Killian v. Concert Health Plan

I agree with the outcome, and with much of the analysis in the majority opinion. But I disagree that the obligation at issue in the appeal derives from a fiduciary duty. This is really a breach of contract case, and treating it as such not only is the correct approach but simplifies analysis wonderfully.

But before discussing the merits, I want to say a few words about mootness, the subject of a protracted debate between Judges Ripple and Manion. Both quote the standard formula, repeatedly endlessly in cases, that a case is moot if a judgment on the merits in favor of the plaintiff would not…