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Update: Blue Cross Blue Shield Settlement

Class Action In Re: Blue Cross Blue Shield Antitrust Litigation MDL 2406

On August 9, 2022, a federal court approved the proposed $2.67 billion settlement. Payments from the Settlement will be made to Class Members who submitted valid claims only after any appeals—if filed—are resolved. Please check the Blue Cross Blue Shield Settlement website for updates.

As a reminder, employers that expect to receive settlement proceeds should be aware of the potential ERISA fiduciary duty related to the proceeds. Under ERISA, any portion of the settlement proceeds that are considered to be “plan assets” must be used for the exclusive benefit of participants in the plan (and their beneficiaries), or to finance the reasonable administrative expenses of the plan.

In absence of DOL guidance regarding the proper treatment of claim proceeds from this particular lawsuit, other DOL guidance can be referenced regarding treatment of proceeds. Specifically, the DOL has previously issued guidance related to the treatment of medical loss ratio (“MLR”) rebates received under the Affordable Care Act. Unless specific guidance is issued related to the BCBSA settlement, employers may want to use the MLR guidance as a reference when determining how to calculate what portion of the BCBSA settlement proceeds should be considered “plan assets,” and how those funds can be used.


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