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See, e.g., Pinazo v. Citigroup, Inc., No. 20-cv-21866 (S.D. Fla.); Grant v. JPMorgan Chase & Co., No. 19-CV-1808 (M.D. Fla.);
Dau Pham v. Greif, Inc., No. 20-CV-1988 (N.D. Ill.); York v. Nestle Waters North America, Inc., No. 20-CV-973 (M.D. Fla.);
Strickland et al. v. United Healthcare Servs., No. 19-CV-1933 (M.D. Fla.); Conklin v. Coca-Cola Beverages Florida, LLC, No.
19-cv-2137 (M.D. Fla.); Rigney et al. v. Target Corp., No. 19-CV-1432 (M.D. Fla.); Riddle et al. v. PepsiCo., Inc., No. 19-CV-3634
(S.D.N.Y.); Ousley v. Amazon Corporate, LLC, No. 20-CV-701 (M.D. Fla.); York v. Nestle Waters North America, Inc., No. 20-
CV-973 (M.D. Fla.); Bryant v. Wal-Mart, Inc., No. 16-cv-24818 (S.D. Fla.); Hicks v. Lockheed Martin Corporation, No. 19-CV-261
(M.D. Fla.); Robles v. Lowe's Home Centers LLC, No. 19-cv-02713 (M.D. Fla.).
Common Defenses to COBRA Notice Challenges. Though the majority of the lawsuits filed in the last year are only in the
early stages, many of the defendants in those cases are asserting similar arguments in asking courts to dismiss the lawsuits
at the outset. While the efficacy of these arguments remains to be seen, some plaintiffs have obtained early success in
fending off these arguments at the motion to dismiss stage.
• Lack of Standing: Defendants argue that the named plaintiffs’ claims fail because the complaint does not
adequately allege a concrete injury-in-fact sufficient to confer standing. This is because the alleged
deficiencies in the COBRA election notice are merely an “informational” or “technical” injury that does not
establish an injury-in-fact that is traceable to the plan sponsor or plan administrator. The defendants
further argue that the plaintiffs fail to allege any causal connection between the alleged deficiencies in the
notice and their failure to elect COBRA continuation coverage.
• Substantial Compliance: As the DOL explains in its final rules implementing the COBRA notice
requirements, the notice requirements are intended to assist participants and beneficiaries in
understanding how to exercise their COBRA rights and elect coverage. Faced with technical arguments
about the content of their COBRA election notices, defendants have invoked the substantial compliance
doctrine to argue that their notices are drafted to be understandable to the average participant and
therefore substantially comply with the COBRA notice requirements. The defendants argue that a mere
technical violation of the COBRA notice requirements is insufficient to state a valid legal claim under ERISA.
• DOL Model Notice Is Not Mandatory: As noted above, the plaintiffs in these lawsuits spend a lot of time
focusing on variations between the employer's COBRA election notice and the DOL's model notice. The
COBRA notice regulations, however, make clear that the “[u]se of the model notice is not mandatory” and
that administrators “must appropriately add relevant information where indicated in the model notice,
select among alternative language and supplement the model notice to reflect applicable plan
provisions.” See, 29 C.F.R. § 2590.606-4(g)). Because each employer and plan is different, the DOL's
model notice is not intended to anticipate every possible scenario or relevant element of the notice.
Accordingly, defendants argue that any evaluation of an employer's COBRA election notice should be
based on the COBRA notice regulations—and not the DOL's model notice.
• Class Certification: In an effort to increase their prospective damages and assert more leverage over
employers, recent COBRA election notice lawsuits have been filed as putative class actions seeking
attorneys’ fees, statutory penalties, and other damages on a class-wide basis. However, in an attempt to
avoid a standing challenge and draw more sympathy from the court, the named plaintiffs often allege that
they were actually injured because the deficiencies with their employer's COBRA election notice caused
them not to obtain continuation coverage. While such allegations are intended to help the named plaintiff
survive a motion to dismiss, to certify a class, he or she must satisfy the commonality requirements of
Federal Rule of Civil Procedure 23. This becomes much more difficult when a plaintiff must rely on
individualized proof to establish that each putative class member suffered a similar injury-in-fact.
Additional Risks for Employers to Consider. It is not uncommon for employers to engage a third-party administrator to
handle COBRA administration and compliance, including the election process. However, even if an employer uses a third-
party COBRA administrator, it could still be subject to statutory penalties of up to $110 per day as the plan administrator if
the COBRA election process is not handled properly or there are deficiencies with the COBRA election notices. In addition,
courts have discretion to grant other relief, such as awarding medical expenses incurred by a qualified beneficiary, actual
COBRA coverage, and attorneys’ fees and costs. Subject to certain limitations and exceptions, the Internal Revenue Service
can also impose an excise tax of $100 per person (a maximum of $200 per family) per day for a non-compliant COBRA
election notice. While such penalties may be insubstantial when dealing with a single participant or beneficiary, they can