TPA is a COBRA administrator and keeps track of coverage dates and approves/denies claims. TPA mistakenly let a COBRA beneficiary continue coverage for longer than the COBRA allotted time. Plan had to overpay and sues TPA for reimbursement of overpaid medical bills -- in contract.

1) Is this contract claim pre-empted by ERISA?

2) If so, is the TPA a fiduciary for purposes of the claims issue such that it can be sued on amended ERISA complaint?

I would appreciate your position (and supporting citations).

The issue is not whether the TPA can be sued, but whether the company can win the suit. Anyone can be sued for anything, regardless of the merit of the case.

Unless TPA has undertaken some fiduciary role, and believe me it will deny that, the claim is a contract type claim that should not be preempted by ERISA. I say "should" because some times judges do strange things, but the correct analysis I believe is no ERISA preemption.

The TPA's legal counsel will probably ask to see a copy of the service agreement between the TPA and the plan sponsor.