Pipefitters Local 636 Insurance Fund v. Blue Cross Blue Shield of Michigan

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0218p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
PIPEFITTERS LOCAL 636 INSURANCE FUND,
-
Trustees of; JOHN GREEN; CHARLES INMAN;
JOHN O’NEIL; GREG SIEVERT; E. THOMAS -
-
No. 09-2607
DEVLIN; GERALD HOOVER,
Plaintiffs-Appellees, ,>
-
-
-
v.
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BLUE CROSS BLUE SHIELD OF MICHIGAN, -
Defendant-Appellant. -
-
N

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-73400—Arthur J. Tarnow, District Judge.
Argued: January 11, 2011
Decided and Filed: August 12, 2011
Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

_________________

COUNSEL
ARGUED: Francis R. Ortiz, DICKINSON WRIGHT PLLC, Detroit, Michigan, for
Appellant. Ronald S. Lederman, SULLIVAN, WARD, ASHER & PATTON,
Southfield, Michigan, for Appellees. ON BRIEF: Francis R. Ortiz, Phillip J. DeRosier,
Toby A. White, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellant.
Ronald S. Lederman, Sharon S. Almonrode, SULLIVAN, WARD, ASHER & PATTON,
Southfield, Michigan, for Appellees. Christopher L. Kerr, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae.
SUHRHEINRICH, J., delivered the opinion of the court, in which ROGERS, J.,
joined. CLAY, J. (pp. 21–26), delivered a separate opinion dissenting in part.

1
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 2
Shield of Mich.

_________________

OPINION
_________________

SUHRHEINRICH, Circuit Judge. Defendant-Appellant, Blue Cross Blue Shield
of Michigan (“BCBSM”), brings this interlocutory appeal following the district court’s
certification of a class action on behalf of Plaintiffs-Appellees, Pipefitters Local 636
Insurance Fund and its Trustees (“Fund”), and the proposed class, in this action brought
under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.§§ 1001 et
seq. Because this class action is not the superior method of adjudication required under
Federal Rule of Civil Procedure 23(b)(3), and prosecuting separate actions does not
present the risk of inconsistent adjudications required under Federal Rule of Civil
Procedure 23(b)(1)(A), we REVERSE.

I. BACKGROUND

This case is the subject of a prior appeal, Pipefitters Local 636 v. Blue Cross &
Blue Shield of Mich. (Pipefitters I), 213 F. App’x 473 (6th Cir. 2007), as well as a
companion appeal, decided on April 6, 2011, Pipefitters Local 636 Ins. Fund v. Blue
Cross & Blue Shield of Mich.(Pipefitters II), No. 09-2294, 2011 WL 1320684 (6th Cir.
Apr. 6, 2011) (unpublished).1 We adopt the background as set forth in our Pipefitters
I opinion:

The [Fund] is a multiemployer trust fund administered pursuant
to ERISA and the Labor Management Relations Act, 29 U.S.C. § 186, for
the purpose of providing health and welfare benefits to its participants
and beneficiaries. For several years, the Fund was an insured group
customer of BCBSM, purchasing insurance coverage by paying
premiums. The Fund converted in June 2002 to a self-funded plan,

1
The Pipefitters II appeal and this appeal were consolidated for purposes of oral argument. In
Pipefitters II, BCBSM appealed the district court’s decision requiring it to share with the Fund information
on the discount rates BCBSM negotiated with health care providers, information which BCBSM deemed
proprietary. We reversed the district court’s order granting summary judgment to the Fund and vacated
the injunctive order requiring BCBSM to share the information because we had dismissed that claim on
the merits in Pipefitters I, and the law of the case doctrine barred its relitigation. See Pipefitters II, 2011
WL 1320684, at *5-*6 (citing Pipefitters I, 213 F. App’x at 480).
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 3
Shield of Mich.

providing benefits by using fund assets. At that time, the Fund entered
into an Administrative Services Contract (“ASC”) with BCBSM for
services including: claims processing; financial management and
reporting; negotiation of participating provider agreements; cost
containment initiatives; maintenance of all necessary records; and
provision of information through established audit procedures.
Under the terms of the ASC, the Fund agreed to pay claims and
administrative charges, including amounts billed during the year, hospital
prepayments, actual administrative charges and group conversion fee,
any late payment charges, statutory and/or contractual interest, and
“[a]ny other amounts which are the Fund’s responsibility pursuant to this
Contract.” The ASC also states that “[t]he Provider Network Fee,
contingency, and any cost transfer subsidies or surcharges ordered by the
State Insurance Commissioner as authorized pursuant to [Michigan law]
will be reflected in the hospital claims cost contained in Amounts
Billed.”
From June 2002 to January 2004, BCBSM collected from the
Fund [a cost transfer subsidy fee, known as the Other-Than-Group
(“OTG”) subsidy,] to subsidize coverage for non-group clients. The OTG
subsidy was regularly collected from BCBSM's group clients.
Self-insured clients, however, were not always required to pay the fee,
and the parties dispute whether Michigan law authorized the imposition
of OTG subsidy fees on such clients. In January 2004, BCBSM
unilaterally eliminated the OTG subsidy charge to the Fund.

Id. at 474-475 (some alterations in original) (footnotes omitted) (citations omitted).

In September 2004, the Fund sued BCBSM, alleging that BCBSM breached its
fiduciary duty under ERISA by imposing and failing to disclose the OTG subsidy from
June 2002 to January 2004. Specifically, the Fund claimed that the OTG assessment
violated Mich. Comp. Laws § 550.1211(2), which precludes some cost transfers between
self-funded subscribers and BCBSM.

BCBSM moved for dismissal under Federal Rule of Civil Procedure 12(b)(6),
asserting that it was not acting as an ERISA fiduciary when it assessed the OTG fee.
The district court dismissed the claim and the Fund appealed. On appeal, we decided
that the Fund had sufficiently stated a claim for a breach of fiduciary duty under ERISA
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 4
Shield of Mich.

and reversed and remanded for further proceedings. Pipefitters I, 213 F. App’x at 480.
Specifically, we set forth rules for defining what constituted an ERISA fiduciary:

Under ERISA, a third-party administrator such as BCBSM is
deemed a fiduciary to the extent that it exercises “discretionary authority
or discretionary control respecting management of [a] plan or . . . any
authority or control respecting management or disposition of its assets.”
29 U.S.C. § 1002(21)(A)(i). . . .
ERISA defines “fiduciary” in functional terms with regard to each
action in question. See Hamilton v. Carell, 243 F.3d 992, 998 (6th Cir.
2001). . . . ERISA “does not describe fiduciaries simply as
administrators of the plan,” but evaluates the fiduciary role “to the extent
that [an administrator] acts in such a capacity in relation to the plan.”
[Pegram v. Herdrich, 530 U.S. 211, 225 (2000)] (quotation marks and
citation omitted).
....
Under ERISA, fiduciary duties arise where an administrator
exerts “any authority or control respecting management or disposition of
[a fund’s] assets.” [29 U.S.C.] § 1002(21)(A). An administrator is
deemed a fiduciary when it exercises “ ‘practical control over an ERISA
plan’s money.’ ” [Briscoe v. Fine, 444 F.3d 478, 494 (6th Cir. 2006)]
(quoting IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1421 (9th
Cir. 1997)). The administrator’s “disposition of funds held in an account
over which it exerted control makes it a fiduciary to the extent that it
exercised such control.” Id. at 490. Discretion in the disposition of plan
assets is not required; it is “irrelevant whether [the administrator]
exercised ‘discretion’ . . . . ‘[A]ny authority or control’ is enough.” Chao
v. Day, 436 F.3d 234, 236 (D.C. Cir. 2006).
A fiduciary relationship does not exist, however, where an
administrator “performs purely ministerial functions such as processing
claims, applying plan eligibility rules, communicating with employees,
and calculating benefits.” Baxter v. C.A. Muer Corp., 941 F.2d 451, 455
(6th Cir. 1991). Fiduciary authority must amount to more than “mere
possession, or custody over the plan[’s] assets.” Briscoe, 444 F.3d at 494
(quotations omitted). In addition, fiduciary status under ERISA does not
apply where “parties enter into a contract term at arm’s length and where
the term confers on one party the . . . right to retain funds as
compensation for services rendered with respect to an ERISA plan.”
Seaway Food Town, Inc. v. Med. Mut. of Ohio, 347 F.3d 610, 619 (6th
Cir. 2003). Fiduciary status does not extend to an administrator that
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 5
Shield of Mich.

exercised authority solely over funds that “belonged to [itself] and not to
the plan.” Id. at 618.

Id. at 476-77 (some alterations in original) (footnote omitted). We then found that the
Fund’s complaint stated a viable claim as to BCBSM’s assessment of the OTG fee such
that dismissal of the complaint was inappropriate:

The Fund’s complaint sets forth allegations that BCBSM’s role
in assessing the OTG subsidy fee was an exercise of authority and
control over the fund assets, and was not merely ministerial or
contractual in nature. The complaint alleges that the monetary assets at
issue were “entrusted” to BCBSM, which administered them within its
authority as “a fiduciary under ERISA.” The complaint further states
that BCBSM “improperly imposed an OTG subsidy on these funds,” and
that it “imposed the fee ... claiming it was a mandatory fee.” The
complaint alleges that “[t]he ASC contracts prohibit the OTG subsidy
. . . . [and] BCBSM was not legally required to assess this OTG fee.”
According to the complaint, BCBSM “selectively elected to assess [the]
OTG fee,” and “in its discretion indicated it would unilaterally stop
charging the OTG subsidy [on January 1, 2004].”
....
In sum, the Fund has alleged in its complaint and attached
documents that it entrusted BCBSM with the authority to control and
disburse fund assets, and that BCBSM exercised such authority by
allocating a portion of the money to itself in the form of the OTG subsidy
fee and by failing to disclose this allotment to the Fund. The Fund’s
complaint also alleges that BCBSM’s unilateral decision to discontinue
imposing the fee further demonstrates BCBSM’s control and authority
over the assets’ disposition. Therefore, the Fund has set forth sufficient
allegations that BCBSM owed a fiduciary duty under ERISA with regard
to its disposal of these assets, and that BCBSM breached its duty by
imposing and failing to disclose the fee. . . .

Id. at 477 (alterations in original) (citations omitted).

In 2008, on remand in the district court, the Fund moved for certification of a
class action of “members of a putative class that consists of all similarly situated self-
insured employee health and welfare plans / ‘groups’ / ‘groups’ [sic] which contract with
BCBSM pursuant to an ASC to provide administrative services for the plans / ‘groups’
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 6
Shield of Mich.

and which were improperly assessed the cost transfer / OTG subsidy.” The Fund’s
motion did not state the precise questions it wished to be certified, however.

The district court referred the motion for class certification to Magistrate Judge
Donald A. Scheer, who conducted a hearing and issued a detailed, thirty-three page
Report & Recommendation (“R&R”) on February 13, 2009. The magistrate judge
considered the Federal Rule of Civil Procedure 23(a) prerequisites for class certification.
See Fed. R. Civ. P. 23(a) (2009) (identifying four prerequisites for certification:
numerosity, commonality, typicality, and adequacy of representation). The magistrate
judge found the numerosity requirement met because the “she[e]r number of potential
plaintiff class members,” estimated at between 550 and 875, “is such that individual
actions would be a substantial burden on the courts.” He determined commonality was
satisfied because:

[A]ll members of the proposed OTG class share the common facts that
their Administrative Service Contracts (ASC) included a transfer subsidy
provision, and that each were charged the OTG/cost transfer subsidy. A
question of law common to each member of the proposed class is
whether the uniform assessment contravened Michigan’s statutory
law. . . .
....
. . . Even if the language of the several contracts varied, it is a common,
undisputed fact that each imposed the OTG. The central legal claim in
the case is that any contract language authorizing the OTG is contrary to
a specific and generally applicable statutory prohibition. . . .

The magistrate judge found typicality on the basis that “the imposition of the subsidy
upon the great majority of ASC clients represents a single course of conduct that gives
rise to the claims of all class members based on the same legal theory (i.e. that the
Michigan statute prohibits the OTG).” Finally, he found the Fund met the adequacy of
representation requirement because it has an interest in “[t]he central issue in the case[,]
. . . the legality of assessing the OTG against BCBSM’s self insured ASC clients,” and
lacked any individual interests “antagonistic to those of the proposed OTG class
members.”
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 7
Shield of Mich.

Next the magistrate judge considered the requirements of Federal Rule of Civil
Procedure 23(b), which identifies the types of class actions that may be maintained if the
prerequisites are satisfied. See Fed. R. Civ. P. 23(b). The magistrate judge first
considered certification under Rule 23(b)(1)(A). Rule 23(b)(1)(A) allows a class action
when “inconsistent or varying adjudications with respect to individual class members
. . . would establish incompatible standards of conduct for the party opposing the class.”
Here, the magistrate concluded that the “possible precedential value of individual
actions” or “[t]he fact that some class members might receive damages, while other class
members would not, does not justify certification under th[e] subsection,” because
“different results in separate actions” would not impair BCBSM’s “ability to pursue a
uniform continuing course of conduct.”2

The magistrate likewise rejected certification under Rule 23(b)(3). Rule 23(b)(3)
allows certification if “questions of law or fact common to the class predominate over
any questions affecting only individual members” and “a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” The
magistrate judge agreed with BCBSM’s assertion that “its [fiduciary] status is a crucial
disputed threshold factual issue specific to [the Fund], and not predominant over
individual issues regarding its status as to its other ASC clients” and concluded that
questions common to the class did not predominate. And because the “court would be
obliged to make so many individualized determinations as to proposed class members”
to determine ERISA fiduciary status, the magistrate judge also concluded that a class
action was not a superior form of adjudication. Furthermore, he observed that individual
class members “have the ability and incentive to pursue their own claims.”

Both BCBSM and the Fund filed objections to the R&R.

2
The magistrate judge considered and rejected certification under Rule 23(b)(1)(B) and Rule
23(b)(2). See Fed. R. Civ. P. 23(b)(1)(B) (allowing certification when “adjudications with respect to
individual class members . . . would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or imped their ability to protect their interests”) and
Fed. R. Civ. P. 23(b)(2) (allowing a class action when “the party opposing the class has acted . . . 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”). As these provisions are not at issue in this appeal, the
magistrate judge’s analysis is omitted here.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 8
Shield of Mich.

In the meantime, the parties filed cross motions for summary judgment. Both
parties addressed in relevant part whether (1) BCBSM acted as an ERISA fiduciary
when it assessed the OTG subsidy fee and (2) whether Michigan law authorized BCBSM
to collect the subsidy.

BCBSM argued it was expressly authorized to impose the OTG subsidy under
Michigan law pursuant to Mich. Comp. Laws § 550.1609(5), which states:

Except for identified cost transfers, each line of business, over time, shall
be self-sustaining. However, there may be cost transfers for the benefit
of senior citizens and group conversion subscribers. Cost transfers for
the benefit of senior citizens, in the aggregate, annually shall not exceed
1% of the [annual] earned subscription income of the health care
corporation . . . .

BCBSM also explained that Michigan’s Insurance Commissioner had ruled in 1992 that
BCBSM is obligated “to pursue the collection of” the OTG fee from all its customers,
including its self-insured customers operating pursuant to an ASC. In contrast, BCBSM
contended that Mich. Comp. Laws § 550.1211, the statutory provision relied on by the
Fund, does not expressly prohibit assessing the OTG subsidy to ASC customers, but
merely prohibits ASC customers from receiving a subsidy from other lines of business.

The Fund countered that BCBSM breached its fiduciary duty because the OTG
assessment violates Mich. Comp. Laws § 550.1211, which states:

Relative to actual administrative costs, fees for administrative services
only and cost-plus arrangements shall be set in a manner that precludes
cost transfers between subscribers subject to these arrangements and
other subscribers of the health care corporation.

The Fund also explained that Mich. Comp. Laws § 550.1609(5) merely sets forth the
general requirement that each of BCBSM’s insured customers must be self-sustaining
and does not authorize the imposition of the OTG fee. To the extent the two provisions
contradict, the Fund asserted that the court must give more weight to § 550.1211 because
it specifically addresses self-insured customers, while § 550.1609(5) is just a general
statement of authority. Finally, the Fund maintained that the Insurance Commissioner’s
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 9
Shield of Mich.

opinion did not order BCBSM to charge self-funded clients the OTG; it “merely
suggest[ed] Blue Cross ‘to pursue the collection’ of the cost transfers.”

On September 1, 2009, the district court held a hearing on the parties’ competing
motions for summary judgment and their objections to the R&R on class certification.
At the hearing BCBSM and the Fund reiterated their respective positions: BCBSM
argued it was not a fiduciary when it assessed the OTG and that the OTG assessment did
not violate Michigan law; the Fund argued BCBSM was a fiduciary when it assessed the
fee and that the assessment violated Michigan law. The Fund explained that whether the
OTG assessment violated Michigan law was the essence of its OTG claim and the
question for which it sought certification.

The district court addressed the summary judgment motions first. It held that
BCBSM was acting as an ERISA fiduciary when it assessed the OTG fee to the Fund:

I find that [BCBSM], in fact, exercised authority or control over
the Plan assets, and under ERISA it was a fiduciary. That’s because the
[Fund] had to advance funds to [BCBSM], which then paid the claims on
the [Fund]’s behalf to the providers. Sometimes, as it has been
mentioned here, [BCBSM] had to pay more than was advanced, but [the
Fund] was responsible for making up the difference, which is an inherent
nature of self-insuring arrangement.
....
This shows that [BCBSM] exercised control over Plan assets, and
there’s really no factual dispute about this. The [Fund]’s knowledge of
the OTG fee is not relevant or material to the question of whether
[BCBSM] exercised control over the assets.
Accordingly, [BCBSM] was a fiduciary in
assessing the OTG fee.
R.E. 145 at 68-69.

To determine whether BCBSM breached its ERISA fiduciary duty to the Fund,
the district court decided whether imposing the OTG violated Michigan law:

The next question – and this is the heart of the matter, I think –
is whether Blue Cross breached its fiduciary duty by assessing the fee.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 10
Shield of Mich.

Plaintiff cites MCL 550.1211(2), which can be summarized that
there cannot be cost transfers between self-insurers and policyholders.
Blue Cross cites another statute, which is MCL Section
550.1609(5), which says that each line of business should be self-
sustaining except for identified cost transfers. And one of the identified
cost transfers in the statute is for senior citizens.
However, the Funds’ provision cited more specifically addresses
whether self-insurers can be assessed fees to subsidize policyholders and
more specifically relates to the OTG fee. Therefore, collecting OTG fees
is contrary to Michigan law. I should say collecting OTG fees from self-
insureds.
The statute cited by Blue Cross is more general. The most
reasonable way to reconcile the two provisions is to apply the statute as
cited by Defendant, to policyholder.
Furthermore, the Fund’s provision doesn’t identify any cost
transfers that are allowed.
The argument that Blue Cross makes that the Insurance
Commissioner’s ruling required the Fund to pay the OTG is not
consistent with the fact that Blue Cross didn’t levy the fee uniformly.
And there is deposition testimony that says so, which really is
inconsistent with the Defendant’s argument that it was required to assess
the OTG fee.

Id. at 69-70. The district court therefore concluded that BCBSM had breached its
fiduciary duty:

Since the assessment of the fee was contrary to law and Blue
Cross did not act uniformly in assessing or not assessing a fee, this shows
a failure to exercise a duty of care, which is the hallmark of fiduciaries.
Therefore, there was a breach of fiduciary duty.

Id. at 70-71.

Finally, the district court granted summary judgment to BCBSM on the Fund’s
claim that BCBSM breached its fiduciary duty by failing to disclose the imposition of
the OTG:

As I’ve referred to during the argument and a moment ago, the
[Fund]’s claim, that Blue Cross’s failure to disclose a collection of the
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 11
Shield of Mich.

OTG fee was a breach, loses. That is, Defendant Blue Cross gets
summary judgment because the Plaintiff Funds knew of the fee. The
Administrative Services Contract said so.

Id. at 71.

Thereafter, the district court ruled on the Fund’s motion for class certification.
It first considered whether the class satisfied the four Rule 23(a) prerequisites:

First, I agree with Magistrate Judge Scheer that Rule 23(a) has
been satisfied.
Despite the objections, the plans are numerous. The numbers
have been given anywhere from 550 to 875.
The ability of the other ASC customers bringing individual action
is part of the Rule 23(b) analysis.
Commonality is also satisfied. First, whether the OTG fee was
contrary to law is a common question, one that I’ve already resolved and
decided summary judgment motions as requested, and included is
whether Blue Cross was a fiduciary in assessing the OTG fee. It’s a
fairly easy thing in each case for Blue Cross to know whether its Plan
collected the OTG fee in other cases.
In terms of typicality, again, I agree with Magistrate Scheer, that
the claims of the Representative Plaintiff is [sic] typical of the claims or
the defenses of the class. The same statutory analysis that I just went
through for the Pipefitters Plaintiffs would have to be done for each of
the class members.
As to adequacy, the Plaintiff can fairly and adequately protect the
interest of the class. Pipefitters still wants damages and has the incentive
to protect the interest of absent class members.

Id. at 74-75 (emphasis added).

The district court then addressed the Rule 23(b) provisions. It concluded that
class certification was appropriate under Rule 23(b)(1)(A) because:

The individual actions would—and this is 23(b)(1)(A). The individual
actions would create the risk of inconsistent adjudication that would
establish incompatible standards of conduct. That is, one court might tell
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 12
Shield of Mich.

Blue Cross that it was legal to assess the fee; another court might say it
wasn’t, and indeed, could assess the fee again.

Id. at 75. The district court also found certification appropriate under Rule 23(b)(3):

23(b)(3), this section requires a predominance in [sic] superiority.
Common questions predominate because it’s a common question whether
Blue Cross controlled assets and whether the assessment was consonant
with Michigan statute.
....
While it’s true that class members probably have resources to
bring suit on their own and can control the case on their own, all of the
cases turn on basically the same questions. Therefore, class action is
superior.

Id. at 77.

The district court did not issue a written opinion. Instead, on September 3, 2009,
it merely entered an order, which “for the reasons stated on the record” granted summary
judgment to the Fund as to the breach of fiduciary duty claim arising out of the OTG
assessment; granted summary judgment to BCBSM on the question of whether it
breached its ERISA fiduciary duty by failing to disclose the assessment; and denied
summary judgment to the Fund on its state-law claims on the basis of preemption.

The September 3 order also granted the Fund class certification on the OTG
claim; denied the Fund class certification on its request for additional information on
health care provider rates;3 and adopted in part and rejected in part the magistrate’s R&R
on class certification. The order defined the class as follows:

All entities (1) which had or have administrative-services
contracts with Blue Cross Blue Shield of Michigan and (2) which were
or are assessed the other-than-group fee.

It certified the issues as:

3
As discussed in the first footnote, this request was the subject of Pipefitters II.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 13
Shield of Mich.

1. Whether Blue Cross was a fiduciary under ERISA
with respect to the class in assessing the OTG fee.
2. Whether Blue Cross breached a fiduciary duty
owed to the class by assessing the OTG fee.

On September 18, 2009, BCBSM filed a motion for reconsideration of the district
court’s decision to certify the class action suit. BCBSM also sought certification to the
Michigan Supreme Court or in the alternative to this Circuit on the state law question of
whether Michigan law authorizes or prohibits the assessment of the OTG fee. The
district court denied the motion in its entirety.

BCBSM then filed this interlocutory appeal seeking review of the district court’s
decision to certify a class action suit.

II. ANALYSIS

BCBSM argues that the district court abused its discretion in certifying the class
because the overarching issue is whether BCBSM was an ERISA fiduciary at the time
it collected the OTG subsidy from each of the ASC customers. BCBSM asserts that this
issue is inappropriate for a class action because establishing class-wide liability will
require individualized inquiries into the terms of each ASC and the particular funding
arrangements with each ASC customer to determine whether BCBSM actually controls
“plan assets” so as to qualify as an ERISA fiduciary. The Fund counters that whether
the OTG assessment contravenes Michigan law is the “common nucleus” of this case
that serves to satisfy the Rule 23(a), Rule 23(b)(1)(3), and Rule 23(b)(3) requirements.
The Michigan Commissioner of the Office of Financial and Insurance Regulation has
filed an amicus brief opposing certification because of the potential for significant,
negative financial ramifications to Michigan’s senior citizens.

A. Jurisdiction

We have jurisdiction to hear this case pursuant to Federal Rule of Civil
Procedure 23(f), which provides appellate courts with discretion to hear an interlocutory
appeal from an order granting or denying class certification. Fed. R. Civ. P. 23(f)
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 14
Shield of Mich.

(2009); Reeb v. Ohio Dep’t of Rehab. & Corr. (Reeb III), 435 F.3d 639, 643 (6th Cir.
2006).

B. Standards of Review

We review the certification of a class action for an abuse of discretion. Beattie
v. CenturyTel, Inc., 511 F.3d 554, 559 (6th Cir. 2007). An abuse of discretion occurs
“when the district court relies on erroneous findings of fact, applies the wrong legal
standard, misapplies the correct legal standard when reaching a conclusion, or makes a
clear error of judgment.” Reeb III, 435 F.3d at 644.

In addition, both the Supreme Court and this Circuit require that a district court
conduct a “rigorous analysis” of the Rule 23(a) requirements before certifying a class.
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); Sprague v. Gen. Motors Corp., 133
F.3d 388, 397 (6th Cir. 1998) (en banc). The “rigorous analysis” requirement is critical
because it ensures that each of the prerequisites for certification have actually been
satisfied. 6A Federal Procedure, Lawyers Edition § 12:267 (2011). Thus, satisfying Rule
23(a) requires something more than mere repetition of the rule’s language; “‘[t]here must
be an adequate statement of the basic facts to indicate that each requirement of the rule
is fulfilled.’” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (quoting
Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974)).

The district court’s ruling does not meet this standard. As the magistrate judge
noted in his written opinion, despite common issues, the issues actually certified would
require individualized attention under the principles we laid out in Pipefitters I. See In
re Am. Med. Sys., 75 F.3d at 1081 (finding that individual proofs, which “vary from
plaintiff to plaintiff,” do not satisfy Rule 23(a) and that the failure to recognize the
proofs’ individualized nature “highlight[ed] the error of the district judge” in certifying
the class). The district court has in fact already decided the common question on
summary judgment. See Sprague, 133 F.3d at 397-98 (rejecting a Rule 23(a) finding
when the common questions were decided prior to certification, leaving only inquiries
into the individual agreements between the defendant and each class member). As a
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 15
Shield of Mich.

result, there is no common contention capable of classwide resolution such “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, 564 U.S. — , 131
S. Ct. 2541, 2551 (2011).

Given the huge amount of judicial resources expended by class actions, particular
care in their issuance is required. Cf. AT&T Mobility LLC v. Concepcion, 563 U.S. —,
131 S.Ct. 1740, 1751 (2011) (explaining that switching from individual arbitration to
arbitration on a class wide basis “makes the process slower, more costly, and more likely
to generate procedural morass”). Hence the need for a “rigorous analysis” by the district
court as to all the requirements of Rule 23. The absence of analysis by the district court
in this case resulted in reversible error. See In re Am. Med. Sys., 75 F.3d at 1082
(finding error when the district judge “gave no serious consideration to [Rule 23(a)], but
simply mimicked the language of the rule”).

Normally we would reverse and remand for the failure to conduct a rigorous
analysis. See, e.g., Reeb v. Ohio Dep’t of Rehab. & Corr. (Reeb II), 81 F. App’x 550,
559 (6th Cir. 2003). However, because the record is clear that a class action is not a
superior method of adjudication, we reverse the district court’s certification for the
reasons discussed below.

C. Superiority

Federal Rule of Civil Procedure 23(b)(3) requires that “the court finds that the
questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”4 The rule is designed

4
The rule itself lists a non-exhaustive list of factors as “pertinent” to a 23(b)(3) analysis:
(A) the class members’ interests in individually controlling the prosecution or defense
of separate actions; (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 16
Shield of Mich.

to “‘achieve economies of time, effort, and expense, and promote . . . uniformity of
decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.’” Amchem Prod., Inc. v. Windsor, 521 U.S.
591, 615 (1997) (quoting Fed. R. Civ. P. 23 Advisory Committee Notes).

To determine whether a class action is the superior method for fair and efficient
adjudication, the district court should consider the difficulties of managing a class action.
Beattie, 511 F.3d at 567. The district court should also compare other means of disposing
of the suit to determine if a class action “is sufficiently effective to justify the
expenditure of the judicial time and energy that is necessary to adjudicate a class action
and to assume the risk of prejudice to the rights of those who are not directly before the
court.” 7AA Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 1779 (3d ed. 2010); see also 2 William B. Rubenstein, Alba
Conte, & Herbert B. Newberg, Newberg on Class Actions § 4:27 (4th ed. 2010)
(identifying possible alternatives to the class action device such as “joinder, intervention,
consolidation, a test case, and an administrative proceeding”). Additionally, the court
should consider the value of individual damage awards, as small awards weigh in favor
of class suits. Beattie, 511 F.3d at 567; see also Amchem, 521 U.S. at 616 (explaining
that when individual class members have large stakes in the outcome and the ability to
pursue a remedy alone, their individual interests weigh against a Rule 23(b)(3) action).

The magistrate judge recognized that all the class members shared the common
facts that their ASCs included a transfer subsidy provision and that each were charged
an OTG subsidy and therefore shared the “central legal claim” that any contract
authorizing an OTG subsidy violates Mich. Comp. Laws § 550.1211. Notwithstanding
this commonality, the magistrate judge also recognized that prior to determining this
“central legal claim,” BCBSM’s ERISA fiduciary status is a “crucial . . . threshold
factual issue specific to” each and every class member, requiring the court “to make so
many individualized determinations as to proposed class members” in order to determine

Fed. R. Civ. Pro. 23(b)(3)(A) – 23(b)(3)(D) (2009).
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 17
Shield of Mich.

ERISA fiduciary status, such that a class action could not be a superior form of
adjudication.

The district court, on the other hand, based its 23(b)(3) determination on the
“central legal claim” of whether the OTG is prohibited by Michigan statute, ignoring the
critical, factual threshold issue specific to each and every class member of whether
BCBSM was acting as an ERISA fiduciary in each individual, contractual relationship
with each plan member when it imposed the OTG fee.5 As we explained in our opinion
on remand, determining whether an administrator is a fiduciary with respect to a
particular action requires a functional analysis to determine if the administrator exerted
any authority or control over a fund’s assets when it took the action in question. See
Pipefitters I, 213 F. App’x at 476. Thus, the district court here would be required to
conduct individualized inquiries into the ASC terms and funding arrangements of each
ASC customer. That means looking at the contract terms and funding arrangements of
550 to 875 class members. Given the necessary number of individual inquiries, a class
action cannot be a superior form of adjudication.6 Cf. Daffin v. Ford Motor Co., 458
F.3d 549, 554 (6th Cir. 2006) (finding that class litigation is superior when a threshold
issue of contract interpretation applies equally to the whole class).

Ironically, the district court ruled on the only issue that was truly “common” and
certified the questions that require individualized contract-by-contract assessment. Had
the district court compared a class action with other methods of resolving the dispute,
it would or should have realized that—because it had in fact decided the only claim
common to all members of the class, as well as the threshold legal issue in the individual
action of whether BCBSM was an ERISA fiduciary—it would have been more judicially

5
Absent this determination, there is no ERISA claim and, consequently, no federal subject matter
jurisdiction.
6
On appeal, the Fund claims BCBSM waived any argument over individualized inquiries by
failing to raise it in a timely fashion before the district court. Clearly, the question of individualized
inquiries has been central to the case throughout the course of this litigation, as evidenced by the
discussion in Pipefitters I on the individualized, action by action, analysis required to determine fiduciary
status and the magistrate judge’s discussion of individualized inquires in the Rule 23(b)(3) superiority
context. The Fund mischaracterizes the record. No waiver occurred.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 18
Shield of Mich.

efficient to enter a final judgment in the individual action so as to allow BCBSM to file
an appeal. In this way, the central legal issue could have been resolved by this court, and
based on that outcome, other potential class members could then decide whether to
pursue an individual suit against BCBSM depending on the legality of the OTG subsidy
and the individual contractual relationship each class member has with BCBSM.

This course of action would also have mitigated the Commissioner’s concerns
about the impact of this case. The Commissioner asserts that Mich. Comp. Laws
§ 550.1609(5) allows BCBSM to assess the OTG to its self-insured customers and
explains that the revenue generated from assessing the fee to both insured and self-
insured customers helps ensure continued coverage of Michigan’s senior citizens under
Medigap.7 In fact, according to the Commissioner, nearly two thirds of the funding for
BCBSM’s Medigap subsidy comes from subsidies paid by self-insured, ASC customers
like the Fund. The Commissioner contends that, as a result, if the case were to proceed
as a class action, BCBSM would potentially be forced to stop collecting more than $100
million dollars annually, which could result in higher premium rates for insured
customers or in a reduction in Medigap coverage and a dramatic increase in premium
rates for Michigan’s senior citizens. The serious financial repercussions to Michigan’s
elderly population further support a conclusion that a class action is not a superior
method of resolving the Fund’s allegation. See Katz v. Carte Blanche Corp., 496 F.2d
747, 760 (3d Cir. 1974) (explaining that a court ought to consider superiority from many
viewpoints, including that “of the public at large”). The public’s interest would also be
better served by allowing the individual suit between the Fund and BCBSM to proceed
to this court for appellate review. This would expedite the ability of this court to hear
and decide the “common issue,” the resolution of which will clarify BCBSM’s continued
ability to fund the Medigap subsidy and provide ASC customers information useful to
future interactions with BCBSM relative to the OTG.

7
In June 2010, the Commissioner attempted to intervene in the district court to address the legality
of assessing the OTG to self-funded customers under Michigan law. The district court denied the
Commissioner’s motion as untimely.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 19
Shield of Mich.

Finally, the potential damage awards do not support a finding of superiority. The
Fund alone claimed damages in excess of $280,000, and the record indicates that the
possible awards of other class members exceed this amount. These are not the types of
awards that would preclude individual class members from seeking relief through
litigation. Cf. Beattie, 511 F.3d at 567 (holding that possible recovery of roughly
$124.68 per class member was too small to encourage individuals to bring suit, thereby
making a class action a superior method of adjudicating the dispute).

For these reasons, the district court’s determination that “all of the cases turn on
basically the same questions” is incorrect and inconsistent with the principles of ERISA.
Nor does it support a finding of superiority. Because Rule 23(b)(3) requires both
predominance and superiority, and the Fund cannot show superiority, we need not
review the district court’s findings on predominance to conclude that certification under
Rule 23(b)(3) was an abuse of its discretion. We reverse the class certification under
Rule 23(b)(3).

D. Incompatible Standards of Conduct

The district court also certified the action under Rule 23(b)(1)(A), so we briefly
address this alternative ground. Rule 23(b)(1)(A) allows for class certification when
“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 . . . .”
A class action is appropriate under this subsection when “the party is obliged by law to
treat the members of the class alike,” for example when the class touches upon how a
utility company interacts with its customers or how the government imposes a tax. See
Amchem, 521 U.S. at 614 (citation omitted). Certification is not appropriate simply
because “some plaintiffs may be successful in their suits against a defendant while others
may not.” In re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305 (6th Cir. 1984)
(citations omitted); see also 7AA Wright, Miller, & Kane, supra, § 1773 (3d ed. 2010)
(explaining that the rule “requires more than a risk that separate judgments would oblige
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 20
Shield of Mich.

the opposing party to pay damages to some class members and not to others or to pay
them different amounts”).

The district court’s analysis does not explain how the class questions present the
risk required under this subsection and instead, focuses again on the question of legality
under state law. As the magistrate judge correctly recognized in rejecting Rule
23(b)(1)(A) certification, there is nothing to indicate that adjudication in separate actions
would impair BCBSM’s ability to pursue a uniform course of conduct. Because the
threshold question of BCBSM’s fiduciary status depends on the ASC and funding
arrangements between each class member and BCBSM, there is no prospect that
individual adjudications would subject BCBSM to conflicting affirmative duties. In
other words, the fact that the district court found BCBSM liable to the Fund for a
fiduciary breach, while another court might find BCBSM owes no duty to a different
ASC client, does not create the risk required under this subsection. Furthermore, even
if different courts reached different conclusions about the legality of the OTG subsidy,
those decisions do not compel affirmative action by BCBSM and thus, would not impair
its ability to pursue a uniform continuing course of conduct.

Although the district court correctly identified the legal standard for a Rule
23(b)(1)(A) class, it abused its discretion by failing to explain how the proposed class
creates the required risk of incompatible standards of conduct. Class certification was
not appropriate under Rule 23(b)(1)(A).

III. CONCLUSION

Because a class action is not warranted under Rule 23(b)(3) or Rule (b)(1)(A) we
REVERSE the class certification with prejudice and REMAND to the district court for
an order of final judgment in the Fund’s individual action.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 21
Shield of Mich.

____________________________

DISSENTING IN PART
____________________________

CLAY, Circuit Judge, dissenting in part. Defendant Blue Cross Blue Shield of
Michigan appeals the district court’s decision certifying a class of plaintiffs pursuant to
Federal Rules of Civil Procedure 23(b)(1)(A) and (b)(3), with Plaintiffs, Pipefitters
Local 636 Insurance Fund, and its trustees (collectively “Plaintiffs”), serving as lead
plaintiffs. The majority reverses the district court, and decertifies the class under both
Rule 23 sub-sections. I agree with the majority’s disposition and analysis of the district
court’s certification under Rule 23(b)(1)(A). However, I disagree with the majority’s
treatment of certification under Rule 23(b)(3).

The district court failed to perform the required “rigorous analysis” in
considering Plaintiffs’ certification motion. See Stout v. J.D. Byrider, 228 F.3d 709, 716
(6th Cir. 2000). The record in this case is under-developed, and does not reveal the
extent to which individualized inquiry into each class member’s contract will be
necessary to adjudicate the class’ claims against Defendant. Consequently, the case
should be remanded to the district court for further factual development regarding
certification under Rule 23(b)(3).

BACKGROUND

In 2002, Plaintiffs converted from an insured customer of Defendant to a self-
funded plan, and entered into an Administrative Services Contract (“ASC”) with
Defendant. As a self-funded plan, Plaintiffs covered its customers’ health care costs, and
under the ASC, Defendant’s role became exclusively administrative. Defendant
processed and paid the amounts billed for enrollees’ health care claims, and Plaintiffs
reimbursed Defendant for the amounts paid.

Pursuant to the ASC, Plaintiffs also paid Defendant an administrative charge per
participant, and Defendant retained a portion of Plaintiffs’ assets as additional fees.
From June 2002 through January 2004, one of these fees was an other-than-group
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 22
Shield of Mich.

(“OTG”) subsidy. The OTG subsidy is a Medigap subsidy that Defendant collected
from its insured and self-insured customers to lower the cost of Medigap coverage for
Michigan senior citizens. In January 2004, Defendant unilaterally stopped charging
Plaintiffs the OTG fee.

In September 2004, Plaintiffs filed the instant action alleging that Defendant
breached its fiduciary duty under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001-461, by charging Plaintiffs the OTG fee between June
2002 and January 2004, and for failing to disclose the fee. The district court initially
dismissed this element of Plaintiffs’ complaint for failure to state a claim. See Pipefitters
Local 636 v. Blue Cross Blue Shield of Michigan, 213 F. App’x 473, 475 (6th Cir. 2007)
(“Pipefitters I”). Plaintiffs appealed, and in Pipefitters I, this Court reversed, finding
that Plaintiffs had sufficiently alleged in its complaint that Defendant breached an
ERISA fiduciary duty in charging the OTG fee. See id. at 478.

On remand, Plaintiffs filed a motion for class certification pursuant to Rule 23
of the Federal Rules of Civil Procedure, requesting that the district court certify a class
of self-insured health benefits plans that “contracted with BCBSM to provide
administrative services and which were improperly assessed the cost transfer
subsidy/OTG.” (R. 74, Pls. Mot. for Class Certification at 20.) Because Plaintiffs allege
that Defendant breached its ERISA fiduciary duty in charging class members the OTG
fee, in order to prevail on their claims, each class member must demonstrate that
Defendant acted in its ERISA fiduciary capacity in charging it the OTG fee.

Nevertheless, without this information, the district court granted Plaintiffs’
certification motion, concluding that Plaintiffs satisfied the requirements of Rule 23(a),
and 23(b)(3). The district court defined the class as follows: “All entities (1) which had
or have administrative services contracts with Blue Cross Blue Shield of Michigan and
(2) which were or are assessed the other-than-group fee.” (R. 127, Order Granting in
part and Denying in Part Pls. Mot. for Class Certification at 2.) The district court also
certified two issues for class-wide determination: “(1) Whether Blue Cross was a
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 23
Shield of Mich.

fiduciary under ERISA with respect to the class in assessing the OTG fee; (2) Whether
Blue Cross breached a fiduciary duty owed the class by assessing the OTG fee.” (Id.)
Defendant now appeals the district court’s certification of the class.

ANALYSIS

Determining whether Defendant violated ERISA by charging Plaintiffs and the
class members the OTG fee requires that we ascertain, among other things, whether
Defendant acted in its ERISA fiduciary capacity in charging the fee. The majority finds
that class certification is inappropriate in this case because in order to establish
Defendant’s ERISA fiduciary status as to each member of the class, “the district court
here would be required to conduct individualized inquiries into the . . . terms and funding
arrangements of each” class member. (Maj. Op. at 17.) The majority finds that these
individual inquiries would overwhelm the inquiries common to the class members,
making class certification inappropriate.

The party seeking class certification bears the burden of proof regarding the Rule
23 certification requirements. See, e.g., In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th
Cir. 1996). Nonetheless, in assessing the propriety of class certification, the district
court has an independent duty to conduct a “rigorous analysis” to determine whether the
party seeking certification has satisfied that burden. Gen. Tel. Co. v. Falcon, 457 U.S.
147, 161 (1982); see also Stout, 228 F.3d at 716. This Court has remanded class actions
for further proceedings when the district court failed to conduct this requisite “rigorous
analysis.” See, e.g., Reeb v. Ohio Dep’t of Rehab. & Corr., 81 F. App’x 550, 559 (6th
Cir 2003).

Unfortunately, the district court in this case did not issue a written opinion on the
class certification question. Instead, immediately prior to announcing its ruling, the
district court explained: “I’m ready to rule. And one of the reasons I wanted you to
come back at 1:30 [from a recess] was so that my law clerk and I could sort of discuss
this and try to make a ruling that is useful to you in terms of reviewing it without writing
an opinion.” (R. 145, Tr. of Mot. for Summ. J. and Mot. on Class Certification at 68.)
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 24
Shield of Mich.

The district court’s analysis of the Rule 23 factors required for class certification
spanned only two pages of the hearing transcript. (See id. at 74-76.) Explaining its
decision to certify the class, the district court stated as follows:

First I agree . . . that Rule 23(a) has been satisfied. Despite the
objections, the plans are numerous. The numbers have been given
anywhere from 550 to 875.
The ability of the other [class members] is also part of the Rule 23(b)
analysis.
Commonality is also satisfied. First, whether the OTG fee was contrary
to law is a common question. One that I’ve already resolved and decided
summary judgment motions as requested, and included is whether Blue
Cross was a fiduciary in assessing the OTG fee. It’s a fairly easy thing
in each case for Blue Cross to know whether its Plan collected the OTG
fee in other cases.
In terms of typicality . . . the claims of the Representative Plaintiff [are]
typical of the claims or the defenses of the class. The same statutory
analysis that I just went through for the Pipefitters Plaintiffs would have
to be done for each of the class members.
As to adequacy, the Plaintiff can fairly and adequately protect the
interests of the class. Pipefitters still wants damages and has the
incentive to protect the interest of absent class members.
In terms of Rule 23(b), if any of the three subcomponents are satisfied,
then Plaintiff is entitled to certification . . . .
23(B)(3), this section requires a predominance in superiority [sic].
Common questions predominate because it’s a common question whether
Blue Cross controlled assets and whether the assessment was consonant
with [the] Michigan statute.
And . . . this class action has to be superior to the individual actions.
While it’s true that class members probably have resources to bring suit
on their own and can control the case on their own, all of the cases
basically turn on the same questions. Therefore class action is superior.

(Id.)

Rule 23 requires that a district court engage in “a thorough evaluation of the Rule
23 factors” prior to determining whether to certify a class. Landman & Funk PC v.
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 25
Shield of Mich.

Skinner-Strauss Assocs., 640 F.3d 72, 93 (3d Cir. 2011). Although “district courts may
not inquire into the merits of the class representatives’ underlying claims,” Reeb 81 F.
App’x at 555, district courts must nevertheless consider the factual particularities of the
claims in determining whether class certification is appropriate. See id.; Landman, 640
F.3d at 93 (“To determine if the requirements of Rule 23 have been satisfied, a district
court must conduct a rigorous analysis. In doing so, a court may delve beyond the
pleadings to determine whether the requirements for class certification are satisfied.”
(internal quotations and citations omitted)). Depending on the claims at issue, the
district court’s rigorous analysis may include “an examination of what the parties would
be required to prove at trial.” Cox v. Zurn Pex, Inc., No. 10-2267, 2011 U.S. App.
LEXIS 12663, at *11 (8th Cir. July 6, 2011) (internal quotation marks omitted).

In its certification inquiry in the instant case, the district court did not discuss the
particularities of the class’ claims against Defendant to elucidate what pieces of evidence
would be necessary to prove class members’ claims, and the extent to which this
evidence would require individualized inquiries. The district court’s failure to develop
and analyze the record impedes our ability to thoroughly review whether the district
court’s certification of the class was an abuse of discretion.

It may very well be, as the majority assumes, that substantial individualized
inquiry into each class member’s contract would be necessary to dispose of the claims
against Defendant if, for example, each class member negotiated a separate contract
with Defendant, containing dissimilar provisions. However, Defendant may also have
a form contract common to all or most of the class members, in which case minimal
individualized inquiry would be necessary, and class certification might be appropriate.
See Pipefitters I, 213 F. App’x at 475 (explaining that Defendant used the same
accounting and billing procedure consistently throughout its business dealings with all
of its self-insured clients). Because the record is devoid of certain essential facts, we
simply have no way of knowing the extent to which individualized inquiry is necessary
to adjudicate class members’ claims. Without this information, it is impossible for us
No. 09-2607 Pipefitters Local 636, et al. v. Blue Cross Blue Page 26
Shield of Mich.

to conclude whether the class is sufficiently cohesive to permit a class-wide
determination.

The district court failed to perform the required “rigorous analysis,” and the
record is thus under-developed, and does not reveal the extent to which individualized
inquiry into each class member’s contract would be necessary to determine whether
Defendant acted in its ERISA fiduciary capacity as to each class member in collecting
the OTG fee. Therefore, remand of the class certification question is appropriate. See,
e.g., Reeb, 81 F. App’x at 559.

CONCLUSION

For the foregoing reasons, I respectfully dissent in part.