Fitzwater v. CONSOL Energy, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

BENNY FITZWATER and CLARENCE

BRIGHT, and TERRY PRATER, and

EMMET CASEY, JR., and CONNIE Z.

GILBERT, and ALLAN H. JACK, SR.,

and ROBERT H. LONG, on behalf of

themselves and others similarly

situated,

Plaintiffs,

v. Civil Action No. 2:16-cv-09849

CONSOL ENERGY, INC., and Consolidated with:

CONSOLIDATION COAL CO., and Civil Action No. 1:17-cv-03861

FOLA COAL CO., LLC, and

CONSOL OF KENTUCKY, INC., and

CONSOL BUCHANAN MINING CO., LLC,

and CONSOL PENNSYLVANIA COAL CO.,

LLC, and KURT SALVATORI,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the plaintiffs’ supplemental motion for

class certification, filed August 17, 2018.

I. Background

On April 24, 2017, plaintiffs Benny Fitzwater

(“Fitzwater”), Clarence Bright (“Bright”), and Terry Prater

(“Prater”), on behalf of themselves and others similarly

situated, filed their amended complaint against CONSOL Energy,

Inc., Consolidation Coal Co., Fola Coal Co., LLC, CONSOL of

Kentucky, Inc., and Kurt Salvatori (CONSOL Energy, Inc.’s Vice

President of Human Resources from 2011-2016 and fiduciary of the

plaintiffs’ employee welfare benefit plans) in this court.

First Am. Compl., ECF No. 36 (“ECF No. 36”). This case was

consolidated on December 22, 2017 with Casey v. CONSOL Energy,

Inc. et al., brought by Emmett Casey, Jr. (“Casey”), Connie Z.

Gilbert (“Gilbert”), Allan Jack Sr. (“Jack”), and Robert H. Long

(“Long”). ECF No. 90.

Plaintiffs Casey, Gilbert, Jack, and Long filed an

amended complaint on March 1, 2018.1 Second Am. Compl., ECF No.

103 (“ECF No. 103”). After Fitzwater, Bright, and Prater’s

original motion to certify class, filed July 13, 2017, was

denied as moot by the court’s February 6, 2018 order, see ECF

No. 100, all seven named plaintiffs jointly filed a supplemental

motion for class certification against CONSOL Energy, Inc.,

Consolidation Coal Co.,2 Fola Coal Co., LLC, CONSOL of Kentucky,

Inc., CONSOL Pennsylvania Coal Co., LLC (collectively,

1 The March 1, 2018 amended complaint listed the same defendants,

except it replaced Fola Coal Co., LLC and CONSOL of Kentucky,

Inc. with CONSOL Pennsylvania Coal Co., LLC.

2 In 2014 and 2015, “Consolidation Coal did business as Consol

Buchanan Mining Company, LLC in reference to the Buchanan Mine.”

ECF No. 103 ¶ 18.

“CONSOL”),3 and Mr. Salvatori on August 17, 2018. Pls.’ Suppl.

Mot. Class Cert., ECF No. 155 (“ECF No. 155”).4

The named plaintiffs are retired miners who worked at

CONSOL mine sites consisting of the CONSOL of Kentucky mines,

the Buchanan Mine located in Virginia and the Enlow Fork Mine

located in Pennsylvania, or at the Fola mine sites located in

West Virginia. Pls.’ Mem. Supp. Suppl. Mot. Class Cert. 4-5,

ECF No. 156 (“ECF No. 156”); ECF No. 103 ¶¶ 23, 58; ECF No. 36

¶¶ 30-31. They seek to represent some 4,000 miners who worked

at numerous CONSOL mine sites in four different states over the

course of approximately forty years. ECF No. 156 at 1; Pls.’

Reply Suppl. Mot. Class Cert. 1, ECF No. 162 (“ECF No. 162”).

The plaintiffs allege wrongful and discriminatory termination of

retiree health benefits pursuant to the Employee Retirement

Income Security Act of 1975 (“ERISA”), 29 U.S.C. § 1001, et seq.

ECF Nos. 36, 103.

In the early 1980s, CONSOL began holding orientation

sessions for new, non-union employees at each of its mine sites,

3 Consolidation Coal Co., CONSOL of Kentucky, Inc., CONSOL

Pennsylvania Coal Co., LLC, and Fola Coal Co., LLC are all

wholly owned subsidiaries of CONSOL Energy, Inc. ECF No. 103

¶ 21; ECF No. 36 ¶ 93.

4 The plaintiffs’ supplemental motion incorporated the grounds

set forth “in the original Motion to Certify Class, Memorandum

in Support, and Reply (ECF 63, 64, 71).” ECF No. 155 at 3.

during which CONSOL representatives allegedly made oral and

written promises of lifetime medical benefit coverage to miners

and their beneficiaries as part of their “major initiative to

begin opening non-union coal mines.” ECF No. 156 at 4.

Therein, representations were allegedly “made in written form on

slide shows – which Defendants projected on the wall for the

putative class members to read – or in hand-outs distributed to

class members by Consol.” Id. at 4-5. The materials allegedly

“explained the CONSOL retiree benefits and stated that those

benefits would remain competitive with the lifetime,

Congressionally-backed benefits available to miners through the

UMWA,” referring to the United Mine Workers of America. Id. at

5. The plaintiffs believed these lifetime retiree benefits

included medical, prescription drug, dental, vision, and life

insurance coverage. ECF No. 103 ¶ 63.

The plaintiffs refer to these benefits as the

“Lifetime Plan” for which there was no uniform formal statement

and no Summary Plan Document (“SPD”). Formal plans with SPDs

did exist, consisting of varying degrees of coverage for

medical, prescription drug, short- and long-term disability,

dental, vision, and life insurance benefits, in addition to

pension payments under a separate retirement plan. See, e.g.,

August 31, 2018 Declaration of Deborah Lackovic (Consol’s

Director – Benefits) (“Second Lackovic Decl.”), Exs. A-P, ECF

Nos. 160-19 to 160-24. The defendants provided the court with

SPDs from 1992, 1998, 2003, 2005, 2006, 2011, 2014 that were

distributed to CONSOL’s retired and active employees. Id.

For instance, the 1992 SPDs benefits binder given to

production and maintenance employees at “Enlow Fork Mining

Company,” “Consol of Pennsylvania Coal Company,” and

“Consolidation Coal Company of Kentucky” summarized the (a) life

insurance, (b) medical, (c) salary continuance/disability, (d)

dental, and (e) retirement benefit plans, and provided a

separate SPD for each of them. Second Lackovic Decl., Ex. K,

ECF No. 160-23. The SPDs the defendants provided up until the

mid-2000s covered both active and retired employees within the

same plans. See, e.g., Id. Ex. J, ECF No. 160-22 at 28,

CONSOL022576;5 Id. Ex. M, ECF No. 160-24 at 12, CONSOL022088.6

In 2006, CONSOL began providing two separate sets of

SPDs, one for retirees and one for active employees. Second

5 The “CONSOL Inc. Comprehensive Medical Expense Benefits Plan

for Salaried Employees” issued in 2003 was described as “a group

health plan which provides payment for certain medical care to

eligible employees, retirees, and dependents.”

6 The “Comprehensive Medical Expense Benefits Plan for Production

and Maintenance Employees of Buchanan Mine” issued in 2005 was

described as “a group medical plan which provides payment for

certain health and vision care to eligible employees, retirees,

and dependents.”

Lackovic Decl. ¶¶ 7-8, ECF No. 160-19. Retirees and active

employees also both received a separate SPD for each type of

benefit they received: medical, prescription drug, dental,

vision, disability, and life insurance, though the SPDs for

retired and active employees were all contained in a common

welfare plan designated Plan Number 581. Id. Exs. B-F, (SPDs

for retirees), Exs. G-H (SPDs for active employees), ECF Nos.

160-19 to 160-20; ECF No. 103 ¶ 89.

In January 2011, CONSOL issued a separate benefit plan

for retired employees called the CONSOL Energy Inc. Retiree

Health and Welfare Plan (“Retiree Benefits Plan”). See Second

Lackovic Decl., Ex. A, ECF No. 160-19. Active employees

remained participants in what was known as the CONSOL Energy

Inc. Health and Welfare Plan (“Active Employee Benefits Plan.”),

which the parties at times refer to as the CONSOL Energy, Inc.

Flexible Benefits Program Comprehensive Medical Expense Benefits

Plan. See July 27, 2017 Declaration of Deborah Lackovic (“First

Lackovic Decl.”) ¶ 9, ECF No. 67-5; Second Lackovic Decl. ¶ 8,

ECF No. 160-19; ECF No. 36 ¶ 50. Unlike earlier plans that

covered dental and disability, the Retiree Benefits Plan only

covered medical, prescription drug, vision, and life insurance

benefits. See First Lackovic Decl. ¶ 8, ECF No. 67-5; Second

Lackovic Decl., Ex. A, ECF No. 160-19. The Active Employee

Benefits Plan continued to carry medical, prescription drug,

vision, dental, disability, and life insurance benefits. Second

Lackovic Decl. ¶ 8, ECF No. 160-19; Id. Ex. G, ECF No. 160-20.

In or around 2010, the defendants allegedly “became

aware of a union organizing drive,” and in order to “halt”

organizational efforts, the defendants “repeatedly represented

to their employees,” including Bright, Fitzwater, and Fola miner

Harold Scott, that the “lifetime benefits plan . . . was

altogether more valuable than benefits offered by the UMWA.”

ECF No. 36 ¶¶ 36-37. During the union organizing drive, the

defendants allegedly “repeated their previous statements

regarding the Lifetime Plan, specifically providing written

statements to the plaintiffs that: ‘This is a better deal than

the UMWA negotiated in the national contract. AND REMEMBER, IT

DIDN’T COST YOU A PENNY IN DUES OR ASSESSMENTS.’” Id. ¶ 38.

Despite these assurances, the plaintiffs soon learned

that they were not in fact assured lifetime benefits under a

single, unified plan. Indeed, dating back to 1992, the SPDs for

the various benefit plans each contained a reservation of rights

clause that stated that CONSOL reserves the right to amend or

terminate the plans at any time for active employees and current

or future retirees. See, e.g., Second Lackovic Decl. ¶¶ 9-10,

ECF No. 160-19.7 In accordance with the reservation of rights

clauses, CONSOL announced in late 2014 that it was terminating

retiree health and welfare benefits for all active employees on

October 1, 2014. ECF No. 155-14. Retirement-eligible employees

could continue to receive health and welfare benefits under the

Retiree Benefits Plan if they retired as of September 30, 2014,

although the Retiree Benefits Plan would terminate on January 1,

2020. Id. Alternatively, active employees could continue

working and receive a one-time, lump sum transition payment (to

be paid on or around October 22, 2014), based on their years of

service, to support their healthcare coverage upon retirement.

Id.8 Employees who had retired prior to this Fall 2014

announcement never had the option of receiving a transition

payment. Id.

7 For instance, a 1992 SPD states, “The Company reserves the

right to terminate, suspend, withdraw, amend or modify the Plan

at any time. Any such change or termination in benefits

(a) will be based solely on the decision of the Company and (b)

may apply to active Employees, future retirees and current

retirees or other covered persons as either separate groups or

as one group.” Second Lackovic Decl., Ex. K, ECF No. 160-23 at

67, CONSOL019250.

8 The transition payments escalated in five-year increments

according to employees’ years of “credited service.” For

example, production employees received $2,500 for 0-4.99 years

of credited service, $10,000 for 10-14.99 years of credited

service, and $100,000 for 30 years of credited service. “Staff

Employees (Over age 50 as of 12/31/2013)” with those same years

of credited service received $2,500, $5,000, and $10,000,

respectively. ECF No. 155-14 at 2, CONSOL003849.

A year later, CONSOL informed retired employees by

letter that their retiree benefits under the Retiree Benefits

Plan would terminate on December 31, 2015. ECF No. 155-16. For

retirees, such as named plaintiff Prater, who had previously

elected to retire after the Fall 2014 announcement, CONSOL

provided a pro-rated portion of the previously rejected

transition payment to reflect the receipt of an additional year

of benefits under the Retiree Benefits Plan. First Lackovic

Decl. ¶ 15, ECF No. 67-5; Prater Dep. 125:2-127:5, ECF No. 67-7;

Samons Dep. 65:2-6, ECF No. 67-9.

The plaintiffs now contend that the defendants

violated ERISA by representing, orally and in writing, the

existence of a single, unified retiree welfare benefits plan,

which they coin the “Lifetime Plan,” consisting of lifetime

medical, prescription drug, dental, vision, and life insurance

coverage. ECF No. 156 at 1-3. They claim that the oral

representations along with the orientation and training

materials created a Lifetime Plan enforceable under ERISA

conditioned on the plaintiffs retiring at age fifty-five and

attaining ten years of credited service. ECF No. 103 ¶ 2; ECF

No. 36 ¶ 21.

There is no SPD for a “Lifetime” Plan. The plaintiffs

assert that “Consol created the Lifetime Plan through its

slideshows and explanations that retiree welfare benefits would

vest” in retirement after working the requisite number of years.

ECF No. 162 at 13. The plaintiffs also allege that the

defendants withheld or inconsistently distributed the separate

SPDs for retirees, which also failed to mention obligations

under the Lifetime Plan. The plaintiffs say that some employees

never received the SPD for the Retiree Benefits Plan and others

only received the SPD when they became eligible for retirement,

which was the first time they learned that there were any

differences in the welfare benefits of retirees versus active

employees. ECF No. 103 ¶¶ 76-83, 138; ECF No. 36 ¶¶ 65-75; ECF

No. 156 at 10, 22.

II. Class Action Allegations

The consolidated plaintiffs move for class

certification on all seven counts listed in the March 1, 2018

amended complaint:9 (I) Breach of fiduciary duties as to the

Lifetime Plan under 29 U.S.C. § 1104(a)(1)(a)(i);

(II) Enforcement of the Lifetime Plan as an ERISA plan under

9 The plaintiffs’ do not seek certification of the coercive

inference claim, 29 U.S.C. § 1141, that was included in

plaintiffs Fitzwater, Bright and Prater’s first amended

complaint, filed April 24, 2017. ECF No. 156 at 19; Pls. Mem.

Supp. Mot. Cert. Class 13, ECF No. 64; ECF No. 103 ¶¶ 109-156.

29 U.S.C. § 1132(a)(1-3); (III) Discrimination against

individual participants based on health-status related factors

under 29 U.S.C. § 1182; (IV) Failure to meet the duty of

disclosure by providing the plaintiffs with incomplete SPDs that

did not mention the Lifetime Plan’s benefits and obligations or

with no SPDs at all under 29 U.S.C. § 1021(a)(1); (V) Failure to

provide accurate and comprehensive SPDs regarding the Lifetime

Plan under 29 U.S.C. § 1022(a); (VI) Failure to accurately state

the Lifetime Plan’s requirements with respect to eligibility

under 29 U.S.C. § 1022(b); and (VII) Failure to provide an

adequate SPD regarding the Lifetime Plan in a timely manner

under 29 U.S.C. § 1024(b)(1). ECF No. 156 at 18-19.

The plaintiffs originally proposed the following class

definition which would establish a class for retirees only:

All individuals who in 2014 or 2015 were participants

in or beneficiaries of a welfare benefits plan

(medical, prescription drug, dental, vision, and/or

life insurance) administered by CONSOL Energy

(“Consol”), whose receipt of such benefits was

predicated on being a retiree from Consol or the

dependent of a retiree from Consol, and whose receipt

of such benefits terminated in the years of 2014 and

2015.

ECF No. 156 at 3. In their response to the plaintiffs’

supplemental motion for class certification, the defendants

argued that the class definition was too indefinite because it

ranged anywhere from 12,000 to 16,000 individuals based on the

allegations in the complaint. Defs.’ Resp. Suppl. Mot. Class

Cert. 1-2, ECF No. 160 at 1-2 (“ECF No. 160”). The definition

was also overbroad in that it “would include individuals who

were not impacted by CONSOL’s 2014 and 2015 decisions to

terminate retiree medical benefits” because their retiree

medical liabilities had already been transferred to a separate

entity, Murray Energy Corporation. Id. at 8-9. Thus, the

actual size of the putative class was only around 4,000

individuals. ECF No. 162 at 3.

For the first time in their reply, the plaintiffs now

seek to certify the following two classes of CONSOL employees

from mine sites located in West Virginia, Kentucky, Virginia,

Pennsylvania, and “neighboring states:”

Class A: All individual plan participants, and their

dependents, who had qualified to enroll in a retiree

welfare benefits plan administered by CONSOL Energy

(“CONSOL”), but who had not yet enrolled in such plan

when CONSOL terminated their plan participation in the

years of 2014 and 2015.

Class B: All individual plan participants, and their

dependents, who had enrolled in a retiree welfare

benefits plan administered by CONSOL prior to CONSOL

terminating their plan participation in the years of

2014 and 2015.

ECF No. 162 at 3-4; ECF No. 156 at 12. Class A covers the six

“Lifetime Plan” Counts of I-II and IV-VII, and Class B applies

only to remaining Count III (Discrimination based on Health

Status-Related Factors). ECF No. 162 at 4.

The Declaration of CONSOL’s Director - Benefits

Deborah Lackovic (“Lackovic”) that is included in the

defendants’ response notified the plaintiffs that

“[n]otwithstanding any differences in coverage between the

groups,” Plan Number 583 encompassed all CONSOL retirees,

including UMWA retirees. Second Lackovic Decl. ¶¶ 4-5, 12, ECF

No. 160-19. The plaintiffs contend in their reply that they

proposed this two-part class definition “to account for

excluding the UMWA members” that Lackovic explained were still

covered under the Retiree Benefits Plan, designated Plan Number

583. ECF No. 162 at 3. The defendants insist in their surreply

that the plaintiffs lack a proper justification for belatedly

expanding this class definition to include retirement-eligible

individuals in addition to retirees. Defs.’ Surreply, ECF No.

173 at 8-12 (“ECF No. 173”). They point out that nothing in

their argument regarding Murray Energy Corporation raised any

issues related to retirement-eligible individuals the plaintiffs

now seek to include in Class A. Id. at 10.

“The ordinary rule in federal courts is that an

argument raised for the first time in a reply brief or

memorandum will not be considered.” See Clawson v. FedEx Ground

Package Sys., Inc., 451 F. Supp. 2d 731, 734 (D. Md. 2006)

(citing United States v. Williams, 445 F.3d 724, 736 n.6 (4th

Cir. 2006)). However, district courts have discretion to

consider these issues, such as when the opposing party files a

surreply. Id. at 734-35 (citing Curry v. City of Syracuse, 316

F.3d 324, 330 (2d Cir. 2003)). Inasmuch as the court held an

additional hearing addressing the revised class definition and

granted the defendants leave to file a surreply, the plaintiffs’

newly proposed class definition will be evaluated.

III. Applicable Law

The parties vigorously dispute the proof relied upon

by the plaintiffs in attempting to meet their certification

burden under Rule 23 of the Federal Rules of Civil Procedure.

The court thus undertakes the “rigorous” analysis required under

United States Supreme Court precedent, see Wal–Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 350-51 (2011), nevertheless mindful of

our court of appeals’ admonition that Rule 23 should be accorded

a liberal construction “which will in the particular case ‘best

serve the ends of justice for the affected parties and . . .

promote judicial efficiency.’” Gunnells v. Healthplan Services,

Inc., 348 F.3d 417, 424 (4th Cir. 2003) (quoting In re A.H.

Robins, 880 F.2d 709, 740 (4th Cir. 1989)).

A party seeking class certification must satisfy the

requirements found in Rule 23(a) of the Federal Rules of Civil

Procedure and demonstrate satisfaction of at least one of the

subdivisions of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 614 (1997). The material provisions of Rule 23(a)

provide as follows:

(a) Prerequisites. One or more members of a class may

sue or be sued as representative parties on behalf of

all members only if:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to

the class;

(3) the claims or defenses of the representative

parties are typical of the claims or defenses of

the class; and

(4) the representative parties will fairly and

adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); see generally Thorn v. Jefferson–Pilot

Life Ins. Co., 445 F.3d 311 (4th Cir. 2006).

First, the numerosity requirement does not mandate a

specific number of plaintiffs to maintain a class action. Brady

v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984).

Rather, the “[p]racticability of joinder depends on many

factors, including, for example, the size of the class, ease of

identifying its numbers and determining their addresses,

facility of making service on them if joined and their

geographic dispersion.” Baltimore v. Laborers’ Int’l Union of

N. Am., 67 F.3d 293 (4th Cir. 1995) (quoting Kilgo v. Bowman

Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986)).

The commonality and typicality requirements “both

serve as guideposts for determining whether under the particular

circumstances maintenance of a class action is economical and

whether the named plaintiff’s claim and the class claims are so

interrelated that the interests of the class members will be

fairly and adequately protected in their absence.” Soutter v.

Equifax Info. Servs., LLC, 498 F. App’x 260, 264 (4th Cir. 2012)

(internal quotation marks omitted). These requirements “tend[]

to merge” with the adequacy of representation requirement, see

Amchem Prods., Inc., 521 U.S. at 626 n. 20, which precludes

class certification unless the class representative “possess[es]

the same interest and suffer[s] the same injury as the class

members.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155

F.3d 331, 337-38 (4th Cir. 1998) (citations and internal

quotation marks omitted).

As noted by our court of appeals, “[a] plaintiff bears

the burden of proving the[] requirements” of Rule 23(a). Monroe

v. City of Charlottesville, 579 F.3d 380, 384 (4th Cir. 2009).

“A party seeking class certification must do more than plead

compliance” with Rule 23 Requirements. EQT Prod. Co. v. Adair,

764 F.3d 347, 357 (4th Cir. 2014) (citing Wal-Mart, 564 U.S. at

350). Instead, the “party must present evidence that the

putative class complies” with Rule 23(a), as “actual, not

presumed, conformance” must be shown. Id.; Gen. Tel. Co. of SW

v. Falcon, 457 U.S. 147, 160 (1982).

Finally, Rule 23(b) states:

(b) Types of Class Actions. A class action may be

maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against

individual class members would create a risk of:

(A) inconsistent or varying adjudications

with respect to individual class members

that would establish incompatible standards

of conduct for the party opposing the class;

or

(B) adjudications with respect to individual

class members that, as a practical matter,

would be dispositive of the interests of the

other members not parties to the individual

adjudications or would substantially impair

or impede their ability to protect their

interests;

(2) the party opposing the class has acted or

refused to act on grounds that apply generally to

the class, so that final injunctive relief or

corresponding declaratory relief is appropriate

respecting the class as a whole; or

(3) the court finds that the questions of law or

fact common to class members predominate over any

questions affecting only individual members, and

that a class action is superior to other

available methods for fairly and efficiently

adjudicating the controversy . . . .

Fed. R. Civ. P. 23(b).

IV. Analysis

Respecting numerosity, plaintiffs contend that at

least 4,000 putative class members were affected by the

defendants’ “uniform action to terminate retirement welfare

benefits for the putative class of non-union Consol retirees,”

ECF No. 162 at 1, thereby readily satisfying the first

requirement of Rule 23(a).

Respecting commonality, the plaintiffs identify the

following putative questions of law and fact:

(1) Whether the class members are or have been

participants or beneficiaries in the applicable plan

or plans;

(2) Whether the defendants acted as fiduciaries of the

applicable plan or plans, directly or indirectly, to

convey misrepresentations to the plaintiff class

within the meaning of ERISA[;]

(3) Whether defendants have breached the duties,

responsibilities, and obligations imposed upon them by

ERISA, including in this case the duty not to

discriminate pursuant to 29 U.S.C. 1182 (Count III of

the Amended Complaint)[; and]

(4) Whether, pursuant to ERISA, defendants are liable

for the actions of non-fiduciaries who participated in

defendants’ breaches of fiduciary duties.

ECF No. 156 at 13-14.

Regarding typicality, the plaintiffs assert that all

members suffered an improper termination of their “lifetime”

healthcare benefits and, with respect to Class B, were

discriminated against by the defendants. Id. at 17. The

plaintiffs also claim to fairly protect the interests of the

putative class and that they are represented by counsel who are

experienced with class action litigation, thus satisfying the

fourth and final requirement of Rule 23(a).

The plaintiffs seek certification under Rule 23(b)(1),

(b)(2), and (b)(3). In short, plaintiffs assert that litigating

their claims separately would present a risk of inconsistent

standards of conduct (23(b)(1)), that defendants’ actions

affected the putative class in a “generally-applicable fashion”

(23(b)(2)), and that common questions of law and fact

predominate over any questions affecting individual class

members (23(b)(3)). ECF No. 156 at 18-24.

The plaintiffs contend that the putative class members

“share identical facts of law” inasmuch as they were “subject to

the same course of conduct” by CONSOL – “universal written

representations that miners benefits would vest if they met the

service requirements,” and further, “accepted the offer of

lifetime benefits and fully performed pursuant to that

agreement,” “suffered the same loss of the retirement welfare

benefits,” and “seek the same relief.” ECF No. 156 at 11. And

so, they claim that Counts I through VII are suitable for class

treatment.

The defendants principally argue that Counts I-II and

IV-VII rest on mischaracterized facts and individualized factual

inquiries that fail to meet Rule 23(a)’s commonality and

typicality requirements. ECF No. 160. They argue that the

plaintiffs fail to show that they detrimentally relied on

CONSOL’s allegedly uniform promises of lifetime benefits. ECF

No. 160 at 9-17. As to Count III, the defendants argue that the

plaintiffs lack evidence to show discriminatory motive to

support their health status discrimination claim. Id. at 18.

Under the typicality analysis, the court begins by

reviewing “[1] the elements of plaintiffs' prima facie case;

[2] the facts on which the plaintiffs would necessarily rely to

prove those elements[]; and [3] . . . determin[ing] to what

extent those facts would also prove the claims of the absent

class members.” Ealy v. Pinkerton Gov’t Servs., Inc., 514 F.

App’x 299, 305 (4th Cir. 2013) (citations and internal quotation

marks omitted). “The premise of the typicality requirement is

simply stated: as goes the claim of the named plaintiff, so go

the claims of the class.” Broussard, 155 F.3d at 340 (quoting

Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.

1998)).

A. Counts I-II and IV-VII

Counts I-II and IV-VII all relate to the existence of

the Lifetime Plan, and each count suffers similar flaws for

purposes of class certification.

Under Count I, the plaintiffs claim that the

defendants violated 29 U.S.C. § 1104(a)(1) by “misrepresenting

the benefits to the plan beneficiaries” and “fraudulently

induc[ing] the Plaintiffs into accepting the Lifetime Plan.”

ECF No. 103 ¶¶ 115, 117. “In order to establish a claim for

breach of fiduciary duty based on alleged misrepresentations, a

plaintiff must show: 1) that a defendant was a fiduciary of the

ERISA plan, 2) that a defendant breached its fiduciary

responsibilities under the plan, and 3) that the participant is

in need of injunctive or other appropriate equitable relief to

remedy the violation or enforce the plan.” Adams v. Brink’s

Co., 261 F. App’x 583, 589–90 (4th Cir. 2008). “To prove the

‘breach’ element of this claim, a plaintiff must show that the

defendant was acting in a fiduciary capacity when it made the

representations, the information misrepresented was material,

and the misrepresentation was relied upon to plaintiff’s

detriment.” Damiano v. Inst. for In Vitro Scis., No. CV PX 16-

0920, 2016 WL 7474535, at *4 (D. Md. Dec. 29, 2016) (citing

James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th

Cir. 2002)).

Counts II, IV-VII require similar showings of reliance

in connection with the Lifetime Plan. Under Count II — which

seeks equitable enforcement of the Lifetime Plan under

§ 1132(a)(1-3) — the plaintiffs again allege that they

“detrimentally relied” on the defendants’ “written

representations, and consistent oral representations . . . by

paying premiums and working for Defendants for at least ten

years---thus foregoing other job opportunities, retiring earlier

than they otherwise might have, and/or foregoing union

representations.” ECF No. 103 ¶¶ 119-20. As to Counts IV-VII,

for the plaintiffs to “state a claim that a faulty plan

description (including non-receipt of a proper SPD) prohibits a

company from exercising its right to modify a plan,” they again

“must show some significant reliance upon, or possible prejudice

flowing from, the lack of notice of an accurate description of

the terms of the plan.” Gable v. Sweetheart Cup Co., 35 F.3d

851, 858 (4th Cir. 1994) (internal quotation marks omitted)

(denying certification where plaintiffs could not “verify that

[they] did not receive the SPD”). Central to those Counts is

the plaintiffs’ claim that SPDs for the Lifetime Plan were not

provided or were inaccurate or were not timely furnished.

Insofar as all of these claims hinge on the existence

of the Lifetime Plan, the court turns first to the bits and

pieces of written orientation materials that plaintiffs claim

support the terms of the Lifetime Plan. These include (1)

several one-page Benefits Information Sheets from the years of

2012 and 2013 distributed to named plaintiffs Bright, Fitzwater,

and other Fola retirees (ECF Nos. 72-4, 72-5; ECF No. 162 at 5),

(2) several slides excerpted from PowerPoint presentations

created in various years (2003, 2008, and 2010) and conducted at

new-hire orientations at CONSOL’s Buchanan Mine (ECF No. 156 at

4; Declaration of Erica Fisher (“Fisher Decl.”) ¶¶ 7-9, ECF No.

160-4; ECF Nos. 155-6 to 155-8), (3) excerpts of new-hire

orientation scripts delivered around 1990 at CONSOL’s Enlow Fork

and Bailey Mines in Pennsylvania (ECF No. 66-1; Declaration of

Kurt Salvatori (“Salvatori Decl.”) ¶¶ 4-6, 13, ECF No. 67-2),

and (4) a “Know the Facts” handbill distributed by CONSOL and

its subsidiaries to miners at the Fola operations around 2010

(ECF No. 66-5; see also Pls.’ Mem. Supp. Mot. Cert. Class 5-6,

ECF No. 64).

First, the plaintiffs point to the CONSOL one-page

Benefits Information Sheet from each of the years 2012 and 2013.

ECF Nos. 72-4, 72-5. Each contains separate paragraphs

describing certain benefits, including “Medical,” “Prescription

Drug,” “Dental Plan,” “Vision Plan,” “Life Insurance,”

“Investment Plan,” and “Retirement Plan.” Id. In particular,

the “Retirement Plan” paragraph states,

Retirement Plan: Vested for early retirement with

Medical. (To be eligible to receive pension payment

on 10/1/2013, complete and return benefit application

to HR no later than 8/1/2013). Retirement Plan may

partially offset unemployment benefits (if eligible).

Check with local Job Service center.

See ECF No. 72-5 (emphasis in original). The discussion of

pension payments suggests that the “Retirement Plan” refers to

CONSOL pension benefits. For decades, CONSOL has provided

pension benefits through the CONSOL Energy Inc. Employee

Retirement Plan (“Retirement Plan”), which had its own SPD that

changed from time to time and is entirely separate from the

Retiree Benefits Plan and the Active Employee Benefits Plan, let

alone the alleged Lifetime Plan. Second Lackovic Decl. ¶ 11,

ECF No. 160-19; Id. Ex. K, ECF No. 160-23 at 205, CONSOL019388

(1992 Retirement Plan SPD). The January 1, 2014 version of the

Retirement Plan, for instance, describes the annual pension

payments and mentions “ancillary benefits not directly related

to retirement benefits (such as . . . post-retirement medical

benefits).” Id. Ex. P, ECF No. ECF No. 160-24 at 232,

CONSOL023362.

Focusing on the Benefits Information Sheets, the

bottom of each one-page sheet notes that “[w]hether benefits are

payable and the amount of benefits will depend on the actual

terms and conditions of the applicable plan documents” and

includes an identical reservation of rights clause, stating,

“All plans are subject to change or termination by CONSOL at any

time.” ECF Nos. 72-4, 72-5 (emphasis added).

Second, the plaintiffs provide three sets of undated,

excerpted PowerPoint slides. CONSOL’s Director of Human

Resources, Erica Fisher, attested in her declaration that these

slides were each part of larger new-hire orientation

presentations — created in 2003, 2008, and 2010, respectively —

given at Buchanan Mine. Fisher Decl. ¶¶ 2, 7-9, ECF No. 160-4;

ECF No. 160 at 11. The plaintiffs assert that the “Equated Date

Policy” referred to in all three presentations represents the

company’s policy that once attaining ten years of service and

reaching the age of fifty-five, their medical benefits would

vest. ECF No. 156 at 4; ECF Nos. 155-6, 155-7, 155-8. However,

the slides themselves and Salvatori’s deposition shows that an

employee’s “equated date” simply refers to his or her years of

service with CONSOL, taking into account any service breaks.

Salvatori Dep. 54:5-11, ECF No. 155-5.

The “Equated Date Policy” slide cited by the

plaintiffs contains identical language in all three

presentations: “Equated date will include only time

employed[;]” “Equated date will not include lay-off time[; and]”

“Equated date will be used only for:” (1) “Vacation

eligibility[,]” (2) “Service awards[,]” and (3) “Vesting only in

retirement plan,” i.e., the Retirement Plan for pension

payments. ECF Nos. 155-6 to 155-8; Second Lackovic Decl. ¶ 11,

ECF No. 160-19; Fisher Decl., Ex. C, ECF No. 160-9 at 49,

CONSOL025652.

The plaintiffs only provide one full, sequential

presentation — the 2003 new-hire orientation PowerPoint.10 The

introductory slide to the 2003 presentation titled “Pay and

Benefits” indicates it covers the following topics: “Wages,”

Work Schedule,” “Overtime,” “Holidays,” “Vacations,” “Salary

Continuance,” “Life Insurance,” “Dental Insurance,” “Medical

Insurance,” “Retirement Plan,” and “Investment Plan.” ECF No.

155-6 at 1, CONSOL025906. As with the other presentations, the

“Equated Date Policy” slide does not mention medical benefits;

neither does a “Retirement Plan” slide later in the orientation

presentation. ECF No. 155-6 at 41. A separate section of the

2003 presentation regarding “Medical Insurance” begins with a

slide titled, “Group Medical Plan,” followed by several slides

comparing UMWA to CONSOL in terms of “Deductibles,”

10 The 2008 and 2010 PowerPoint excerpts only contain two, non-

sequential slides: the “Equated Date Policy” slide and an

identical introductory slide.

“Prescription Drugs,” “Inpatient Physician Visit,” “Inpatient

Hospital,” and “Out of Pocket” expenses. Id. at 27-33. There

is no indication anywhere in the 2003 slide presentation that

CONSOL’s medical benefits included a lifetime guarantee. Id. at

1-2, 27-40; ECF No. 156 at 4-5.

Third, the orientation scripts used at the Enlow Fork

and Bailey mines around 1990 state, in pertinent part, that,

“[t]his wage and benefit package is clearly superior to any wage

and benefit package in the 1988 Wage Agreement,” and is “clearly

superior to any wage and benefit package negotiated by the UMWA

for anybody anywhere.” ECF No. 66-1 at 7-9. The plaintiffs

infer that because UMWA retirement benefits “included a

Congressionally-backed guarantee of lifetime duration,” CONSOL’s

retirees would receive lifetime benefits as well. ECF No. 103

¶ 32; ECF No. 156 at 2, 5. Not only does Salvatori’s sworn

statement indicate that these scripts were not used after the

early 1990s, CONSOL’s orientation presentations were specific to

each mine site and varied in substance over the years. See

Salvatori Decl. ¶¶ 10-13, ECF No. 67-2. Further, neither of the

scripts furnished mention lifetime retiree medical benefits or

retiree medical benefits.

Finally, the “Know the Facts” handbill distributed by

CONSOL and its subsidiaries to Fola miners in 2010, states,

inter alia, that “[y]ou are eligible for Retiree Health Care . .

. once you have 10 years of service and reach age 55.” ECF No.

66-5. It further concludes, “This is a better deal than the

UMWA negotiated in the national contract. AND REMEMBER, IT

DIDN’T COST YOU A PENNY IN DUES OR ASSESSMENTS.” Id. Again,

this does not state that such benefits were “vested” or for

life.

Viewed in total, the written evidence presented by the

plaintiffs does not contain a promise of lifetime benefits.

Moreover, the plaintiffs admit that, in comparison to other

CONSOL employees, they may have seen or heard different things

regarding their benefits. And, none of the plaintiffs could

even confirm that the orientation materials contained a written

offer of “lifetime” benefits. For example, when Plaintiff Jack

was asked if he had any “idea what was told in other

orientations that [he] didn’t attend,” he answered: “I guess,

maybe, we were the only ones that ever heard the same thing.”

Jack Dep. 97:12-19, ECF No. 155-11.

The plaintiffs counter that the Benefits Information

Sheets and other written materials contain ambiguous terms, and

therefore, the “extrinsic and anecdotal evidence regarding the

parties’ intentions” is “directly relevant to the question of

whether the ambiguous terms gave rise to a vested benefit under

ERISA.” ECF No. 162 at 8.

Besides the testimony of named and putative

plaintiffs, the plaintiffs present the Declaration of Dean

Michael Hymes (“Hymes”), a former Regional Manager of Human

Resources for CONSOL who was in charge of employee orientations,

workers’ compensation, union relations, and employee development

and training. Hymes Decl. ¶ 5, ECF No. 155-4. It fails to fill

in the gaps. As the defendants correctly point out, Hymes only

worked for CONSOL until January 1993, and his testimony provides

no evidence as to CONSOL’s “state of affairs” after this date.

Id. ¶ 6; ECF No. 160 at 12. Hymes described orientations at

Buchanan, CONSOL of Kentucky, and Jones Fork mines until his

departure from CONSOL in 1993. Other than potentially Casey,11

Hymes could not testify as to what was shown to the remaining

six named plaintiffs: Fitzwater, Bright, and Prater all started

at CONSOL after 1993, Gilbert attended her orientation in 2005,

and Jack and Long attended their new-hire orientations at Enlow

Fork in 1991. See Fitzwater Dep. 13:7-15, ECF No. 173-2; Prater

Dep. 11:21-23, ECF No. 173-3; ECF No. 36 ¶ 31; Gilbert Dep.

19:2-23, ECF No. 173-4; Hymes Dep. 173:3-25, ECF No. 173-1;

11 Casey attended annual orientations since he began working at

CONSOL in 1976, including orientations at the Buchanan Mine

after transferring there in 1991. ECF No. 103 ¶¶ 47-50.

Hymes Decl. ¶¶ 5-6, ECF No. 155-4; Jack Dep. 17:18-23; 18:3-10,

95:24-100:22, ECF Nos. 155-11 and 173-5; Long Dep. 40:4-18, ECF

No. 173-6; ECF No. 156 at 5-6.

Additionally, the defendants correctly point out that

in his declaration, Hymes does not claim to have presented to

any other employees the materials he helped prepare, and also

provides no detail as to what the orientation scripts stated

with respect to retiree medical benefits. Similar to the

plaintiffs, once he was deposed, Hymes (1) could only testify to

being “pretty sure” that retiree medical benefits were expressly

mentioned in orientation scripts, Hymes Dep. 133:13-19, ECF No.

173-1; (2) could not recall exactly what was said in the

orientation scripts regarding UMWA retiree medical benefits, Id.

133:20-25; (3) did not know whether there was any comparison at

all during the orientations between the UMWA and CONSOL retiree

medical benefits, Id. 139:2-7; and (4) had no recollection as to

what the orientation slides specifically stated. Id. 142:20-24,

212:24-213:7.

Instead, Hymes acknowledged that the reservation of

rights clause was “in the front of the employee handbook,” Hymes

Dep. 203:10-20, ECF No. 173-1, and that the handbooks were in

fact distributed to employees at orientations. Id. 144:23-

145:1, 203:10-16, 229:13-20. He admitted that the orientation

scripts he helped create “instructed the presenter to

specifically address the Company’s right in this regard” and

that presenters reviewed the employee handbook sections that

reserved CONSOL’s right to terminate the benefit plans. Id.

144:23-145:4, 225:22-226:14, 229:3-230:25. He also testified

that SPDs during his tenure were distributed at the orientations

and that they contained the language that reserved CONSOL’s

right to terminate benefits. Id. 142:25-144:22, 314:3-18,

322:24-323:16.

The plaintiffs also allege that “the promise of

lifetime welfare benefits created the Lifetime Plan based on the

oral representations made by Defendants.” ECF No. 103 ¶ 124.

It bears mentioning that the SPDs are “the statutorily

established means of informing participants of the terms of the

plan and its benefits,” and the “employee’s primary source of

information regarding employment benefits.” Aiken v. Policy

Mgmt. Sys. Corp., 13 F.3d 138, 140 (4th Cir. 1993) (quoting

Pierce v. Sec. Tr. Life Ins. Co., 979 F.2d 23, 27 (4th Cir.

1992)).

Moreover, “in recognition of ERISA’s requirement that

employee benefit plans be governed by written plan documents

filed with the Secretary of Labor, any participant’s right to a

fixed level of lifetime benefits must be found in the plan

documents and must be stated in clear and express language.”

Gable, 35 F.3d at 855 (internal citations and quotation marks

omitted). As such, “ERISA prohibits informal written or oral

amendments of employee benefit plans, and references to lifetime

benefits contained in nonplan documents cannot override an

explicit reservation of the right to modify contained in the

plan documents themselves.” Id. at 857 (internal citations

omitted).

Employers provide sufficient notice that they reserve

the right to modify plans by “distributing an SPD containing a

modification clause at any time before the modification or

termination occurs.” Id. at 858. Here, the plaintiffs admit

that the SPDs they received reserved the defendants’ right to

terminate or alter the plans at any time. See, e.g., Bright

Dep. 22:22-24, 18:15-19:21, ECF No. 67-6; Hymes Dep. 314:22-

328:22, ECF. No. 173-1.

As to the oral representations more generally,

“[s]everal courts have concluded that ERISA fiduciary claims

based on oral representations are not suitable for class

certification precisely because they require . . .

individualized proof, and thus fail the commonality and

typicality requirements.” Tootle v. ARINC, Inc., 222 F.R.D. 88,

96 (D. Md. 2004) (citing Gesell v. Commonwealth Edison Co., 216

F.R.D. 616, 623–25 (C.D. Ill. 2003)); Mick v. Ravenswood

Aluminum Corp., 178 F.R.D. 90, 92–94 (S.D.W. Va. 1998); Sprague,

133 F.3d at 398 (finding commonality lacking because “there must

have been variations in the early retirees’ subjective

understandings of the [oral] representations and in their

reliance on them”).

In Tootle v. ARINC, Inc., the defendants argued that

the information disseminated to employees regarding a cash

balance pension plan “included oral, non-uniform communications

made in group and one-on-one meetings.” 222 F.R.D. at 96. The

plaintiff countered that though these meetings occurred, its

claims “relie[d] exclusively on various written communications

that apparently were distributed uniformly to ARINC employees.”

Id. at 96 n.16. Tootle nonetheless denied class certification

inasmuch as it would “need to evaluate any oral representations

made to class members attending these meetings – which could

vary significantly among the class members – to determine if

these representations are sufficient to overcome” the misleading

effect of “any alleged omissions in the written materials on

which Tootle relies.” Id. at 96.

Here, the plaintiffs expressly rely on scattered oral

representations of “lifetime benefits” as evidence of a Lifetime

Plan. See, e.g., ECF No. 103 ¶¶ 2, 87, 124-25; ECF No. 156 at

4-8; ECF No. 162 at 1-2, 5-6. While some of the plaintiffs may

very well have received such a promise, the evidence does not

support their contention that this was a uniform message across

the different mine sites over the decades.

The plaintiffs rely on allegations that around 2010,

Gary Patterson, President of Operations of Fola, allegedly told

Fitzwater and “other CONSOL employees that they would have their

then-current insurance as long as they lived.” ECF No. 36 ¶ 39.

The complaint alleges that Chase Elswick, a human resources

supervisor, “came to the Fola control room where Plaintiff

Fitzwater worked, and told [him] that the current healthcare

benefits would vest upon retirement and continue throughout Mr.

Fitzwater’s lifetime.” Id. ¶ 40. It further alleges that

Elswick told the “same thing” to Fola miner Ted Stephenson and

his wife, “among other miners and their dependent

beneficiaries.” Id. ¶ 40. The plaintiffs also allege that

CONSOL’s Manager of Human Resources, Gerald Kowzan, told

Fitzwater and other miners at Fola around this same time: “Don’t

worry, you’ll have this insurance for life” and “offered them a

package” he claimed to be “better than the union” and that they

could “have this insurance until [they] die.” ECF No. 36 ¶¶ 41-

42. This court, too, would need to evaluate these types of oral

representations made to individual class members, or groups of

class members, to determine if they offset the representations

in the SPDs and other written materials. Tootle, 222 F.R.D. at

96.

Accordingly, without written materials showing the

existence of a Lifetime Plan, the court cannot find that the

plaintiffs satisfy the requirements of commonality and

typicality necessary for class certification. The various oral

assurances of lifetime benefits, requiring proof of the

individual statements made to each retiree, are insufficient to

support class certification on their own.

Moreover, the defendants provided declarations of

several CONSOL human resources personnel who deny ever making

oral promises of lifetime or vested medical benefits or using

written materials in orientation trainings that contain such

promises. See ECF No. 160 at 14. Those declarations state that

a comparison of pay and employee benefits between that of UMWA

employees and that of non-union CONSOL employees was made, and

that the only reference to retiree benefits during the

comparison was related to pensions and the cost of retiree

medical coverage at that time. See, e.g., Declaration of Craig

Campbell ¶ 8, ECF No. 160-10. They further state that employees

at orientations received benefit binders containing the SPDs in

addition to employee handbooks that summarized the benefits more

generally. Id. ¶¶ 9, 12. The human resources personnel

reviewed each page of the handbooks and particularly discussed

the language that reserved CONSOL’s right to modify, suspend, or

terminate the benefit plans. Id. Indeed, several of the named

plaintiffs admit themselves that they received SPDs and were

aware of the reservation of rights clause before their plans

were modified or terminated. See, e.g., Casey Dep. 171:13-

172:11, 232:10-24, ECF No. 160-16; Long Dep. 45:9-16; 97:7-99:6,

ECF No. 160-2. Finally, although the topics presented at

Buchanan, Fola, and the CONSOL of Kentucky mines were generally

similar, each mine location presentation had its own written

materials, including the presenters’ own speaker notes he or she

would use alongside the PowerPoint slides. “This is because

there were differences in the orientation that were specific to

the particular operation.” Declaration of Gerald Kowzan ¶¶ 12-

14, ECF No. 160-14.

While it is to be acknowledged that courts may not

“‘engage in free-ranging merits inquiries at the certification

stage,’ a court should consider merits questions to the extent

‘that they are relevant to determining whether the Rule 23

prerequisites for class certification are satisfied.’” EQT

Prod. Co., 764 F.3d at 358 (quoting Amgen Inc. v. Conn. Ret.

Plans & Trust Funds, 568 U.S. 455, 466 (2013); Hudson v. Delta

Air Lines, Inc., 90 F.3d 451, 457 (11th Cir. 1996) (“[E]vidence

relevant to the commonality requirement is often intertwined

with the merits.”).

In Hudson v. Delta Air Lines, Inc., for instance, the

Eleventh Circuit “probe[d] behind the pleadings before coming to

rest on the certification question” regarding ERISA claims

somewhat similar to this case. 90 F.3d 451, 457 (11th Cir.

1996) (quoting General Tel. Co. of SW, 457 U.S. at 160. In

Hudson, former Delta employees sought to certify claims that the

company violated ERISA by allegedly assuring retirees that they

were entitled to the same level of medical benefits coverage

throughout the course of their retirement. Id. at 453. The

retiree plaintiffs also alleged that Delta fraudulently induced

them into retiring earlier and unlawfully discriminated against

retirees by extending a preferred retirement package (“Special

Retirement Plan”) to then-active employees. Id. In affirming

the denial of class certification for lack of commonality,

Hudson found that the claim that an enforceable ERISA plan

existed would “require proof of written plan documents which

notified the putative class that the terms of their medical

benefits plan would remain constant throughout their

retirement,” which the plaintiffs failed to provide. Id. at 457

(emphasis in original). The same is true here.

Even if the plaintiffs could show a promise of

lifetime benefits, they would still need to show the extent to

which each retiree relied on the alleged representations in

making his or her retirement decision. Courts have denied class

certification on ERISA fiduciary claims based on alleged

misrepresentations because establishing the detrimental reliance

element requires a showing of individualized proof. Gunnells,

348 F.3d at 434. In Hudson, the court found that “[e]ven if

the plaintiffs are able to prove that Delta disseminated a false

and uniform message to all potential retirees . . . , they would

also have to show that all members of the class would have

deferred their retirement in the hope that they would be

eligible for the Special Retirement Plan to be offered in the

future.” 90 F.3d at 457. As is the case here, “[t]his sort of

decision would necessarily have been highly individualized for

each potential retiree.” Id.

In this case, evaluating the element of detrimental

reliance will require individualized inquiries into the basis

for class members’ decisions to “work the required service time

for Defendants.” ECF No. 156 at 2. The plaintiffs note that

“Jack testified that the Defendants’ representations of lifetime

benefits were uniform and significant and caused himself and

other CONSOL Employees to plan their working lives based on

those representations – such as time of retirement and whether

to seek other lower paying jobs that offered better retiree

welfare benefits, such as the UMWA benefits.” ECF No. 156 at 5

(citing Jack Dep. 170-173, ECF No. 155-11). Yet, named

plaintiff Long testified that he was not similarly affected:

Q: And did you retire earlier than you otherwise would

have because of any promises that were made to you

regarding retiree medical benefits?

. . .

A: No.

Q: And did you ever reject a more lucrative job

opportunity because of any promises you were made

regarding retiree medical benefits?

. . .

A: No.

Long Dep. 185:9-20, ECF No. 160-2.

In sum, the lifetime claims lack the support of

written materials demonstrating a uniform Lifetime Plan, the

oral representations are spotty and divergent, and both will

require individualized proof, including proof of reliance.

Consequently, Counts I-II and IV-VII fail to meet the

commonality and typicality requirements under Rule 23(a).

B. Count III

As noted previously, unlike active employees at the

time, individuals who retired prior to the 2014 announcement did

not receive the option to receive a one-time transition payment

as compensation for the termination of their retiree health and

welfare benefits. Under Count III, the defendants allegedly

violated 29 U.S.C. § 1182(a)(1)12 of ERISA by unlawfully

establishing rules for eligibility for the transition payment

based on health-status related factors and violated § 1182(b)13

by offering the transition payment to active employees while

requiring retired employees to continue paying premiums after

the 2014 announcement. ECF No. 103 ¶¶ 126-134. In other words,

the defendants purportedly discriminated against individuals who

had retired as of September 30, 2014 by terminating their

welfare benefits without providing them the same cash transition

payment given to active employees. ECF No. 156 at 23.

12 Section 1182(a)(1) provides, “Subject to paragraph (2), a

group health plan . . . may not establish rules for eligibility

(including continued eligibility) of any individual to enroll

under the terms of the plan based on any of the following health

status-related factors in relation to the individual or a

dependent of the individual: (A) Health status. (B) Medical

condition (including both physical and mental illnesses). (C)

Claims experience. (D) Receipt of health care. (E) Medical

history. (F) Genetic information. (G) Evidence of insurability

(including conditions arising out of acts of domestic violence).

(H) Disability.” 29 U.S.C. § 1182(a)(1).

13 Section 1182(b) provides, ”A group health plan . . . may not

require any individual (as a condition of enrollment or

continued enrollment under the plan) to pay a premium or

contribution which is greater than such premium or contribution

for a similarly situated individual enrolled in the plan on the

basis of any health status-related factor in relation to the

individual or to an individual enrolled under the plan as a

dependent of the individual.” 29 U.S.C. § 1182(b).

As with the other claims, the plaintiffs have failed

to meet their burden under Rule 23. EQT Prod., 764 F.3d at 357.

As explained supra, the plaintiffs must “present evidence that

the putative class” demonstrates “actual, not presumed,

conformance with Rule 23(a).” EQT Prod. Co., 764 F.3d at 357,

361-62 (“To even demonstrate commonality, the plaintiffs must

prevail on their reading of the case. That is, they must

establish that the common question[s] . . . will be answered in

their favor.”). Denying class certification is appropriate

where the named plaintiffs fail to state a claim upon which

relief can be granted and therefore “all other similarly

situated plaintiffs would likewise fail to state a claim.”

Boulware v. Crossland Mortgage Corp., 291 F.3d 261, 268 n.4 (4th

Cir. 2002); see also Smith v. Pennington, 352 F.3d 884, 896 (4th

Cir. 2003) (affirming denial of class certification where named

plaintiff “d[id] not himself state a claim” because his

“position would not then be typical of anyone . . . who did

state a claim”).

To bring a claim under 29 U.S.C. §§ 1182(a)-(b), the

plaintiffs must first show that the defendants discriminated

based on prohibited “health status-related factors,” including

health status, medical condition (including both physical and

mental illnesses), claims experience, receipt of health care,

medical history, or disability.14 Section 1182(a)(2)(B) notes

that nothing in the statute “prevent[s] . . . a plan or coverage

from establishing limitations or restrictions on the amount,

level, extent, or nature of the benefits or coverage for

similarly situated individuals enrolled in the plan or

coverage.” That is, plan provisions are not impermissibly

discriminatory if they apply uniformly to similarly situated

plan members. See Zurich Am. Ins. Co. v. O'Hara, 604 F.3d 1232,

1238 (11th Cir. 2010); 29 C.F.R. § 2590.702(b)(2)(i)(B) (stating

that “benefits provided under a plan ... must be uniformly

available to all similarly situated individuals”).

First, the plaintiffs contend that retirement-

eligible, though not retired, employees “were part of the same

similarly-situated group of plan participants who had already

retired insofar as they participated in the same plan.” ECF No.

14 The regulations governing 29 U.S.C. § 1182 provide examples of

potential discrimination under this section. For “claims

experience,” it provides the following hypothetical: “An

employer sponsors a group health plan and purchases coverage

from a health insurance issuer. In order to determine the

premium rate for the upcoming plan year, the issuer reviews the

claims experience of individuals covered under the plan. The

issuer finds that Individual F had significantly higher claims

experience than similarly situated individuals in the plan. The

issuer quotes the plan a higher per-participant rate because of

F’s claims experience.” The regulations conclude that this is

not unlawful “because the issuer blends the rate so that the

employer is not quoted a higher rate for F than for a similarly

situated individual based on F’s claims experience.” 29 C.F.R.

§ 2590.702(c) (Example 1).

162 at 13. To the extent Count III asserts that the defendants

discriminated against participants within the alleged Lifetime

Plan, and thereby requires evidence of a Lifetime Plan in the

first place, it is inappropriate for class certification, as

found with respect to the other Counts.

Even assuming the retirement-eligible and retired

employees participated in the same plan, the plaintiffs fail to

show how distinguishing between current and former employees is

unlawful under ERISA. According to the Department of Labor

(“DOL”) regulations governing § 1182, “a plan or issuer may

treat participants as two or more distinct groups of similarly

situated individuals if the distinction between or among the

groups of participants is based on a bona fide employment-based

classification consistent with the employer’s usual business

practice.” 29 C.F.R. § 2590.702(d)(1). Examples of a “bona

fine employment-based classification” include “full-time versus

part-time status, . . . date of hire, length of service, [and]

current employee versus former employee status.” Id. The

plaintiffs allege that the rules for the transition payment

“were based on health status because they distinguished between

those who were entitled to receive the payout and those who were

not based on the retirement status of those individuals,” see

ECF No. 103 ¶ 132, but the DOL regulations explicitly allow

employment-based classifications between active and retired

employees.15

The plaintiffs rely on the assumption that the

retirees necessarily “had a lengthier claims experience . . .

and also tended to be less healthy due to their advanced age

relative to the active workers.” ECF No. 103 ¶ 130. The

defendants correctly point out that there “is no evidence that

any Defendant took any action based on the actual or perceived

health status of any individual group.” ECF No. 160 at 18.

Some of the plaintiffs themselves also admit that they had “no

idea” whether CONSOL decided to offer transition benefits based

on who was healthier or more active. Prater Dep. 130:8-131:23,

ECF No. 66-7; Bright Dep. 77:10-19, ECF No. 67-6. The

plaintiffs only point to Kirby Hall, a 51-year-old absent class

member, to demonstrate that the retirees are either disabled or

older than some active employees. ECF No. 156 at 2 n.1. The

plaintiffs fail to provide any other evidence to support the

claim that “[a] substantial portion of the retiree welfare plan

participants were necessarily in poorer health than the active

workers.” Id. The mere fact that retirees and active employees

15 “[T]he rules of this section would not prohibit a plan or

issuer from treating one group of similarly situated individuals

differently from another (such as providing different benefit

packages to current and former employees) . . . .” 29 C.F.R.

§ 2590.702(h).

were treated differently does not support the assertion that

they were discriminated against based on their health status

under § 1182.1°

Inasmuch as the plaintiffs fail to provide basic

evidence to support their claim, Count III fails to conform to

Rule 23(a)’s requirements and class certification must be denied

on this count.

V. Conclusion

Because the plaintiffs’ claims fail to comply with

Rule 23(a)’s requirements, it is ORDERED that the plaintiffs’

supplemental motion for class certification be, and it hereby

is, denied.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: October 15, 2019

- Be, <p

Jo . Copenhaver, Jr.

Senior United States District Judge

16 A CONSOL PowerPoint presentation dated October 1, 2014

explains that CONSOL decided to terminate retiree health and

welfare benefits to remain competitive with other companies. It

notes that “the number of large companies offering retiree

medical benefits has dropped significantly. The major reason

for this is that healthcare costs have increased 600% since

1978.” ECF No. 155-14 at 7, CONSOLO003854.

45