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August 9, 2005.

ELIZABETH T. MAGLIULO for herself and others similarly situated, Plaintiff,

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. However,
[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 check.
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 did not.
(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 calendar days.

  SO ...

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