RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 09a0107p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                  X
 AMERICA’S HEALTH INSURANCE PLANS; LIFE -
 AMERICAN COUNCIL OF LIFE INSURERS;
                                                   -
 INSURANCE ASSOCIATION OF MICHIGAN,                -
                          Plaintiffs-Appellants, -
                                                        No. 08-1406

                                                   ,
                                                    >
                                                   -
                                                   -
            v.
                                                   -
                                                   -
 KEN ROSS, Acting Commissioner of the
 Office of Financial and Insurance Services,       -
                                                   -
                                                   -
 Michigan Department of Labor and

                           Defendant-Appellee. -
 Economic Growth,
                                                  N
                      Appeal from the United States District Court
                for the Western District of Michigan at Grand Rapids.
                  No. 07-00631—Richard A. Enslen, District Judge.
                              Argued: January 13, 2009
                        Decided and Filed: March 18, 2009
              Before: MERRITT, COLE, and SUTTON, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: Edward A. Scallet, GROOM LAW GROUP, Washington, D.C., for Appellants.
William A. Chenoweth, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Edward A. Scallet, GROOM LAW
GROUP, Washington, D.C., for Appellants. William A. Chenoweth, MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, Michael P. Farrell,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Meir Feder, JONES DAY, New York, New York, Mary Ellen Signorille, AARP
FOUNDATION LITIGATION, Washington, D.C., for Amici Curiae.




                                          1
No. 08-1406         Am. Council of Life Ins., et al. v. Ross                           Page 2


                                    _________________

                                         OPINION
                                    _________________

        COLE, Circuit Judge.        Defendant-Appellee Ken Ross is the Commissioner
(“Commissioner”) of the Michigan Office of Financial and Insurance Services (“OFIS”).
Under OFIS’s authority to regulate insurance, it promulgated rules, Mich. Admin. Code
Rules 500.2201-500.2202 and 550.111-550.112, prohibiting insurers from issuing,
delivering, or advertising insurance contracts or policies that contain “discretionary clauses”
(the “rules”). Such clauses provide that courts will give deference to a plan administrator’s
decision to award or deny benefits or interpretation of plan terms in any court proceeding
challenging such decisions or interpretations. Plaintiffs-Appellants American Council of
Life Insurers, America’s Health Insurance Plans, and Life Insurance Association of
Michigan (collectively, “Insurance Industry”) filed suit, seeking declaratory and injunctive
relief to prevent OFIS from enforcing the rules. Both parties moved for summary judgment,
with the Insurance Industry arguing that the rules are preempted by the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. The district
court concluded that because the rules constitute laws regulating insurance under ERISA’s
savings clause, ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), they are not preempted
by ERISA, and granted summary judgment in favor of the Commissioner. The Insurance
Industry appealed. For the following reasons, we conclude that Michigan’s rules fall within
the ambit of ERISA’s savings clause insofar as they are state laws regulating insurance, and
thus are not preempted by ERISA.

                                    I. BACKGROUND

A. Background of the Rules

        The parties stipulated to the following pertinent facts for the purpose of the cross-
motions for summary judgment. (Stip. Facts, Joint Appendix (“JA”) 44.)

        OFIS is responsible for licensing, examining, and supervising insurers and nonprofit
health-care corporations doing business in the State of Michigan. To this end, OFIS’s
authority includes the power to disapprove insurance policy forms, and documents associated
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                               Page 3


with such forms, which are filed by insurers and nonprofit health-care corporations doing
business in Michigan. Pursuant to this authority, OFIS promulgated administrative rules,
Mich. Admin. Code Rules 500.2201-500.2202 and 550.111-550.112, which generally
prohibit insurers and nonprofit health-care corporations from issuing, advertising, or
delivering to any person in Michigan, a policy, contract, rider, indorsement, certificate, or
similar contract document that contains a discretionary clause and provide that any such
clause is void and of no effect. The rules define discretionary clauses as:

        [A] provision in a form that purports to bind the claimant to or grant
        deference in subsequent proceedings to the insurer’s decision, denial, or
        interpretation on terms, coverage, or eligibility for benefits including, but not
        limited to, a form provision that does any of the following:
        (i) Provides that a policyholder or other claimant may not appeal a denial of
        a claim.
        (ii) Provides that the insurer’s decision to deny policy coverage is binding
        upon a policyholder or other claimant.
        (iii) Provides that on appeal the insurer’s decision-making power as to policy
        coverage is binding.
        (iv) Provides that the insurer’s interpretation of the terms of a form is
        binding upon a policyholder or other claimant.
        (v) Provides that on appeal the insurer’s interpretation of the terms of a form
        is binding.
        (vi) Provides that or gives rise to a standard of review on appeal that gives
        deference to the original claim decision.
        (vii) Provides that or gives rise to a standard of review on appeal other than
        a de novo review.

Mich. Admin. Code Rules 500.2201 (b) and 550.111(c).

        The rules took effect June 1, 2007. Given that employee-benefit plans established
or maintained under ERISA commonly contain discretionary clauses, the rules would
prohibit any entity covered by them from “issuing, advertising, or delivering to any person
in the State of Michigan, including an employee benefit plan subject to ERISA, an
underwritten policy or certificate that includes a discretionary clause.” (JA 46.)

        Plaintiffs American Council of Life Insurers and America’s Health Insurance Plans
are national trade associations representing health plans, health insurers, and life insurers that
conduct business in Michigan. Both trade associations “advocate public policies on behalf
of their members in legislative, regulatory, and judicial forums at the state and federal
levels.” (JA 47.) Their members offer a variety of insurance products, including “health
No. 08-1406         Am. Council of Life Ins., et al. v. Ross                           Page 4


care coverage, medical expense insurance, long-term care insurance, disability income
insurance, [and] dental insurance.” (Id.) Plaintiff Life Insurance Association of Michigan
represents life insurance companies licensed in Michigan that provide similar insurance
products to Michigan customers that sponsor employee benefit plans subject to ERISA.

        Because the Insurance Industry is subject to certain rules promulgated by OFIS, the
Insurance Industry “would be affected if the [r]ules are upheld because some of their
members have in the past used policy forms approved by OFIS that had discretionary clauses
and the members may wish to use such clauses in future policy forms submitted to OFIS.”
(JA 48.) Similarly, many of the customers of the Insurance Industry’s members “ would be
affected if the [r]ules are upheld because they have also purchased OFIS approved policies
containing discretionary clauses to fund their employee benefit plans, and many may wish
to do so again in the future.” (Id.)

B. Procedural Background

        On July 2, 2007, the Insurance Industry filed suit against OFIS, seeking declaratory
relief that the rules do not govern the administration and enforcement of the terms of
employee benefit plans subject to ERISA, and injunctive relief prohibiting the Commissioner
and OFIS from enforcing the rules with respect to insurance policies issued for the purpose
of funding or otherwise providing benefits in connection with plans subject to ERISA.
Following discovery, both parties moved for summary judgment, with the Insurance Industry
arguing, inter alia, that (1) the rules are preempted by ERISA because they interfere with that
statute’s objectives, and (2) the rules do not fall within the ambit of ERISA’s savings clause,
29 U.S.C. § 1144(b)(2)(A). The district court rejected each of these arguments, granting
summary judgment in favor of the Commissioner.

                                       II. DISCUSSION

A. Standard of Review

        We review the district court’s grant of summary judgment on the issue of ERISA
preemption de novo. Millsaps v. Thompson, 

, 537 (6th Cir. 2001); see also
Briscoe v. Fine, 

, 497 (6th Cir. 2006) (“[T]his court reviews de novo the
question of whether a state-law claim is preempted by ERISA.”). In order to review the
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                            Page 5


district court’s grant of summary judgment in this case, we look to ERISA, the statutory
scheme before us. Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 

, 152 (1982).

B. ERISA

        ERISA regulates, among other things, employee welfare benefit plans that provide
medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability,
or death through the purchase of insurance. ERISA § 3(1), 29 U.S.C. § 1002(1). ERISA
permits a participant or beneficiary to bring a civil action (1) “to recover benefits due to him
under the terms of his plan,” (2) “to enforce his rights under the terms of the plan,” or (3) “to
clarify his rights to future benefits under the terms of the plan.” ERISA § 502(a)(1)(B), 29
U.S.C. § 1132(a)(1)(B). “This provision is relatively straightforward. If a participant or
beneficiary believes that benefits promised to him under the terms of the plan are not
provided, he can bring suit seeking provision of those benefits.” Aetna Health Inc. v. Davila,

, 210 (2004). He can also sue to “enforce his rights under the plan, or to clarify
any of his rights to future benefits.” 

enacted ERISA to protect . . . the interests of participants in
employee benefit plans and their beneficiaries,” it set out “substantive regulatory
requirements for employee benefit plans and [provided] for appropriate remedies, sanctions,
and ready access to the Federal Courts.” 

(quoting 29 U.S.C. § 1001(b)) (internal
quotations omitted). In order to effectuate these objectives, “ERISA includes expansive
[preemption] provisions, which are intended to ensure that employee benefit plan regulation
would be exclusively a federal concern.” 

v. Raybestos-Manhattan, Inc.,

, 523 (1981)) (internal citation and quotations omitted). Preemption occurs
where a state law interferes with or is contrary to federal law; in such a case, the federal law
nullifies the state law. Wisc. Pub. Intervenor v. Mortier, 

, 604 (1991) (quoting
Gibbons v. Ogden, 

, 9 (1824)). Preemption may be express or implied. Fid. Fed.
Sav.& Loan 

. In determining whether federal law preempts a state
statute, courts look to congressional intent. 

Under its express preemption clause,
ERISA “supersede[s] any and all State laws insofar as they may now or hereafter relate to
any employee benefit plan.” ERISA § 514(a), 29 U.S.C. § 1144(a). The express preemption
clause, however, is not absolute, but contains a savings clause.               See 29 U.S.C.
No. 08-1406         Am. Council of Life Ins., et al. v. Ross                            Page 6


§ 1144(b)(2)(A). “In apparent tension, however, and reflecting its concern with limiting
states’ rights to regulate insurance, banking, or securities, Congress drafted a saving[s]
clause.” Barber v. UNUM Life Ins. Co. of Am., 

, 137 (3d Cir. 2004). The
ERISA savings clause provides that “nothing in this subchapter shall be construed to 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). Therefore, state laws that
are otherwise preempted by ERISA may be saved from federal preemption if they regulate
insurance, banking, or securities.

C. Express ERISA Preemption and the Savings Clause

        The parties agree that the rules relate to an employee-benefit plan and, therefore, fall
under ERISA’s express preemption clause. See ERISA § 514(a), 29 U.S.C. § 1144(a).
There is also no dispute that the rules do not regulate banking or securities. The rules
therefore are saved from federal preemption only if they regulate insurance. See ERISA
§ 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A). In Kentucky Association of Health Plans v.
Miller, 

(2003) (hereinafter “Miller”), the Supreme Court clarified the
appropriate test to determine whether a state law regulates insurance under the ERISA
savings clause. There, the Court held that, first, “the state law must be specifically directed
toward entities engaged in insurance,” and, second, “the state law must substantially affect
the risk-pooling arrangement between the insurer and the insured[s].” 

        1. The Rules are Directed Toward Entities Engaged in Insurance.

        In Miller, the Court emphasized that laws of general application that may have some
bearing on insurers do not satisfy the first 

. Rather, state laws are
“directed toward entities engaged in insurance” if insurers are regulated with respect to their
insurance practices. 

can be no serious dispute that the rules meet the first
prong of the Miller test because they regulate insurers with respect to their insurance
practices. As an initial matter, the rules regulate only those entities within the insurance
business. See Mich. Admin. Code Rules 500.2201-550.2202 (regulating insurers) and
550.111-550.112 (regulating nonprofit health care corporations providing certificates issued
under Act 350); Mich. Admin. Code R. 500.2201(e) (stating that terms used in the rules have
the same meaning as in Michigan’s Insurance Code); see also Sgro v. Danone Waters of N.
No. 08-1406           Am. Council of Life Ins., et al. v. Ross                               Page 7


Am., Inc., 

, 943 (9th Cir. 2008) (“The California regulation certainly meets the
first part of this test because it is specifically directed toward the insurance industry; by its
very terms the regulation pertains only to insurers.”). And the rules only proscribe the
actions of those entities within the insurance business when they are issuing, advertising, or
delivering insurance contracts. See Mich. Admin. Code R. 550.2202(b) (an “insurer shall
not issue, advertise, or deliver. . . a policy, contract, . . . or similar contract document”) and
(e) (“[E]ach insurer transacting insurance in this state shall submit . . . a list of all forms . . .
that contain discretionary clauses”).

        Furthermore, under the plain language of the rules, any insurer who wishes to
provide insurance in Michigan must submit its insurance forms to the Commissioner for
review and may not include a discretionary clause in such forms; if an insurer fails to comply
with this requirement, the insurance contract is void and of no effect. See Mich. Admin.
Code R. 500.2202. Thus, the rules specifically control the terms of insurance policies by
specifying the permissible contract terms. See FMC Corp. v. Holliday, 

, 61
(1990) (holding ERISA does not preempt a state antisubrogation law because the law
“directly controls the terms of insurance contracts by invalidating any subrogation provisions
that they contain”). Given that the rules impose conditions only on an insurer’s right to
engage in the business of insurance in Michigan, we conclude that the rules are directed
towards entities engaged in the business of insurance. See 

(“[The
laws] regulate[] insurance by imposing conditions on the right to engage in the business of
insurance.”).

        Regardless, the Insurance Industry contends that the rules are not so directed at
insurers inasmuch as the effect of the rules is felt primarily by the fiduciary who administers
the plan, rather than by the insurer. We disagree. In reaching our decision, we are guided
by the Supreme Court’s rejection of a similar argument in Miller. There, the insurance
industry challenged Kentucky’s any-willing-provider laws, which prohibit discrimination
against any provider willing to meet the terms for participation and also require a plan that
provides chiropractic benefits to permit any chiropractor willing to abide by the terms of the
plan to serve as a participating primary chiropractor provider. 

. The
challengers to the chiropractor-provider laws argued that the laws “regulate not only the
insurance industry but also doctors who seek to form and maintain limited provider networks
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                            Page 8


with HMOs.” 

The challengers argued that because the laws regulate doctors, the
laws were not specifically directed toward insurers. 

rejected this contention,
holding that regulations directed toward certain entities that also happen to disable other
entities from engaging in the regulated behavior will not remove such regulations from the
scope of ERISA’s savings clause. 

see also Rush Prudential HMO, Inc. v.
Moran, 

, 372 (2002) (holding that the possibility that a state law could affect
non-insurers is not enough “to remove a state law entirely from the category of insurance
regulation saved from preemption”). Bound as we are by Miller, we conclude that, although
others may feel the effect of the rules, they are, in fact, directed toward entities engaged in
the business of insurance.

        2. The Rules Substantially Affect the Risk-Pooling Arrangement.

        The Insurance Industry’s next challenge to the rules focuses on whether the rules
substantially affect the risk-pooling arrangement between insureds and insurers as required
by Miller. 

. In particular, the Insurance Industry maintains that
state laws, like Michigan’s rules, which have an impact only after risk has been transferred,
do not substantially affect the risk-pooling arrangement between insurers and insureds. This
argument also fails. As an initial matter, the Miller test for whether laws “substantially affect
the risk-pooling arrangement between insurers and insureds” does not contain any timing
element. See 

the Supreme Court inquired into the timing of the “substantial
[e]ffect” on the “ risk-pooling arrangement” in its analysis. See 

Life Ins.
Co. of Am. v. Ward, 

(1999) (hereinafter “Ward”) (upholding a state
common-law notice-prejudice rule prohibiting insurers from denying disputed claims for
untimeliness unless the insurer could show prejudice from the delay)). Rather, the Miller
Court explained that the “any-willing-provider” statute under review, the “mandated-benefit”
law in Metropolitan Life Insurance Co. v. Massachusetts, 

(1985), the
“notice-prejudice” rule in 

, and the “independent-review” provision
in Rush Prudential, 

, “alter the scope of permissible bargains between insurers
and insureds” and, therefore, “substantially affect the risk-pooling arrangement between
insurer and insured.” 

. We find no reason to depart from the
Supreme Court’s reasoning. Accordingly, we conclude that Michigan’s rules substantially
affect the risk-pooling arrangement between insurers and insureds because they “alter the
No. 08-1406            Am. Council of Life Ins., et al. v. Ross                        Page 9


scope of permissible bargains between insurers and insureds.” 

several reasons
for this conclusion.

        First, the rules directly control the terms of insurance contracts by prohibiting
insurers and insureds from entering into contracts that include discretionary clauses and
prohibiting enforcement of such clauses. By changing the terms of enforceable insurance
contracts, the Commissioner has “alter[ed] the scope of permissible bargains between
insurers and insureds.”        See 

(explaining that the state
notice-prejudice rule changed the bargain between insured and insurer because it effectively
created a mandatory contract term that required the insurer to prove prejudice before
enforcing a timeliness-of-claim provision); see also Benefit Recovery Inc. v. Donelon, 

, 331 (5th Cir. 2008) (holding that the state insurance commissioner’s directive
prohibiting insurers from enforcing subrogation rights until insureds are fully compensated
for their injuries alters the permissible bargains between insureds and insurers by telling
them what bargains are acceptable).

        Second, under the rules, insurers can no longer invest the plan administrator with
unfettered discretionary authority to determine benefit eligibility or to construe ambiguous
terms of a plan. Prohibiting plan administrators from exercising discretionary authority in
this manner “dictates to the insurance company the conditions under which it must pay for
the risk it has assumed.” 

n.3.

        We therefore conclude that the rules regulate insurance because they substantially
affect the risk-pooling arrangement between insureds and insurers. As such, the rules fall
within the scope of ERISA’s savings clause.

D. Conflict Preemption

        The Insurance Industry argues that the rules cannot be saved from preemption
because they conflict with ERISA’s civil enforcement provisions. Even if a state law
regulates insurance such that it falls within ERISA’s savings clause, it may nevertheless be
preempted by that statute’s § 502(a) civil enforcement provisions. In relevant part, § 502(a)
allows an ERISA plan participant or beneficiary to file a civil action “to recover benefits due
to him under the terms of his plan, to enforce his rights under the terms of the plan, or to
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                           Page 10


clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Accordingly, ERISA’s civil enforcement provisions are the “sort of overpowering federal
policy that overrides a statutory provision designed to save state law from being preempted.”
Rush 

. In Aetna 

, the Supreme Court
explained that ERISA’s savings clause does not obviate the need for conflict preemption
analysis, stating:

                ERISA § 514(b)(2)(A) must be interpreted in light of the
        congressional intent to create an exclusive federal remedy in ERISA
        § 502(a). Under ordinary principles of conflict pre-emption, then, even a
        state law that can arguably be characterized as ‘regulating insurance’ will
        be pre-empted if it provides a separate vehicle to assert a claim for benefits
        outside of, or in addition to, ERISA’s remedial scheme.
        However, there is no state-law claim at issue in this case that implicates ERISA’s
civil enforcement provisions. The rules do not authorize any form of relief in state courts,
either expressly or impliedly; they do not grant a plan participant the ability to “recover
benefits under the plan, enforce his rights under the plan, or otherwise clarify his rights to
future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Put simply, the
rules do not create, duplicate, supplant, or supplement any of the causes of action that may
be alleged under ERISA. Nor is there any evidence that the rules serve as an alternative
enforcement mechanism, outside of ERISA’s civil enforcement provisions such that the rules
permit a plan beneficiary to assert a claim that could otherwise be asserted under ERISA.

. The rules at most may affect the standard of judicial review if, and
when, such a claim is brought before a court. Accordingly, Michigan’s rules do not conflict
with ERISA’s civil enforcement provisions; thus, they are not removed from ERISA’s
savings clause on this basis.

E. Conflict With the Purpose of ERISA

        Finally, citing the rules’ proscription of a deferential standard of judicial review, the
Insurance Industry argues that the rules are preempted because they squarely conflict with
ERISA’s policy of ensuring a set of uniform rules for adjudicating cases under ERISA. The
rules, according to the Insurance Industry, have no purpose or effect other than to control
ERISA litigation. Here, too, we find their argument unavailing.
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                           Page 11


        First, the plain language of ERISA provides nothing about the standard of review in
cases brought under the statute’s civil enforcement provisions. See Rush 

(“ERISA itself provides nothing about the standard” of review). It is worth
noting that the de novo standard of review is already the default standard in ERISA cases,
so it is difficult to imagine how a state law requiring that level of review would conflict with
the statute. See Firestone Tire & Rubber 

(holding that “a denial of
benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless
the benefit plan gives the administrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan”); see also Rush 

(“[A] general or default rule of de novo review could be replaced by deferential
review if the ERISA plan itself provided that the plan’s benefit determinations were matters
of high or unfettered discretion[.]”); Calvert v. Firstar Fin., Inc., 

, 291 (6th Cir.
2005) (“This Court reviews de novo an ERISA plan administrator’s denial of benefits where
the administrator has no discretion to determine benefits eligibility.”).

        More importantly, we are guided by the Supreme Court’s rejection of a similar
argument in Rush Prudential. There, the Supreme Court held that a state statute mandating
that benefit denials are subject to de novo review did not conflict with 

. In reaching this decision, the Supreme Court first explained that ERISA does not
mandate a particular standard of review for reviewing benefit denials. 

The Court
then held that ERISA requires only that: (1) the plan grant a “beneficiary some mechanism
for internal review of a benefit denial;” (2) the plan “provide a right to a subsequent judicial
forum for a claim to recover benefits;” and (3) that the standard of judicial review not
conflict with anything in the text of ERISA, which the Court read to require “a uniform
judicial regime of categories for relief and standard of primary conduct, not a uniformly
lenient regime of reviewing benefit determinations.” 

there any conflict in the
removal of fiduciary ‘discretion’; . . . ERISA does not require that such decisions be
discretionary, and insurance regulation is not preempted merely because it conflicts with
substantive plan terms.” 

(citing 

).

        In Metropolitan Life Insurance Co. v. Glenn, 

(2008), the Supreme
Court reaffirmed these principles, noting that a plan administrator’s decision denying plan
benefits challenged under ERISA, 29 U.S.C. §1132(a)(1)(B), is reviewed de novo unless the
No. 08-1406          Am. Council of Life Ins., et al. v. Ross                         Page 12


plan provides to the contrary. See 

(applying trust principles to review of plan
administrator’s decision following Firestone). According to Glenn, where the plan provides
otherwise by giving the administrator discretionary authority to determine eligibility for
benefits, trust principles make a deferential standard of review appropriate. 

positive citations of principles announced in Firestone and Rush Prudential, and its
decision in Rush Prudential, we conclude that the rules do not conflict with ERISA’s civil
enforcement provisions or its policy favoring a uniform set of rules.

        Finally, we observe that Glenn provides further support for holding that Michigan’s
law is not preempted by ERISA. There, the Court reiterated that a conflict of interest exists
when the same insurer is responsible for examining and paying a benefits claim. 

. In view of that conflict, Glenn determined that courts, in reviewing a benefits
decision by an insurer who has discretion over assessing and paying benefits, may consider
that conflict as a factor in deciding whether the plan administrator’s decision amounts to an
abuse of discretion. 

If, as Glenn reaffirms, there is a conflict of interest when
the same plan administrator decides the merits of a benefits plan and pays that claim, and if,
as Glenn also holds, it is consistent with ERISA to account for that conflict of interest in
reviewing a plan administrator’s decision, it is difficult to understand why a State should not
be allowed to eliminate the potential for such a conflict of interest by prohibiting
discretionary clauses in the first place.

        Nor is it necessarily the case, as the Insurance Industry suggests, that, if Michigan
can remove discretionary clauses, it will be allowed to dictate the standard of review for all
ERISA benefits claims. All that today’s case does is allow a State to remove a potential
conflict of interest. And while Michigan’s law may well establish that the courts will give
de novo review to lawsuits dealing with the meaning of an ERISA plan, it does not follow
that they will do so in reviewing the application of a settled term in the plan to a given
benefit request.

                                    III. CONCLUSION

        For the foregoing reasons, we hold that the Michigan rules fall within the ambit of
ERISA’s savings clause and are not preempted by that statute. The summary judgment of
the district court is AFFIRMED.