IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF LLINOIS

EASTERN DIVISION

DAU PHAM, individually and on behalf 

of all others similarly situated,

Plaintiffs,

v.

GREIF, INC.,

Defendant.

CASE NO. 1:20-cv-1988

CLASS ACTION COMPLAINT

1. Named Plaintiff Dau Pham (“Plaintiff”) files this Class Action Complaint alleging

Defendant Greif, Inc. (“Greif”) violated the Employee Retirement Income Security Act of 1974 

(“ERISA”), as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985 

(“COBRA”), by failing to provide him with a COBRA notice that complies with the law.

2. Despite having access to the Department of Labor’s Model COBRA form, Greif

chose not to use the model form—presumably to save Greif money because COBRA coverage is 

inherently expensive for employers. A copy of the Model Form is attached as Exhibit A.

3. In fact, according to one Congressional research service study, “ . . . [The] average

claim costs for COBRA beneficiaries exceeded the average claim for an active employee by 53%.

The average annual health insurance cost per active employee was $7,190, and the COBRA 

cost was $10,988.14. The Spencer & Associates analysts contend that this indicates that the

COBRA population is sicker than active-covered employees and that the 2% administrative fee 

allowed in the law is insufficient to offset the difference in actual claims costs.” Janet Kinzer,

Cong. Research Serv., R40142, Health Insurance Continuation Coverage Under COBRA 8 (2013).

4. The deficient COBRA notices at issue in this lawsuit both confused and misled

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Plaintiff. It also caused Plaintiff economic injuries in the form of lost health insurance and unpaid 

medical bills, as well as informational injuries.

5. Greif, the plan sponsor and plan administrator of the Greif Plan (the “Plan”), has

repeatedly violated ERISA by failing to provide participants and beneficiaries in the Plan with

adequate notice, as prescribed by COBRA, of their right to continue their health coverage upon the 

occurrence of a “qualifying event” as defined by the statute.

6. Simply put, Defendant’s COBRA notice and process violates the law. Rather than

including all information required by law in a single notice “written in a manner calculated to be

understood by the average plan participant,” Defendant’s COBRA notification process instead 

offers only part of the legally required information.

7. For example, Defendant’s Notice, which is not dated, attached as Exhibit B,

violates 29 C.F.R. § 2590.606-4(b)(4)(v) because the notice itself never actually explains how to 

enroll in COBRA, nor does it bother including a physical election form (both of which the model 

Department of Labor form includes). 

8. Instead, Defendant’s COBRA enrollment notice merely directs plan participants to

a refer to a third-party form which Plaintiff never received. The COBRA notice contains no

instructions on how to actually enroll if one calls the phone number.

9. Additionally, Defendant’s COBRA enrollment notice violates 29 C.F.R. §

2590.606–4(b)(4)(xii) because the COBRA notice itself fails to include an address indicating 

where COBRA payments should be mailed. It also violates 29 C.F.R. § 2590.606-4(b)(4)(i) 

because the COBRA enrollment notice fails to identify the plan administrator. And, Defendant’s 

COBRA enrollment notice violates 29 C.F.R. § 2590.606–4(b)(4)(xii) because it fails to include 

information on how COBRA coverage can be lost prematurely, including, for example, because 

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of late payments. Furthermore, the COBRA enrollment notice violates 29 C.F.R. § 2590.606-

4(b)(4)(vi) because it fails to provide all required explanatory information.

10. Because Defendant’s COBRA enrollment notice omits the above critical pieces of

information, it collectively violates 29 C.F.R. § 2590.606–4(b)(4), which requires the plan 

administrator of a group-health plan to provide a COBRA notice “written in a manner calculated 

to be understood bythe average plan participant.” Without information on how to elect COBRA,

or where to send payments, or who is the Plan Administrator, or what happens if timely payments 

are not made, Defendant’s COBRA enrollment notice simply is not written in a manner calculated 

to be understood by the average plan participant.

11. As a result of these violations, which threaten Class Members’ ability to maintain

their health coverage, Plaintiff seeks statutory penalties, injunctive relief, attorneys’ fees, costs 

and expenses, and other appropriate relief as set forth herein and provided by law.

JURISDICTION, VENUE, AND PARTIES

12. This Court has jurisdiction over this action pursuant to 29 U.S.C. § 1132(e), (f), and 

also pursuant to 28 U.S.C. §§ 1331, 1355.

13. Venue is proper in this District pursuant to 29 U.S.C. § 1132(e)(2).

14. Additionally, ERISA § 502(e)(2) provides that venue is proper “where the plan is 

administered, where the breach took place, or where a defendant resides or may be found.” 29

U.S.C. § 1132(e)(2). Because the breach at issue took place in this District, venue is also proper.

15. Plaintiff is a former employee of Defendant and was covered based on his health 

plan through Defendant. Plaintiff was thus a participant/beneficiary in the Plan before his 

termination on September 20, 2017 which constituted a qualifying event within the meaning of 29

U.S.C. § 1163(2), rendering him a qualified beneficiary of the Plan pursuant to 29 U.S.C. § 

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1167(3). Importantly, Plaintiff was not terminated for gross misconduct.

16. Defendant is a corporation with its headquarters in Delaware but is registered to do 

business in the State of Illinois. Defendant employed more than twenty employees who were 

members of the Plan each year from 2011 to 2017. Defendant is the Plan sponsor within the 

meaning of 29 U.S.C. §1002(16)(B), and the administrator of the Plan within the meaning of 29 

U.S.C. § 1002(16)(A). The Plan provides medical benefits to employees and their beneficiaries,

and is an employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1) and a group 

health plan within the meaning of 29 U.S.C. § 1167(1).

FACTUAL ALLEGATIONS

COBRA Notice Requirements

17. The COBRA amendments to ERISA included certain provisions relating to 

continuation of health coverage upon termination of employment or another “qualifying event” as 

defined by the statute.

18. Among other things, COBRA requires the plan sponsor of each group health plan 

normally employing more than twenty employees on a typical business day during the preceding 

year to provide “each qualified beneficiary who would lose coverage under the plan as a result of 

a qualifying event . . . to elect, within the election period, continuation coverage under the plan.” 

29 U.S.C. § 1161 (emphasis added).

19. Notice is of enormous importance. The COBRA notification requirement exists 

because employees are not expected to know instinctively of their right to continue their healthcare

coverage.

20. Moreover, existing case law makes it ostensibly clear that notice is not only required 

to be delivered to covered employees but to qualifying beneficiaries, as well.

21. COBRA further requires the administrator of such a group health plan to provide 

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notice to any qualified beneficiary of their continuation of coverage rights under COBRA upon 

the occurrence of a qualifying event. 29 U.S.C. § 1166(a)(4). This notice must be “[i]n 

accordance with the regulations prescribed by the Secretary” of Labor. 29 U.S.C. § 1166(a). 

22. The relevant regulations prescribed by the Secretary of Labor concerning notice of

continuation of coverage rights are set forth in 29 C.F.R. § 2590.606-4 as follows:

(4) The notice required by this paragraph (b) shall be written in a manner

calculated to be understood by the average plan participant and shall

contain the following information:

(i) The name of the plan under which continuation coverage is

available; and the name, address and telephone number of the party

responsible under the plan for the administration of continuation

coverage benefits;

(ii) Identification of the qualifying event;

(iii) Identification, by status or name, of the qualified beneficiaries

who are recognized by the plan as being entitled to elect

continuation coverage with respect to the qualifying event, and the

date on which coverage under the plan will terminate (or has

terminated) unless continuation coverage is elected;

(iv) A statement that each individual who is a qualified beneficiary

with respect to the qualifying event has an independent right to

elect continuation coverage, that a covered employee or a qualified

beneficiary who is the spouse of the covered employee (or was the

spouse of the covered employee on the day before the qualifying

event occurred) may elect continuation coverage on behalf of all

other qualified beneficiaries with respect to the qualifying event,

and that a parent or legal guardian may elect continuation coverage

on behalf of a minor child;

(v) An explanation of the plan's procedures for electing

continuation coverage, including an explanation of the time period

during which the election must be made, and the date by which the

election must be made;

(vi) An explanation of the consequences of failing to elect or

waiving continuation coverage, including an explanation that a

qualified beneficiary's decision whether to elect continuation

coverage will affect the future rights of qualified beneficiaries to

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portability of group health coverage, guaranteed access to 

individual health coverage, and special enrollment under part 7 of

title I of the Act, with a reference to where a qualified beneficiary 

may obtain additional information about such rights; and a 

description of the plan's procedures for revoking a waiver of the

right to continuation coverage before the date by which the election 

must be made;

(vii) A description of the continuation coverage that will be made 

available under the plan, if elected, including the date on which

such coverage will commence, either by providing a description of 

the coverage or by reference to the plan's summary plan

description;

(viii) An explanation of the maximum period for which 

continuation coverage will be available under the plan, if elected; 

an explanation of the continuation coverage termination date; and 

an explanation of any events that might cause continuation 

coverage to be terminated earlier than the end of the maximum

period;

(ix) A description of the circumstances (if any) under which the 

maximum period of continuation coverage may be extended due

either to the occurrence of a second qualifying event or a 

determination by the Social Security Administration, under title II 

or XVI of the Social Security Act (42 U.S.C. 401 et seq. or 1381 

et seq.) (SSA), that the qualified beneficiary is disabled, and the 

length of any such extension;

(x) In the case of a notice that offers continuation coverage with a 

maximum duration of less than 36 months, a description of the 

plan's requirements regarding the responsibility of qualified 

beneficiaries to provide notice of a second qualifying event and 

notice of a disability determination under the SSA, along with a

description of the plan's procedures for providing such notices, 

including the times within which such notices must be provided 

and the consequences of failing to provide such notices. The notice 

shall also explain the responsibility of qualified beneficiaries to 

provide notice that a disabled qualified beneficiary has 

subsequently been determined to no longer be disabled;

(xi) A description of the amount, if any, that each qualified

beneficiary will be required to pay for continuation coverage;

(xii) A description of the due dates for payments, the qualified 

beneficiaries' right to pay on a monthly basis, the grace periods for 

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payment, the address to which payments should be sent, and the 

consequences of delayed payment and non-payment;

(xiii) An explanation of the importance of keeping the 

administrator informed of the current addresses of all participants 

or beneficiaries under the plan who are or may become qualified 

beneficiaries; and

(xiv) A statement that the notice does not fully describe 

continuation coverage or other rights under the plan, and that more 

complete information regarding such rights is available in the

plan's summary plan description or from the plan administrator.

23. To facilitate compliance with these notice obligations, the United States Department 

of Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election Notice (“Model 

Notice”), which is included in the Appendix to 29 C.F.R. § 2590.606-4. It is attached hereto as 

Exhibit A. The DOL website states that the DOL “will consider use of the model election notice, 

appropriately completed, good faith compliance with the election notice content requirements of

COBRA.”

24. In the event that a plan administrator declines to use the Model Notice and fails to 

meet the notice requirements of 29 U.S.C. § 1166 and 29 C.F.R. § 2590.606-4, the administrator 

is subject to statutory penalties of up to $110 per participant or beneficiary per day from the date

of such failure. 29 U.S.C. § 1132(c)(1). In addition, the Court may order such other relief as it

deems proper, including but not limited to injunctive relief pursuant to 29 U.S.C. § 1132(a)(3) and 

payment of attorneys’ fees and expenses pursuant to 29 U.S.C. § 1132(g)(1). Such is the case here. 

Defendant failed to use the Model Notice and failed to meet the notice requirements of 29 U.S.C. 

§ 1166 and 29 C.F.R. § 2590.606-4, as set forth below.

Defendant’s Notice is Inadequate and Fails to Comply with COBRA

25. Defendant partially adhered to the Model Notice provided by the Secretary of 

Labor, but only to the extent that served Defendant’s best interests, as critical parts are omitted or 

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altered in violation of 29 C.F.R. § 2590.606-4. Defendant authored and disseminated a notice 

deviating from the model form in violation of COBRA's requirements which failed to provide 

Plaintiff notice of all required coverage information, as explained further below. A copy of 

Defendant’s notice is attached hereto as Exhibit B. Among other things:

a. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(v) because the notice 

itself never actually explains how to enroll in COBRA, nor does it 

bother including a physical election form (both of which the model 

Department of Labor form includes);

b. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(xi) because the notice 

fails to provide the amount that each qualified beneficiary will be 

required to pay for continuation coverage;

c. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(xii) because it fails to 

provide what consequences, if any, would result from a delayed 

payment or the address to which payments should be sent;

d. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(iii) because it fails to 

provide a description by status or name of the qualified beneficiaries 

who are recognized by the plan as being entitled to elect continuation 

coverage; 

e. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(i) because it fails to

provide the name, address and telephone number of the party responsible 

under the plan for administration of continuation coverage benefits, 

including as to both the Plan Administrator and COBRA Administrator;

f. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4)(vi) because it fails to 

provide all required explanatory information. There is no explanation

that a qualified beneficiary’s decision whether to elect continuation 

coverage will affect the future rights of qualified beneficiaries to 

portability of group health coverage, guaranteed access to individual 

health coverage, and special enrollment under part 7 of title I of the Act; 

and, finally,

g. Exhibit B violates 29 C.F.R. § 2590.606-4(b)(4) because Defendant has 

failed to provide a notice written in a manner calculated to be 

understood by the average plan participant.

26. Defendant’s COBRA notice confused Plaintiff and resulted in his inability to make 

an informed decision as to electing COBRA continuation coverage. In fact, Plaintiff was unable 

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to elect COBRA because of the confusing and incomplete Greif COBRA notice. For example, the

COBRA’s notice omission of a payment address left him without information on where to mail

payment if elected.

27. As a result, Plaintiff could not make an informed decision about his health 

insurance and lost health coverage.

Plaintiff’s First Concrete Injury: Informational Injury

28. Furthermore, Defendant’s deficient COBRA notice caused Plaintiff an 

informational injury when Defendant failed to provide him with information to which he was 

entitled to by statute, namely a compliant COBRA election notice containing all information 

required by 29 C.F.R. § 2590.606-4(b)(4) and 29 U.S.C. § 1166(a). Through ERISA and then 

COBRA, Congress created a right—the right to receive the required COBRA election notice—and 

an injury—not receiving a proper election notice with information required by 29 C.F.R. § 

2590.606-4(b)(4) and 29 U.S.C. § 1166(a). Defendant injured Plaintiff and the class members he 

seeks to represent by failing to provide all information in its notice required by COBRA.

Plaintiff’s Second Concrete Injury: Loss of Insurance Coverage

29. Besides the informational injury suffered, Plaintiff also suffered a tangible injury in

the form of economic loss, specifically the loss of insurance coverage and incurred medical bills, 

due to Defendant’s deficient COBRA election notice. Besides a paycheck, insurance is one of the 

most valuable things employees get in exchange for working for an employer like Defendant. 

Insurance coverage has a monetary value, the loss of which is a tangible and an economic injury.

Plaintiff Dau Pham

30. Plaintiff Dau Pham is former employee of Defendant and was a participant in 

Defendant’s health plan.

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31. Plaintiff’s employment was terminated on September 20, 2017. Importantly, he was 

not terminated for gross misconduct.

32. Following this qualifying event, Defendant mailed Plaintiff the deficient COBRA 

enrollment notice. 

33. Defendant cannot cure its first form’s deficiencies with a “follow up” form. 

Contrary to Defendant’s multi-form system, the applicable regulation mandates use of a single 

“notice” rather than the dual “notices” Defendant uses. See 29 C.F.R. § 2590.606-4(b)(4)(1) (“The 

administrator shall furnish to each qualified beneficiary, not later than 14 days after receipt of the 

notice of qualifying event, a notice meeting the requirements of paragraph (b)(4) of this section.”)

(emphasis added).

34. The deficient COBRA notice that Plaintiff received was violative of COBRA’s 

mandates for the reasons set forth above.

35. Defendant has in place no administrative remedies Plaintiff were required to 

exhaust prior to bringing suit.

36. Additionally, because no such administrative remedies exist, any attempt to exhaust 

the same would have been futile.

CLASS ACTION ALLEGATIONS

37. Plaintiff brings this action as a class action pursuant to the Federal Rules of Civil

Procedure on behalf of the following persons:

All participants and beneficiaries in the Defendant’s Plan who were sent a 

COBRA notice by Defendant during the applicable statute of limitations

period as a result of a qualifying event, as determined by Defendant’s records, 

and did not elect continuation coverage.

38. No administrative remedies exist as a prerequisite to Plaintiff’s claims on behalf of 

the Putative Class. As such, any efforts related to exhausting such non-existent remedies would be 

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futile.

39. Numerosity: The Class is so numerous that joinder of all Class Members is

impracticable. On information and belief thousands of individualssatisfy the definition of the Class.

40. Typicality: Plaintiff’s claims are typical of the Class. The COBRA notice that

Defendant sent to Plaintiff was a form notice that was uniformly provided to all Class Members. 

As such, the COBRA notice that Plaintiff received were typical of the COBRA notices that other 

Class Members received and suffered from the same deficiencies.

41. Adequacy: Plaintiff will fairly and adequately protect the interests of the Class 

Members, he has no interests antagonistic to the Class, and has retained counsel experienced in 

complex class action litigation.

42. Commonality: Common questions of law and fact exist as to all members of the 

Class and predominate over any questions solely affecting individual members of the Class, 

including but not limited to:

a. Whether the Plan is a group health plan within the meaning of 29 U.S.C. § 

1167(1).

b. Whether Defendant’s COBRA notice complied with the requirements of 29 

U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;

c. Whether statutory penalties should be imposed against Defendant under 29 

U.S.C. § 1132(c)(1) for failing to comply with COBRA notice requirements, 

and if so, in what amount;

d. The appropriateness and proper form of any injunctive relief or other equitable 

relief pursuant to 29 U.S.C. § 1132(a)(3); and

e. Whether (and the extent to which) other relief should be granted based on 

Defendant’s failure to comply with COBRA notice requirements.

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43. Class Members do not have an interest in pursuing separate individual actions 

against Defendant, as the amount of each Class Member’s individual claims is relatively small 

compared to the expense and burden of individual prosecution. Class certification also will obviate

the need for unduly duplicative litigation that might result in inconsistent judgments concerning 

Defendant’s practices and the adequacy of its COBRA notice. Moreover, management of this

action as a class action will not present any likely difficulties. In the interests of justice and judicial 

efficiency, it would be desirable to concentrate the litigation of all Class Members’ claims in a 

single action.

44. Plaintiff intends to send notice to all Class Members to the extent required the 

Federal Rules of Civil Procedure. The names and addresses of the Class Members are available 

from Defendant’srecords.

CLASS CLAIM I FOR RELIEF

Violation of 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4

45. The Plan is a group health plan within the meaning of 29 U.S.C. § 1167(1).

46. Defendant is the plan sponsor and plan administrator of the Plan and was subject to 

the continuation of coverage and notice requirements of COBRA.

47. Plaintiff and the other members of the Class experienced a “qualifying event” as

defined by 29 U.S.C. § 1163, and Defendant was aware that they had experienced such a qualifying

event.

48. On account of such qualifying event, Defendant sent Plaintiff and the Class 

Members a COBRA notice.

49. The COBRA notice that Defendant sent to Plaintiff and other Class Members

violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4 for the reasons set forth above (among 

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other reasons).

50. These violations were material and willful.

51. Defendant knew that its notice was inconsistent with the Secretary of Labor’s 

Model Notice and failed to comply with 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4, but 

chose to use a non-compliant notice in deliberate or reckless disregard of the rights of Plaintiff and 

other Class Members.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the Class, pray for relief as 

follows:

a. Designating Plaintiff’s counsel as counsel for the Class;

b. Issuing proper notice to the Class at Defendant’s expense;

c. Declaring that the COBRA notice sent by Defendant to Plaintiff and other Class 

Members violated 29 U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4;

d. Awarding appropriate equitable relief pursuant to 29 U.S.C. § 1132(a)(3),

including but not limited to an order enjoining Defendant from continuing to use

its defective COBRA notice and requiring Defendant to send corrective notices;

e. Awarding statutory penalties to the Class pursuant to 29 U.S.C. § 1132(c)(1)

and 29 C.F.R. § 2575.502c-1 in the amount of $110 per day for each Class 

Member who was sent a defective COBRA notice by Defendant;

f. Awarding attorneys’ fees, costs and expenses to Plaintiff’s counsel as provided 

by 29 U.S.C. § 1132(g)(1) and other applicable law; and

g. Granting such other and further relief, in law or equity, as this Court deems

appropriate.

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Dated: March 26, 2020 Respectfully submitted,

/s/ Gary M. Klinger

Gary M. Klinger (IL Bar No. 6303726)

MASON LIETZ & KLINGER, LLP

227 W. Monroe Street, Suite 2100

Chicago, IL 60630

Tel.: (312) 283-3814

gklinger@masonllp.com

Rachel Dapeer*

DAPEER LAW, P.A.

Florida Bar No. 108039

300 S. Biscayne Boulevard, #2704

Miami, FL 33131

Tel.: (305) 610-5223

rachel@dapeer.com

Scott Edelsberg*

EDELSBERG LAW, PA

Florida Bar No. 0100537 

20900 NE 30th Avenue, Suite 417

Aventura, FL 33180

Tel.: (305) 975-3320

scott@edelsberglaw.com

Andrew J. Shamis*

SHAMIS & GENTILE, P.A.

14 NE First Avenue, Suite 1205

Miami, FL 33132

Tel.: (305) 479-2299

Fax: (786) 623-0915

ashamis@shamisgentile.com

Counsel for Plaintiff and the Proposed Class

* Applications for admission pro hac vice to be filed

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