NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

PREMIER HEALTH CENTER, P.C., et al.,

Plaintiffs, Civ. No. 11-425 (ES)

v. O P I N I O N 

UNITEDHEALTH GROUP, et al.,

Defendants.

Appearances by:

ZUCKERMAN SPAEDER LLP

By: D. Brian Hufford, Esq.

 Jason S. Cowart, Esq.

1185 Avenue of the Americas, Fl. 31

New York, New York 10036

BUTTACI & LEARDI, LLC

By: Vincent N. Buttaci, Esq.

 John W. Leardi, Esq.

Paul D. Werner, Esq.

103 Carnegie Center, Suite 101

Princeton, New Jersey 08540

Attorneys for Plaintiffs

GRAHAM CURTIN, P.A.

By: Thomas R. Curtin, Esq.

 George C. Jones, Esq.

Kathleen N. Fennelly, Esq.

4 Headquarters Plaza

P.O. Box 1991

Morristown, New Jersey 07962

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O’MELVENEY & MYERS LLP

By: Brian D. Boyle, Esq.

 Gregory F. Jacob, Esq.

William T. Buffaloe, Esq.

1625 Eye Street, N.W.

Washington, DC 20006

Attorneys for Defendants UnitedHealth Group, UnitedHealthCare Services, Inc., and 

OptumHealth Care Solutions, Inc.

DEBEVOISE, Senior District Judge

This matter arises out of the methods by which Defendant UnitedHealth Group 

(“United”) recoups benefit overpayments from healthcare providers. On January 24, 2011, 

Plaintiffs Premier Health Center, P.C. (“Premier”), Judson G. Sprandel, II, D.C., Brian S. Hicks, 

D.C., Tri3 Enterprises, LLC (“Tri3”), Beverly Hills Surgical Center (“BHSC”), and Jeremy 

Rogers, D.C.1filed a Complaint against United and several of its subsidiaries, including

Defendants United HealthCare Services, Inc. (“United Healthcare”), OptumHealth Solutions, 

Inc. (“Optum”), Health Net of the Northeast, Inc. (“HNNE”), and Health Net of New York, Inc. 

(“HNNY”), asserting claims for benefits, failure to provide a full and fair review, and equitable 

relief under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002 et seq. 

On April 22, 2011, Plaintiffs filed an Amended Complaint with additional factual 

allegations in support of their claims. The Amended Complaint sets forth two proposed classes: 

the ERISA Recoupment Class and the ERISA Chiropractor Class. The ERISA Recoupment 

Class, whose named Plaintiffs are Tri3, BHSC, and Dr. Sprandel, is defined as:

All healthcare providers (such as individual practitioners, durable medical 

equipment providers or facilities) who, from six years prior to the filing date of 

this action to its final termination (“ERISA Class Period”), provided healthcare 

 

1 Joining in the Complaint on behalf of their members are the Congress of Chiropractic 

State Associations, the American Chiropractic Association, the Ohio State Chiropractic 

Association, and the Missouri State Chiropractic Association. 

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services to patients insured under healthcare plans governed by ERISA and 

insured or administered by Defendants, and who, after having received payments 

from Defendants, were subjected to retroactive requests for repayment of all or a 

portion of such payments and/or to recoupments or coerced repayments of prior 

benefits.

(Amend. Compl. ¶ 135.) The ERISA Recoupment Class asks the Court “(1) to enjoin 

Defendants from continuing to compel return of prior payments of plan benefits; (2) to order 

Defendants to return to all Class members all funds, plus interest, that Defendants have withheld 

to offset the amounts demanded or that have been paid by Class members to Defendants in 

response to such demands; and (3) to declare that any future efforts to recoup payments for errors 

or mistakes in prior payments must comply with the specific requirements under ERISA for 

adverse benefit determinations.” (Id. ¶ 137.) 

The ERISA Chiropractor Class, whose named Plaintiffs are Dr. Rodgers and 

Dr. O’Donnell, is defined as: 

All chiropractic physicians who, from six years prior to the filing date of this action 

to its final termination (“ERISA Class Period”), provided healthcare 

services to patients insured under healthcare plans governed by ERISA and 

insured or administered by Defendants, and whose claims were subjected to 

utilization review requirements imposed by United and/or Optum.

(Amend. Compl. ¶ 136.) The ERISA Chiropractor Class seeks “to enjoin Defendants from (1) 

tiering providers based on statistical parameters, (2) denying treatment plans without regard to 

patients’ medical needs, (3) imposing pre-certification requirements on patient care without 

regard to the terms of the ERISA health care plans, and (4) threatening providers with being 

placed on a lower tier or potential loss of network participation if they do not defer to Optum’s 

demands by limiting care to patients, and to compel United and Optum to replace them with 

policies and procedures which comply with ERISA.” (Id. ¶ 137.)

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On June 21, 2011, Defendants moved to dismiss the Amended Complaint. On March 30, 

2012, the Court issued an Opinion and Order denying the motion with respect to Plaintiffs’ 

claims against United, UnitedHealthcare, and Optum, but granting the motion with respect to all 

of Plaintiffs’ claims against HNNE and Plaintiffs’ claim against HNNY for failure to provide a 

full and fair review under ERISA. The Court dismissed all of Plaintiffs’ claims against HNNE, 

and their claim against HNNY for failure to provide a full and fair review, without prejudice.

On June 9, 2012, Plaintiffs moved to certify both the ERISA Chiropractor Class and the 

ERISA Recoupment Class. Defendants opposed the motion. In addition, on October 12, 2012, 

Defendants moved for summary judgment against the named Plaintiffs of the ERISA 

Chiropractor Class. On April 15, 2013, Plaintiffs filed a Second Amended Complaint (“SAC”), 

which set forth additional allegations in support of their claims. The SAC proposed the same 

classes as those set forth in the Amended Complaint. On August 1, 2013, the Court issued an 

Opinion and Order (1) granting Defendants’ Motion for Summary Judgment against the ERISA 

Chiropractor Class; and (2) denying Plaintiffs’ Motion to Certify the ERISA Recoupment Class.2

On August 16, 2013, Plaintiffs filed a renewed Motion for Class Certification, which set 

forth two new proposed classes: the ONET Repayment Demand Class and the ONET Offset 

Class. The ONET Repayment Demand Class, whose named Plaintiffs are Dr. Sprandel, BHSC, 

and Tri3, is defined as:

All ONET healthcare providers (such as individual practitioners, durable medical 

equipment providers or facilities) who, from six years prior to the original filing 

date of this action to its final termination (“Class Period”): (1) provided healthcare 

services or supplies to patients insured under healthcare plans governed by ERISA 

and insured or administered by United, and (2) after having received benefit 

payments from United, were subjected to retroactive repayment demands for all or 

a portion of such payments. Excluded from this class are all providers who 

voluntarily paid United in response to United’s repayment demand or affirmatively 

 

2 The Court denied Plaintiffs’ Motion to Certify the ERISA Chiropractor Class as moot.

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authorized subsequent recoupments or offsets as a means to repay the alleged 

overpayments. 

The ONET Repayment Demand Class seeks “declaratory relief establishing that Defendants’

policies, procedures and practices with respect to issuance of repayment demands to out-ofnetwork providers fail, as a matter of law, to substantially comply with” ERISA and 29 C.F.R. §

2560.503-1. (Buffalo Decl., Ex. 24.) The Class also “seeks a permanent injunction requiring

Defendants to reform their policies, procedures and practices with respect to issuance of

repayment demands to out-of-network providers.” (Id.) Specifically, Defendants “would be 

required to treat as an ERISA ‘Adverse Benefit Determination’ any such repayment demand,

arising under an ERISA plan, that results in lower remittance or reimbursement to the provider;

and that Defendant[s] would be required to furnish any provider subject to a repayment demand

that results in such an ERISA ‘Adverse Benefit Determination’ with the notice and appeal rights

mandated under 29 C.F.R. § 2560.503-1(g)-(h).” (Id.) “While such reforms would be 

prospective in nature, the injunction Plaintiff[s] seek[] would apply with equal force to both new 

and presently pending repayment demands; the effect of which being that Defendants would be 

enjoined from pursuing recovery of purported overpayments from providers going forward 

without first complying with ERISA’s due process requirements.” (Id.) 

The ONET Offset Class, whose named Plaintiffs are BHSC and Tri3, is defined as:

All ONET healthcare providers (such as individual practitioners, durable medical 

equipment providers or facilities) who, from six years prior to the original filing 

date of this action to its final termination (“Class Period”): (1) submitted claims for 

benefits to United for services or supplies provided to patients insured under 

healthcare plans governed by ERISA and insured or administered by United; and 

(2) did not receive such benefit payments because United applied the payment 

otherwise due under the plan toward an alleged overpayment for a claim submitted 

by the provider on behalf of a different patient. Excluded from this class are all 

providers who affirmatively authorized subsequent recoupments or offsets as a 

means for United to recover the alleged overpayments. 

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In response, Defendants moved to strike Plaintiffs’ renewed Motion for Class 

Certification. In addition, on September 27, 2013, Defendants filed a Motion for Summary 

Judgment against Dr. Sprandel as a named Plaintiff of the ONET Repayment Demand Class.

On November 20, 2013, the Court issued an Opinion and Order granting Defendants’ 

Motion to Strike with respect to the ONET Offset Class and denying it with respect to the ONET 

Repayment Demand Class. On December 2, 2013, the Court issued an Opinion and Order 

denying Defendants’ Motion for Summary Judgment against Dr. Sprandel. 

Defendants now move for reconsideration of the Court’s ruling denying summary 

judgment against Dr. Sprandel as a named plaintiff of the ONET Repayment Demand Class. 

Plaintiffs now move for certification of the ONET Repayment Demand Class. For the reasons 

set forth below, Defendants’ Motion for Reconsideration is GRANTED. Plaintiffs’ Motion to 

Certify the ONET Repayment Demand Class is GRANTED, subject to Plaintiffs’ ability to cure 

a defect in at least one of the class’s named plaintiffs.

I. BACKGROUND

The facts of this case are fully set forth in Premier Health Ctr. v. UnitedHealth Grp., 292 

F.R.D. 204 (D.N.J. 2013). Thus, for the sake of brevity, the Court will set forth only those facts 

that are necessary to the disposition of Defendants’ Motion for Reconsideration and Plaintiffs’ 

renewed Motion for Class Certification. 

A. United’s Claims Processing Procedures

United is a major health insurer that operates nationally through its wholly owned 

subsidiaries, including UnitedHealthcare, Optum, HNNE, and HNNY. As a national insurer, 

United processes an enormous number of claims for benefits from a wide variety of healthcare 

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providers on a regular basis.3 These claims are submitted to United in a standardized coding 

format that describes the services performed. United processes provider claims according to this 

format because of various state laws that require health insurers to pay claims quickly. 

Consequently, in initially processing claims, United relies exclusively on the codes submitted by 

healthcare providers. 

To be sure, processing claims in this manner results in erroneous payments to healthcare 

providers. Therefore, United regularly conducts post-payment audits to ferret out coding errors 

and improper claims. In doing so, United typically requests a provider’s clinical records and 

compares the services indicated in the records with those noted in the provider’s claim for 

payment. 

These post-payment audits are also intended to discern errors on United’s part, such as 

(1) paying the same claim twice; (2) incorrectly coordinating benefits with another insurance 

plan; and (3) paying a claim incorrectly under the terms of a provider’s contract with United. 

These audits may result in either a determination of underpayment, in which case United will 

remit further payment to a provider, or one of overpayment, in which case United will seek 

remittance from the provider for the amount that was overpaid.4

 

3 For purposes of benefits administration, providers are generally classified as either in 

network or out of network. An in network provider is bound to a network agreement with United 

(separate and apart from the ERISA plan), under which the provider accepts reduced benefits. 

This results in relatively small copayment obligations for United plan members, and, in turn, a 

powerful incentive for United plan members to seek treatment from in network providers. In 

contrast, an out of network provider is bound to no such agreement with United and therefore 

may seek greater benefits from United plan members, which often results in significantly greater 

copayment obligations.

4 To the extent United determines that an overpayment arises out of a provider’s 

fraudulent billing practices, United will not readjudicate the provider’s claims but rather enter 

into a formal settlement agreement with the provider.

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Three separate divisions within United conduct post-payment audits: (1) Benefits 

Operations, which processes benefits claims, regularly performs manual quality control audits 

that incidentally identify both underpayments and overpayments; (2) Audit & Recovery 

Operations (“ARO”), which employs algorithms and other auditing techniques, including review 

of clinical records, to identify overpayments;

5

and (3) Premium Audit Services (“PAS”), which

uses similar techniques as ARO to identify overpayments made to institutional providers such as 

hospitals. 

B. Recouping Overpayments from Providers 

United engages in a multistep process to recover benefit overpayments. First, United 

sends a letter to the provider identifying (1) the specific claim that was overpaid; (2) the amount 

that United overpaid on that claim; and (3) the reason for overpayment. These letters further (1)

request a check from the provider for the amount overpaid; (2) note that the provider may appeal 

United’s assessment6; and (3) state that if the provider does not remit the amount overpaid, 

United may deduct that amount from future claims submitted by that provider. 

United will send follow up letters to providers in an effort to secure voluntary repayment, 

and those letters will always note that the provider may appeal United’s determination. (Price 

Decl. ¶ 3.) United, at times, outsources overpayment recovery operations to outside vendors that 

“employ the same basic process[.]” (Id. ¶ 13.)

To the extent United decides that an overpayment determination changes a member’s 

paid benefits under his or her health insurance policy, United will issue a revised Explanation of 

 

5 This division’s work is farmed out to a company called OptumInsight that performs 

claims payment integrity services for United.

6 According to United, providers are given between 30 and 365 days to appeal United’s 

assessment. (Price Decl. ¶ 3.) Certain letters provide no timeline for appeal.

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Benefits (“EOB”) to the member and a similar document known as a Provider Remittance 

Advice (“PRA”) to the provider. The revised EOB notes the member’s formal remedies under 

ERISA to contest United’s reassessment. If the overpayment is identified by Benefits 

Operations, the revised EOB and PRA are sent at the same time as the initial letter seeking 

reimbursement. If the overpayment is identified by ARO, United issues the revised EOB and 

PRA at the time the provider makes voluntary repayment or when the time in which to make 

voluntary repayment expires, whichever occurs first.

In 2011, United recovered approximately $430 million in overpayments to providers. 

58% of the $430 million was recovered as a result of providers’ voluntarily sending a check to 

United, while 42% was recovered through offsets.7 (Bescwick Decl. ¶ 10.) 

C. United’s Appeals Process

Provider appeals are considered by a group of ten to twelve members of the ARO

Appeals Team.8 In addition, an ARO quality team reviews the Appeals Team’s determinations 

for accuracy and seeks to ensure that appeal resolution letters provide sufficient explanatory 

information. As with the overpayment recovery process, United will at times outsource the 

appeal process to outside vendors.

9

If a provider prevails in an appeal, United sends the provider a letter stating that United 

will no longer seek remittance. If an appeal is resolved against a provider, United sends a letter 

 

7 According to United, providers will also at times consent to remitting an overpayment to 

United via a future offset. (Bescwick Decl. ¶ 10.) 

8 The ARO Appeals Team is an entirely separate group from those that make an initial 

overpayment determination. 

9 As of 2009, those vendors may only consider first-time and second appeals of “simple 

overpayment issues.” (Price Decl. ¶ 13.) 

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to the provider stating that the provider has sixty days in which to file a subsequent appeal before

United will offset a given overpayment against future benefit claims by that provider.

10

 

According to United, in 2011, approximately 2.25% of its overpayment determinations 

were appealed. (Price Decl. ¶ 5.) Of that 2.25%, roughly two-thirds were resolved against the 

provider. (Id.) 

D. United’s Recoupment Procedures as Applied to the Named Plaintiffs of the ONET 

Repayment Demand Class

i. Tri3

Tri3 is a healthcare facility that provides durable medical equipment through its 

subsidiaries, Wabash Medical Company, LLC (“Wabash”) and Orthoflex Inc., d/b/a Integrated 

Orthopedics (“Orthoflex”), to many United plan members, on an out of network basis,

11 pursuant 

to prescriptions from the members’ health care providers. Tri3 has received numerous

repayment demands and incurred numerous offsets regarding claims for durable medical 

equipment on behalf of a number of United plan members. See (SAC ¶ 36.) 

Tri3 offers several examples where United issued notices adjusting payments for claims

downward based on past overpayments. These notices fail to indicate the basis for the 

overpayment or how to appeal United’s determination. In addition, a Tri3 corporate 

 

10 According to United, there is no limit on the number of appeals that a provider may file 

on a particular overpayment determination. Thus, the appeals process for a given overpayment 

determination may take years or even, in theory, go on forever. (Price Decl. ¶ 8.) In addition, 

providers are allowed to appeal after the designated time for appeal has expired, including at the 

time United offsets overpaid amounts against future claims. (Id. ¶ 17.)

11 From August 1, 2009 through March 4, 2010, Wabash was an in network provider with 

United. At all other times, Wabash was an out of network provider. Orthoflex was at all times 

an out of network provider. 

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representative testified that in many instances Tri3 would not receive any prior letters from 

United notifying Tri3 of an overpayment determination. See (Boyle Decl., Ex. 33 at 123.)

United, however, offers examples of letters sent to Tri3, dated March 26, 2010 and July 

2, 2009, respectively, (1) stating that Tri3 had been overpaid on one or more particular claims; 

(2) setting forth the nature of the claims and the reasons why United believed they overpaid on 

those claims; and (3) noting that Tri3 could appeal United’s determination. See (id., Exs. 37, 

40.) United also points to two instances where it sent an initial letter to Tri3, issued a revised

EOB and PRA, and ultimately offset the requested amount in overpayment from a future claim

submitted by Tri3 when it failed to respond to the initial letter. See (id. Ex. 33 at 122-124, 155.) 

In addition, United notes an instance where Tri3 submitted two appeals in response to a 

letter from United seeking reimbursement for overpayment on a claim and in fact won the 

second level appeal. See (id. Ex. 33 at 156-157, 162-163; Ex. 41.) Moreover, a Tri3 corporate 

representative admitted in deposition that, in general, if Tri3 believed that United committed a 

clerical error in assessing an overpayment, Tri3 would appeal the assessment. See (id. Ex. 33 at 

163.) 

ii. BHSC

BHSC is a licensed surgical center that offers health care services on an out of network

basis to United subscribers. Although BHSC has received multiple repayment demands from 

United, see (SAC ¶ 41), the SAC only describes a single repayment demand regarding a claim on 

behalf of a single patient, see (id. ¶ 45.) Specifically, on May 18, 2010, BHSC submitted a claim 

for reimbursement on behalf of the patient, which United paid on June 21, 2010. On August 12, 

2010, United issued a letter to BHSC stating that (1) United had overpaid the claim due to 

incorrectly calculating the patient’s coverage for the service provided; (2) BHSC was to remit the 

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overpaid amount within 45 days; (3) if BHSC did not remit the amount, United would deduct 

that amount from future claims; and (4) if BHSC did not agree with United’s determination, it 

could appeal on the patient’s behalf with signed authorization. (Boyle Decl., Ex. 10.) 

United issued a revised EOB to the plan member on August 13, 2010, and sent a PRA to 

BHSC on August 16. 2010.

12

 (Id., Exs. 11, 42.) On October 3, 2010, United sent a follow up 

letter to BHSC requesting reimbursement of the overpaid amount. (Weiswasser Decl., Ex. 9.) 

There is no indication that BHSC attempted to appeal the determination. Several months later, 

United offset the overpaid amount from future claims submitted by BHSC on behalf of other 

patients. On January 3, 2011, United issued a PRA to BHSC explaining the offset and stating

that the member, provider, or authorized representative has the right to appeal the determination. 

See (Boyle Decl., Exs. 7, 15.) 

iii. Dr. Sprandel

Dr. Sprandel, a licensed Doctor of Chiropractic, provides chiropractic services to United 

subscribers on an out of network basis.13 Dr. Sprandel received repayment demands regarding 

claims for services provided to three patients. In August 2009, United submitted initial letters 

for each overpayment stating (1) the specific claims that United deemed overpaid; (2) that those 

claims were not payable under the relevant reimbursement policy because the codes used by Dr. 

Sprandel did not correspond with the services performed in the patients’ medical records; and (3) 

that Dr. Sprandel could appeal United’s determination within thirty days. See (Boyle Decl., Exs. 

20-22.) On September 30, 2009, United sent follow up letters to Dr. Sprandel stating the same. 

 

12 United contends that both the EOB and PRA stated ERISA appeal rights. While the 

EOB sent to the patient sets forth ERISA appeal rights, see (Boyle Decl., Ex. 11), the PRA 

issued to BHSC does not, see (id, Ex. 42.)

13 Dr. Sprandel was an in network provider to United subscribers prior to 2001.

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On November 4, 2009, Dr. Sprandel submitted a formal appeal of United’s 

determinations. United subsequently issued letters denying the appeal and finding the initial 

overpayment determinations to be valid.14 Dr. Sprandel submitted a second appeal, and United 

issued a letter denying it. Dr. Sprandel did, however, prevail on one appeal. To this day, United 

has not offset or otherwise recouped the amounts that it determined were overpaid to Dr. 

Sprandel.

II. DISCUSSION

Defendants now move for reconsideration of the Court’s December 2, 2013 ruling

denying Defendants’ Motion for Summary Judgment against Dr. Sprandel as a named plaintiff of 

the ONET Repayment Demand Class. In doing so, Defendants argue that (1) the Court’s failure 

to address certain material facts merits reconsideration; and (2) under controlling law, patientassignor’s cannot have standing in the absence of an actual or certainly impending injury. 

Plaintiffs argue that neither the facts nor the controlling law that Defendants point to warrant 

reconsideration of the Court’s prior ruling.

In addition, Plaintiffs move for certification of the ONET Repayment Demand Class. In 

doing so, Plaintiffs argue that the redefined ONET Repayment Demand Class cures the defects 

noted by the Court, in its August 1, 2013 Opinion, in the previously proposed ERISA 

Recoupment Class, and otherwise satisfies the requirements of Rule 23(a). Plaintiffs further 

argue that the ONET Repayment Demand Class should be certified pursuant to Rule 23(b)(1)(A)

and (b)(2).

 

14 The letters submitted by Plaintiffs state that “[t]he details of the decision(s) are 

explained on the attached lists.” (Weiswasser Decl., Exs. 18-19.) However, Plaintiffs fail to 

attach those lists. 

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Defendants argue that the proposed ONET Repayment Demand Class fails to satisfy the 

requirements of Rule 23 because the class (1) cannot be ascertained without extensive 

individualized inquires and/or in an administratively feasible manner; (2) fails to satisfy the 

commonality, typicality, and adequacy requirement of Rule 23(a), among others; and (3) cannot 

be certified under either Rule 21(b)(1)(A) or Rule 21(b)(2).

A. United’s Motion for Reconsideration

i. Standard of Review 

“[I]t is well-established in this district that a motion for reconsideration is an extremely 

limited procedural vehicle.” Resorts Int’l v. Greate Bay Hotel & Casino, 830 F. Supp. 826, 831 

(D.N.J. 1992). As such, a party seeking reconsideration must satisfy a high burden, and must 

“rely on one of three major grounds: (1) an intervening change in controlling law; (2) the 

availability of new evidence not available previously; or (3) the need to correct clear error of law 

or prevent manifest injustice.” N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d 

Cir. 1995). 

Since the evidence relied upon in seeking reconsideration must be “newly discovered,” a 

motion for reconsideration may not be premised on legal theories that could have been 

adjudicated or evidence which was available but not presented prior to the earlier ruling. See id. 

Local Civil Rule 7.1(i), which governs such motions, provides that they shall be confined to 

“matter[s] or controlling decisions which the party believes the Judge or Magistrate Judge has 

‘overlooked.’” The word “overlooked” is the dominant term, meaning that except in cases where 

there is a need to correct a clear error or manifest injustice, “[o]nly dispositive factual matters 

and controlling decisions of law which were presented to the court but not considered on the 

original motion may be the subject of a motion for reconsideration.” Resorts Int’l, 830 F. Supp. 

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at 831; see also Egloff v. N.J. Air Nat’l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Pelham 

v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). 

A decision suffers from “clear error” only if the record cannot support the findings that 

led to that ruling. United States v. Grape, 549 F.3d 591, 603-04 (3d Cir. 2008) (citations 

omitted). Thus, a party must do more than allege that portions of a ruling were erroneous in 

order to obtain reconsideration of that ruling; it must demonstrate that (1) the holdings on which 

it bases its request were without support in the record, or (2) would result in “manifest injustice” 

if not addressed. See Grape, 549 F.3d at 603-04; N. River Ins., 52 F.3d 1218. Mere 

“disagreement with the Court’s decision” will not suffice. P. Schoenfeld Asset Mgmt., LLC v. 

Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001).

ii. The Court’s December 2, 2013 Ruling

The Court’s December 2, 2013 Opinion addressed whether the fact that Dr. Sprandel’s 

three purported patient-assignors are no longer enrolled in United-serviced ERISA plans 

deprives Dr. Sprandel of standing to seek prospective relief under ERISA, based on those patient 

assignments, on behalf of the ONET Repayment Demand Class. The Court noted that (1) 

“healthcare providers may obtain derivative standing to assert ERISA claims on behalf of their 

patients by virtue of an assignment”; (2) “through a patient assignment, a healthcare provider has 

standing to assert only those claims that its patient-assignor has standing to assert”; and (3) “for a 

healthcare provider to maintain derivative standing to assert ERISA claims on behalf of a patient, 

the patient-assignor must have standing at all stages of litigation to assert those claims.” Premier 

Health Ctr. P.C. v. UnitedHealth Grp., 2013 WL 6230423, at *4 (D.N.J. Dec. 2, 2013) (citations 

omitted). The Court therefore found that “for Dr. Sprandel to have standing to challenge 

United's overpayment recoupment procedures on behalf a patient-assignor, that patient must 

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have ‘a personal stake in the outcome of the controversy.’” Id. (quoting Summers v. Earth Island 

Inst., 555 U.S. 488, 493 (2009)). 

The Court concluded that “[a]lthough Dr. Sprandel's three patient-assignors are no longer 

enrolled in United healthcare plans, they still have a personal stake in Dr. Sprandel's challenge to 

United's procedures to recoup overpayments on their benefit claims.” Id. at *5. In doing so, the 

Court noted that “United has not rescinded its [re]payment demands with respect to their claims” 

and therefore “United may continue to seek the overpaid amounts on those patients' claims from 

Dr. Sprandel, either through voluntary repayment or offsets, and those patients will then become 

liable to Dr. Sprandel for the amounts recouped by United.” Id.

iii. Reconsideration

Defendants argue that “the factual predicate of the Court’s ruling is incorrect because 

United has publicly declared that, pursuant to its long-standing policy to mirror state law 

limitations on overpayment recoveries, the years-old repayment demands that Sprandel now 

seeks to challenge have no further operative effect.” (Def.’s Br. Reconsid. 1.) Specifically, 

Defendants point to a letter submitted by Defendants, on November 26, 2013, along with the

Declaration of Jeff Bonneville (the “Bonneville Declaration”). See (ECF No. 260-1). The 

Declaration states that Mr. Bonneville is “employed by Optum” and “familiar with United’s 

policies regarding compliance with state law in connection with overpayment recoveries.” 

(Bonneville Decl. ¶ 2.) It further states that: “[c]onsistent with United’s policy and Ohio law, 

United will not under any circumstances use the [re]payment demand letter that United sent to 

Sprandel more than two years ago, and that are referenced in [Plaintiffs’] . . . Opposition to 

United’s Motion for Summary Judgment against” Dr. Sprandel, “as the basis for, precursor to, or 

initiation of any involuntary recovery of the identified overpayments through offsets or any other 

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means.” (Id. ¶ 6.) “Accordingly, United will not be making any attempt to offset the 

overpayments to Sprandel that are identified in the Overpayment Letters,” and “United is 

unaware of any other outstanding [re]payment demand letters that were sent to Sprandel.” (Id.

¶¶ 7, 8.) 

Thus, according to Defendants, the Bonneville Declaration, which the Court failed to 

address in its prior ruling, “makes it clear that the years-stale letters that Sprandel seeks to 

challenge have not had and will never have any impact on his patient-assignors,” (Def.’s Br. 

Reconsid. 2), and, in turn, Dr. Sprandel cannot satisfy the “actual or imminent” requirement of 

Article III standing. Defendants are correct. 

“To establish Article III standing, an injury must be “concrete, particularized, and actual 

or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”

Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1147 (2013) (quotation and citation omitted).

The Clapper court recently reaffirmed that “[t]hreatened injury must be certainly impending to 

constitute injury in fact.” Id. (quotation and citations omitted) (emphasis in original). 

“[A]llegations of possible future injury are not sufficient.” Id. (quotation and citations omitted) 

(emphasis in original).

The Bonneville Declaration indeed makes clear that there is no actual or imminent injury 

to any of any of Dr. Sprandel’s three patient-assignors. None those patient-assignors is currently 

a United-insured, and United will not pursue any of the outstanding repayment demands against 

them.

15

 Thus, Dr. Sprandel lacks standing to challenge Defendants’ overpayment recoupment 

procedures under ERISA.

 

15 Plaintiffs characterize the Bonneville Declaration as “nothing more than an untested, 

unenforceable, and self-serving statement from one United employee, during litigation, about 

what United purportedly intends to do in the future.” (Pl.’s Br. Opp. Reconsid. 4.) A company 

need not submit a binding court order or statement from its CEO in order to provide competent 

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Plaintiffs contend that Defendants’ submission of the Bonneville Declaration constitutes

a failed attempt to render moot Dr. Sprandel’s claims through voluntary cessation. According to 

Plaintiffs, the Bonneville Declaration fails to satisfy the voluntary cessation standard—which 

requires a showing that “it is absolutely clear that the allegedly wrongful behavior could not 

reasonably be expected to recur,” Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t 

of Health and Human Resources, 532 U.S. 598, 609 (2001) (quotation omitted)—because it

merely amounts to “unenforceable assertions” that “neither prevent United from enforcing [the 

overpayment] demands nor give Dr. Sprandel or his patients any legal protection from future 

deprivation of their ERISA rights.” (Pl.’s Br. Opp. Reconsid. 4.) 

Plaintiffs are mistaken. Mootness under the doctrine of voluntary cessation requires that 

the defendant stop engaging in “a challenged practice.” Friends of Earth Inc. v. Laidlaw Envtl. 

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quotation omitted). The Bonneville Declaration in 

no way indicates that Defendants have altered the practices that Plaintiffs challenge in this case, 

namely the way in which Defendants notify healthcare providers of overpayment determinations 

and demand overpaid amounts. It merely states that United, pursuant to its policy and state law, 

has not pursued the repayment demands regarding Dr. Sprandel’s three patient-assignors for 

some time and will not pursue them in the future. Therefore, mootness under the voluntary 

cessation doctrine is inapplicable here.

Plaintiffs further argue that Dr. Sprandel has derivative standing under ERISA to 

challenge Defendants’ overpayment recoupment procedures because Dr. Sprandel currently 

 

evidence of that company’s conduct or policies. An affidavit of an employee with personal 

knowledge of the company’s relevant conduct and policies, submitted by the company itself, 

though counsel, under penalty of perjury, is sufficient. See Fed. R. Civ. P. 56(c)(4).

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treats a number of United-insureds who may very well be subject to those procedures in the 

future. Be that as it may, there is no indication whatsoever that Defendants have or will issue an 

overpayment notification letter to Dr. Sprandel in conjunction with a claim made on behalf of 

one or more of his current United-insured patients. See Clapper, 133 S.Ct. at 1147. Dr. Sprandel 

cannot assert derivative standing to challenge Defendants’ overpayment recoupment procedures 

on behalf of patient-assignors who neither have been subject to those procedures nor certainly

will be subject to them. Consequently, Defendants’ Motion for Reconsideration is granted. Dr. 

Sprandel’s claims in this case are dismissed.

B. Plaintiffs’ Motion for Class Certification

Class certification is proper if the Court finds that Plaintiffs satisfy all of the requirements 

of Federal Rule of Civil Procedure 23(a) and one of the provisions of Federal Rule of Civil 

Procedure 23(b). In re Constar Int’l Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009). Under 

Rule 23(a), Plaintiffs must show that:

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

[numerosity]; (2) there are questions of law or fact common to the class 

[commonality]; (3) the claims or defenses of the representative parties are typical 

of the claims or defenses of the class [typicality]; and (4) the representative parties 

will fairly and adequately protect the interests of the class [adequacy].

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

With respect to Rule 23(b), Plaintiffs seek certification under either Rule 23(b)(1)(A) or 

(b)(2). Plaintiffs may satisfy Rule 23(b)(1)(A) by showing that “prosecuting separate actions by 

or against individual class members would create a risk of . . . inconsistent or varying 

adjudications with respect to individual class members that would establish incompatible 

standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Plaintiffs 

may satisfy Rule 23(b)(2) by showing that “the party opposing the class has acted or refused to 

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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.” Fed. R. Civ. P. 23(b)(2).

i. Rule 23(a)(1) (Numerosity)

Plaintiffs contend that the ONET Repayment Demand Class satisfies the numerosity 

requirement of Rule 23(a) because it is only somewhat less numerous than the previously

proposed ERISA Recoupment Class, which the Court found to have the requisite numerosity. 

Defendants do not dispute this contention. Consequently, the proposed ONET Repayment 

Demand Class satisfies Rule 23(a)(1).

ii. Rule 23(a)(2) (Commonality)

Plaintiffs argue that the ONET Repayment Demand Class satisfies the commonality 

requirement of Rule 23(a) for the same reasons that the Court found the previously proposed

ERISA Recoupment Class to have commonality. Thus, according to Plaintiffs, all members of

the ONET Repayment Demand Class, like the ERISA Recoupment Class share (1) standing to 

pursue ERISA claims via patient assignments; (2) the contention that United’s actions to recoup 

overpayments amount to an adverse benefit determination under ERISA; and (3) the contention

that those actions are not in substantial compliance with ERISA. 

Defendants argue that the ONET Repayment Demand Class fails to satisfy the 

commonality requirement because there is substantial variation among class members regarding 

the extent to which (1) they have enforceable patient assignments to challenge United’s

overpayment recoupment procedures;16 (2) their patients’ plans have anti-assignment provisions

 

16 In their opposition brief, Defendants also maintain that “the question of standing based 

on assignments is . . . unsettled in the Third Circuit.” (Def.’s Opp. Br. Cert. 20 n. 13.) The 

Court of Appeals has recently and unequivocally ruled, however, that “health care providers may 

obtain standing to sue by assignment from a plan participant.” CardioNet, Inc. v. Cigna Health 

Corp., 751 F.3d 165, 176 n.10 (3d Cir. 2014). 

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and/or the extent to which United waived those provisions; (3) the subscriber status of their 

patient-assignors affects derivative standing under ERISA; (4) an overpayment determination 

amounts to an adverse benefit determination under ERISA; and (5) an overpayment 

determination is subject to ERISA’s notification requirements; (6) Defendants’ full course of 

communications with that provider substantially complies with ERISA; and (7) a provider 

apprised Defendants of the scope of its patient-assignment.

17

 

“Commonality requires the plaintiff to demonstrate that the class members have suffered 

the same injury” based upon “a common contention” that “is capable of classwide 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.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 

2541, 2551 (2011) (quotation omitted). Furthermore, “[w]hat matters to class certification . . . is 

not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide 

proceeding to generate common answers apt to drive the resolution of the litigation.” Id.

(quotation omitted) (emphasis in original). Consequently, “[d]issimilarities within the proposed 

class are what have the potential to impede the generation of common answers.” Id. (quotation 

omitted).

To be sure, “Rule 23(a)(2)’s commonality requirement does not require identical claims 

or facts among class member[s].” Marcus v. BMW of North Am. LLC, 687 F.3d 583, 597 (3d 

Cir. 2012) (quotation omitted). “For purposes of Rule 23(a)(2), even a single common question 

will do.” Id. (quoting Dukes, 131 S.Ct. at 2556). 

 

17 The vast majority of Defendants’ arguments against commonality were previously 

asserted in their opposition to Plaintiff’s Motion to Certify the ERISA Recoupment Class, and 

rejected by the Court in its prior ruling on that motion. See Premier Health Ctr., 292 F.R.D. at 

221-224. Nonetheless, the Court will readdress those arguments here in light of Plaintiffs’ 

redefined class and Defendants’ contention that the Court’s prior rejection of those arguments 

was clearly erroneous. 

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a. ERISA Standing from Patient Assignments 

In its prior opinion on Plaintiffs’ Motion to Certify the ERISA Recoupment Class, the 

Court found that members of that class “have standing to pursue ERISA claims challenging 

United’s procedures to recover overpayments of benefits that were assigned to the class members 

by their patients.” Premier Health Ctr., 292 F.R.D. at 221. In doing so, the Court looked to its 

previous ruling on Defendants’ Motion to Dismiss, which held, among other things, that

“assignment of the right to reimbursement ‘must logically include the ability to seek judicial 

enforcement of that right.’” Id. (quoting Premier Health, 2012 WL 1135608, at *8.) The Court 

reasoned that “United’s attempts to recover overpayments of benefits that were assigned to the 

class members have a significant effect on their right to receive those benefits” and “[t]herefore, 

the class members’ challenge to the procedures used to recover overpayments of benefits

assigned to them is a logical extension of their right to receive those benefits.” Id.

Defendants now argue that this conclusion was clearly erroneous. In doing so, they cite

to a document published by the United States Department of Labor (“DOL”), entitled 

Compliance Assistance, Group Health and Disability Plans, Benefit Claims Procedure 

Regulation (29 CFR 2560.503–1) (the “DOL Document”). The document purports to provide 

guidance regarding processing benefit claims in accordance with ERISA in a question and 

answer format.

Defendants specifically point to a question asking: “Does an ‘assignment of benefits' by a 

claimant to a healthcare provider constitute the designation of an ‘authorized representative?’ ” 

(Buffaloe Decl., Ex. 27.) The DOL document answers: “No. An assignment of benefits by a 

claimant is generally limited to assignment of the claimant's right to receive a benefit payment 

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under the terms of the plan. Typically, assignments are not a grant of authority to act on a 

claimant's behalf in pursuing and appealing a benefit determination under a plan.” (Id.)

Defendants then cite to the following language:

“[W]hen a claimant clearly designates an authorized representative to act and 

receive notices on his or her behalf with respect to a claim, the plan should, in the 

absence of a contrary direction from the claimant, direct all information and 

notifications to which the claimant is otherwise entitled to the representative 

authorized to act on the claimant's behalf with respect to that aspect of the claim 

(e.g., initial determination, request for documents, appeal, etc.). In this regard, it is 

important that both claimants and plans understand and make clear the extent to 

which an authorized representative will be acting on behalf of the claimant.

Based on this language, Defendants contend that, according to the DOL, “ERISA 

distinguishes between assignment of the right to receive payment for services rendered, on the 

one hand, and assignment of the right to pursue ERISA remedies, on the other.” (Def.’s Br. Opp. 

Mot. Cert. 22.) Defendants further contend that “DOL guidance suggests that any assignment of 

the right to sue should be limited to particular designated claims, and that their scope must be 

clearly understood by both the member and the plan.” (Id.) 

While this may be an accurate characterization of the DOL’s position, it is nonetheless 

contrary to the Court’s interpretation of the ERISA statute.

18

 The statute clearly states that an 

ERISA action may be brought “by a participant, beneficiary . . . to enjoin any act or practice 

which violates any provision of this subchapter or the terms of the plan[.]” 29 § U.S.C. 

1132(a)(3)(A). And because “[t]he term ‘beneficiary’ means a person designated by a 

 

18 To be sure, this language from the DOL Document does not carry controlling weight 

because it does not serve as an interpretation of one or more DOL regulations. See Long Island 

Care at Home, Ltd. v. Coke, 155 U.S. 158, 171 (2007) (“[A]n agency's interpretation of its own 

regulations is controlling unless plainly erroneous or inconsistent with the regulations being 

interpreted.”) (quotations and citations omitted) (emphasis added). Indeed, 29 CFR § 2560.503–

1, which the DOL Document purports to interpret, does not address healthcare provider ERISA 

standing via patient assignment.

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participant . . . who is or may become entitled to a benefit thereunder,” 29 U.S.C. § 1002(8), a 

healthcare provider who receives an assignment of benefits from a patient becomes a beneficiary 

who may bring an action under ERISA. See Kennedy v. Connecticut Gen. Life Ins. Co., 924 

F.2d 698, 700 (7th Cir. 1991) (“[D]esignat[ing]” a healthcare provider “as the person to receive” 

plan benefits . . . makes” the provider “a ‘beneficiary’” under ERISA.); Pa. Chiropractice Ass’n 

v. Blue Cross Blue Shield Ass’n, No. 09 C 5619, 2014 WL 1276585, at *11 (N.D. Ill. Mar. 28, 

2014) (“[T]he Seventh Circuit,” in Kennedy, “has made clear that an assignment of benefits from 

a plan participant to a medical provider is sufficient to enable the provider to sue under 

ERISA.”).

Defendants point to two recent decisions from this Court, Cohen v. Horizon Blue Cross 

Blue Shield of New Jersey, No. 13-3057, 2014 WL 268686 (D.N.J. Jan. 23, 2014) and MHA, 

LLC v. UnitedHealth Grp., Inc., No. 13-6130, 2014 WL 223176 (D.N.J. Jan. 21, 2014), to 

support their position that healthcare providers have standing to assert ERISA claims via 

assignment only if the assignment specifies those claims. Cohen has little relevance because it

concerned an assignment of benefits to the wrong party. See 2014 WL 268686, at *5. MHA, 

however, squarely addressed the issue at hand and held that an assignment of benefits to a 

healthcare provider “merely authorized an insurer to make payments directly to” that healthcare 

provider “and thus, is a limited assignment insufficient to confer standing” to assert ERISA 

claims. 2014 WL 223176, at *5. 

In doing so, this Court noted “compelling reasons for requiring a more comprehensive 

assignment to establish ERISA jurisdiction,” namely that, as a general matter, under New Jersey 

law, “[o]nly an assignment that clearly reflects the assignor's intent to transfer his rights will be 

effective,” and that, “as a result of a valid assignment, the assignor loses all control over the 

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subject matter of the assignment and all interest in the right assigned.” Id. at *4 (quotation 

omitted). Therefore, were a mere assignment of benefits from a patient to a healthcare provider 

to give that provider standing to assert ERISA claims, the patient would retain “no legal rights to 

pursue” the insurer “for benefits regardless of what actions it took with regard to the claims.” Id.

at *5 (quotation omitted). “In theory, under such a scenario, if [the insurer] fully rejected a valid 

claim, only [the provider] would have the legal right to pursue [the insurer], regardless of 

whether or not [the provider] balance billed the patient-insured.” Id. (quotation omitted).

This reasoning does not persuade the Court here. It is true that, under the Court’s 

interpretation, a patient who assigns his right to receive benefits for a given claim to a healthcare 

provider loses his right to press ERISA claims regarding those benefits, and that it is therefore

theoretically possible that a healthcare provider that receives a repayment demand from an 

insurer on a given claim that was assigned to that healthcare provider would simply balance bill 

the patient who is then left without recourse under ERISA. However, such a scenario is unlikely, 

as it would only serve to poison the relationship between the patient and healthcare provider and 

ultimately drive patients away. 

The more likely scenario, as in this case, is that providers would dispute overpayment 

determinations or seek relief under ERISA regarding claims assigned to them by their patients, 

because “providers . . . are better situated and financed to pursue an action for benefits owed for 

their services.” Cagle v. Bruner, 112 F.3d 1510, 1515 (11th Cir. 1997) (quotation omitted). In 

contrast, under Defendants’ desired interpretation, providers would simply balance bill their 

patients in the face of a repayment demand, leaving them to challenge that demand to avoid the 

risk of not having precise enough assignment. This would not only negatively affect the 

healthcare provider-patient relationship, but also run contrary to ERISA’s aim of efficiently 

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administering benefits. See id. (“Of course, an assignment will not facilitate a plan participant's 

or beneficiary's receipt of benefits if the plan does not pay the benefits it owes, and providerassignees are not permitted to sue on the participant's or beneficiary's behalf.”). In the 

alternative, providers may very well avoid this risk by simply refusing to accept benefit

assignments in the first place, which would also thwart ERISA’s aims. See Memorial Hosp. Sys. 

v. Northbrook Life Ins. Co., 904 F.2d 236, 247 (5th Cir. 1990) (“[D]iscouraging health care 

providers from becoming assignees would undermine Congress’ goal of enhancing employees’

health and welfare benefit coverage . . . . [S]uch assignments . . . protect beneficiaries by making 

it unnecessary for health care providers to evaluate the solvency of patients before commencing 

medical treatment, and by eliminating the necessity for beneficiaries to pay potentially large 

medical bills and await compensation from the plan.” (quotations omitted)).

This is why, as the Court of Appeals has noted, that “[a]lmost every circuit to have 

considered the question has held that a health care provider can assert a claim under § 502(a) 

where a beneficiary or participant has assigned to the provider that individual's right to benefits 

under the plan.” Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 

F.3d 393, 401 n.7 (3d Cir. 2004). And this Court has, on multiple occasions, agreed. See, e.g., 

N. Jersey Brain & Spine Ctr. v. Conn. Gen. Life Ins. Co., No. 10-4260, 2011 WL 4737067, at *5 

(D.N.J. June 30, 2011) (“[A]n assignment of a right to reimbursement logically includes the right 

to judicially enforce the reimbursement rights, and thus, creates a valid assignment under 

ERISA.” (citations omitted)); Ambulatory Surgical Ctr. of New Jersey v. Horizon Healthcare 

Servs. Inc., 2008 WL 8874292, at *3 (D.N.J. Feb. 21, 2008) (“[I]t would be illogical to allow” a 

healthcare provider “to be a valid reimbursement assignee but not allow it to judicially enforce

that right.”); Wayne Surgical Ctr. LLC v. Concentra Preferred Sys., Inc., Civil Action No. 06-

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928, 2007 WL 2416428 (D.N.J. Aug. 20, 2007) (“[I]t is illogical to recognize that,” a healthcare 

provider, “as a valid assignee has a right to receive the benefit of direct reimbursement from its 

patients’ insurers but cannot enforce this right.”). 

Defendants argue that, even if an assignment of benefits allows a healthcare provider to 

bring ERISA claims for the benefits that it was assigned, “that principle does not help Plaintiffs 

establish standing across the proposed class because Plaintiffs seek (among other things) 

declaratory and injunctive relief related to future claims for benefits that have not yet been 

assigned.” (Def.’s Br. Opp. Mot. Cert. 23.) In doing so, Defendants point to the Court’s 

previous holding that evidence of a direct payment of benefits to a healthcare provider “only 

creates the inference that the patient assigned to [the provider] the right to receive reimbursement 

for the care rendered [by the provider], not the right to assert a full array of ERISA claims.” 

Premier Health Ctr., 292 F.R.D. at 219. 

This ruling, however, was specific to where providers sought injunctive relief regarding

conduct to which their patient-assignors were not subject and might encounter only when 

seeking treatment from other providers in the future. See id. Consequently, the injunctive relief 

sought was well-outside the logical scope of those patient assignments. 

Here, however, the ONET Repayment Demand Class members’ patient-assignors were 

subject to Defendants’ overpayment recoupment procedures. Therefore, as the Court previously 

held, a “challenge to the procedures used to recover overpayments of benefits assigned to

[healthcare providers] is a logical extension of their right to receive those benefits.” Id. at 221. 

And a challenge to these procedures under ERISA may undoubtedly include declaratory and 

prospective injunctive relief against “any act or practice which violates any provision” of 

ERISA. 29 U.S.C. § 1132(a)(3)(A).

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Defendants further argue that there is no commonality in provider standing because the

ERISA plans of the ONET Repayment Demand Class members’ patient-assignors contain antiassignment clauses with varying language that would have to be scrutinized individually. In its 

prior ruling on Plaintiffs’ Motion for Class Certification, the Court found that Defendants had 

“waived any right to enforce [an] anti-assignment provision” because . . . there was evidence of

“a course of conduct beyond direct reimbursement for medical services. Id. Specifically, “each 

member of the ERISA Recoupment Class by definition received (1) a direct payment from 

United in response to a claim for benefits; and (2) one or more letters from United indicating that 

it had overpaid that claim and demanding reimbursement of the amount that was overpaid 

directly to United.” Id.

Defendants now argue that, even accepting this prior ruling, one would nonetheless have 

to “scrutinize the language of each plan to determine whether United’s conduct was actually 

inconsistent” with a given anti-assignment provision. (Def.’s Opp. Mot. Cert. 24.) In doing so, 

Defendants point to anti-assignment provisions that, in their view, “both expressly bar members 

from assigning their benefits to non-network providers, and simultaneously state that United 

reserves the right to pay non-network providers directly as a matter of convenience.” (Id.) 

Therefore, according to Defendants, “United’s direct payment to a non-network provider under 

such a plan would not repudiate the express language of the plan’s anti-assignment clause, nor 

would any attempt by United to recover a direct payment made erroneously to the provider.” 

(Id.) 

Defendants are correct that a direct payment of benefits to a non-network provider and a 

subsequent repayment demand for all or some of those benefits is completely consistent with the 

language of United’s anti-assignment provisions in this case. Unfortunately, it adds nothing to 

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their position. The relevant language of the anti-assignment provisions reads as follows: “You 

may not assign your Benefits under the Policy to a non-Network provider without our consent. 

We may, however, in our discretion, pay a non-Network provider directly for services rendered 

to you.” (ECF No. 146-50 at 91-92.) 

This language merely makes clear that United may, in its discretion, unilaterally waive 

the anti-assignment provision and pay benefits directly to the provider. Thus, whether United, in 

accordance with, or in spite of, an anti-assignment provision, (1) issued a direct payment to a 

provider in response to a claim for benefits; and (2) issued one or more subsequent repayment 

demands directly to the provider regarding that claim for benefits, the contention that United 

waived its right to assert an anti-assignment provision is subject to common proof. See Dukes, 

131 S.Ct. at 2551.

Finally, Defendants argue that the subscriber status of the ONET Repayment Demand 

Class members’ patient-assignors creates individual standing issues because the class seeks

declaratory and injunctive relief regarding future repayment demands on benefit claims that have 

yet to be submitted on behalf of other United-insureds in the future. Therefore, according to 

Defendants, the Court would have to examine the subscriber status of the class members’ 

patient-assignors because “[p]atients who are not currently members of plans insured or 

administered by United . . . do not have statutory or constitutional standing to bring claims 

against United seeking forward-looking relief.” (Def.’s Br. Opp. Cert. 25.) 

This argument is a red herring. While the patient-assignors who are no longer Unitedinsureds may not submit future benefit claims to United that would be subject to future 

repayment demands, the fact remains that there are pending repayment demands regarding 

claims while they were United-insureds. Thus, in challenging United’s overpayment recoupment 

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procedures, those patient-assignors would necessarily seek prospective relief because the 

repayment demands on their claims have yet to be resolved.19 That such relief may also apply to

benefit claims of other United-insureds is of no moment, as it would not in any way restrict those 

individuals’ rights or ability to sue under ERISA. Consequently, the ONET Repayment Demand 

Class satisfies Rule 23(a)’s commonality requirement as to its standing to pursue ERISA claims. 

b. Overpayment Determination as an Adverse Benefit Determination

Under ERISA, an ‘“adverse benefit determination’ means any of the following: a denial, 

reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a 

benefit. . .” 29 C.F.R. § 2560.503-1(m)(4). If an insurer makes an adverse benefit determination 

(“ABD”) under an ERISA plan, a member or beneficiary of that plan is entitled to certain rights 

under ERISA, including (1) sufficient notice of the ABD; (2) the right to an appeal the ABD; and 

(3) a full and fair review of the appeal. See 29 C.F.R. § 2560.503-1(g)-(h). 

Plaintiffs argue that, as a matter of law, an overpayment determination on a claim for 

benefits, on an out of network basis, amounts to an ABD under ERISA. Consequently, 

according to Plaintiffs, whether United’s overpayment determinations against members of the

ONET Repayment Demand Class merit ERISA protections in challenging those determinations 

is a common question. Defendants, on the other hand, contend that an overpayment 

determination amounts to an ABD only if the determination requires an application of ERISA 

plan terms. Thus, according to Defendants, whether an overpayment determination constitutes 

an ABD under ERISA is not a common question because many class members are subject to 

 

19 Indeed, the general remedy for failing to comply with ERISA’s statutory and regulatory 

requirements “is to remand to the plan administrator so the claimant gets the benefit of a full and 

fair review,” Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir. 2000), which is by nature 

prospective.

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third-party wrap or leased network contracts that determine the terms of a provider’s 

reimbursement. 

As the Court previously held, “ERISA does not extend to overpayment determinations 

against providers for services rendered on an in network basis because payment for those 

services is determined by the terms of the contract between United and the provider, not the 

terms of the patient's ERISA plan.” Premier Health Ctr., 219 F.R.D. at 223. Thus, an

overpayment determination concerning services that are subject to any network agreement

indeed does not amount to an ABD under ERISA. But this does not present a commonality issue 

with respect to the ONET Repayment Demand Class because the class does not include ERISA 

claims against overpayment determinations concerning services rendered on an in network basis.

Defendants further argue that many overpayment disputes regarding whether a provider 

in fact performed a service for which it billed an insurer arise under state law fraud, as opposed 

to ERISA. The Court addressed and rejected this precise argument when it was asserted against 

the ERISA Recoupment Class. In doing so, the Court found that “[w]hile an insurer's cause of 

action against a provider in court for fraud often does not implicate ERISA . . . the administrative 

procedure by which an insurer attempts to recoup overpayments based on what it believes to be 

fraudulent activity must allow the provider the opportunity to challenge that determination in 

accordance with ERISA procedures, lest the determination be accepted at face value.” Id.

Defendants contend that this finding was incorrect because “[i]t cannot be the case that a 

letter United sent to the provider prior to filing the lawsuit attempting to resolve the very same 

dispute would have any greater ERISA implications.” (Def.’s Br. Opp. Cert. 28 n.16) (emphasis 

omitted). Oh, but it can! The letter alleging fraud as the basis for an overpayment determination

implicates ERISA because the basis for such a demand cannot be accepted at face value, see

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Aetna Health Inc. v. Davila, 542 U.S. 200, 214 (2004), and therefore the provider must be given 

an opportunity to dispute the demand in accordance with ERISA. Indeed, whether a provider is 

afforded ERISA protections cannot be left entirely up to the insurer.

On the other hand, a lawsuit alleging that a provider submitted one or more fraudulent 

claims to an insurer gives the provider the opportunity to challenge those allegations in court, 

according to the federal or applicable state rules of civil procedure. And in doing so, the 

provider has the opportunity to show that the alleged fraud claim is, as a matter of law, an 

ERISA claim that is preempted by the statute.

Defendants similarly argue that resolution of many overpayment disputes other than 

fraud also do not require application of ERISA plan terms, including “where a benefit payment 

was erroneously sent to the wrong provider, or where United erroneously sent a duplicate 

payment for the full amount submitted on a single claim.” (Def.’s Opp. Mot. Cert., 28.) The 

Court also addressed and rejected this argument when Defendants asserted it against certification 

of the ERISA Recoupment Class. 

In doing so, the Court found that “requiring a threshold level of plan interpretation”

would “undermine ERISA's goal of providing a uniform source of law,” and “prove unwieldy 

because it is often difficult to determine early on how much plan interpretation is required to 

resolve a benefits dispute.” Premier Health Ctr., 292 F.R.D. at 223 (quotations and citations 

omitted). The Court further found that virtually any overpayment determination “would . . . 

require a court to analyze the terms of a given plan to find the appropriate payment for a 

particular service,” and “to not consider the terms of the plan, even in seemingly clear-cut 

circumstances of overpayment, would be to accept the insurer's overpayment determination at 

face value.” Id. (citation omitted). Seeing as how the Court’s prior reasoning applies with equal 

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force to the ONET Repayment Demand Class, the Court sees no reason to accept Defendants’ 

identical argument here.

Defendants next argue that only those overpayment determinations that adversely affect a 

submitted claim amounts to an ABD. In doing so, they note that ERISA “claims regulation 

applies only to adverse benefit determinations.” (Def.’s Br. Opp. Cert. 29) (citing 29 C.F.R. §

2560-503.1(f)(2)(iii)(B)) (emphasis in original). They further note that an ABD must be tied to a 

specific claim for benefits that was submitted to the insurer. (Id.) (citing 29 C.F.R. § 2560-

503.1(m)(2), (3)). Therefore, according to Defendants, “where United seeks to recover an

overpayment because no claim was ever submitted by the provider who received the payment, or 

where United paid a single submitted claim in full, but accidentally did so twice, that effort can 

in no sense be considered to involve an adverse determination of a submitted claim for benefits.” 

(Id.) (citation omitted).

As Plaintiff’s point out, “[t]his argument is just a different version of Defendants’ 

‘overpayment reason’ argument and fails for the same reason, i.e., it would require accept[ing] 

the insurer’s overpayment determination at face value.” (Pl.’s Rep. Br. Cert. 21) (quotation 

omitted). Furthermore, the Court finds Defendants’ interpretation of the provisions they 

reference to be strained. 29 C.F.R. § 2560-503.1(m)(2) and (3) merely define pre and postservice claims, respectively. In no way do those provisions suggest that an adverse benefit 

determination must be tied to a pre or post-service claim. Indeed, an ABD is defined as “a 

denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) 

for, a benefit,” 29 C.F.R. § 2560-503.1(m)(4), not a denial, reduction, or termination of a claim

for benefits. Therefore, while a repayment demand based on a mistaken payment for a claim that 

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was never submitted may not technically be in response to a claim for benefits, it is nonetheless a 

denial or termination of a previously paid benefit.

Finally, Defendants argue that ERISA does not apply to overpayment determinations that 

do not have an adverse financial impact on the plan member. Defendants cite to a section of the

aforementioned DOL Document stating that ERISA claims procedures do “not apply to requests 

by health care providers for payments due them—rather than due the claimant—in accordance 

with contractual arrangements between the provider and an insurer or managed care 

organization, where the provider has no recourse against the claimant for amounts, in whole or in 

part, not paid by the insurer or managed care organization.” (Buffaloe Decl., Ex. G.) 

Consequently, “[a]ny request by the doctor to the managed care organization for payment or 

reimbursement for services rendered to a participant is a request made under the contract with 

the managed care organization, not the group health plan; accordingly, the doctor’s request is not 

a claim for benefits governed by the regulation. On the other hand, where a claimant may 

request payments for medical services from a plan, but the medical provider will continue to 

have recourse against the claimant for amounts unpaid by the plan, the request, whether made by 

the claimant or by the medical provider (e.g., in the case of an assignment of benefits by the 

claimant) would constitute a claim for benefits by the claimant.” (Id.) 

Defendants suggest that the Court previously found this language to be “misguided.” 

(Def.’s Br. Opp. Cert. 30.) But this is not so. What the Court found misguided was Defendants’ 

contention that this language made clear that the reason for an overpayment determination, stated 

by an insurer in a repayment demand letter, determines whether the patient will ultimately be 

financially liable to the provider. The Court rejected this contention, as previously discussed, 

because it would result in an unwieldy and illogical standard that ultimately requires the Court to 

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accept the insurer’s stated reason for an overpayment at face value. See Premier Health Ctr., 292 

F.R.D. at 223.

Defendants provide no reason why this ruling would not apply with equal force to the 

ONET Repayment Demand Class, nor does the Court see any such reason. Furthermore, this 

ruling is wholly consistent with the aforementioned language from the DOL document, which, in 

the Court’s view, makes clear that ERISA claims procedures do not apply to payment disputes 

that are determined by the terms of a separate agreement between the provider and the insurer, 

and under which the provider is barred from balance billing the insurer. As previously 

discussed, overpayment disputes concerning services performed on an in network basis are not 

subject to ERISA because they are resolved under terms of the provider’s network contract. The 

ONET Repayment Demand Class, however, consists only of providers that are asserting claims 

concerning services that are not subject to any separate payment agreements with United, 

including third-party network agreements. Therefore, the ONET Repayment Demand Class 

satisfies Rule 23(a)'s commonality requirement with respect to whether an overpayment 

determination against a provider for out of network services amounts to an ABD under ERISA.

c. United’s Compliance with ERISA Requirements

As previously discussed, if an insurer makes an ABD under an ERISA plan, a member or 

beneficiary of that plan is entitled to certain rights under ERISA, including (1) sufficient notice

of the ABD; (2) the right to appeal the ABD; and (3) a full and fair review of the appeal. See 29 

C.F.R. § 2560.503-1(g)-(h). “An administrator need only ‘substantially comply’ with the 

foregoing regulation.” Kao v. Aetna Life Ins. Co., 647 F. Supp. 2d 397, 412 (D.N.J. 2009) 

(citations omitted). 

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Defendants argue that assessing substantial compliance with these requirements is not 

subject to common proof because it would require examining the full course of communications 

between United and a given provider. In its prior ruling regarding certification of the ERISA 

Recoupment Class, the Court found that:

The content of United's recoupment notification letters does, in fact, vary 

substantially. The letters in the record provide widely varying levels of detail 

regarding (1) the basis of the overpayment determination; and (2) the provider's 

ability to appeal and how to do so. However, they all violate ERISA in three 

respects. First, they fail to provide “[a] description of the plan's review procedures 

and the time limits applicable to such procedures, including a statement of the 

claimant's right to bring a civil action under section 502(a) of [ERISA] following 

an adverse benefit determination on review.” 29 C.F.R. § 2560.503–1(g)(1)(iv). 

Second, they fail to indicate that the provider, “upon request and free of charge, 

[will have] reasonable access to, and copies of, all documents, records, and other 

information relevant to the” overpayment determination. 29 C.F.R. § 2560.503–

1(h)(2)(ii). Third, they fail to “[p]rovide claimants at least 180 days following 

receipt of a notification of an adverse benefit determination within which to appeal 

the determination.” 29 C.F.R. § 2560.503–1(h)(3)(i).

Premier Health Ctr., 292 F.R.D. at 224 (citations omitted). 

Defendants fail to provide any evidence whatsoever that United substantially 

complied with the three aforementioned ERISA regulations—that the Court found United 

to have violated across all overpayment notifications—during the course of their 

communications with one or more members of the ONET Repayment Demand Class.20 

 

20 Defendants argue that the Court’s previous ruling “determined that the extent of 

United’s compliance with ABD requirements in its overpayment communications is inherently 

claim-specific and individualized.” (Def.’s Br. Cert. 32.) In doing so, they point to language 

stating that “the nature of United's compliance with ERISA's notice and appeal regulations [is] a 

predominantly individual inquiry,” and “assessing United's overpayment recoupment procedures 

across the class would indicate varying levels of compliance with ERISA.” Premier Health Ctr., 

292 F.R.D. at 229. That language, however, was made in the context of assessing whether 

common questions would predominate over individual questions of ERISA compliance, in 

accordance with Rule 23(b)(3). Surely Defendants are aware of the critical differences between 

a commonality inquiry, pursuant to Rule 23(a), and a predominance inquiry, pursuant to Rule 

23(b)(3).

Defendants also point out that certain members of the ONET Repayment Demand Class, 

including Tri3 and BHSC, pursued successful appeals in the face of repayment demands. As the 

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Thus, the Court’s prior ruling applies with equal force to the ONET Repayment Demand 

Class. 

Defendants further argue that ERISA compliance is an individual inquiry because 

United is required to substantially comply with ERISA regulations only when a class 

member apprises United of an assignment so that United knows that the class member is 

entitled to ERISA-compliant notice. Therefore, Defendants maintain that they have “a 

unique defense that [United] provided fully ERISA-compliant notice to the only party it 

had reason to know was entitled to it—the member.” (Def.’s Br. Opp. Cert. 33.)

This argument follows the same logic as Defendants’ anti-assignment argument

and fails for precisely the same reasons. As previously discussed, United issued to each 

class member (1) a direct payment of benefits; and (2) one or more demands seeking a 

direct repayment of some or all of those benefits from that class member. Thus, just as 

United has waived any defense based on a provision barring an assignment of those 

benefits to a class member, United has similarly waived any defense asserting that it had 

no notice of an assignment of those benefits to a class member. Consequently, the ONET 

Repayment Demand Class satisfies Rule 23(a)'s commonality requirement with respect to 

whether United's notification letters comply with ERISA.

iii. Rule 23(a)(3) (Typicality)

Typicality requires that “the claims or defenses of the representative parties are typical of 

the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). This requirement “ensure[es] that 

 

Court previously held, however, “[t]he fact that certain class members appealed one or more of 

United's overpayment determinations does not defeat commonality in this regard. United's 

notice and appeal process stands in violation of ERISA as a matter of law, whether or not a 

provider appeals.” Premier Health Ctr., 292 F.R.D. at 224.

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the class representatives are sufficiently similar to the rest of the class—in terms of their legal 

claims, factual circumstances, and stake in the litigation—so that certifying those individuals to 

represent the class will be fair to the rest of the proposed class.” In re Schering Plough Corp. 

ERISA Litig., 589 F.3d 585, 598 (3d Cir. 2009) (citations omitted). 

In ascertaining typicality, the Court must consider three factors. First, it must consider 

“the similarity of the legal theory and legal claims[.]” Id. “The similarity between claims or 

defenses of the representative and those of the class does not have to be perfect.” Id. at 599.

However, “the incentives of the plaintiffs [must be] aligned with those of the class.” Id. 

Second, the Court must consider “the similarity of the individual circumstances on which 

those theories and claims are based.” Id. at 598. This “requires the claims and defenses of the 

representative to be sufficiently similar not just in terms of their legal form, but also in terms of 

their factual basis and support.” Id. at 599. “However, factual differences between the proposed 

representative and other members of the class do not render the representative atypical if the 

claim arises from the same event or practice or course of conduct that gives rise to the claims of 

the class members.” Id. (quotation omitted). “Complete factual similarity is not required; just 

enough factual similarity so that maintaining the class action is reasonably economical and the 

interests of the other class members will be fairly and adequately protected in their absence.” Id.

(citation omitted).

Third, the Court must consider “the extent to which the proposed representative may face 

significant unique or atypical defenses to her claims.” Id. at 598-99 (citation omitted). “It is 

well established that a proposed class representative is not ‘typical’ under Rule 23(a)(3) if the 

representative is subject to a unique defense that is likely to become a major focus of the 

litigation.” Id. at 599 (quotation omitted). “[T]he challenge presented by a defense unique to a 

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class representative is that 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.” Id. (quotation omitted).

In its previous ruling denying certification of the ERISA Recoupment Class, the Court 

found that that class failed to satisfy Rule 23(a)’s typicality requirement because “United 

recovers a substantial portion of repayment dollars through voluntary repayments, while none of 

the named plaintiffs submitted a voluntary repayment in response an overpayment 

determination.” Premier Health, 292 F.R.D. at 226. Therefore, the claims of the named 

plaintiffs were “atypical of the class as a whole because resolution of those claims will not 

address a defense that may well apply to a significant portion of the class, thus unfairly depriving 

Defendants of the opportunity to raise it.” Id. at 226-27.

Plaintiffs argue that the ONET Repayment Demand Class cures this deficiency by 

excising those members of the ERISA Recoupment Class that submitted any repayment or 

incurred any offset. Therefore, according to Plaintiffs, the voluntary repayment defense will not 

apply to any member of the ONET Repayment Demand Class. 

Defendants argue that the ONET Repayment Demand Class does not satisfy Rule 23(a)’s 

typicality requirement because excising all providers that submitted any repayment or incurred 

any offset renders the named Plaintiffs atypical of the class and/or outside the class definition.21

Specifically, Defendants note that the single repayment demand noted in the SAC against which

BHSC seeks to assert an ERISA claim in this case was resolved through an involuntary offset. 

Therefore, Defendants are correct that BHSC cannot serve as a named plaintiff of the ONET 

 

21 The Court will address typicality as to BHSC and Tri3, but not Dr. Sprandel because, 

as previously discussed, Defendants are entitled to summary judgment against Dr. Sprandel as a 

named Plaintiff of the ONET Repayment Demand Class. 

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Repayment Demand Class on the basis of that repayment demand, because BHSC’s single claim 

would be atypical of the class as a whole and indeed falls outside the class definition.

Defendants also contend, correctly, that the repayment demands against Tri3 specified in 

the SAC resulted either in involuntary offsets, see SAC ¶¶ 37, 38, which fall outside the class 

definition, or in United unilaterally terminating the repayment demand due to the passage of 

time, in accordance with state law and its internal policies, see (Dorr. Decl. ¶ 4, 5), which renders 

Tri3 without standing to assert ERISA claims against those repayment demands. Therefore, Tri3 

similarly cannot serve as a named plaintiff of the ONET Repayment Demand Class on the basis 

of those repayment demands.

To be sure, the SAC makes clear that both BHSC and Tri3 received other repayment

demands from United against which they seek to assert ERISA claims. It may very well be that 

one or more of those repayment demands are active and unresolved. However, Plaintiffs fail to 

provide any evidence of any such demands, and the Court cannot simply assume that one or 

more exists in order to find that BHSC’s and/or Tri3’s ERISA claims are typical of the class as a

whole. 

In general, this defect would result in an outright denial of Plaintiffs’ Motion for Class

Certification. However, because the ONET Repayment Demand Class otherwise satisfies the 

requirements of class certification, the Court will afford Plaintiffs the opportunity to present 

evidence that BHSC and/or Tri3 seeks an ERISA claim against one or more active, unresolved

repayment demands that fit within the definition of the ONET Repayment Demand Class. If 

Plaintiffs fail do so, they will not satisfy Rule 23(a)’s typicality requirement and certification will 

be denied. 

iv. Rule 23(a)(4) (Adequacy)

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Adequacy requires that “the representative parties will fairly and adequately protect the 

interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequacy inquiry has two components 

designed to ensure that absentees’ interests are fully pursued.” In re Schering Plough, 589 F.3d 

at 601-02 (quotation omitted). “First, the adequacy inquiry tests the qualifications of the counsel 

to represent the class.” Id. at 602 (quotation omitted). 

“The second component of the adequacy inquiry seeks to uncover conflicts of interest 

between named parties and the class they seek to represent.” Id. (quotation omitted). “There are 

clear similarities between the components of the typicality inquiry relating to the absence of 

unique defenses and alignment of interests, and this second part of the adequacy inquiry that 

focuses on possible conflicts of interest.” Id. “Because of the similarity of [the typicality and 

adequacy] inquiries, certain questions—like whether a unique defense should defeat class 

certification—are relevant under both.” Id. (quotation omitted).

Here, as with typicality, that none of the named plaintiffs of the ONET Repayment 

Demand Class asserts an ERISA claim against one or more specified active, unresolved 

repayment demands—while class membership, by definition, requires one or more active, 

unresolved repayment demands—defeats adequacy because the named plaintiffs will not 

adequately represent the interests of the class as a whole, one of which is to avoid entirely the 

issue of voluntary repayment or offset. 

However, because the same evidence will satisfy both the typicality and adequacy 

requirements of Rule 23(a), the Court will afford Plaintiffs the opportunity to present evidence 

that BHSC and/or Tri3 seeks an ERISA claim against one or more active, unresolved repayment 

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demands that fit within the definition of the ONET Repayment Demand Class. If Plaintiffs fail 

do so, they will not satisfy Rule 23(a)’s typicality requirement and certification will be denied.

22

v. Rule 23’s Ascertainability Requirement

In addition to Rule 23’s explicit requirements, “courts have grafted on to it two additional 

criteria, often referred to as the ‘implicit requirements’ of class certification: that the class be 

‘definite’ or ‘ascertainable’ and that the class representative be a member of the class.”23 

Newberg on Class Actions § 3:1 (5th ed.); see also Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d 

Cir. 2013) (“Class ascertainability is an essential prerequisite of a class action, at least with

 

22 Defendants also argue that Plaintiffs’ counsel is unqualified to represent the ONET 

Repayment Demand Class due to the nature of a Class Action Complaint recently filed by 

Plaintiffs’ counsel in Peterson et al. v. UnitedHealth Group, Inc. et al., No. 14-cv-02101 (D. 

Minn. June 23, 2014). The Peterson Complaint, in effect, sets forth the identical claims asserted 

by the ONET Offset Class that the Court previously struck in this case, namely that an 

involuntary offset amounts to an ABD that is separate and distinct from the corresponding 

repayment demand.

According to Defendants, the respective legal theories set forth in this case and the 

Peterson case are mutually exclusive. Therefore, Defendants contend that Plaintiffs’ counsel 

cannot adequately represent the interests of both classes because to advocate for one class is to 

detract from the other. Defendants further contend that Plaintiffs’ counsel will in all likelihood 

advocate more for the class in the Peterson case because that class seeks monetary relief whereas 

the ONET Repayment Demand Class does not. 

While the Court questioned whether these two classes could pragmatically co-exist in the 

same action, see Premier Health Ctr. P.C. v. UnitedHealth Grp., No. 11-425, 2013 WL 6145652, 

at *4 n.6 (D.N.J. Nov. 20, 2013), it fails to see how their respective legal theories are, as a matter 

of law, diametrically opposed to the point where pressing one theory in a lawsuit detracts from 

the other theory in an entirely separate lawsuit. And while it is true that the Peterson class seeks 

monetary relief while the ONET Repayment Demand Class does not, there is no indication 

whatsoever that Plaintiffs’ counsel has not advocated vigorously and admirably in favor of the 

ONET Repayment Demand Class.

23 As previously discussed, the named plaintiffs of the ONET Repayment Demand Class 

will have failed to satisfy Rule 23(a)’s typicality and adequacy requirements unless they provide

specific evidence that either BHSC or Tri3 seeks ERISA claims against one or more active, 

outstanding repayment demands. Similarly, absent that same evidence, the class will have failed

to satisfy the second prong of the ascertainability requirement—that the class representatives be

member of the class—because the repayment demands specified in SAC regarding BHSC and 

Tri3 do not fall within the scope of the class definition.

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respect to actions under Rule 23(b)(3).” (quotation omitted)).

24 Ascertainability means that “the 

class must be currently and readily ascertainable based on objective criteria.” Marcus v. BMW 

of North Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012) (citations omitted). “If class members are 

impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a 

class action is inappropriate.” Id. 

“The ascertainability requirement serves several important objectives.” Id. For example,

“it eliminates serious administrative burdens that are incongruous with the efficiencies expected 

in a class action by insisting on the easy identification of class members.” Id. (quotation 

omitted). It also “protects defendants by ensuring that those persons who will be bound by the 

final judgment are clearly identifiable.” Id. (citation omitted). 

Defendants argue that the ONET Repayment Demand Class is not readily ascertainable. 

In doing so, they contend that (1) complex, individualized, factual inquiries are required to 

determine which class members are subject to a voluntary payment defense; (2) limiting the class 

to out of network providers would not excise all providers that are subject to arbitration 

provisions; and (3) out of network providers cannot be determined through administratively 

feasible means.

a. Determining who is subject to a voluntary payment defense

“It long has been the general common-law rule that where a party, without mistake of 

fact, fraud, duress, or extortion, voluntarily pays money on a demand that is not enforceable 

against him, he may not recover it.” Continental Trailaways, Inc. v. Director, Div. of Motor 

 

24 Although Plaintiffs do not seek certification of a Rule 23(b)(3) class here, the Court 

finds the ascertainability inquiry to be applicable to certification of the ONET Repayment 

Demand Class, because part of the relief sought—a remand of all outstanding repayment 

demands and reissuing those demands in accordance with ERISA—would require identifying 

individual class members that have active, unresolved repayment demands.

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Vehicles, 102 N.J. 526, 548 (1986) (citations omitted); see also King v. First Capital Fin. Servs. 

Corp., 828 N.E.2d 155, 1170 (Ill. 2005) (“It has been a universally recognized rule that money 

voluntarily paid under a claim of right to the payment and with knowledge of the facts by the 

person making the payment cannot be recovered back on the ground that the claim was illegal.”).

Defendants argue that (1) determining whether a provider had knowledge of the facts 

surrounding a repayment demand requires an individualized examination of United’s repayment 

demand letters; (2) determining which providers affirmatively authorized offsets requires an 

individualized examination of provider letters, United’s internal records of provider telephone 

calls, and the records kept by providers; and (3) determining which providers voluntarily paid 

United by check requires an individualized examination of all correspondence accompanying 

refunds. 

These arguments are red herrings. The ONET Repayment Demand Class excludes not

only those repayment demands from the previously proposed ERISA Recoupment Class that 

were resolved through voluntary payments or voluntarily authorized offsets; it excludes those 

that were resolved through any payment or offset, whether voluntary or involuntary.25

 

25 It is true that Plaintiffs’ initial definition of the ONET Repayment Demand Class, in its 

opening brief, by itself, strongly suggests that it includes overpayment determinations that were 

resolved through involuntary payments or offsets. See (Pl.’s Br. Cert. 3.) (“Excluded from this 

class are all providers who voluntarily paid United in response to United’s repayment demand or 

affirmatively authorized subsequent recoupments or offsets as a means to repay the alleged 

overpayments.”). However, when assessed in conjunction with the simultaneously proposed 

ONET Offset Class, it is clear that Plaintiffs did not intend to include repayment demands that 

were resolved through involuntary payments or offsets. Moreover, in responding to Defendants’ 

previous interrogatory seeking clarification on the precise definition of the ONET Repayment 

Demand Class, Plaintiffs responded that the relief sought would apply only to “new and 

presently pending repayment demands,” (Meyer Decl., Ex. A), further confirming that the ONET 

Repayment Demand Class intended to exclude repayment demands that were resolved through 

any repayment or offset, not just those that were voluntary. Nonetheless, it is paramount that 

classes are defined explicitly and precisely. Therefore, the Court will accept the Plaintiffs’ 

clarified definition of the ONET Repayment Demand Class set forth in their reply brief, which 

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Therefore, in identifying members of the ONET Repayment Demand Class, there is no need to 

determine the particular circumstances surrounding a repayment or offset.26

Plaintiffs provide evidence that pending, unresolved repayment demands are readily 

identifiable. As previously noted, three separate divisions within United conduct post-payment 

audits and pursue overpayment recoveries: Benefits Operations, ARO, and PAS. “All 

overpayments pursued by ARO are loaded into the ODAR database.” (Beswick Decl. ¶ 3.) 

“Overpayments that are identified by Benefit Operations but not loaded into ODAR are not 

actively pursued by any recovery personnel.” (Id. ¶ 6.) “Overpayments that are identified by 

Benefit Operations or by ARO that are loaded into ODAR are actively pursued by ARO's 

recovery team.” (Id. ¶ 7.) “When Benefits Operations identifies an overpayment, it 

contemporaneously adjusts the claim, creates a line for the overpayment in the claims system 

that feeds to the Overpayment Tracking System ("OTS"),” and “issues a letter to the provider 

requesting a refund[.]” (Id. ¶ 5.) Similarly, if “the overpayment is one that was initially 

identified by ARO, the CRT team readjudicates the claim, creates a line for the overpayment in 

the claims system that feeds to the OTS.” (Id. ¶ 7.) Premium Audit Services (“PAS”) uses 

similar techniques as ARO to identify overpayments made to institutional providers such as 

hospitals. 

Thus, it is clear that United keeps track of its overpayment determinations and repayment

demands in certain databases and a simple search or review of these databases used by ARO and 

 

states that the class does not include repayment demands that were “resolved by payment, offset, 

or otherwise.” (Pl.’s Rep. Br. Cert. 5.) 

26 To be sure, a provider may have received multiple repayment demands and submitted 

payments or incurred offsets in response to certain demands, but not others. In such cases, the 

provider may serve as a class member only with respect to the outstanding repayment demands.

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Benefits Operations, and the analogous ones used by PAS, would reveal those repayment 

demands that have been satisfied and those that are outstanding. Indeed, it would be hard to 

fathom that a health insurance company that puts significant resources into identifying and 

recouping benefit overpayments would be unable to readily identify repayment demands have 

been resolved through either payment, offset, or otherwise, and those that are outstanding.27

In their sur-reply, Defendants do not dispute that their databases may readily identify and 

distinguish outstanding repayment demands. However, they argue that a class definition that 

excludes all repayments and offsets, whether voluntary or not, does not render the voluntary 

repayment defense inapplicable because United receives numerous repayments and executes 

both voluntary and involuntary offsets on a daily basis. As a result, “every day between the date 

of certification”—Plaintiffs’ suggested date for determining whether a repayment demand is 

outstanding—“and the date of trial, more and more of the claims included in the revised class 

would be resolved outside the litigation through voluntary payments.” (Def.’s Br. Sur-Rep. Cert. 

3.) According to Defendants, the ONET Repayment Demand Class would therefore not be 

readily ascertainable because identifying the class members will necessarily require an 

individualized inquiry to determine which of those repayments and offsets between the date of 

certification and trial are, as a matter of law, voluntary. 

This is a problem. However, there is a solution, and it lies in a modification of the scope 

of injunctive relief sought by the ONET Repayment Demand Class. In order to properly

 

27 Moreover, in reviewing its databases, United is able to readily identify the percentage 

of overpayment dollars in a given year that came from in network and out of network providers, 

respectively, see (Beswick Decl. ¶ 9); individual and institutional providers, respectively, see

(id.); and voluntary payments via check and offsets, respectively, see (id. ¶ 10.) Identifying 

which repayment demands have been satisfied and which are outstanding would seem a lesser 

task.

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implement the injunction sought by Plaintiffs compelling United to reissue outstanding 

repayment demands that comply with ERISA, there must be a point at which United is barred 

from accepting a repayment or executing an offset with respect to its outstanding repayment 

demands. Otherwise it will be impossible to apply the injunction across the class at any point

due to the high risk of contemporaneous repayments or offsets. Thus, any future injunction 

against United in this case will include a provision barring United from accepting any repayment 

or executing any offset with respect to any repayment demand, as of the date of final judgment.28 

Accordingly, the ONET Repayment Demand Class will be ascertainable at that time. See

Newberg on Class Actions § 3:3 (5th ed.) (“[T]he court need not know the identity of each class 

member before certification; ascertainability requires only that the court be able to identify class 

members at some stage of the proceeding.”).

b. Determining who is subject to arbitration provisions

Defendants argue that determining which members of the ONET Repayment Demand 

Class are subject to arbitration provisions that would bar their claims here is an individualized 

inquiry because many providers that United issues payment to on an out of network basis are 

also participants in certain “wrap networks” that often contain arbitration provisions covering 

payment disputes with United. As a result, according to Defendants, “[i]f a claim was submitted 

by a provider pursuant to a wrap network agreement, the provider’s contract with the wrap 

 

28 While Plaintiffs did not specifically request this provision, “[a] district court enjoys 

ample latitude to fashion an injunction appropriate to the facts before it.” 19 Fed. Proc., L. Ed. § 

47:5; see also Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 806 (2d Cir. 

1981) (“It is well settled that the district court's equity jurisdiction empowers it ‘to mold each 

decree to the necessities of the particular case.’” (quoting Hecht Co. v. Bowles, 321 U.S. 321, 

329 (1944)).

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network would need to be individually examined to determine whether it contains an arbitration 

clause that applies to the provider’s putative ERISA claim.” (Def.’s Br. Opp. Cert. 16.) 

This argument is irrelevant because, as previously discussed, the ONET Repayment 

Demand Class excludes all overpayment determinations regarding claims subject to any network 

agreement. But even if it were relevant, the Court of Appeals has recently ruled that an 

arbitration clause in an agreement between a provider and an insurer that might bind a provider’s 

direct claim does not bind that provider’s derivative claim via patient assignment. See

CardioNet, 751 F.3d at 178 (“[W]e fail to see how bringing an assignee's claim derivatively 

nullifies an assignor's promise to bring its own direct claim through arbitration—at least where, 

as here, the Agreement does not explicitly require the arbitration of assigned claims.”). And 

because there is no indication that the patient-assignors in this case are bound by the arbitration 

clauses in the wrap networks, their “right does not dissipate simply because the claim is brought 

by assignees who have promised to arbitrate certain direct claims they might bring against the 

defendant.” Id. (citation omitted) (emphasis in original). 

Moreover, were the Court “to prevent providers that have promised to arbitrate their own 

claims against an insurer from bringing patients' claims in court, these providers would be less 

likely to accept patients' claims in exchange for services.” Id. “This, in turn, would make it 

more difficult for patients to receive necessary services where their insurers have denied

coverage.” Id. Consequently, the arbitration provisions in the wrap network agreements 

between United and certain providers do not apply to the ONET Repayment Demand Class.

c. Determining Provider Status as In Network or out of Network

Defendants argue that “there is no simple and reliable way to identify” out of network 

healthcare providers in United’s databases. (Def.’s Br. Opp. Cert. 17.) In doing so, they note 

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that (1) a provider may be in network with respect to certain United benefit plans, such as 

Medicare, but out of network for others; and (2) a provider may be in network for certain 

services, such as transplant services, but out of network for others. 

This is beside the point. It may very well be that a given provider treats certain Unitedinsureds or performs certain services on an in network basis and others on an out of network 

basis. But this just means that the provider is a member of the ONET Repayment Demand Class 

with respect to repayment demands regarding those services performed and/or those Unitedinsureds treated on an out of network basis. There is no dispute that United has records of those 

claims that are processed on an in network basis and those on an out of network basis.29 Indeed, 

it would be inconceivable that a health insurer would not maintain such records. Otherwise it 

would be virtually impossible to process claims with any accuracy.

Defendants further contend that a provider’s network status is often unclear and is often 

the subject of dispute between the provider and United. To support this contention, Defendants 

point to evidence that (1) Dr. Sprandel was for a time mistakenly treated as an in network 

provider; and (2) Tri3 was for a time confused about its network status. While United may from 

time to time mistake a provider’s network designation, this does not change the fact that, through 

its business records, United can readily ascertain, with reasonable certainty, those provider 

claims that are processed on an in network basis and those that are processed on an out of 

 

29 Plaintiffs point to evidence that United, through its records, has the ability to ascertain 

(1) the amount of overpayment dollars recouped from in network providers and out of network 

providers, respectively, see (Beswick Decl. ¶ 9); (2) whether a provider has an operative network 

contract regarding a given claim and whether the provider was paid at an in network rate, see

(Bugiel Decl. ¶¶ 4, 5); (3) those overpayments made to in network providers using data mining 

algorithms, see (Reckleberg Decl. ¶¶ 8, 9 10); and (4) which providers its insureds can see on an 

in or out of network basis, respectively, see (Pl.’s Rep. Br. Cert. 7.) This evidence strongly 

suggests that United can readily determine whether a given claim was processed on an in 

network basis or an out of network basis.

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network basis. Consequently, the ONET Repayment Demand Class satisfies Rule 23’s 

ascertainability requirement. 

vi. Rule 23(b)(1)(A)

Plaintiffs seek certification of the ONET Repayment Demand Class under Rule 

23(b)(1)(A). Rule 23(b)(1)(A) permits certification if “prosecuting separate actions by or against 

individual class members would create a risk of . . . inconsistent or varying adjudications with 

respect to individual class members that would establish incompatible standards of conduct for 

the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A); see also Wal-Mart Stores, 131 S.Ct. 

at 2558 (Rule 23(b)(1)(A) classes require “that individual adjudications would be impossible or 

unworkable.”). Thus, “[i]n order to fall within Rule 23(b)(1)(A), there obviously must be a risk 

that separate actions will in fact be brought if a class action is not permitted.” Wright, Miller, 

Kane, et al., 7AA Fed. Prac. & Proc. Civ. § 1773 (3d ed.) “Once the court determines that there 

is a risk of separate individual actions, it must consider whether allowing the members to 

proceed on their own will expose the party to a serious risk of being put into a ‘conflicted 

position.’” Id. 

“This requires more than a risk that separate judgments would oblige the opposing party 

to pay damages to some class members but not to others or to pay them different amounts.” Id.; 

see also Newberg on Class Actions § 4:7 (5th ed.) (“[C]ourts generally will not certify a class 

under Rule 23(b)(1)(A) simply because separate damage actions may reach different results—

inconsistent verdicts on liability or damages do not alone give rise to incompatible standards of 

conduct.”) (emphasis in original). Indeed, “if the mere threat of inconsistent jury verdicts 

enabled certification under 23(b)(1)(A), every case involving multiple plaintiffs could fall into 

this category. This would cast too broad a net.” Newberg § 4:7.

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Thus, “the phrase ‘incompatible standards of conduct’ is deemed to refer to the situation 

in which different results in separate actions would impair the opposing party's ability to pursue a 

uniform continuing course of conduct.” Wright, Miller & Kane § 1773. This often manifests “in 

cases where the party is obliged by law to treat the members of the class alike (a utility acting 

toward customers; a government imposing a tax), or where the party must treat all alike as a 

matter of practical necessity (a riparian owner using water as against downriver owners).” 

Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 614 (1997) (quotations omitted).

In its prior opinion, with respect to certification of the ERISA Recoupment Class, the 

Court ruled that:

[P]rosecution of individual actions by members of the ERISA Recoupment Class 

would create a risk of imposing inconsistent obligations on United with respect to 

its overpayment recoupment procedures. The ERISA Recoupment Class seeks a 

ruling that United's overpayment recoupment procedures stand in violation of 

ERISA and an order, among other things, (1) enjoining United from continuing to 

enforce its overpayment recoupment procedures; and (2) requiring United to 

comply with ERISA in recouping overpayments in the future. There can be little 

doubt that individual lawsuits asking for such relief present a real risk of 

establishing inconsistent standards of conduct for United. Indeed, one lawsuit 

could result in a ruling that United's overpayment recoupment procedures violate 

ERISA's notice and appeal requirements and an order enjoining enforcement of 

those procedures. Another lawsuit might result in a ruling that United's 

overpayment recoupment procedures as a matter of law are in substantial 

compliance with ERISA's notice and appeal rights. Yet another lawsuit could result 

in a ruling that ERISA does not even govern a given overpayment determination. 

Consequently, the ERISA Recoupment Class satisfies Rule 23(b)(1)(A).

Premier Health Ctr., 292 F.R.D. at 227-28 (footnote omitted).

Defendants take issue with this ruling, arguing that “the mere possibility that individual 

adjudications could produce inconsistent results does not satisfy the requirements of Rule 

23(b)(1)(A), so long as the defendant would be capable of simultaneously complying with any 

resulting inconsistent orders.” (Def.’s Br. Opp. Cert. 35) (emphasis in original). Defendants cite 

to various case law directly supporting this proposition. See, e.g., McDonnell-Douglas Corp. v. 

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United States Dist. Court, 523 F.2d 1083, 1086 (9th Cir. 1975) (“[S]ubdivision (b)(1)(A) was not 

intended to permit class actions simply when separate actions would raise the same question of 

law. . . . Instead, the ‘incompatible standards of conduct’ of subdivision (b)(1)(A) must be 

interpreted to be incompatible standards of conduct required of the defendant in fulfilling 

judgments in separate actions.” (citation omitted)); Pipefitters Local 636 Ins. Fund v. Blue Cross 

Blue Shield of Mich., 654 F.3d 618, 633 (6th Cir. 2011) (“[T]he fact that the district court found 

[defendant] liable to the Fund for a fiduciary breach, while another court might find [defendant] 

owes no duty to a different [] client, does not create the risk required under this subsection.”); 

Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 197-98 (5th Cir. 2010)

(“[I]f one court failed to require [defendant] to cease its relationship with [another party], 

[defendant] could still end this relationship in order to comply with a different court order. Such 

action would not be ‘incompatible’ with the first court's order, but rather might exceed what that 

court demanded. An incompatible judgment would arise if one court required [defendant] to 

continue its relationship with [the other party] while another court prevented [defendant] from 

working with [the other party].” (footnote omitted) (emphasis in original)); Edwards v. First Am. 

Corp., 251 F.R.D. 449, 452 (C.D. Cal. 2007) (“[T]he ‘incompatible standards of conduct’ 

language must be interpreted to mean that separate judgments in separate actions could impose 

requirements on the defendants that are impossible to simultaneously fulfill.”), rev’d in part on 

other grounds, 385 Fed. App’x 629 (9th Cir. 2010).

The Court agrees that inconsistent adjudications as to liability or damages, by themselves, 

do not amount to incompatible standards of conduct. However, the Court cannot find that Rule 

23(b)(1)(A) is so stringent and technical that incompatible standards of conduct can only be 

established through the risk of multiple court orders requiring a defendant to engage in 

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diametrically opposed conduct. Rather, as previously discussed, the incompatible standards of 

conduct requirement may be satisfied by showing that separate actions risk more generally

impairing the opposing party's ability to pursue a uniform course of conduct. 

Indeed, courts have certified classes under 23(b)(1)(A) where inconsistent individual 

adjudications would hinder a defendant from structuring a legally compliant, uniform policy or 

program, should the defendant be required to do so, in order to limit its exposure to future claims 

against a particular course of conduct. See, e.g., Berry v. Baca, 226 F.R.D. 398, 406 (C.D. Cal. 

2005) (certifying Rule 23(b)(1)(A) class of individuals asserting Section 1983 claims against Los 

Angeles County Sherriff, where class members had been unlawfully detained in jail after a court 

had authorized their release, because individual claims “could lead to different and conflicting 

judgments, a result that would make it difficult for Sheriff Baca to fashion a consistent release 

policy, should he have to, that would limit the County's exposure to claims.”); In re Tectronics 

Pacing Sys. Inc., 172 F.R.D. 271, 284 (S.D. Ohio 1997) (certifying Rule 23(b)(1)(A) class of 

individuals asserting claims against defendant’s scheme to monitor the use of pace makers in 

patients “because separate adjudications would impair [defendant’s] ability to pursue a single 

uniform medical monitoring program.”). This is because “varying results” in individual actions 

“could lead to incompatible standards of conduct for [d]efendants, such that [d]efendants would 

not know if it were legally permissible to pursue a particular conduct” or policy. Mel v. Anthem, 

Inc., 264 F.R.D. 312, 319 (S.D. Ohio 2009). 

Here, the ONET Repayment Demand Class asserts ERISA claims against United’s 

policies and procedures concerning notice to healthcare providers of overpayment determinations

regarding services performed on an out of network basis. As previously discussed, a central 

issue surrounding these claims is whether any overpayment determination whatsoever regarding 

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services performed on an out of network basis constitutes an ABD under ERISA, thereby 

requiring that any and all of United’s repayment demands comply with ERISA’s notice and 

appeal regulations. As a result, individual actions could very well result in divergent rulings on 

this issue that would, in turn, impair United’s ability to pursue uniform policies and practices 

regarding overpayment notification.

For example, a provider that treats United-insureds on an out of network basis might file 

an action against United claiming that a multitude of repayment demands, received by the 

provider, and stating varying reasons for the corresponding overpayment determinations, failed 

to comply with ERISA’s notice and appeal regulations. In doing so, the provider might argue, 

as Plaintiffs did in this case, that any repayment demand, as a matter of law, no matter the stated

reason for the corresponding overpayment determination, amounts to an ABD, and therefore 

must comply with ERISA. United, on the other hand, might argue, as it did this case, that 

whether an overpayment determination amounts to an ABD depends on the basis for the 

determination, and therefore certain repayment demands need comply with ERISA while others 

need not.

One court might agree with the provider, as the Court agreed with Plaintiffs in this case, 

that any and all repayment demands constitute ABDs under ERISA and therefore must comply 

with ERISA’s notice and appeal requirements. In a second identical lawsuit brought by another

provider, however, a court might agree with United and find that certain repayment demands 

issued to the provider are ABDs and need comply with ERISA, while others are not ABDs and 

therefore do not need to comply with ERISA. In a third identical lawsuit, a court might agree 

with United in principal but differ from the ruling in the second lawsuit as to which bases for an 

overpayment determination amount to an ABD and, in turn, those corresponding repayment 

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demands that need comply with ERISA. Thus, although United could technically comply with 

each court order with respect to the appropriate individual provider, United would nonetheless 

have quite a difficult time deciding how to fashion its overpayment recoupment procedures. 

Consequently, the ONET Repayment Demand Class may be certified under Rule 23(b)(1)(A). 

vii. Rule 23(b)(2)

Rule 23(b)(2) permits certification if “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.” Fed. R. Civ. P. 23(b)(2). “Rule 

23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to 

each member of the class.” Dukes, 131 S.Ct. at 2557.

In the its prior opinion, the Court found that the ERISA Recoupment Class failed to 

satisfy the requirements of Rule 23(b)(2) because “a single injunction would not provide 

appropriate relief to each member of the ERISA Recoupment Class.” Premier Health Ctr., 292 

F.R.D. at 228.30 Specifically, “in its notification letters, United provided wildly varying levels of 

detail regarding the basis of an overpayment determination. Thus, even an injunction allowing 

class members to appeal United's overpayment determinations will not provide relief to those 

class members that received insufficient notice of the basis of a given overpayment 

determination.” Id. 

Here, the ONET Repayment Demand Class seeks (1) injunctive relief under Rule 

23(b)(2) in the form declaratory relief establishing that Defendants’ policies, procedures and 

practices with respect to issuance of repayment demands to providers regarding claims processed 

 

30 The Court also ruled that the ERISA Recoupment Class could not seek equitable 

restitution under Rule 23(b)(2). However, the ONET Repayment Demand Class does not seek 

equitable restitution.

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on an out of network basis fail, as a matter of law, to substantially comply with ERISA; and (2) a

permanent injunction requiring Defendants to reform their policies, procedures and practices, 

going forward, with respect to issuance of repayment demands regarding claims processed on an 

out of network basis, to comply with ERISA. The proposed permanent injunction cures the 

defect noted by the Court in its prior opinion. Specifically, requiring Defendants to reform their 

policies, procedures and practices, going forward, with respect to issuance of repayment 

demands regarding claims processed on an out of network basis, in accordance with ERISA, 

necessarily includes providing ERISA complaint notice of the underlying overpayment 

determination. Consequently, the ONET Repayment Demand Class may be certified under Rule 

23(b)(2).

III. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Reconsideration is GRANTED. Dr. 

Sprandel cannot serve as a named Plaintiff of the ONET Repayment Demand Class. Plaintiffs’ 

Motion to Certify the ONET Repayment Demand Class is GRANTED, subject to Plaintiffs’ 

providing evidence that named plaintiffs BHSC and/or Tri3 seeks an ERISA claim against one or 

more active, unresolved repayment demands that fit within the definition of the ONET 

Repayment Demand Class.

The Court will enter an order implementing this opinion.

_/s/ Dickinson R. Debevoise__________

DICKINSON R. DEBEVOISE, U.S.S.D.J.

Dated: August 28, 2014

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