By: Mark Casciari and Michelle Scannell

ERISA class actions can drag on for years.  Defending them is costly, so expensive nuisance settlements are tempting, regardless of the merits. 

Compounding the problem, ERISA actions often are ripe for class certification because ERISA plans, by definition, each apply to a class of people. 

But before you grab your wallet when faced with a putative ERISA class action, consider this admittedly partial, but helpful, list on how to attack a certification motion on the basis of Fed. R. Civ. P. 23(a) elements of commonality and typicality:

  • Can the would-be class members even sue under ERISA? (See Penn. Chiropractic Ass’n v. Blue Cross Blue Shield Ass’n, No. 1:09-cv-05619 (N.D. Ill. Dec. 28, 2011) (finding that providers suing for reimbursement lacked commonality on issues including whether they could invoke ERISA)).  
  • Did would-be class member claims accrue at different times, and are some untimely? (See In re Unisys Corp. Retiree Med. Benefits Litig., 29 EBC 2473 (E.D. Pa. Feb. 4, 2003) (decertifying class because individualized inquiries were required on many issues, including whether individual fiduciary breach claims of class were timely)).
  • Have would-be class members exhausted their administrative remedies? (See Stephens v. U.S. Airways Grp., Inc., No. 1:07-cv-01264-RMC (D. D.C. Dec. 7, 2012) (finding no typicality because named plaintiff was only class member who exhausted administrative remedies)).
  • Do different standards of review apply to different would-be class members? (See Lipstein v. UnitedHealth Grp., No. 1:11-cv-01185-JBS-JS (D. N.J. Sept. 26, 2013) (finding that proposed class of participants in more than 1,000 plans administered by insurer lacked commonality because different levels of discretion could have applied under different plans)).
  • Did would-be class members adopt different investment strategies? (See Groussman v. Motorola, Inc., 2011 U.S. Dist. LEXIS 134769 (N.D. Ill. Nov. 15, 2011) (finding no commonality due to individualized investment strategies of class members, and lack of typicality for failure to show that class members were allegedly deceived in a uniform fashion)).
  • Did would-be class members uniformly rely on any alleged misrepresentations? (Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 457 (11th Cir. 1996) (finding no commonality due to individualized issues of reliance)).
  • In short, ask yourself this questionHave the putative class action representatives provided the court with a credible and formulaic roadmap to damages for a group of people with standing to sue under ERISA? 
  • If the answer involves a number of detours, you are on to something!