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, its plan design, it falls outside the scope of ERISAs fiduciary duties and cannot give rise to a claim under ERISA. The district court briefly acknowledged the distinction between settlor and fiduciary functions, but then proceeded to dismiss without any meaningful analysis the plan sponsors objections to the plaintiffs characterization of their actions with respect to the tobacco wellness program as fiduciary. Instead, the court quoted passages from the complaint asserting a fiduciary breach by assessing and collecting the tobacco surcharge in violation of the law and in violation of the terms of the Plan, as the receipt of additional funds reduced its own costs associated with funding the plan, and by failing to deposit the tobacco surcharge amounts into the Plan, and then concluded these allegations sufficiently allege that Defendant acted as a fiduciary and engaged in prohibited transactions. This analysis is very troubling: Notably, the court did not specify how the Defendant violated the terms of the Plan, apparently holding that a mere allegation that this occurred was sufficient to survive a motion to dismiss

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