1 

NOT FOR PUBLICATION 

United States District Court 

for the District of New Jersey 

THERESA SEIBERT, on behalf of herself and 

all others similarly situated, 

Plaintiff, 

 v. 

Civil. No.: 11-0304 (KSH) 

QUEST DIAGNOSTICS INCORPORATED, 

QUEST DIAGNOSTICS INCORPORATED 

SEVEREANCE PAY PLAN, QUEST 

DIAGNOSTICS EMPLOYEE BENEFITS 

ADMINISTRATION COMMITTEE, and 

JANE AND JOHN DOES 1 through 10, 

Opinion 

Defendants. 

 

 

Katharine S. Hayden, U.S.D.J. 

Before the Court is plaintiff Theresa Seibert’s Fed. R. Civ. P. 23 motion for class 

certification. [D.E. 124.] She proposes to certify a class of certain former employees of 

defendant Quest Diagnostics Incorporated to bring a claim under § 510 of the Employee 

Retirement Income Security Act (ERISA), 29 U.S.C. § 1140. For the reasons that follow, the 

Court concludes that several of the Fed. R. Civ. P. 23 factors weigh against certifying the 

proposed class and denies the motion. 

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I. Background 

A) Procedural History 

In early 2010, after 26 years with Quest, Theresa Seibert was terminated. The reasons 

given were performance-based. She filed suit in state court, alleging age discrimination and 

charging the defendants (Quest and several of its officers) with systemic violations of the New 

Jersey Law Against Discrimination (NJLAD), N.J.S.A. § 10:5-1 et seq. (See Compl. ¶ 1 [D.E. 

1].) She contended that as part of Quest’s goal to restructure and resize its sales force, the 

company “caus[ed] older experienced people . . . to leave the employ . . . either by firing them or, 

to use Quest’s terminology, by ‘managing them out.’” (Compl. ¶ 2.) 

After Quest’s removal of the action to federal court, Seibert amended her complaint to 

add two ERISA claims based on non-payment of severance to her and other fired employees. 

Count three of the amended complaint alleged a violation of ERISA’s “anti-interference” 

provision (ERISA § 510, 29 U.S.C. § 1140), which forbids certain retaliatory actions against a 

participant or beneficiary in connection with the exercise or attainment of rights covered by 

ERISA. Count four was an ERISA benefits-recovery/rights enforcement claim (ERISA 

§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)) against Quest itself, the Severance Plan, and the 

Employee Benefits Committee. (Am. Compl. ¶¶ 208–17 [D.E. 20].) 

Under the Quest Severance Plan (the “Plan,” reproduced in the record at D.E. 93-2 and 

elsewhere), an employee who was terminated for certain reasons, such as a reduction in force 

(“RIF”), facility closing, or consolidation, would be entitled to a severance package that included 

two weeks of pay for each year of employment with Quest, up to a maximum of 52 weeks. 

Employees terminated for “reasonable cause”—a phrase encompassing performance-based 

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firings—were not eligible for benefits. Seibert alleged that Quest fired her and others for sham 

or manufactured “performance” reasons in order to avoid having to pay these severance benefits. 

Counts one and two of the amended complaint, meanwhile, continued to charge the 

defendants with age discrimination under the NJLAD. (See Am. Compl. ¶¶ 195–207.) Thus, 

Seibert was now proposing two classes: an NJLAD class and an ERISA subclass. (See Am. 

Compl. ¶ 191.) 

Quest moved to dismiss the complaint in part, arguing that a) the proposed NJLAD class 

should be limited to New Jersey employees and b) the claims should be dismissed as per the 

individually named defendants. The Court ruled in Quest’s favor. (See generally 3/28/2012 Op. 

[D.E. 66].) After the ruling, Seibert indicated that she was abandoning her NJLAD class claim. 

[See D.E. 68.] 

After taking discovery, the parties filed motions for summary judgment. In its written 

opinion on the motions, the Court held that Seibert had adduced sufficient evidence on the 

§ 1140 claim to survive summary judgment because “[t]his record, like the one in Eichorn [v. 

AT&T Corp. [Eichorn I], 248 F.3d 131 (3d Cir. 2001)], offers circumstantial evidence supporting 

Seibert’s § [1140] claim.” (S.J. Op. 11 [D.E. 119].) In particular, her evidence showed that 

management was “concerned about Quest’s financial condition, from which a factfinder could 

reasonably infer that, at the time she was terminated for cause, the company was motivated to 

reduce or eliminate severance costs.” (S.J. Op. 11–12.) That evidence included “an email 

among employees in the Human Resources and finance departments concerning a sales 

reorganization plan (apparently unrelated to Seibert’s territory) that had gone awry” and 

referencing “unexpected severance payments that could result”—a development that might, the 

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email’s author warned, attract the unwanted attention of “Corporate.” (S.J. Op. 12.) Such 

evidence also could be reasonably construed to show pretext. (See S.J. Op. 14–15.) 

At the end of this part of the discussion, the Court addressed in a footnote an argument 

that Quest raised for the first time in its reply brief: Seibert would not be able to get money 

damages if she prevailed, so there was an independent basis for granting summary judgment. 

The Court summarized the case Quest relied on and found the argument overall to be neither 

“persuasive [n]or timely raised.” (S.J. Op. 15 n.5.) 

 After determining that the individual NJLAD claim survived summary judgment, the 

Court moved on to Seibert’s ERISA claim under § 1132(a)(1)(B). Section 1132(a)(1)(B) allows 

a plan participant to bring a claim to recover benefits due to her under the plan, but generally 

requires that a claimant first exhaust available remedies. The parties had filed cross motions on 

this particular ERISA claim. Seibert argued that she should have been excused from fully 

exhausting plan remedies because the benefits-denial notice she received did not include a 

description of appellate rights, as required by 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-

1(g)(1), and also failed to state with specificity the grounds for denying her claim. Noting that 

the proper remedy for these violations was not a pass on exhaustion but an out-of-time appeal or 

remand to the plan administrator, the Court rejected this argument. (S.J. Op. 23 & n.7.) The 

Court further held that Seibert lacked standing to request a declaratory judgment regarding the 

appeals process. (S.J. Op. 24.) In conclusion: 

As a practical matter, if Seibert prevails on her NJLAD and ERISA § [1140] 

claims, she arguably will not need an administrative forum to seek relief. If she is 

unsuccessful, she will have the option to bring an out-of-time appeal 

administratively. On her claims under § [1132], then, Quest’s motion is granted 

and Seibert’s is denied, without prejudice to her invoking the administrative 

appeals process and seeking further judicial review if warranted. 

(S.J. Op. 24.) 

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B) Class-Certification Motion 

 Seibert now moves to certify a 29 U.S.C. § 1140 class pursuant to Fed. R. Civ. P. 

23(b)(3), proposing the following class definition: 

all persons who held sales positions in the Quest Diagnostics Incorporated 

physician or hospital sales organization; were placed on performance 

improvement plans (“PIPs”) from November 18, 2008 through August 20, 2011 

(the “Class Period”); either “voluntarily” resigned from such position or were 

terminated from such position on the basis of performance during the Class 

Period; and did not receive full severance benefits under the Quest Diagnostics 

Incorporated Severance Pay Plan (“the Severance Plan”) . . . .1

(Pl.’s Proposed Order 1 [D.E. 124-12].) On behalf of the class, Seibert seeks declaratory relief, 

“[c]lass-wide equitable restitution for economic losses suffered by Class Members from the 

resulting loss of severance benefits, the prevention of unjust enrichment by Quest which has 

retained benefits owed to Class Members, and disgorgement of benefits that would have been 

paid to Class Members had Quest not violated ERISA.” (Pl.’s Moving Br. 2–3 [D.E. 124-1].) 

Documents presented in support of the motion include deposition excerpts, many email 

chains, and Quest policy documents; Seibert also submits materials pertaining to law-firm 

qualifications and the numerosity of the class. (See generally Nash Decl. [D.E. 124-2]; Nash 

Supp. Decl. [D.E. 132-1].) Defense exhibits include, in addition to the above, performance 

evaluations and exhibits designed to narrow the scope of any class that might be certified. (See, 

e.g., Arrigoni Cert. [D.E. 127-3].) 

                                                             1

 Quest objects to this proposed class definition because it omits the “40 years of age or older” 

condition present in previous iterations, like the one in the amended complaint. According to 

Quest, the earlier, narrower proposed definition governed “the scope of extensive discovery by 

both parties and [] was in place at the time of the entry of the Final Pretrial Order,” and thus 

should be binding on Seibert. (Opp’n Br. 49 [D.E. 127].) Seibert disagrees, saying that some 

discovery has already been exchanged on employees under 40. (Pl.’s Reply Br. 19 n.22 [D.E. 

132].) Because class certification will ultimately be denied, the Court need not reach the scope 

of the proposed class. 

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1) Seibert Argues that the Court Should Certify a 23(b)(3) Class 

a) Performance Standards and Centralization 

As Seibert describes her lawsuit, the “heart of [the] case is the common claim that Quest 

systematically deprived salespeople of severance benefits as a cost-cutting measure starting in 

2008 and continuing through 2011.” (Pl.’s Moving Br. 1.) She identifies Quest’s former Vice 

President of Sales and Marketing for Quest’s Physician Sales organization, John Nosenzo, as the 

person who designed the offending program and put it into effect. 

Nosenzo, a former Siemens manager, was hired by Quest in January 2008. (See Pl.’s Ex. 

12, Nosenzo Dep. 7:3–18 [D.E. 124-5].) At the time, Quest’s physician sales business was 

“struggling,” in part due to “lost . . . contracts with health plans.” (Nosenzo Dep. 10:12–22.) In 

particular, in 2007 Quest lost business due to the non-renewal of its contract with United 

Healthcare. Among Nosenzo’s goals were addressing “issues of poor performance throughout 

physician sales” and “mak[ing] significant changes at every level” from “sales representative 

through sales VP.” (Pl.’s Ex. 44, Nosenzo 2008 MBO 2 [D.E. 124-7].) Quest had also launched 

“Project Reshape” that year, a program whose three-year goal was “achieving $500 million or 

more in net cost reductions.” (Pl.’s Ex. 7, Hagemann Dep. 7:6–24 [D.E. 124-5].) Some of those 

reductions were to come from “reducing people cost[s].” (Pl.’s Ex. 10, Mohapatra Dep. 58:21–

59:21 [D.E. 124-5].) Nosenzo was put in charge of (among other things) reducing headcount by 

ten percent to brings costs under control. (See Nosenzo Decl. ¶ 5B [D.E. 127-9].) He did not 

want to effect this reduction through a RIF, and instead “drove the consolidation of some open 

positions” while “not filling . . . positions as they became open.” (Pl.’s Ex. 31, Sept. 15, 2008 

Email from Nosenzo to Mohapatra [D.E. 124-7].) 

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Seibert’s brief argues that Nosenzo decided that this form of slow attrition was 

insufficient, and began to implement a top-down restructuring of how employees were evaluated 

and terminated. Some of the reforms had been previously used at Siemens. (See Pl.’s Ex. 21, 

Apr. 29, 2008 Email from Jack Kenny [D.E. 124-6].) She points to several communications that, 

she asserts, show Nosenzo and other central staff taking performance-management authority 

away from the Human Resources (HR) department. For example, Dr. Joyce Herlihy, the 

Director of HR at Quest through the beginning of Nosenzo’s tenure in 2008, said at her 

deposition that certain HR functions pertaining to terminations would ordinarily be covered by 

the “local” or regional HR employees “in the field.” (Pl.’s Ex. 8, Herlihy Dep. 14:12–22 [D.E. 

124-5].) In May 2008, Herlihy wrote in an email that she had “reached out to all of the senior 

HR leaders . . . in reference to our renewed emphasis on the performance management process of 

the salesforce,” relating the overall “positive” reaction because “this will indicate that it is not an 

‘HR thing’ but rather something that is driven from sales leadership.” (Pl.’s Ex. 26, May 21, 

2008 Letter from Herlihy [D.E. 124-6].) In July 2008, Nosenzo reemphasized that performancemanagement goals “should not be HR driven” but should be “[s]ales [l]eadership driven (with 

help from HR).” (Pl.’s Ex. 28, July 18, 2008 Email from Nosenzo to Mohapatra [D.E. 124-6].) 

Within a series of August emails to a regional sales leader, Nosenzo repeated that he did not 

want to “lose control of the process” and have it become “a watered down [HR] process.” (Pl.’s 

Ex. 48, Aug. 8, 2008 Email Chain Between Nosenzo and Hamlin [D.E. 124-7].) And in a 

December 2008 email, Nosenzo sought from regional managers “list[s of] all of your employees 

and the rating you think they deserve,” underscoring that “[n]o write ups or communication is to 

occur with employees prior to final sign off from me.” (Pl.’s Ex. 36, Dec. 15, 2008 Nosenzo 

Email [D.E. 124-7].) 

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Seibert stresses that the elements of the new process that appeared to give local and 

regional managers some authority, such as the “Session Q” meetings, were in reality 

“marathons” designed to flunk as many employees as possible—and Nosenzo maintained a final 

say over all employee “scorecards.” (See Pl.’s Ex. 83, Scorecard Process Powerpoint 15 [D.E. 

124-10].) A memo from Nosenzo describing the “Session Q” evaluation meetings, which he 

attended, emphasized that the “core competencies” were “defined by senior management.” (See

Pl.’s Ex. 45, July 2, 2009 Email from Nosenzo & Attachment [D.E. 124-7].) 

Moreover, Seibert contends that while Nosenzo was centralizing performancemanagement authority, he was recalibrating evaluations to prioritize sales quotas above all other 

elements, disrupting the way employee performance had generally been assessed. A summary of 

remarks at an October 2008 Board of Directors meeting, for example, reflected that Quest was 

“driving an increased focus on total [sales force] attainment as a singular performance measure.” 

(Pl.’s Ex. 34, Oct. 31, 2008 Physician Sales and Marketing Update [D.E. 124-7].) According to 

Seibert, a new emphasis on “consistency across [the] organization . . . across geographies,” and 

on “common . . . approach[es] to talent management” (Pl.’s Ex. 37, Jan. 2009 Pre-Meeting 

Training Powerpoint 7 [D.E. 124-7]) referred to the elevation of objective sales quotas, centrally 

formulated, without taking into account the characteristics of each sales region—a departure 

from the prior regime, in which performance standards had not changed for several years prior to 

Nosenzo’s arrival (see Herlihy Dep. 31:15–32:20). Those failing to meet the new performance 

quotas—and Seibert argues that some of the benchmarks were very difficult to satisfy, based on 

the realities of both the market and the particular geography of a given sales area—were placed 

on Performance Improvement Plans (PIPs). Employees put onto PIPs rarely escaped 

termination, because the PIPs were designed to be a “figurative death sentence.” (Pl.’s Moving 

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Br. 12–14.) Several of the employees on PIPs after the aforementioned policy revisions were 

long-term employees of Quest and former award winners (see Pl.’s Ex. 9, Kane Dep. 32:10–33:8 

[D.E. 124-5]), and Seibert points to panicked/upset letters from employees who found 

themselves suddenly dropping to unacceptable levels of performance when evaluated based on 

new quotas (see, e.g., Pl.’s Exs. 42, 46–47 [D.E. 124-7]). On the other side, those charged with 

implementing the new policies were uncertain about how flexible the new standards were 

supposed to be. (See, e.g., Pl.’s Ex. 30, Sept. 2009 Email Chain [D.E. 124-6].) 

Based on the above and other exhibits, Seibert characterizes the changed performance 

standards under Nosenzo as an RIF in disguise, a way to eliminate employees without paying 

severance. She cites to email chains in which managers discussed changing evaluation results 

(see Pl.’s Ex. 61, Feb. 2010 Email Chain [D.E. 124-8]) to argue that the new performance 

scheme was “show and pretense.” (Pl.’s Moving Br. 15.) While it had the effect of reducing 

headcount, with an HR manager noting a “dramatic shift in [Quest’s] 2009 [performance] 

distribution” (Pl.’s Ex. 74, July 27, 2010 Email from Thomas DeLuca [D.E. 124-9]), some 

managers worried that the company was “reaching a crisis level.” (Pl.’s Ex. 64, Mar. 26, 2010 

Email from Mohapatra to Norgard [D.E. 124-8].) Seibert also points to several documents 

dating from after Nosenzo’s departure in May 2010, such as a decision to remove certain 

objective categories from employee performance scorecards (see Pl.’s Ex. 70, Aug. 12, 2010 

Email Chain [D.E. 124-8]), to suggest that the situation gradually normalized after he left Quest. 

b) Seibert Contends that This Suit Meets the Fed. R. Civ. P. 23 Standard 

According to Seibert, the Fed. R. Civ. P. 23(a) and 23(b)(3) factors are satisfied. First, 

because of the top-down nature Nosenzo’s management and performance changes, the elements 

of the § 1140 claim are “susceptible to common proof,” because evidence presented to support a 

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circumstantial case under § 1140 (which survived at the summary judgment stage) would be the 

same across a class. (Pl.’s Moving Br. 19, 21–23.) That § 1140 claims often involve common 

elements, Seibert submits, is shown by Third Circuit cases like Gavalik v. Continental Can Co., 

812 F.2d 834 (3d Cir. 1987), which involved § 1140 ERISA claims that had been certified as 

class actions. (Pl.’s Moving Br. 24–25.) 

Moving to the enumerated Rule 23(a) factors, Seibert asserts that the 112 proposed class 

members easily satisfy the numerosity threshold; that commonality is satisfied based on the 

common questions of law and fact discussed above; that her claims are “typical” of those of the 

proposed class members; and that she and her attorneys will sufficiently protect class interests, 

and are thus adequate representatives. (See Pl.’s Moving Br. 29–34.) In discussing Rule 

23(a)(2), commonality, Seibert distinguishes the facts of Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541 (2011), by stressing the far smaller size of her proposed class (versus that of Dukes) and 

the centralization of Quest’s performance and review authority under Nosenzo. (See Pl.’s 

Moving Br. 31 n.17.) Finally, Seibert maintains that the proposed class meets the Rule 23(b)(3) 

standards, because the common questions identified earlier predominate and are best resolved via 

a class action. (See Pl.’s Moving Br. 34–38.) 

 2) Quest Argues that Certification is Inappropriate; Decisions Decentralized

Quest does not contest the adequacy of class counsel. But it relies on a starkly different 

reading of the relevant facts. Rather than consolidating decision-making authority in Nosenzo, 

Quest argues, the new performance standards vested decision-making power in individual 

managers. In support, Quest has produced affidavits from managers attesting to the poor work 

performance of several putative class members. 

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According to Quest, the loss the United Heathcare contract in 2007 led the company to 

examine what it described as years of sales-representative complacency. Upon arriving at Quest, 

Nosenzo encountered a culture where “many sales people tended to take the position that none of 

the decline in revenue was their responsibility and that there was nothing they could do to 

replace that lost revenue.” (Nosenzo Decl. ¶ 9A.) Sales representatives could “fail to achieve 

their sales quotas year after year, but still be rated as having” achieved expectations. (Nosenzo 

Decl. ¶ 6C.) He saw his reforms as raising “the performance bar for all sales employees, 

including” himself and other management. (Nosenzo Decl. ¶ 9A.) The changes about which 

Seibert complains—the Session Q meetings, the performance-based scorecards—were used as 

tools to “bring consistency, transparency, and accountability to the performance assessment 

process.” (Opp’n Br. 11 (citing Nosenzo Decl. ¶ 18).) 

Quest emphasizes that these changes, while top-down, were not centrally governed. In 

his declaration, Nosenzo claims that he attended some of the Session Q meetings, but not all, and 

was often joined by others from various management tiers and departments. (See Nosenzo Decl. 

¶¶ 7, 17.) Individual managers, meanwhile, were responsible for scorecard rankings, and were 

not directed by senior management on what ratings to provide. (See Pl.’s Ex. 17, Dec. 15, 2008 

Email from Nosenzo [D.E. 124-6]; Nosenzo Decl. ¶ 21) 

Citing affidavits provided by five Quest employees—sales directors Albrecht, Meyer, and 

Orzolek; district sales manager Behrend; and Western Region Vice President Hamlin—Quest 

claims that each manager independently dealt with underperforming employees, in contrast to 

Seibert’s position that PIP placement meant guaranteed termination. For example, Meyer attests 

that she was not directed by “any . . . member[] of Quest[’s] . . . senior management . . . 

including John Nosenzo, on how to evaluate” an employee. (Meyer Decl. ¶ 14 [D.E. 127-8].) 

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Meyer lists several employees whom she supervised who were placed on PIPs but were not 

terminated. (Meyer Decl. ¶ 28.) Albrecht affirms that he never communicated with Nosenzo or 

other central management with regard to a certain terminated employee, and did not terminate 

that employee in order to avoid having to pay her severance benefits. (Albrecht Decl. ¶¶ 13–14 

[D.E. 127-1].) 

 Quest also argues that the ERISA claims and Seibert’s individual NJLAD claim are 

incompatible based on both legal theory and breadth of relief available. (See Opp’n Br. 37–38.) 

In the course of this argument, Quest reemphasizes its position that success under § 1140 would 

not lead to “any monetary damages.” (Opp’n Br. 37 n.9.) 

 Addressing commonality, Quest accuses Seibert of minimizing the importance of Dukes, 

which required common contentions to be of “such a nature that [they are] capable of class-wide 

resolution—which means that determination of its truth or falsity will resolve an issue that is 

central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551. Quest 

contends that Seibert’s list of “common questions” is incapable of generating the common 

answers that Dukes requires. 

 Finally, Quest argues 1) that counting only “appropriate or eligible” class members, the 

proposed class falls short of the numerosity threshold; 2) that common issues do not predominate 

within the proposed class; and 3) that based on the individual determinations made in Quest’s 

job-performance evaluations, a class action would not be the superior method for adjudicating 

disputes arising therefrom. (See Opp’n Br. 20–26, 40–50.) 

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II. Jurisdiction and Standards

 This Court exercises federal-question jurisdiction over the ERISA claim through 28 

U.S.C. § 1331. Supplemental jurisdiction extends over the state-law claims (which are not the 

subject of this motion) through 28 U.S.C. § 1367. 

 In deciding whether a class should be certified, a court must be satisfied that the 

prerequisites of Rule 23—here, the factors of Rule 23(a) and Rule 23(b)(3), along with 

ascertainability—have been met. See, e.g., Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 

2013). The Rule 23 requirements are “not mere pleading rules”; the “party seeking certification 

bears the burden of establishing each element of Rule 23 by a preponderance of the evidence,” 

and “actual, not presumed conformance with Rule 23 requirements is essential.” Marcus v. 

BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (internal alterations, quotation marks, & 

citations omitted). 

 Although the class-certification stage is not the time to conduct a “free-ranging merits 

inquir[y],” the underlying merits of the suit are relevant “to the extent—but only to the extent—

that they are relevant to determining whether the Rule 23 prerequisites for class certification are 

satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1195 (2013). In 

evaluating the merits, a court may “probe behind the pleadings” to investigate considerations 

relevant to class-certification that are “enmeshed in the factual and legal issues comprising the 

plaintiff’s cause of action.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (internal 

quotation marks & citations omitted). 

III. Discussion

 Recognizing the effect of Dukes on class-certification decisions, the parties focus their 

attention on debating whether the purported RIF-in-disguise scheme was 1) a centralized, 

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pretextual process characterized by a lack of local discretion and decision-making, the viewpoint 

urged by Seibert; or 2) a lawful, reasonable reaction to changes in the market that relied on a 

diffuse structure and was by no means a “death sentence” to affected employees, the viewpoint 

advanced by Quest. In particular, Seibert urges the Court to see the § 1140 claim as a single 

question leading to a single answer: if the revised approach to evaluations was a pretext to reduce 

the workforce without paying severance, then the same liability attaches with regard to all

putative class members terminated under it. 

 While the § 1140 claim survived summary judgment, whether it is appropriate for class 

treatment is another matter. Section 1140 claims have been certified in this Circuit—two of the 

cornerstone Circuit cases on § 1140 jurisprudence, McLendon v. Continental Can Co., 908 F.2d 

1171 (3d Cir. 1990), and Gavalik, are class-action cases (although neither was a certification 

appeal), as are cases like Fischer v. Philadelphia Electric Co., 994 F.2d 130 (3d Cir. 1993). 

 The Court concludes that certifying this suit as a class action would not be proper under 

Fed. R. Civ. P. 23 based on the specific facts of the case, the particular ambit of § 1140 

(especially with regard to the remedies available), and the possible divergence between Seibert’s 

claims and those of the putative class. 

A) ERISA § 1140 – Statutory Structure 

 1) Statutory Language and Prohibited Acts

Under the pertinent part of 29 U.S.C. § 1140, an employer may not: 

discharge, fine, suspend, expel, discipline, or discriminate against a participant or 

beneficiary for exercising any right to which he is entitled under the provisions of 

an employee benefit plan, this subchapter, section 1201 of this title, or the 

Welfare and Pension Plans Disclosure Act [29 U.S.C. 301 et seq.], or for the 

purpose of interfering with the attainment of any right to which such participant 

may become entitled under the plan, this subchapter, or the Welfare and Pension 

Plans Disclosure Act. 

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Section 1140 covers non-vested welfare benefit plans like the Quest severance plan. See InterModal Rail Emps. Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 514–16 (1997). 

The employer is generally, but not always, the proper defendant in a § 1140 suit. See Paul 

Schneider & Brian Pinheiro, ERISA: A Comprehensive Guide § 8.05(b)(1) (4th ed. 2012). 

Success on a § 1140 claim requires a showing that an employer made a “conscious decision to 

interfere with the employee’s attainment of . . . benefits,” although 1) that need not be the “only 

reason” for a termination, 2) showing an actual injury is not required, and 3) circumstantial 

evidence can suffice. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 785 & n.1 (3d Cir. 

2007) (internal quotation marks and citations omitted). A burden-shifting test is used to resolve 

a § 1140 claim. See id. at 785–86. 

 Section 1140 does not provide an independent mechanism for relief; rather, it states that 

“[t]he provisions of section 1132 of this title shall be applicable in the enforcement of this 

section.” 29 U.S.C. § 1140; see also Jakimas, 485 F.3d at 780 n.16 (“Section [1132(a)] . . . is the 

vehicle by which a plaintiff may bring suit for a violation of § [1140].”). The statutory language 

does not specify which part of § 1132 is to be used: subsection (a)(1), allowing a participant or 

beneficiary to obtain certain information, recover due benefits, enforce her rights, or clarify 

rights to future benefits; or subsection (a)(3), allowing a participant, beneficiary, or fiduciary to 

enjoin an ERISA-prohibit act or practice, or to otherwise “redress such violations” or “to enforce 

any provisions of this subchapter or the terms of the plan” by obtaining “appropriate equitable 

relief.” 

 In Eichorn v. AT&T Corp [Eichorn II], 484 F.3d 644 (3d Cir. 2007), the Third Circuit 

held that a § 1140 claim is “not enforceable” under § 1132(a)(1)(B), which is the subsection 

“provid[ing] a cause of action only where a plaintiff alleges a violation of the terms of a benefits 

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plan or an ambiguity in the plan requiring judicial interpretation” and which does not address 

“claim[s] of interference with the benefits of a plan.” Id. at 652, 654; see also id. at 652–53 

(collecting cases). Therefore, § 1140 violations may be vindicated only through the equitable 

remedies available in § 1132(a)(3).2

 

 As the Supreme Court has made clear, “appropriate equitable relief” under § 1132(a)(3) 

does not extend to a pure suit for money damages; rather, it refers to those categories of relief 

that were typically available in equity. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 

U.S. 204, 210 (2002). Such relief includes injunction, mandamus, and restitution, and while 

these remedies may involve the payment of money, they do not cover a “request for 

compensatory damages merely framed as an ‘equitable’ injunction.” Eichorn II, 484 F.3d at 

654–55. Instead, “[a] remedy involving payments is permissible so long as those payments 

would have historically been available in courts of equity.” Pell v. E. I. DuPont De Nemours & 

Co., 539 F.3d 292, 307 (3d Cir. 2008). 

Courts determine the exact contours of the legal/equitable divide in the contexts of 

specific fact patterns, leading to different results. For example, courts have decided that back 

                                                             2

 Seibert claims that this Court has already “rejected” Quest’s “assertion that [she] is limited to 

injunctive” relief on her § 1140 claim, and is bound by that ruling. (See Pl.’s Reply Br. 10.) 

This is not the case. Quest raised the scope of relief in its summary-judgment reply brief; relying 

on Eichorn I, the Court disagreed that a monetary award was per se unavailable and decided that 

1) Quest’s argument was not timely raised and 2) the argument as specifically put forth did not 

entitle Quest to summary judgment relief on the claim. Because of the different standards of 

review in play, the outcome here is different. See Farina v. Nokia, Inc., 625 F.3d 97, 117 n.21 

(3d Cir. 2010); see also Ogbudimkpa v. Ashcroft, 342 F.3d 207, 210 n.7 (3d Cir. 2003) 

(“Similarly, courts may refuse to infer decisions on issues that were barely presented, or from 

summary decisions.”). Besides, Seibert’s filings reflect her awareness that the relief available 

under § 1140 is limited to equitable remedies. (See, e.g., Am. Compl. ¶ 211 (“Plaintiff seeks 

equitable relief in the form of restitution to compensate her and the ERISA Sub-Class for 

economic losses suffered from the loss of employment . . . .”); Pl.’s Moving Br. 2–3 (discussing 

“prevention of unjust enrichment” and “disgorgement”).) 

 

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pay, in the form of restitution, is an appropriate equitable remedy. See, e.g., Schwartz v. 

Gregori, 45 F.3d 1017, 1022–23 (6th Cir. 1995); Shaver v. Siemens Corp., No. 2:02CV1424, 

2008 WL 859251, at *2 (W.D. Pa. Mar. 28, 2008). Others have held to the contrary. See, e.g., 

Millsap v. McDonnell Douglas Corp., 368 F.3d 1246, 1260 (10th Cir. 2004). The case law is 

clear that “whether a particular form of relief is legal or equitable in nature is largely dependent 

on the facts of a particular case.” Sessions v. Owens-Illinois, Inc., No. 1:07-CV-1669, 2008 WL 

4821755, at *6 n.10 (M.D. Pa. Nov. 4, 2008). 

 2) Relationship to § 1132(a)(1)

Seibert’s amended complaint contained a § 1132(a)(1) claim, in which Seibert asked this 

Court to review Quest’s decision to deny her (and the class members) benefits. (See Am. Compl. 

¶¶ 212–16.) Summary judgment was granted on this claim because Seibert had not exhausted 

her administrative remedies under the Severance Plan. 

One of the distinctions between § 1132(a)(1) and a claim through § 1140 in this Circuit is 

that the latter generally requires no exhaustion of remedies, while the former does. See Zipf v. 

AT&T Co., 799 F.2d 889, 893 (3d Cir. 1986); accord D’Amico v. CBS Corp., 297 F.3d 287, 291 

(3d Cir. 2002). Exhaustion is still required, however, when a statutory claim “merely recasts [a] 

benefits claim in statutory terms.” D’Amico, 297 F.3d at 291 n.3 (alteration in original). 

B) Seibert’s Claims Diverge From, and Are Not Typical Of, the Putative Class Members’ 

 Seibert wishes to bring a § 1140 claim on behalf of class members terminated without 

“full severance benefits” after placement on a PIP. She seeks injunctive relief, although she does 

not specify what, exactly, she means to obtain for the class. 

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The typicality prong of Fed. R. Civ. P. 23(a) looks at whether the named plaintiff’s 

claims are typical of those of the class, thus indicating alignment, whereas the adequacy prong 

seeks to uncover possible conflicts of interest between the named plaintiff and the class. Beck v. 

Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006). An analysis of the proposed class, combined 

with the statutory discussion above, demonstrates that Seibert has not met her burden of 

satisfying these Fed. R. Civ. P. 23(a) factors by a preponderance. 

The record shows that Seibert briefly attempted to vindicate her rights under the Plan, but 

failed to completely pursue administrative remedies, leading to summary judgment on her 

§ 1132(a)(1) claim. But it is unclear whether other putative class members attempted to exhaust 

their administrative remedies under the Plan. Furthermore, as the Court explained in its 

summary judgment opinion, Seibert’s arguments attempting to excuse exhaustion actually 

supported permission for her to appeal out-of-time. Seibert may yet be able to vindicate her 

rights through an untimely administrative appeal, an option that might not be available to 

putative class members. By proceeding solely on a § 1140 claim, class members might forfeit 

rights available under the alternative § 1132(a)(1) route, especially given the unclear relationship 

between the award to which Seibert and class members would be entitled under a § 1140 action 

versus one brought under § 1132(a)(1). 

 Second, the presence of NJLAD claim, while not in inherent conflict with the § 1140 

claim, does afford Seibert a different breadth of relief than would be available to the class 

members. Compensatory and punitive damages are both available under NJLAD, but neither can 

be sought in a § 1140 claim. See, e.g., Rusak v. Ryan Automotive, L.L.C., 418 N.J. Super. 107, 

117–18 (App. Div. 2011). So she has a “backup” under the NJLAD that would not be available 

to the other class members; even if she and the class were not entitled to money damages under 

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§ 1140 at all (which this Court was not called upon to earlier decide), Seibert would be able to 

rely on her NJLAD claim to make up for the shortfall. 

 Third, the present lack of clarity in the law suggests that minor variations in exhaustion 

status or even benefit payout—the class definition includes those employees who received some, 

but not all, benefits under the severance plan—could lead to the unique defenses being levied 

against Seibert that might not be applicable to other class members. As the Third Circuit has 

said: 

[U]nique defenses bear on both the typicality and adequacy of a class 

representative. . . . [C]ourts of appeals emphasize, as do we, the challenge 

presented by a defense unique to a class representative—the representative’s 

interests might not be aligned with those of the class, and the representative might 

devote time and effort to the defense at the expense of issues that are common and 

controlling for the class. . . . A class representative should not be permitted to 

impose such a disadvantage on the class. 

Maximus, 457 F.3d at 296–97 (internal quotation marks & citations omitted). 

 Fourth and finally, Seibert earlier stressed the special challenges arising out of her sales 

territory, challenges that greatly exacerbated her inability to meet the new performance quotas. 

Backed up by the testimony of her sales manager, and as the parties stipulated in the Joint 

Pretrial Order (see JPTO 17), Seibert referenced: 

the “questionable” business practices of competitors in her territory, “the politics 

of the local hospital,” a “tough territory climate” with “unique market dynamics,” 

and that her territory was facing “tumultuous market conditions” and had “little 

opportunity to grow.” In the years leading up to her termination, several clients in 

Seibert’s territory discontinued doing business with Quest. According to [the sales 

manager’s] deposition testimony, the majority of these losses were probably not 

within Seibert’s control. (Giordano Dep. 139:8–140:1.) 

(S.J. Op. 4.) Such special circumstances exist in tension with Seibert’s central premise for her 

§ 1140 class, which is that the one-size-fits-all, top-down policy enacted by Nosenzo and other 

upper-level managers at Quest was intended to eliminate employees on a company-wide basis. 

Quest has submitted evidence suggesting that some members of its force did survive the PIP 

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process; Seibert would point to these as exceptions to the general rule to the contrary. But the 

territory to territory differences alleged, and the unique factors affecting her territory, add 

additional ambiguity to the uniformity of her claim versus that of the proposed class. Further, 

each class member is likely to have operated in his/her own unique market conditions, differing 

from the baseline Seibert proposes just as much as Seibert herself differs. 

 In sum, the Court finds that Seibert has not shown, by a preponderance, that the Rule 

23(a) factors of adequacy and typicality are satisfied.

C) Commonality, Predominance, and Superiority 

 Under Dukes, the commonality requirement of Rule 23(a)(2) has arguably been 

broadened. Commonality required a showing of a class-wide injury, but it also now demands a 

showing of class-wide resolution. See Dukes, 131 S. Ct. at 2551. Meanwhile, Rule 23(b)(3) is 

satisfied when the movant shows “that (i) common questions of law or fact predominate 

(predominance), and (ii) the class action is the superior method for adjudication (superiority).” 

In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010). The predominance requirement 

“tests whether proposed classes are sufficiently cohesive to warrant adjudication by 

representation.” Marcus, 687 F.3d at 600 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 

591, 623 (1997)). 

 Assuming, without deciding, that Seibert has satisfied the commonality requirement of 

Rule 23(a), the Court concludes that she has not shown that the common issues predominate 

within the class. This affects both the front end and back end of her claim. 

 On the front end, predominance encounters the same problems discussed above in 

adequacy and typicality. The inferences required by the Gavalnik burden-shifting approach 

suggest that the common-quest/common-answer model proposed by Seibert—“was this policy 

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intended to force people out without paying severance? If yes, I win, as does the class”—is an 

oversimplification. Despite Quest’s alleged centralization, class members were active in 

different market conditions, faced different geographical challenges, and worked under different 

managers. Others may have exhausted their remedies, suggesting that relief under § 1132(a)(1) 

would take precedence over injunctive relief under § 1132(a)(3). 

 On the back end, the Court confronts the problem of the remedy sought by the class. As 

discussed above, case law suggests that the appropriateness of equitable remedies depends 

largely on both an individual plaintiff’s situation and the exact posture of her request for relief. 

See, e.g., Gregori, 45 F.3d at 1022–23 (“[W]e conclude that the back pay awarded here

constituted restitution, and therefore is an equitable remedy . . . .” (emphasis added)). The exact 

nature of the Plan, and the individual employees’ positions when terminated, would complicate 

attempts to calculate individual remedies among the class members. See In re Visa 

Check/Mastermoney Antitrust Litig., 280 F.3d 124, 140–41 (2d Cir. 2001) (recognizing that 

difficult individualized damages calculations can, in tandem with other factors, support a 

decision to deny class certification), overruled on other grounds as stated in Teamsters Local 

445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 203 (2d Cir. 2008) 

 Further, under the superiority factor of Rule 23(b)(3): 

Superiority mandates that the district court determine that the class action is the 

best method of fairly and efficiently resolving the controversy. To assist the court 

in analyzing cases for predominance and superiority, Rule 23(b)(3) includes a 

nonexclusive list of relevant factors to consider: (A) the interest of members of 

the class in individually controlling the prosecution or defense of separate actions; 

(B) the extent and nature of any litigation concerning the controversy already 

commenced by or against members of the class; (C) the desirability or 

undesirability of concentrating the litigation of the claims in the particular forum; 

(D) the difficulties likely to be encountered in the management of a class action. 

Johnston v. HBO Film Mgmt., 265 F.3d 178, 185 (3d Cir. 2001) (internal citations omitted). 

Based on the discussion above, the Court finds that factors (A) and (D) weigh against a class 

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action being the superior method of resolving this particular ERISA claim. Individual plaintiffs 

would be better able to tailor their claims to their lengths of service and territorial/market-based 

realities. They would also be able to seek relief under individual state statutes and other ERISA 

provisions that offer a broader range of damages. And the ambiguities in the relief offered by 

§ 1140 suggest that individual suits would avoid management problems that might arise from a 

one-size-fits-all approach. 

 Because the Court has found that the adequacy and typicality inquiries of Fed. R. Civ. P. 

23(a) are not satisfied, along with the superiority and predominance factors of Fed. R. Civ. P. 

23(b), the Court need not reach the other Rule 23 factors. Since “[f]ailure to meet any of Rule 

23(a) or 23(b)’s requirements precludes certification,” Danvers Motor Co. v. Ford Motor Co., 

543 F.3d 141, 147 (3d Cir. 2008) (emphasis added), certification must be denied. 

IV. Conclusion

 The motion for class certification is denied. An appropriate order will be entered. 

 

March 31, 2014 /s/ Katharine S. Hayden 

 Katharine S. Hayden, U.S.D.J. 

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