The opinion of the court was delivered by: LAWRENCE McKENNA, District Judge
Defendants move for reconsideration of the Court's order of
January 20, 2005, certifying a plaintiff class pursuant to
Fed.R.Civ.P. 23. They seek denial of class certification.
Reconsideration is granted, and, upon reconsideration, the Court
adheres to its original determination.
The relevant allegations of the complaint are described in the
Court's Memorandum and Order denying defendants' motion pursuant
to id. 12(b)(6), Magliulo v. Metropolitan Life Ins. Co.,
208 F.R.D. 55 (S.D.N.Y. 2002), familiarity with which is assumed.
The action is brought to secure benefits for plaintiff and
other participants in the first named defendant's MetLife Choices
Health Plan ("Plan") under Sections 502(a)(1)(B) and (a)(3) of
the Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1132(a)(1)(B) & (a)(3). 208 F.R.D. at 56, 57. Under the
Plan, retired participants (and their spouses and children) pay a reduced premium for medical insurance when they became Medicare
eligible. Initially, plaintiff, who began to receive Medicare
coverage on August 1, 1997, only payed the reduced premium. Id.
[i]n January 2001, Metropolitan notified plaintiff
that she would be charged the full non-Medicare
eligible premium for her medical insurance. The 2001
confirmation form plaintiff received from
Metropolitan did not note plaintiff's Medicare
eligibility. Plaintiff alerted Metropolitan to this
error through numerous phone calls and letters. When
plaintiff initially contacted defendants' customer
service representative she was told that her records
would be corrected. However, plaintiff continued to
be charged the higher premium, which was
automatically subtracted from her monthly benefit
Magliulo, 208 F.R.D. at 57 (citations omitted). Plaintiff
brings the present action "on behalf of herself and other
similarly situated Medicare eligible Plan participants to . . .
recover medical insurance premiums in excess of those required
under the Plan for persons on Medicare," as well as for
injunctive relief. Id. at 56.
As described by defendants, plaintiff, in order to show that
the requirements of rule 23 had been met,
created a sampling from the lists produced by
Defendants of all Plan Participants for each year
from 1995 through 2001. Two subpoenas were then
served upon the Department of Health and Human
Service ("HHS"), directing it to produce information
regarding the Medicare eligibility status of those
persons identified in Plaintiff's sampling. Based
upon the responses from HHS, Plaintiff's counsel
identified 34 people as potential class members
because HHS listed these persons as Medicare eligible, but Defendants' records
(Def. Mem. at 2.) The lists were redacted by defendants to delete
any identifying information such as names, social security
numbers and dates of birth. (Coleman Aff. ¶ 4.) The sampling
consisted of 676 persons, out of 9,797 according to defendants'
count, rather than 21,756 according to plaintiff's count. (Pl.
Mem. at 3.)
Defendants argue that, while they "automatically reduce premium
for Plan Participants when they reach age 65 . . . pursuant to
the terms of the Plan, for Plan Participants under age 65,
Defendants rely exclusively upon the Plan Participant for
information concerning Medicare eligibility status" (Def. Mem. at
2-3), and that, in a review of Plan records, "no evidence was
found that any of the 34 people on plaintiff's list informed
Defendants or [the Plan administrator] that they were Medicare
eligible [so that] . . . none had been charged a contribution
rate inconsistent with their Medicare eligibility information as
reflected in the records maintained by Defendants and [the Plan
administrator]." (Id. at 3.) As a result, defendants conclude,
"[n]one of the 34 Plan Participants meet the requisites of the
class defined by Plaintiff, nor is there any statistical analysis
that supports a finding that any identifiable class exists."
(Id. at 5.)
Defendants also argue, essentially from the same facts, that
plaintiff has not established that the members of the defined
class have exhausted their administrative remedies. (Id. at
6-8.) In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974),
the Supreme Court said: "We find nothing in either the language
or history of Rule 23 that gives a court any authority to conduct
a preliminary inquiry into the merits of a suit in order to
determine whether it may be maintained as a class action." See
also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293
(2d Cir. 1999) ("In deciding a certification motion, district
courts must not consider or resolve the merits of claims of the
purported class." (citing Eisen, 417 U.S. at 177)); Babcock v.
Computer Assocs. Int'l, Inc., 212 F.R.D. 126, 129 (E.D.N.Y.
2003). A motion for certification is not an occasion for
asserting "defenses on the merits." Sirota v. Solitron Devices,
Inc., 673 F.2d 566, 572 (2d Cir. 1982).
Here, defendants' arguments concerning notification and
exhaustion are in the nature of the assertion of affirmative
defenses against potential class members, which, under Eisen,
should not be determined at this state of the
litigation.*fn1 At least in the case of exhaustion, there is
authority to the effect that, where a claim must be exhausted,
only the named class plaintiff need have done so. Babcock, 212 F.R.D. at 132-33
(citing case law and other authorities).
Defendants' motion for reconsideration is granted, and, on
reconsideration, the Court adheres to its original determination.
Counsel are to submit their proposals for a form of notice to
potential class members as follows: Plaintiff's proposal within
14 calendar days hereof; defendants' response within 7 further
calendar days; and plaintiff's reply, if any, within 7 further