Case 2:20-cv-02433-MSN-cgc Document 1 Filed 06/18/20 Page 1 of 15 PageID 1
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`CIVIL DIVISION
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`Plaintiff,
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`ANGELA WOODS, individually
`and on behalf of all others
`similarly situated,
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`v.
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`Case No.:
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`THE HERSHEY COMPANY,
`A Foreign Profit Corporation,
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`Defendant.
`__________________________________/
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`Plaintiff, Angela Woods (“Plaintiff”), hereby files this Class Action Complaint against
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`CLASS ACTION COMPLAINT
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`Defendant, The Hershey Company (“Defendant”), alleging that Defendant failed to provide her
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`and the putative class adequate notice of their right to continued health care coverage under the
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`Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).
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`1.
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`Defendant, the plan sponsor of the Health Plan (“Plan”), has repeatedly violated
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`ERISA by failing to provide participants and beneficiaries in the Plan with adequate notice, as
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`prescribed by COBRA, of their right to continue their health insurance coverage following an
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`occurrence of a “qualifying event” as defined by the statute.
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`2.
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`Defendant’s COBRA notice violates 29 C.F.R. § 2590.606–4(b)(4)(viii) because
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`it fails to include a termination date for COBRA coverage if elected. The notice also violates
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`COBRA because it fails to sufficiently identify the Plan Administrator.
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`3.
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`Because Defendant’s COBRA notice omits several critical information items, it
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`collectively violates 29 C.F.R. § 2590.606–4(b)(4), which requires the plan administrator of a
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`group-health plan to provide a COBRA notice “written in a manner calculated to be understood
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`by the average plan participant.” Without information on when COBRA coverage ends, and who
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`is the Plan Administrator, the notice is not written in a manner calculated to be understood by the
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`average plan participant.
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`4.
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`As a result of these violations, which threaten Class Members’ ability to maintain
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`their health coverage, Plaintiff seeks statutory penalties, injunctive relief, attorneys’ fees, costs
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`and expenses, and other appropriate relief as set forth herein and provided by law.
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`JURISDICTION AND VENUE
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`5.
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`Venue is proper in the United States Court for the Western District of Tennessee,
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`because the events giving rise to these claims arose in this district.
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`6.
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`Plaintiff is a Tennessee resident, resides in this district and was a participant in the
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`Plan prior to her termination, a qualifying event within the meaning of 29 U.S.C. § 1163(2).
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`7.
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`Defendant is a foreign corporation with its headquarters in Hershey, Pennsylvania
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`and employed more than 20 employees who were members of the Plan in each year from 2014
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`to 2018. Defendant is the Plan sponsor within the meaning of 29 U.S.C. §1002(16)(B), and
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`the administrator of the Plan within the meaning of 29 U.S.C. § 1002(16)(A). The Plan provides
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`medical benefits to employees and their beneficiaries, and is an employee welfare benefit plan
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`within the meaning of 29 U.S.C. § 1002(1) and a group health plan within the meaning of 29
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`U.S.C. § 1167(1).
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`FACTUAL ALLEGATIONS
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`COBRA Notice Requirements
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`8.
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`The COBRA amendments to ERISA included certain provisions relating to
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`continuation of health coverage upon termination of employment or another “qualifying event”
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`as defined by the statute.
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`9.
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`Among other things, COBRA requires the plan sponsor of each group health plan
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`normally employing more than 20 employees on a typical business day during the preceding year
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`to provide “each qualified beneficiary who would lose coverage under the plan as a result of a
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`qualifying event … to elect, within the election period, continuation coverage under the plan.”
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`29 U.S.C. § 1161. (Emphasis added).
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`10.
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`Notice is of enormous importance. The COBRA notification requirement exists
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`because employees are not presumed to know they have a federally protected right to continue
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`healthcare coverage subsequent to a qualifying event.
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`11.
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`COBRA further requires the administrator of such a group health plan to provide
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`notice to any qualified beneficiary of their continuation of coverage rights under COBRA upon
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`the occurrence of a qualifying event. 29 U.S.C. § 1166(a)(4). This notice must be “[i]n
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`accordance with the regulations prescribed by the Secretary” of Labor. 29 U.S.C. § 1166(a).
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`12.
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`The relevant regulations prescribed by the Secretary of Labor concerning notice
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`of continuation of coverage rights are set forth in 29 C.F.R. § 2590.606-4 as follows:
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`(4) The notice required by this paragraph (b) shall be written in a manner
`calculated to be understood by the average plan participant and shall
`contain the following information:
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`(i) The name of the plan under which continuation coverage is
`available; and the name, address and telephone number of the
`party responsible under the plan for the administration of
`continuation coverage benefits;
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`(ii) Identification of the qualifying event;
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`(iii) Identification, by status or name, of the qualified beneficiaries
`who are recognized by the plan as being entitled to elect
`continuation coverage with respect to the qualifying event, and the
`date on which coverage under the plan will terminate (or has
`terminated) unless continuation coverage is elected;
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`(iv) A statement
`is a qualified
`individual who
`that each
`beneficiary with respect to the qualifying event has an independent
`right to elect continuation coverage, that a covered employee or a
`qualified beneficiary who is the spouse of the covered employee
`(or was the spouse of the covered employee on the day before the
`qualifying event occurred) may elect continuation coverage on
`behalf of all other qualified beneficiaries with respect to the
`qualifying event, and that a parent or legal guardian may elect
`continuation coverage on behalf of a minor child;
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`(v) An explanation of
`the plan's procedures for electing
`continuation coverage, including an explanation of the time period
`during which the election must be made, and the date by which the
`election must be made;
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`(vi) An explanation of the consequences of failing to elect or
`waiving continuation coverage, including an explanation that a
`qualified beneficiary's decision whether to elect continuation
`coverage will affect the future rights of qualified beneficiaries to
`portability of group health coverage, guaranteed access to
`individual health coverage, and special enrollment under part 7 of
`title I of the Act, with a reference to where a qualified beneficiary
`may obtain additional information about such rights; and a
`description of the plan's procedures for revoking a waiver of the
`right to continuation coverage before the date by which the
`election must be made;
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`(vii) A description of the continuation coverage that will be made
`available under the plan, if elected, including the date on which
`such coverage will commence, either by providing a description of
`the coverage or by reference to the plan's summary plan
`description;
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`(viii) An explanation of
`the maximum period for which
`continuation coverage will be available under the plan, if elected;
`an explanation of the continuation coverage termination date; and
`an explanation of any events that might cause continuation
`coverage to be terminated earlier than the end of the maximum
`period;
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`(ix) A description of the circumstances (if any) under which the
`maximum period of continuation coverage may be extended due
`either to the occurrence of a second qualifying event or a
`determination by the Social Security Administration, under title II
`or XVI of the Social Security Act (42 U.S.C. 401 et seq. or 1381 et
`seq.) (SSA), that the qualified beneficiary is disabled, and the
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`length of any such extension;
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`(x) In the case of a notice that offers continuation coverage with a
`maximum duration of less than 36 months, a description of the
`plan's requirements regarding the responsibility of qualified
`beneficiaries to provide notice of a second qualifying event and
`notice of a disability determination under the SSA, along with a
`description of the plan's procedures for providing such notices,
`including the times within which such notices must be provided
`and the consequences of failing to provide such notices. The
`notice shall also explain
`the
`responsibility of qualified
`beneficiaries to provide notice that a disabled qualified beneficiary
`has subsequently been determined to no longer be disabled;
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`(xi) A description of the amount, if any, that each qualified
`beneficiary will be required to pay for continuation coverage;
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`(xii) A description of the due dates for payments, the qualified
`beneficiaries' right to pay on a monthly basis, the grace periods for
`payment, the address to which payments should be sent, and the
`consequences of delayed payment and non-payment;
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`(xiii) An explanation of
`the
`importance of keeping
`the
`administrator informed of the current addresses of all participants
`or beneficiaries under the plan who are or may become qualified
`beneficiaries; and
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`(xiv) A statement that the notice does not fully describe
`continuation coverage or other rights under the plan, and that more
`complete information regarding such rights is available in the
`plan's summary plan description or from the plan administrator.
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`13.
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`To facilitate compliance with these notice obligations, the United States
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`Department of Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election
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`Notice (“Model Notice”), which is included in the Appendix to 29 C.F.R. § 2590.606-4. A copy
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`of this Model Notice is attached hereto as Exhibit “A.” The DOL website states that the DOL
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`“will consider use of the model election notice, appropriately completed, good faith compliance
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`with the election notice content requirements of COBRA.”
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`14.
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`In the event that a plan administrator declines to use the Model Notice and fails to
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`meet the notice requirements of 29 U.S.C. § 1166 and 29 C.F.R. § 2590.606-4, the administrator
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`is subject to statutory penalties of up to $110.00 per participant or beneficiary per day from the
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`date of such failure. 29 U.S.C. § 1132(c)(1). Additionally, the Court may order such other relief
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`as it deems proper, including but not limited to injunctive relief pursuant to 29 U.S.C. §
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`1132(a)(3) and payment of attorneys’ fees and expenses pursuant to 29 U.S.C. § 1132(g)(1).
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`Such is the case here.
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`15.
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`Here, Defendant failed to use the Model Notice and failed to meet the notice
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`requirements of 29 U.S.C. § 1166 and 29 C.F.R. § 2590.606-4, as set forth below.
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`Defendant’s Notice Is Inadequate and Fails to Comply with COBRA
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`16.
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`Defendant did not use the Model Notice to notify plan participants of their right to
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`continuation coverage.
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`17.
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`Rather than use the Model Notice, Defendant deliberately authored and
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`disseminated a notice which omitted critical information required by law. The information
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`Defendant omitted from its notice is information that is included in the Model Notice.
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`18.
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`The evidence will show Defendant used its [deficient] Notice to discourage
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`participants from enrolling in continuation coverage.
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`19.
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`Defendant’s Notice violates several key COBRA requirements, specifically:
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`a.
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`b.
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`c.
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`The Notice violates 29 C.F.R. § 2590.606-4(b)(4)(viii) because it
`fails to provide an explanation of the continuation coverage
`termination date;
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`The Notice violates 29 C.F.R. § 2590.606-4(b)(4)(i) because it
`fails to provide the name, address and telephone number of the
`party responsible under the plan for administration of continuation
`coverage benefits; and, finally,
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`The Notice violates 29 C.F.R. § 2590.606-4(b)(4) because
`Defendant has failed to provide a notice written in a manner
`calculated to be understood by the average plan participant.
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`20.
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`The evidence will show Defendant’s standard practice during the time period at
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`issue in this lawsuit was to send the COBRA election notice first, then send additional COBRA
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`election information only to those that elected COBRA coverage (instead of to all individuals
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`eligible for COBRA). This second document contained the information omitted from the initial
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`notice.
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`21.
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`Defendant’s COBRA Notice confused Plaintiff, and resulted in her inability to
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`make an informed decision as to electing COBRA continuation coverage.
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`22.
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`As a result of the deficient notice, Plaintiff did not elect COBRA continuation
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`coverage.
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`23.
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`Defendant’s deficient COBRA Notice caused Plaintiff an informational injury
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`when Defendant failed to provide her with information to which she was entitled to by statute,
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`namely a compliant COBRA election notice containing all information required by 29 C.F.R. §
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`2590.606-4(b)(4) and 29 U.S.C. § 1166(a). Through ERISA and then COBRA, Congress created
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`a right—the right to receive the required COBRA election notice—and an injury—not receiving
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`a proper election notice with information required by 29 C.F.R. § 2590.606-4(b)(4) and 29
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`U.S.C. § 1166(a). Defendant injured Plaintiff and the class members she represents by failing to
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`provide the information required by COBRA.
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`24.
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`Besides the informational injury suffered, Plaintiff also suffered a tangible injury
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`in the form of economic loss, specifically the loss of health insurance coverage for herself and
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`her dependents. Insurance coverage is an employer subsidized benefit of employment of
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`monetary value, the loss of which is a tangible injury.
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`25.
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`Plaintiff also suffered a tangible economic loss, as she paid out of pocket for
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`medical expenses incurred by herself and her dependents up until the time Plaintiff was able to
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`obtain health insurance through a subsequent employer.
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`Plaintiff Angela Woods
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`Plaintiff was employed by Defendant for nearly four years, during which time she
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`26.
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`obtained medical insurance for herself and dependents through Defendant’s group health plan.
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`27.
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`On or around October 9, 2018, Plaintiff’s employment was terminated. Plaintiff
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`was not terminated for “gross misconduct” and was therefore eligible for continuation coverage.
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`28.
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`Plaintiff’s termination was a qualifying event (termination of employment), which
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`triggered Defendant’s COBRA obligations.
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`29.
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`On or around October 16, 2018, Defendant mailed Plaintiff the [deficient]
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`COBRA notice.
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`30.
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`The COBRA notice was not written in a manner calculated to be understood by
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`the average plan participant.
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`31.
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`The COBRA notice did not provide Plaintiff with the substantive information to
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`which she was entitled pursuant to federal law.
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`32.
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`The COBRA notice violated 29 C.F.R. § 2590.606-4(b)(4)(viii) because it failed
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`to provide an explanation of the continuation coverage termination date, omitting it entirely.
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`Thus, it was nearly impossible for Plaintiff or any other plan participant to calculate the coverage
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`termination date.
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`33.
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`The COBRA notice violated 29 C.F.R. § 2590.606-4(b)(4)(xii) because it failed to
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`include information about how participants can lose COBRA coverage before the [omitted]
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`termination date. For example, a participant can lose coverage if they become eligible under
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`another group health plan, become Medicare eligible or do not make timely payments.
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`34.
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`Plaintiff was not required to exhaust any administrative remedies through
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`Defendant prior to bringing suit because no such administrative remedies exist. Even if they did,
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`any attempts to exhaust the administrative remedies would have been futile.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)(viii)
`Failure to provide an explanation of the continuation coverage termination date
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`35.
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`The governing statute requires Defendant to provide a COBRA election notice
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`that discloses “an explanation of the maximum period for which continuation coverage will be
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`available under the plan” and “an explanation of the continuation coverage termination date.” 29
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`C.F.R. § 2590.606-4(b)(4)(viii).
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`36.
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`This information not only informs Plaintiff of the length of coverage, if elected,
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`but also the specific date on which such coverage will terminate. This information is very
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`important for deciding whether to elect coverage.
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`37.
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`Continuation coverage is not designed to be permanent.
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` Traditionally,
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`continuation coverage is used as a temporary solution until a qualifying participant obtains new
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`coverage under a different group health plan. Thus, election notices must be sufficient to permit
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`the discharged employee to make an informed decision whether to elect coverage.
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`38.
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`Plaintiff cannot truly make an informed decision regarding continuation coverage
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`without knowing the specific date when coverage will end and when they will be uninsured.
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`39.
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`Here, Plaintiff was only provided with the length of continuation coverage, but
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`was never notified when the coverage, if elected, would terminate.
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`40.
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`Even if Plaintiff had tried to use a calendar to determine the termination date,
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`using an 18-month window, she would not be able to determine whether this monthly coverage
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`would terminate at the beginning of the 18th month, the end of the 18th month or 18 months to the
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`day of eligibility.
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`41.
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`The statute requires these disclosures specifically to avoid this type of confusion
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`surrounding a matter as important as electing health insurance. Furthermore, a fiduciary
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`breaches its duties by materially misleading plan participants, regardless of whether the
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`fiduciary's statements or omissions were made negligently or intentionally. Without the required
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`disclosures, Defendant’s notice does not permit Plaintiff to make an informed decision and is
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`therefore deficient.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)(i)
`Failure to Identify Plan Administrator
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`The COBRA notice provided to Plaintiff omitted important information
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`42.
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`identifying the party responsible under the Plan for administration of continuing coverage
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`benefits. The generic phrase “Plan Administrator” is included no less than ten (10) separate
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`times throughout the notice, but not once is the Plan Administrator actually identified. Instead,
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`the third-party administrator, WageWorks, is identified and The Hershey Company is merely
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`referred to as the “employer.” Thus, Plaintiff was never informed who administers the
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`continuation coverage.
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`43.
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`Defendant was required to provide “in a manner calculated to be understood by
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`the average plan participant ... the name, address and telephone number of the party responsible
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`under the plan for administration of continuation coverage benefits.” 29 C.F.R. § 2590.606-
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`4(b)(4)(i). Defendant’s Notice failed to comply with this fundamental requirement.
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`44.
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`Defendant’s notice only identifies a third-party administrator, WageWorks. A
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`third-party administrator is different from the Plan Administrator. Identifying the Plan
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`Administrator is critical because the plan administrator bears the burden of proving that adequate
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`COBRA notification was given to the employee.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)
`Failure to Provide COBRA Notice Written in a Manner
`Calculated “To Be Understood By the Average Plan Participant”
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`The COBRA notice Plaintiff received from Defendant failed to fully explain the
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`45.
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`procedures for electing coverage; omitted information regarding the coverage end date; omitted
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`information pertaining to the consequences of delinquent or missed payments; and failed to
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`identify the Plan Administrator. Combined, Defendant’s omissions are a violation of 29 C.F.R. §
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`2590.606- 4(b)(4). This particular section mandates employers provide notice of continuation
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`coverage written in a manner calculated “to be understood by the average plan participant.” By
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`omitting critical information, Defendant’s notice is not written in a manner calculated “to be
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`understood by the average plan participant.” 29 C.F.R. § 2590.606-4(b)(4)(v).
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`CLASS ACTION ALLEGATIONS
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`46.
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`Plaintiff brings this action as a class action pursuant to Rule 23 Fed.R.Civ.P. on
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`behalf of the following persons:
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`All participants and beneficiaries in the Defendant’s
`Health Plan who were sent a COBRA notice by
`Defendant during the applicable statute of limitations
`period as a result of a qualifying event, as determined
`by Defendant, who did not elect COBRA.
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`47.
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`No administrative remedies exist as a prerequisite to Plaintiff’s claim on behalf of
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`the Putative Class. As such, any efforts related to exhausting such non-existent remedies would
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`be futile.
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`48.
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`Numerosity: The Class is so numerous that joinder of all Class members is
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`impracticable. On information and belief, hundreds or thousands of individuals satisfy the
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`definition of the Class.
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`49.
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`Typicality: Plaintiff’s claims are typical of the Class. The COBRA notice that
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`Defendant sent to Plaintiff was a form notice that was uniformly provided to all Class members.
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`As such, the COBRA notice that Plaintiff received was typical of the COBRA notices that other
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`Class Members received, and suffered from the same deficiencies.
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`50.
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`Adequacy: Plaintiff will fairly and adequately protect the interests of the Class
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`members; she has no interests antagonistic to the class, and has retained counsel experienced in
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`complex class action litigation.
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`51.
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`Commonality: Common questions of law and fact exist as to all members of the
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`Class and predominate over any questions solely affecting individual members of the Class,
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`including but not limited to:
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`a.
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`Whether the Plan is a group health plan within the meaning of 29 U.S.C. §
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`1167(1);
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`b.
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`Whether Defendant’s COBRA notice complied with the requirements of
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`29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;
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`c.
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`Whether statutory penalties should be imposed against Defendant under
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`29 U.S.C. § 1132(c)(1) for failing to comply with COBRA notice
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`requirements, and if so, in what amount;
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`d.
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`The appropriateness and proper form of any injunctive relief or other
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`equitable relief pursuant to 29 U.S.C. § 1132(a)(3); and
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`e.
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`Whether (and the extent to which) other relief should be granted based on
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`Defendant’s failure to comply with COBRA notice requirements.
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`52.
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`Class Members do not have an interest in pursuing separate individual actions
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`against Defendant, as the amount of each Class Member’s individual claims is relatively small
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`compared to the expense and burden of individual prosecution. Class certification will also
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`obviate the need for unduly duplicative litigation that might result in inconsistent judgments
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`concerning Defendant’s practices and the adequacy of its COBRA notice. Moreover,
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`management of this action as a class action will not present any likely difficulties. In the
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`interests of justice and judicial efficiency, it would be desirable to concentrate the litigation of all
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`Class Members’ claims in a single action.
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`53.
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`Plaintiff intends to send notice to all Class Members. The names and addresses of
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`the Class Members are available from Defendant’s records, as well as from Defendant’s third-
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`party administrator, WageWorks.
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`CLASS CLAIM I FOR RELIEF
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`Violation of 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4
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`Plaintiff re-states the allegations set forth in Paragraphs 21-45 as if fully set forth
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`The Plan is a group health plan within the meaning of 29 U.S.C. § 1167(1).
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`Defendant is the sponsor and administrator of the Plan, and was subject to the
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`herein.
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`54.
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`55.
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`56.
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`continuation of coverage and notice requirements of COBRA.
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`57.
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`Plaintiff and the other members of the Class experienced a “qualifying event” as
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`defined by 29 U.S.C. § 1163, and Defendant was aware that they had experienced such a
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`qualifying event.
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`58.
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`On account of such qualifying event, Defendant sent Plaintiff and the Class
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`Members a non-compliant COBRA notice.
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`59.
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`The COBRA notice that Defendant sent to Plaintiff and other Class Members
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`violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4 for the reasons set forth above.
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`60.
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`These violations were material and willful.
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`61.
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`Defendant knew that its notice was inconsistent with the Secretary of Labor’s
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`Model Notice and failed to comply with 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4, but
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`chose to use a non-compliant notice in deliberate or reckless disregard of the rights of Plaintiff
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`and other Class Members.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for relief as
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`follows:
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`a.
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`b.
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`c.
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`Designating Plaintiff’s counsel as counsel for the Class;
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`Issuing proper notice to the Class at Defendant’s expense;
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`Declaring that the COBRA notice sent by Defendant to Plaintiff and other
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`Class Members violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;
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`d.
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`Awarding appropriate equitable relief pursuant to 29 U.S.C. § 1132(a)(3),
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`including but not limited to an order enjoining Defendant from continuing
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`to use its defective COBRA notice and requiring Defendant to send
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`corrective notices;
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`e.
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`Awarding statutory penalties to the Class pursuant to 29 U.S.C. §
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`1132(c)(1) and 29 C.F.R. § 2575.502c-1 in the amount of $110.00 per day
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`for each Class Member who was sent a defective COBRA notice by
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`Defendant;
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`f.
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`Awarding attorneys’ fees, costs and expenses to Plaintiffs’ counsel as
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`provided by 29 U.S.C. § 1132(g)(1) and other applicable law; and
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`14
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`

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`Case 2:20-cv-02433-MSN-cgc Document 1 Filed 06/18/20 Page 15 of 15 PageID 15
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`g.
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`Granting such other and further relief, in law or equity, as this Court
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`deems appropriate.
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`Dated this 18th day of June, 2020.
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`
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`
`
`/s/ Marc R. Edelman
`MARC R. EDELMAN, ESQ.
`Fla. Bar No. 0096342
`MORGAN & MORGAN, P.A.
`201 N. Franklin Street, Suite 700
`Tampa, FL 33602
`Telephone 813-223-5505
`Fax: 813-257-0572
`Email: MEdelman@forthepeople.com
`Attorney for Plaintiff
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`15
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`