Fiduciary Compliance Update, September 2026: A PBM Settlement, a Corrected Case, and a Circuit Split
- 4 days ago
- 5 min read
Three things moved in August that self-funded plan fiduciaries should know about. A major pharmacy benefit manager settlement is closer than it has been, but it is not final. A widely watched Fifth Circuit case was not doing what most coverage, including our own earlier coverage, said it was doing. And two federal circuits looked at nearly identical facts eight days apart and reached opposite conclusions.
None of this is cause for alarm. All of it is cause for a documented, current record of what your plan's committee knows and when it knew it. That record is the fiduciary defense that survives regardless of how any individual case or regulatory matter resolves.
A PBM Settlement That Is Not a Settlement Yet
On August 5, 2026, the Federal Trade Commission published a proposed consent order with Caremark Rx and its affiliate Zinc Health Services in the Federal Register, resolving allegations tied to insulin rebate practices. The order is open for public comment through September 4, 2026. The Commission has not voted to make it final, and Caremark has not admitted liability.
This is the same theory the FTC pursued against Express Scripts, whose consent order became final in February 2026. A parallel proposed order against OptumRx remains pending. Only one of the three PBMs the FTC has pursued under this theory has actually reached a final, binding order.
The FTC's own estimate, up to $8.5 billion in consumer savings over ten years, is a projection built into the proposed order's cost-benefit analysis. It is a modeled outcome, not a number that has been recovered or verified.
A proposed order is a draft with a comment period, not a final judgment. Treat coverage of it accordingly, and treat the underlying question, how your own PBM's compensation ties to list price and rebate size, as one worth asking regardless of how this specific matter resolves.
What to do: your plan does not need the FTC to finalize anything to act on the underlying question. Ask your PBM, in writing, how its compensation is structured relative to list price and rebate capture. Put the question and the answer in your committee minutes before September 4.
When Our Own Tracking Needed a Correction
For several months, coverage across the industry, including some of our own, described Aramark v. Aetna as a test of whether a third-party administrator's contract gives it enough discretion over claims to be a functional ERISA fiduciary. That framing is not accurate, and we are correcting it here.
The Fifth Circuit case pending en banc rehearing turns on a narrower question: whether the make-whole monetary relief Aramark is seeking counts as appropriate equitable relief under ERISA Section 502(a)(3). That determination decides whether the dispute has to be arbitrated under the parties' contract, not whether Aetna is a functional fiduciary. A three-judge panel ruled against Aetna's arbitration position in December 2025; that opinion was vacated when the full court granted rehearing en banc in April 2026, and no new ruling has issued.
We are telling you about our own error deliberately rather than quietly fixing it. The discipline of catching and correcting a mistake in public, before it compounds through a committee memo or a renewal decision built on it, is the same discipline ERISA expects of a plan fiduciary. Your process will not be perfect. Whether it is defensible depends on whether it catches its own errors before they compound.
What to do: if any committee materials at your plan cite Aramark v. Aetna as a functional-fiduciary-status case, correct the citation. The case is worth tracking for its arbitrability holding, not for the theory most coverage has attached to it.
Two Circuits, Eight Days, Opposite Results
On August 11, 2026, the Ninth Circuit allowed a provider's negligent misrepresentation claim against a plan sponsor and its administrator to proceed past ERISA preemption, because the claim turned on what the administrator represented during a benefits verification call rather than on the plan's coverage terms themselves.
Eight days later, on August 19, 2026, the Sixth Circuit reached the opposite result on a similar fact pattern, applying its own longstanding precedent and explicitly acknowledging the tension with the Ninth Circuit's ruling.
Neither court got it wrong on its own terms. Both were applying settled law within their own circuit. The problem for a plan that operates across circuits is that which court you would land in now materially changes how a provider dispute over quoted-versus-paid reimbursement would likely play out.
What to do: if your plan operates in both the Ninth and Sixth Circuits, or anywhere nearby, know which standard applies where before a benefits-verification dispute happens, not after. This is precisely the kind of variance that a documented, standardized verification process across all locations is designed to close.
What This Means for Your Committee
Three developments, three different postures. A regulatory matter that is proposed but not final. A litigation theory that turned out to be narrower than reported. A circuit split that makes the answer to the same fact pattern depend on geography. The throughline across all three is documentation.
ERISA fiduciary liability turns on whether your decision-making process was prudent, not on whether every outcome was optimal or every prediction about a case turned out right. A committee that asked the right question about PBM compensation, that corrected its own record when a legal theory was reported wrong, and that knew which circuit's rule applied to its own operations, has evidence of a prudent process. A committee that did none of those things is exposed regardless of how any individual matter resolves.
ClaimInformatics™ tracks fiduciary duty as one of eight distinct duties, not a general standard of good faith, because that is how courts and regulators actually evaluate a plan's oversight when a claim or an investigation arrives. The three developments above touch prudence, loyalty, and the duty to monitor service providers simultaneously.
Want the Full Docket, Every Month, Before Your Renewal Cycle Needs It?
The Fiduciary Briefing tracks every case and regulatory development that touches self-funded plan oversight, in one place, updated monthly. This month's edition covers the FTC Caremark order, the Aramark v. Aetna correction, and the Ninth-Sixth Circuit split in full.
Questions about what any of this means for your plan? Contact Stephen Carrabba, CEO and Co-Founder, at s.carrabba@claiminformatics.com or (860) 761-9570.
Frequently Asked Questions
Is the FTC's Caremark settlement final?
No. The FTC published a proposed consent order in the Federal Register on August 5, 2026. It was open for public comment through September 4, 2026, and the Commission has not voted to make it final.
Does Aramark v. Aetna decide whether TPAs are ERISA fiduciaries?
No. The Fifth Circuit's en banc rehearing addresses whether monetary relief counts as appropriate equitable relief under ERISA Section 502(a)(3), which determines arbitrability. It does not resolve functional-fiduciary status.
What is the Ninth-Sixth Circuit split about?
Whether a provider's negligent misrepresentation claim against a plan administrator, based on statements made during benefits verification, survives ERISA preemption. The Ninth Circuit said it can; the Sixth Circuit, on similar facts, said it does not.
What should our plan do while the FTC comment period runs?
Ask your own PBM, in writing, how its compensation is tied to list price and rebate size, and document the answer in committee minutes. That question does not depend on how the FTC's Caremark matter resolves.
Where can I track ongoing fiduciary litigation and regulatory developments?
The ClaimInformatics Litigation and Regulatory Tracker is updated with every verified milestone as it happens, and the monthly Fiduciary Briefing summarizes what changed and what to do about it.
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