Case 2:20-cv-02512-SHL-cgc Document 1 Filed 07/15/20 Page 1 of 18 PageID 1
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`MEMPHIS DIVISION
`
`
`CHARLES THOMAS,
`on behalf of himself, and on behalf of
`all others similarly situated,
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`
`
`v.
`
`Plaintiffs,
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`
`
`
`
`
`
`
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`
`
`
`
`Case No.:
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`
`
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`SODEXO, INC.,
`
`
`Defendant.
`__________________________________/
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`
`
`
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`Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Plaintiff, Charles Thomas
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`CLASS ACTION COMPLAINT
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`(hereinafter, referred to as the “Plaintiff”), hereby files this Class Action Complaint alleging
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`Sodexo, Inc. (“Defendant”) violated the Employee Retirement Income Security Act of 1974
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`(“ERISA”), as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985
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`(“COBRA”), by failing to provide them with a COBRA notice that complies with the law.
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`1.
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`Despite having access to the Department of Labor’s Model COBRA form, a copy
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`of which is attached as Exhibit “A,” Defendant chose not to use the model form— presumably to
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`save money by pushing terminated employees away from electing COBRA.1
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`2.
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`Instead of utilizing the DOL Model Notice and sending a single, comprehensive
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`COBRA notice “written in a manner calculated to be understood by the average plan participant”
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`containing all required information, Defendant concocted its own notification dual notice
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`1 In fact, according to one Congressional research service study, “…[The] average claim costs for COBRA
`beneficiaries exceeded the average claim for an active employee by 53%. The average annual health insurance cost
`per active employee was $7,190, and the COBRA cost was $10,988.14. The Spencer & Associates analysts contend
`that this indicates that the COBRA population is sicker than active-covered employees and that the 2% administrative
`fee allowed in the law is insufficient to offset the difference in actual claims costs.” Health Insurance Continuation
`Coverage Under COBRA, Congressional Research Service, Janet Kinzer, July 11, 2013.
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`scheme. Specifically, Defendant sent eligible participants two written documents, mailed under
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`separate cover. Each document contained only some of the required information, and other
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`critical information was omitted entirely from either document. Defendant’s COBRA dual-
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`notification scheme creates confusion and challenges for recipients, the precise problems the
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`DOL sought to avoid by publishing the Model Notice.
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`3.
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`The deficient COBRA notices at issue in this lawsuit both confused and misled
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`Plaintiff. It also caused Plaintiff economic injuries in the form of lost insurance coverage and, as
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`well as informational injuries.
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`4.
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`Defendant, the plan sponsor and plan administrator of the Sodexo Plan (the
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`“Plan”), has repeatedly violated ERISA by failing to provide participants and beneficiaries in the
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`Plan with adequate notice, as prescribed by COBRA, of their right to continue their insurance
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`coverage upon the occurrence of a “qualifying event” as defined by the statute.
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`5.
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`Defendant’s COBRA notice and process violates the law. Rather than including
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`all information required by law in a single notice, written in a manner calculated to be
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`understood by the average plan participant, Defendant’s COBRA notification process instead
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`offers only part of the legally required information in haphazard and piece-meal fashion.
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`6.
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`For example, Defendant’s “COBRA Enrollment Notice,” sent to Plaintiff and
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`attached as Exhibit “B,” violates 29 C.F.R. § 2590.606-4(b)(4)(v) because Exhibit “B” does not
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`explain how to enroll in COBRA or include a physical election form (both of are contained in
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`Department of Labor’s model notice).
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`7.
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`Instead, Exhibit “B” merely directs plan participants to a “catch-all” general H.R.
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`phone number to enroll in COBRA, and website, operated by a third-party guised as Defendant
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`benefits department, rather than explaining how to actually enroll in COBRA. But Exhibit “B”
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`contains no instructions on how to actually enroll if one calls the phone number, or when one
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`visits the website.
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`8.
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`Additionally, Exhibit “B” violates 29 C.F.R. § 2590.606-4(b)(4)(i) because it fails
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`to identify the plan administrator. It also violates 29 C.F.R. § 2590.606-4(b)(4)(i) by failing to
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`identify the names of the applicable plans. Furthermore, Exhibit “B” violates 29 C.F.R. §
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`2590.606-4(b)(4)(vi) because it fails to provide all required explanatory information.
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`9.
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`Because Exhibit “B” omits the above critical pieces of information, it collectively
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`violates 29 C.F.R. § 2590.606–4(b)(4), which requires the plan administrator of a group-health
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`plan to provide a COBRA notice “written in a manner calculated to be understood by the average
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`plan participant.”
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`10.
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`To compound the confusion, Defendant sent Plaintiff a second letter, attached as
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`Exhibit “C,” containing information on COBRA in a document labeled only “Important
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`Information.” While Exhibit “C” contains some of the information omitted from Exhibit “B,” it
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`does not contain all of it.
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`11.
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`As a result of receiving the COBRA enrollment notice, and the subsequent letter
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`attached as Exhibit “C,” Plaintiff failed to understand the notice and, thus, Plaintiff could not
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`make an informed decision about his insurance coverage and ultimately lost his insurance
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`coverage.
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`12.
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`Plaintiff suffered tangible injuries. Plaintiff lost his insurance coverage due to
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`Defendant deficient COBRA forms. In addition to a paycheck, insurance is one of the most
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`valuable things employees get in exchange for working for an employer like Defendant.
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`Insurance coverage has a monetary value, the loss of which is a tangible and an economic injury.
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`13.
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`Additionally, Plaintiff was forced to forego medical care because he lost his
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`insurance benefits.
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`14.
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`Defendant’s deficient COBRA notice also caused Plaintiff an informational injury
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`when Defendant failed to provide them with information to which he 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 he seeks to represent by
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`failing to provide all information in its notice required by COBRA.
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`15.
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`Defendant’s dual notice scheme and deficient COBRA notices created a risk of
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`harm that others would not receive written notice in manner calculated to be understood by the
`
`average plan participant, and thus be deprived of the opportunity to make informed decisions
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`about their insurance coverage – the very interests Congress sought to protect through ERISA
`
`and COBRA.
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`16.
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`As a result of these violations, which threaten Class Members’ ability to maintain
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`their insurance coverage, Plaintiff seeks statutory penalties, injunctive relief, attorneys’ fees,
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`costs and expenses, and other appropriate relief as set forth herein and provided by law.
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`JURISDICTION, VENUE, AND PARTIES
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`17.
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`This Court has jurisdiction over this action pursuant to 29 U.S.C. § 1132(e) and
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`(f), and also pursuant to 28 U.S.C. §§ 1331 and 1355.
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`18.
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`Venue is proper in this District pursuant to 29 U.S.C. § 1132(e)(2). Additionally,
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`ERISA § 502(e)(2) provides that venue is proper “where the plan is administered, where the
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`breach took place, or where a defendant resides or may be found.” 29 U.S.C. § 1132(e)(2).
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`Because the breach at issue took place in this District, venue is also proper.
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`19.
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`Plaintiff is a former employee of Defendant. He was covered under Defendant’s
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`Health Plan, making him a participant/beneficiary under the Plan.
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`20.
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`Plaintiff experienced a qualifying event within the meaning of 29 U.S.C. §
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`1163(2), rendering him a qualified beneficiary of the Plan pursuant to 29 U.S.C. § 1167(3).
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`21.
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`Defendant is a Maryland corporation registered to do business in the State of
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`Tennessee. Defendant employed more than 20 employees who were members of the Plan in
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`each relevant year.
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`22.
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`Defendant is the Plan sponsor within the meaning of 29 U.S.C. §1002(16)(B),
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`and the administrator of the Plan within the meaning of 29 U.S.C. § 1002(16)(A). The Plan
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`provides medical benefits to employees and their beneficiaries, and is an employee welfare
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`benefit plan within the meaning of 29 U.S.C. § 1002(1) and a group health plan within the
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`meaning of 29 U.S.C. § 1167(1).
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`FACTUAL ALLEGATIONS
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`COBRA Notice Requirements
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`
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`23.
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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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`24.
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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.
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`25.
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`Notice is of enormous importance. The COBRA notification requirement exists
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`because employees are not expected to know instinctively of their right to continue their
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`healthcare coverage.
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`26. Moreover, existing case law makes it ostensibly clear that notice is not only
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`required to be delivered to covered employees but to qualifying beneficiaries, as well.
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`27.
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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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`28.
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`To facilitate compliance with notice obligations, the United States Department of
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`Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election Notice (“Model
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`Notice”), which is included in the Appendix to 29 C.F.R. § 2590.606-4. (See Exhibit “A”). The
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`DOL website states that the DOL “will consider use of the model election notice, appropriately
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`completed, good faith compliance with the election notice content requirements of COBRA.”
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`29.
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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 per participant or beneficiary per day from the date
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`of such failure. 29 U.S.C. § 1132(c)(1). In addition, the Court may order such other relief as it
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`deems proper, including but not limited to injunctive relief pursuant to 29 U.S.C. § 1132(a)(3)
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`and payment of attorneys’ fees and expenses pursuant to 29 U.S.C. § 1132(g)(1). Such is the
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`case here. Defendant failed to use the Model Notice and failed to meet the notice requirements
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`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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`
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`30.
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`Defendant partially adhered to the Model Notice provided by the Secretary of
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`Labor, but only to the extent that served Defendant’s best interests, as critical parts are omitted or
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`altered in violation of 29 C.F.R. § 2590.606-4. Among other things:
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`a. Defendant’s COBRA forms violate 29 C.F.R. § 2590.606-4(b)(4)(v)
`because the notice itself never actually explains how to enroll in COBRA,
`nor does it bother including a physical election form (both of which the
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`model Department of Labor form includes);
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`b. Defendant’s COBRA forms violate 29 C.F.R. § 2590.606-4(b)(4)(i)
`because they fail to provide the name, address and telephone number of
`the party responsible under the plan for administration of continuation
`coverage benefits, including as to both the Plan Administrator and
`COBRA Administrator;
`
`c. Defendant’s COBRA forms violate 29 C.F.R. § 2590.606-4(b)(4)(i)
`because they fail to identify the names of the plans under which
`continuation coverage is available;
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`d. Defendant’s COBRA forms violate 29 C.F.R. § 2590.606-4(b)(4)(viii)
`because they fail to include an explanation of the continuation coverage
`termination date an explanation of any events that might cause
`continuation coverage to be terminated earlier than the end of the
`maximum period; and,
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`e. Defendant’s COBRA forms violate 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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`31.
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`Defendant’s COBRA notice confused Plaintiff and resulted in his inability to
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`make an informed decision as to electing COBRA continuation coverage. In fact, Plaintiff did
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`not understand the notice and, further, Plaintiff was unable to elect COBRA insurance benefits
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`because of Defendant’s confusing and incomplete COBRA notice.
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`32.
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`Defendant’s attempt to cure the above deficiencies with a separate COBRA form,
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`attached as Exhibit “C,” only adds to the confusion. As a result, Plaintiff could not make an
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`informed decision and lost his insurance coverage.
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`Facts Specific to Named Plaintiff Charles Thomas
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`33.
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`Plaintiff, Charles Thomas was employed by Defendant for approximately two and
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`a half years during which time he obtained insurance coverage through Defendant’s group plan.
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`34.
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`In or around August, 2017, Plaintiff’s employment was terminated. Mr. Thomas
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`was not terminated for “gross misconduct” and was therefore eligible for continuation coverage.
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`35.
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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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`36.
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`Following this qualifying event, Defendant caused its COBRA Administrator,
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`Alight Solutions, to mail him the deficient COBRA enrollment notice attached hereto as Exhibit
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`“B.” Also, Defendant caused Alight to mail Plaintiff its “Important Information,” containing
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`some – but not all – of the information missing from its COBRA enrollment notice.
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`37.
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`38.
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`Plaintiff received a deficient COBRA notice for the reasons set forth herein.
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`The COBRA notice was confusing and contained contradictory information. For
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`example, the first page of the COBRA Enrollment Notice listed continuation coverage available
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`for Health Care Spending Account, Dental and Vision.
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`39.
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`However, on the second page, Group Health Coverage listed Dental and Vision
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`only, and indicated the MetLife Dental Plan was not available since no cost was associated with
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`coverage. Moreover, there was no information provided for the Health Spending Account, for
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`which COBRA continuation coverage was available.
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`40.
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`Adding to the confusion, the third page of the COBRA notice contained a heading
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`titled “When Coverage Ends,” informing the recipient “COBRA coverage will end automatically
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`as detailed below.”
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`41.
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`However, none of the dates provided were the COBRA coverage end dates. In
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`fact, the only dates provided were for the qualifying event triggering his COBRA rights, i.e.
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`Coverage End Date (08-17-2017) and the COBRA Coverage Begin Date. (08-18-2017). Thus,
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`Plaintiff was never informed of the date his COBRA coverages, if elected, would end.
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`42.
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`Defendant has in place no administrative remedies Plaintiff was required to
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`exhaust prior to bringing suit.
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`43.
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`Additionally, because no such administrative remedies exist, any attempt to
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`exhaust the same would have been futile.
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`44.
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`Plaintiff suffered a tangible injury in the form of lost insurance coverage and the
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`opportunity to manage his own healthcare and choose his own providers.
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`45.
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`Plaintiff suffered a tangible injury in the form of lost medical treatment.
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`Specifically, Plaintiff did not seek routine care because he did not have insurance coverage.
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`46.
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`Plaintiff also suffered injury in the form of stress and anxiety created by the loss
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`of his insurance coverages.
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`47.
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`Finally, Plaintiff suffered an informational injury as a result of Defendant’s
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`COBRA notice because he was never provided all information to which he was entitled by 29
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`C.F.R. § 2590.606-4(b). As a result of being deprived of such information, Plaintiff was unable
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`to make an informed decision about continuing is coverage.
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`48.
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`If Plaintiff had received a COBRA notice written in the manner reasonably
`
`calculated to be understood by the average plan participant, he would have been able to make an
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`informed decision about continuing his health coverage.
`
`49.
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`Defendant’s dual notice scheme and deficient COBRA notices created a risk of
`
`harm that others would not receive written notice in manner calculated to be understood by the
`
`average plan participant, and thus be deprived of the opportunity to make informed decisions
`
`about their insurance coverage – the very interests Congress sought to protect through ERISA
`
`and COBRA.
`
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`Violation of 29 C.F.R. 29 C.F.R. § 2590.606-4(b)(4)(v)
`Failure to explain how to enroll in COBRA
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`
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`50.
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`The governing statute clearly requires that “[t]he notice … shall be written in a
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`manner calculated to be understood by the average plan participant and shall contain the
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`following information:…(v) [a]n explanation of the plan's procedures for electing continuation
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`coverage, including an explanation of the time period during which the election must be made,
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`and the date by which the election must be made.” 29 C.F.R. § 2590.606-4(b)(4)(v).
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`51.
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`As a threshold matter, Defendant’s COBRA Enrollment Notice (Exhibit “B”) fails
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`to adequately explain the procedures for electing coverage.
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` Defendant’s “Important
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`Information” (Exhibit “C”) doesn’t either. By failing to explain the procedures for electing
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`continuing coverage, Defendant interfered with Plaintiff’s ability to elect COBRA continuation
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`coverage. Furthermore, by failing to adequately explain the procedures for electing coverage,
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`Defendant prevented Plaintiff from understanding his rights under COBRA and how to make an
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`informed decision about continuation coverage.
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`52.
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`Instead, Defendant’s COBRA enrollment notice merely directs plan participants
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`to a general phone number, and website, rather than explaining how to actually enroll in
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`COBRA. To further compound the confusion, the Defendant COBRA Enrollment Notice contains
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`no instructions on how to actually enroll if one calls the phone number, or visits the website.
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`The telephone number provided by Defendant in its COBRA Enrollment Notice is a “catch-all”
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`number individuals can call with questions about anything benefit-related, including retirement
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`funds, etc. The same for the website.
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`53.
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`This “catch-all” number is really a phone number to a third-party administrator,
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`Alight Solutions. Similarly, the website is also supported by Alight Solutions. However, Alight
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`Solutions is never identified as the COBRA administrator or party responsible for COBRA
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`administration.
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`54.
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`Providing a website and “catch-all” number routed to a third-party call center
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`designed to answer anything HR-related simply cannot meet the strict informational statutory
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`requirements of 29 C.F.R. § 2590.606-4(b)(4)(v) as to enrollment. The same holds true for the
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`generic website link - directing individuals to a website link and hoping they will “figure out”
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`how to enroll in COBRA is vastly different than explaining how to enroll in COBRA.
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`55.
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`Unlike Defendant’s COBRA notice, the Model DOL notice provides a near fool-
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`proof way to elect COBRA coverage by providing a physical election form to mail in, the date it
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`is due, the name and address to where election forms should be sent, spaces for the names, social
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`security numbers, and type of coverage elected by each plan participant or beneficiary. (Exhibit
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`“A,” p. 7).
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`56.
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`Defendant COBRA Enrollment Notice simply does not contain “an explanation of
`
`the plan’s procedures for electing continuation coverage, including an explanation of the time
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`period during which the election must be made, and the date by which the election must be
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`made” as required by 29 C.F.R. § 2590.606-4(b)(4)(v). Merely telling Plaintiff and the putative
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`class members to call a generic 1-800 number or visit a catch-all website operated by a third-
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`party and hope they “figure out” how to enroll does not satisfy the statutory requirements. To
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`satisfy the requirements, the notice must contain information on how to enroll. Defendant’s
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`notice simply does not.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)(vi) – Failure to Include Explanatory Information
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`57.
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`Exhibit “B” violates 29 C.F.R. § 2590.606-4(b)(4)(vi) because it fails to provide
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`all required explanatory information.
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`58.
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`For example, there is simply no explanation that a qualified beneficiary’s decision
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`whether to elect continuation coverage will affect the future rights of qualified beneficiaries to
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`portability of group health coverage, guaranteed access to individual health coverage, and special
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`enrollment under part 7 of title I of the Act.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)(viii) – Failure to Include Coverage
`Termination Date or Explanation of Events that Might Cause Termination
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`59.
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`Exhibit “B” violates 29 C.F.R. § 2590.606-4(b)(4)(viii) because it fails to include
`
`all required explanatory information.
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`60.
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`For example, there is no termination date for coverage or explanation of the
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`continuation coverage termination date and any events that might cause continuation coverage to
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`be terminated earlier than the maximum coverage period.
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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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`61.
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`Plaintiff was unable -- based on the content or Exhibits “B” and/or “C” -- to
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`ascertain the name, address and telephone number of the party responsible under the plan for the
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`administration of continuation coverage benefits.
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`62.
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`Defendant was required to provide “in a manner calculated to be understood by
`
`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).
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`63.
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`Defendant’s Notice, Exhibit “B,” fails to comply with this straightforward
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`requirement. Exhibit “C” doesn’t contain this this information either.
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`64.
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`Identifying who acted as the plan administrator is absolutely critical to know
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`because “the plan administrator bears the burden of proving that adequate COBRA notification
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`was given to the employee.” Griffin v. Neptune Tech. Group, 2015 U.S. Dist. LEXIS 48000,
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`2015 WL 1635939, *9 (M.D. Ala. Apr. 13, 2015); (citing to Hoffman v. R.F. Group, 2015 U.S.
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`Dist. LEXIS 88598, *12, 2015 WL 4139084 (M.D. Fla. May 20, 2015). Defendant notice omits
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`this critical and legally required information.
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`Violation of 29 C.F.R. § 2590.606-4(b)(4)(i) – Failure to Identify Name of Plan
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`65.
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`As set forth above, Defendant’s COBRA forms violate 29 C.F.R. § 2590.606-
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`4(b)(4)(i) because they fail to identify the name of the plans under which continuation coverage
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`is available.
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`66.
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`Defendant’s Notice, Exhibit “B,” fails to comply with this straightforward
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`requirement. This information is also missing from Exhibit “C.”
`
`67.
`
`Defendant’s notice also omits this very basic, but critical and statutorily required
`
`information.
`
`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”
`
`By failing to adequately explain the procedures for electing coverage, as required
`
`68.
`
`by 29 C.F.R. § 2590.606-4(b)(4)(v), coupled with the complete omission from Exhibit “B” of
`
`how to actually enroll in COBRA, the consequences for untimely payments, failure to include all
`
`required explanatory information, and failure to identify the names of the applicable plans or
`
`Plan Administrator, Defendant cumulatively violated 29 C.F.R. § 2590.606- 4(b)(4).
`
`69.
`
`This particular section mandates that employers, like Defendant, must provide a
`
`notice of continuation coverage written in a manner calculated “to be understood by the average
`
`plan participant.” Without the aforementioned critical pieces of, Defendant’s COBRA notice
`
`cannot be said to be written in a manner calculated “to be understood by the average plan
`
`participant.” Thus, Defendant violated 29 C.F.R. § 2590.606-4(b)(4)(v).
`
`
`
`70.
`
`Plaintiff brings this action as a class action pursuant to the Federal Rules of Civil
`
`CLASS ACTION ALLEGATIONS
`
`Procedure on behalf of the following persons:
`
`
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`Case 2:20-cv-02512-SHL-cgc Document 1 Filed 07/15/20 Page 15 of 18 PageID 15
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`All participants and beneficiaries in the Defendant’s Health, Vision,
`Dental and Health Care Spending Account Plans who were sent a
`COBRA notice by Defendant, in the form attached as Exhibit “B,”
`during the applicable statute of limitations period as a result of a
`qualifying event, as determined by Defendant’s records, and did not
`elect continuation coverage.
`
`
`
`71.
`
`No administrative remedies exist as a prerequisite to Plaintiff’s claims on behalf
`
`of the Putative Class. As such, any efforts related to exhausting such non-existent remedies
`
`would be futile.
`
`72.
`
`Numerosity: The Class is so numerous that joinder of all Class members is
`
`impracticable. On information and belief thousands of individuals satisfy the definition of the
`
`Class.
`
`73.
`
`Typicality: Plaintiff’s claims are typical of the Class. The COBRA notice that
`
`Defendant sent to Plaintiff was a form notice that was uniformly provided to all Class members.
`
`As such, the COBRA notice that Plaintiff received was typical of the COBRA notices that other
`
`Class Members received and suffered from the same deficiencies.
`
`74.
`
`Adequacy: Plaintiff will fairly and adequately protect the interests of the Class
`
`members, he has no interests antagonistic to the class, and has retained counsel experienced in
`
`complex class action litigation.
`
`75.
`
`Commonality: Common questions of law and fact exist as to all members of the
`
`Class and predominate over any questions solely affecting individual members of the Class,
`
`including but not limited to:
`
`a.
`
`
`b.
`
`
`c.
`
`Whether the Plan is a group health plan within the meaning of 29 U.S.C. §
`1167(1);
`
`Whether Defendant’s COBRA notice complied with the requirements of
`29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;
`
`Whether statutory penalties should be imposed against Defendant under
`29 U.S.C. § 1132(c)(1) for failing to comply with COBRA notice
`
`
`
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`Case 2:20-cv-02512-SHL-cgc Document 1 Filed 07/15/20 Page 16 of 18 PageID 16
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`requirements, and if so, in what amount;
`
`
`d.
`
`
`e.
`
`The appropriateness and proper form of any injunctive relief or other
`equitable relief pursuant to 29 U.S.C. § 1132(a)(3); and
`
`Whether (and the extent to which) other relief should be granted based on
`Defendant’s failure to comply with COBRA notice requirements.
`
`
`
`
`76.
`
`Class Members do not have an interest in pursuing separate individual actions
`
`against Defendant, as the amount of each Class Member’s individual claims is relatively small
`
`compared to the expense and burden of individual prosecution. Class certification also will
`
`obviate the need for unduly duplicative litigation that might result in inconsistent judgments
`
`concerning Defendant’s practices and the adequacy of its COBRA notice. Moreover,
`
`management of this action as a class action will not present any likely difficulties. In the
`
`interests of justice and judicial efficiency, it would be desirable to concentrate the litigation of all
`
`Class Members’ claims in a single action.
`
`77.
`
`Plaintiff intends to send notice to all Class Members to the extent required the
`
`Federal Rules of Civil Procedure. The names and addresses of the Class Members are available
`
`from Defendant’s records, as well as from Defendant’s third-party administrator, Alight
`
`Solutions.
`
`78.
`
`79.
`
`80.
`
`CLASS CLAIM I FOR RELIEF
`Violation of 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4
`
`Plaintiff reincorporates by reference paragraphs 23-73.
`
`The Plan is a group health plan within the meaning of 29 U.S.C. § 1167(1).
`
`Defendant is the plan sponsor and plan administrator of the Plan and was subject
`
`to the continuation of coverage and notice requirements of COBRA.
`
`81.
`
`Plaintiff and the other members of the Class experienced a “qualifying event” as
`
`defined by 29 U.S.C. § 1163, and Defendant was aware that they had experienced such a
`
`
`
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`Case 2:20-cv-02512-SHL-cgc Document 1 Filed 07/15/20 Page 17 of 18 PageID 17
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`qualifying event.
`
`82.
`
`On account of such qualifying event, Defendant sent Plaintiff and the Class
`
`Members a COBRA notice in the form attached hereto.
`
`83.
`
`The COBRA notice that Defendant sent to Plaintiff and other Class Members
`
`violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4 for the reasons set forth above (among
`
`other reasons).
`
`84.
`
`These violations were material and willful.
`
`85.
`
`Defendant knew that its notice was inconsistent with the Secretary of Labor’s
`
`Model Notice and failed to comply with 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4, but
`
`chose to use a non-compliant notice in deliberate or reckless disregard of the rights of Plaintiff
`
`and other Class Members.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, individually and on behalf of the Class, pray for relief as
`
`
`
`follows:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`Designating Plaintiff’s counsel as counsel for the Class;
`
`Issuing proper notice to the Class at Defendant’s expense;
`
`Declaring that the COBRA notice sent by Defendant to Plaintiff and other
`Class Members violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;
`
`Awarding appropriate equitable relief pursuant to 29 U.S.C. § 1132(a)(3),
`including but not limited to an order enjoining Defendant from continuing
`to use its defective COBRA notice and requiring Defendant to send
`corrective notices;
`
`Awarding statutory penalties to the Class pursuant to 29 U.S.C. §
`1132(c)(1) and 29 C.F.R. § 2575.502c-1 in the amount of $110 per day for
`each Class Member who was sent a defective COBRA notice by
`Defendant;
`
`Awarding attorneys’ fees, costs and expenses to Plaintiff’s counsel as
`provided by 29 U.S.C. § 1132(g)(1) and other applicable law; and
`
`17
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`Case 2:20-cv-02512-SHL-cgc Document 1 Filed 07/15/20 Page 18 of 18 PageID 18
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`
`
`
`
`
`
`
`g.
`
`Granting such other and further relief, in law or equity, as this Court
`deems appropriate.
`
`Dated this 15th day of July, 2020.
`
`
`
`
`/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
`Fa