform regulatory regime over employee benefit plans.” Aetna
Health Inc. v. Davila, 542 U.S. 200, 208 (2004). To foster uniformity, ERISA includes
“expansive pre-emption provisions,” thus making the regulation of employee benefit plans an
“exclusively . . . federal concern.” Id. (citation omitted).
As part of its regulatory scheme, ERISA sets out the obligations and powers of
ERISA-plan fiduciaries. Anyone who “has any discretionary authority or discretionary
responsibility in the administration of” an employee benefit plan is generally a fiduciary under
2Christopher Nicolopoulos was the commissioner at the time, but he ceased holding office on July 4, 2023.
Pursuant to Federal Rule of Civil Procedure 25(d), his successor, David J. Bettencourt, was automatically substituted
as a defendant.

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 4
ERISA. ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). Section 404(a)(1)(D) of ERISA requires
a fiduciary to “discharge his duties with respect to a plan solely in the interest of the participants
and beneficiaries and . . . in accordance with the documents and instruments governing the plan.”
29 U.S.C. § 1104(a)(1), (D). If any act or practice violates a plan’s terms, ERISA § 502(a)(3)
enables a fiduciary to seek injunctive relief from that act or practice. 29 U.S.C. § 1132(a)(3).
Despite ERISA’s broad regulatory power and vast preemption of state laws, ERISA
“contains almost no federal regulation of the terms of benefit plans.” Metro. Life Ins. Co.
v. Massachusetts, 471 U.S. 724, 732 (1985) (emphasis added). Instead, it leaves the regulation
of plan terms to the states through its “saving clause”: ERISA § 514(b)(2)(A). Id. at 733. The
saving clause provides that, generally, ERISA does not “exempt or relieve any person from any
law of any State which regulates insurance, banking, or securities.” ERISA § 514(b)(2)(A),
29 U.S.C. § 1144(b)(2)(A). So, a state may enforce its insurance laws, including “mandated-
benefit laws,” against an insurer, even if ERISA governs the plan. Metro. Life, 471 U.S. at 746;
see FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990) (“[An] ERISA plan is . . . bound by state
insurance regulations insofar as they apply to the plan’s insurer.”).
Procedural Background. BlueCross filed a complaint in federal court for preliminary
injunctive relief under § 502(a)(3) of ERISA, which protects ERISA-plan fiduciaries. The
parties agreed to stay the state administrative proceeding pending the federal litigation’s
outcome, so BlueCross withdrew its request for preliminary relief. In its place, BlueCross filed a
four-count amended complaint. In its fiduciary capacity, BlueCross broadly sought injunctive
and declaratory relief from the Commissioner’s enforcement of New Hampshire’s
fertility-treatment mandate with respect to the Plan.3 The Commissioner filed a motion to
dismiss for lack of jurisdiction, which the district court denied.
BlueCross subsequently filed a motion for partial summary judgment. The district court
denied the motion. In doing so, the court announced its intent to grant summary judgment to the
Commissioner pursuant to Federal Rule of Civil Procedure 56(f)(1). As the court saw it, the
3BlueCross also sought injunctive and declaratory relief barring the Commissioner from enforcing New
Hampshire insurance laws against similar ERISA-covered, BlueCross-administered group health insurance plans
with Tennessee choice-of-law provisions. BlueCross does not appeal the district court’s order on that count.

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 5
Commissioner brought the state administrative enforcement action against BlueCross in its
capacity as an insurer. ERISA’s saving clause permits such actions. So, BlueCross could not
successfully use ERISA § 502(a)(3) to shield itself from the facially valid enforcement action
brought against it as an insurer.
BlueCross contested the district court’s determination, but the court nevertheless granted
summary judgment with respect to all but one issue—whether the Commissioner could enforce
New Hampshire’s unfair-insurance-practices law against BlueCross. The parties consensually
mooted any remaining claims arising from that issue, and the district court entered final
judgment. BlueCross appeals.
II.
The crux of the present dispute is whether the Commissioner brought the Show-Cause
Order against BlueCross in BlueCross’s capacity as an ERISA fiduciary or as an insurer.
BlueCross argues the former; the Commissioner argues the latter.
A.
At the outset, the Commissioner argues that BlueCross forfeited its central argument by
failing to raise it below. See Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1011 (6th Cir.
2022). We disagree.
BlueCross has consistently framed the Show-Cause Order as having been brought against
BlueCross in its fiduciary capacity, and therefore not in its capacity as an insurer. Throughout its
amended complaint, BlueCross stated that it was seeking relief “in its fiduciary capacity” from
the Show-Cause Order that it saw as threatening BlueCross’s fiduciary obligations. R. 20,
Amended Compl., PageID 451–53, 463, 465–66, 468. Further, in moving for partial summary
judgment, BlueCross asserted that the New Hampshire proceeding “is, in effect, a proxy effort to
reverse and remedy B.C.’s benefits denial.” R. 38, Br. for Partial Summ. J., PageID 596. And
when the district court rejected this characterization of the action, BlueCross disagreed, claiming
that the “sole issue[]” in the Show-Cause Order is whether BlueCross “wrongfully refused
[coverage] for [B.C.’s] fertility treatments under New Hampshire law.” R. 84, Pls.’ Mem. in

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 6
Resp. to Dct. Ct. Op. & Order, PageID 1466 n.9. Because BlueCross has consistently framed the
Show-Cause Order as one targeting BlueCross for actions it took as a fiduciary, BlueCross did
not forfeit the argument.
B.
We turn to the merits. BlueCross contends that the district court was wrong to conclude
that the Commissioner issued the Show-Cause Order against BlueCross in its capacity as an
insurer, rather than as a fiduciary. The capacity question matters because ERISA’s saving clause
permits states to enforce their insurance laws against insurers. ERISA § 514(b)(2)(A), 29 U.S.C.
§ 1144(b)(2)(A). So if BlueCross was ordered to attend the New Hampshire hearing in its
capacity as an insurer, ERISA poses no obstacle to the state proceeding. As the party seeking
injunctive relief, BlueCross has the burden to show that the Commissioner was not proceeding
against it as an insurer, but instead as a fiduciary. See eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006).
“We review a grant of summary judgment de novo, and we draw all reasonable
inferences for the nonmoving party.” Walden v. Gen. Elec. Int’l, Inc., 119 F.4th 1049, 1056 (6th
Cir. 2024). “To survive summary judgment, the nonmoving party must present significant
probative evidence putting the material facts in doubt.” Id. at 1057 (citation and quotation marks
omitted). If “no genuine dispute as to any material fact” exists, the movant is “entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A look at ERISA’s provisions helps us discern the nature of the New Hampshire
proceeding against BlueCross. The Commissioner is not a participant or beneficiary of the Plan,
so he cannot challenge BlueCross’s fiduciary-capacity determination of B.C.’s benefits. See
ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The Commissioner can, however, enforce
New Hampshire’s insurance laws against insurers. See ERISA § 514(b)(2)(A), 29 U.S.C.
§ 1144(b)(2)(A); N.H. Rev. Stat. Ann. § 400-A:3 (2025). So, absent some irregularity, the
Commissioner must be bringing the administrative action against BlueCross to enforce New
Hampshire’s insurance laws. Cf. Hartman v. Moore, 547 U.S. 250, 263 (2006) (noting the

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 7
“longstanding presumption of regularity accorded to prosecutorial decisionmaking”); Nieves
v. Bartlett, 587 U.S. 391, 400 (2019) (same).
The Show-Cause Order also reveals that the Commissioner is targeting BlueCross for
actions it took as an insurer. The order’s “Statement of Issues” concerns whether BlueCross
violated two New Hampshire insurance laws. The first permits the State to sanction the knowing
violation of its insurance laws. N.H. Rev. Stat. Ann. § 400-A:15(III) (2025). The second
requires every “health carrier that issues or renews any group policy [or] plan” that provides
“benefits for medical or hospital expenses” to “provide to certificate holders of such insurance
coverage for medically necessary fertility treatment.” Id. § 417-G:2(II). These laws patently
concern insurance regulation and could apply to BlueCross only in its capacity as an insurer.
The “Penalty Requested” further reflects this. The Commissioner seeks: (1) a monetary
penalty of at least $52,500 and (2) an order directing BlueCross to cease and desist from
providing health insurance in New Hampshire. The cease-and-desist penalty manifestly targets
BlueCross as an insurer, not a fiduciary. The monetary penalty does too, as § 400-A:15(III)
authorizes a monetary penalty for each violation of any insurance “statute, rule, [or] regulation.”4
To be sure, the Order’s “Statement of Facts” and “Statement of Issues” focus heavily on
BlueCross’s denial of B.C.’s claims. And the Commissioner brought the enforcement action
following discussions over BlueCross’s denial of B.C.’s claims and the Commissioner’s failed
attempt to reverse it. But, as the district court remarked, “how else should [the Commissioner]
reasonably [have] be[en] expected to learn that [BlueCross] was potentially in violation of [New
Hampshire’s insurance] laws?” R. 88, Dct. Ct. Op. & Order, PageID 1503 n.4. It makes sense
that the Order references the facts of B.C.’s case and that the Commissioner intends to use
witnesses and exhibits related to her case at the administrative proceeding—if BlueCross is
4In its order providing notice of its intent to grant summary judgment, the district court observed that “the
record is devoid of any” “indication that the $52,000 [sic] monetary fine requested in the Show Cause Order has any
relation to the sum of B.C.’s denied claims.” R. 83, Dct. Ct. Op. & Order, PageID 1443. The court noted, however,
that, if there were such a relationship, it “fully expect[ed] that [BlueCross] would have pointed that out.”
Id. BlueCross’s brief in response to the order stayed silent on the matter. But at oral argument in this court, counsel
for BlueCross suggested that the requested penalty is, in fact, the sum of BlueCross’s denials of B.C.’s claims. An
argument raised for the first time at oral argument, however, is not preserved for appeal. Resurrection Sch.
v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc).

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No. 24-5307 BlueCross BlueShield of Tenn. v. Nicolopoulos Page 8
subject to New Hampshire’s insurance laws, the denial of B.C.’s claims is evidence that
BlueCross has been skirting them.
Supreme Court caselaw confirms that ERISA is of no help to BlueCross here. The
Supreme Court concluded in UNUM Life Insurance Co. of America v. Ward, 526 U.S.
358 (1999), that insurers who also function as ERISA-plan fiduciaries cannot use their fiduciary
duties to evade enforcement of state insurance laws. In Ward, as here, the insurer contended that
ERISA preempted a “saved” state insurance regulation because the regulation “conflict[ed] with
ERISA’s requirement that plan fiduciaries act ‘in accordance with the documents and
instruments governing the plan.’” Id. at 375 (quoting 29 U.S.C. § 1104(a)(1)(D)). The Court
swiftly discarded this argument. Finding ERISA preemption in such circumstances, it explained,
would leave states “powerless to alter the terms of the insurance relationship in ERISA plans;
insurers could displace any state regulation simply by inserting a contrary term in plan
documents.” Id. at 376. Ward thus establishes that fiduciary duties created by the terms of an
ERISA-governed employee benefit plan are not an escape hatch from valid state insurance
regulations. Cf. Larson v. United Healthcare Ins. Co., 723 F.3d 905, 912 (7th Cir. 2013)
(“[W]hen an employee-benefits plan includes an insurance policy, contract terms mandated by
state insurance law become plan terms.”).
In short, the Commissioner brought the enforcement action against BlueCross in its
capacity as an insurer. He did so to enforce New Hampshire’s insurance laws. And the saving
clause saves state insurance laws from ERISA preemption. So ERISA does not shield BlueCross
from New Hampshire’s regulatory action.
BlueCross raises a handful of challenges to this conclusion. None is persuasive. First,
BlueCross disputes the relevancy of Ward because it “says nothing about which states’ ‘saved’
benefits mandates apply to an ERISA fiduciary,” here, New Hampshire’s or Tennessee’s.
Appellant Br. at 29. BlueCross insists that is the real question this case presents. That framing,
however, relies on adopting BlueCross’s factual position—that the Commissioner seeks to
regulate BlueCross as a fiduciary. As shown, that simply is not the case.

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BlueCross also invokes Franchise Tax Board v. Construction Laborers Vacation Trust,
463 U.S. 1 (1983), and Thiokol Corp. v. Department of Treasury, 987 F.2d 376 (6th Cir. 1993),
to argue that ERISA § 502(a)(3) provides a viable remedy here. But those cases merely
recognize that ERISA fiduciaries may seek declaratory and injunctive relief under § 502(a)(3)
“when their rights and duties under ERISA are at issue.” Franchise Tax Bd., 463 U.S. at 19–20;
see Thiokol, 987 F.2d at 380. No one disputes this statement of the law. Indeed, the district
court allowed BlueCross to seek relief under § 502(a)(3) here: when denying the
Commissioner’s motion to dismiss, the district court explained that “when accepting the facts in
the Amended Complaint as true, Plaintiff is a fiduciary and can bring an action under ERISA.”
R. 45, Dct. Ct. Op. & Order, PageID 981. So the court had jurisdiction over the suit. But, at the
summary judgment stage, the district court correctly determined that the Show-Cause Order is
directed to BlueCross as an insurer. And the Supreme Court’s decision in Ward makes clear that
§ 502(a)(3) has no force against state enforcement actions brought against insurers. 526 U.S. at
375–76. So although BlueCross could seek relief under ERISA, it is “not entitled to [such]
relief.” R. 88, Dct. Ct. Op. & Order, PageID 1497. In any event, neither Franchise Tax Board
nor Thiokol dealt with a state attempting to enforce its ERISA-saved insurance laws against an
insurer; rather, both cases involved a state attempting to exert its taxing power over an
ERISA-governed plan. Franchise Tax Bd., 463 U.S. at 4–7; Thiokol, 987 F.3d at 377–78.
Franchise Tax Board and Thiokol thus do not carry the day for BlueCross.
BlueCross further warns of the consequences of permitting states to enforce their
benefit-mandate laws against insurers, who also are ERISA-plan fiduciaries, whenever the states
disapprove of benefits denials. BlueCross fears that insurers/fiduciaries will have to “master the
relevant laws of 50 States,” thus undermining ERISA’s goal of “minimizing the administrative
and financial burdens on plan administrators.” Appellant Br. at 36 (citation and quotation marks
omitted). Like the Supreme Court, we “recognize that applying the States’ varying insurance
regulations creates disuniformities” but that seems to be “the inevitable result of the
congressional decision to ‘save’ local insurance regulation.” Ward, 526 U.S. at 376 n.6 (quoting
Metro. Life, 471 U.S. at 747).

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Finally, BlueCross asserts that “there are all sorts of reasons why New Hampshire cannot
regulate [BlueCross] in its capacity as an insurer,” including due process limitations. Reply Br.
at 13. But BlueCross did not plead this theory of relief in the district court, and its opening brief
to this court acknowledges that these issues were “not before [the district court] for decision in
this case.” Appellant Br. at 30. Like the district court below, we “take[] no position on whether
[BlueCross] has actually engaged in the practice of insurance in New Hampshire or whether
[BlueCross’s] contacts with New Hampshire are enough to subject it to New Hampshire’s
jurisdiction.” R. 83, Dct. Ct. Op. & Order, PageID 1445. We assume that BlueCross may raise
these issues in the New Hampshire administrative proceeding.
* * *
Although ERISA broadly preempts state laws, it leaves intact the states’ authority to
enforce their insurance regulations. The Commissioner attempts to exercise that authority here
against BlueCross in its capacity as an insurer. Because ERISA does not stand in his way, we
AFFIRM.

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