Gomez v. St. Vincent Health, Inc.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2379

B LANCA G OMEZ and JOAN W AGNER-B ARNETT,

Plaintiffs-Appellants,
v.

S T. V INCENT H EALTH, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-00153—Sarah Evans Barker, Judge.

A RGUED M AY 13, 2011—D ECIDED A UGUST 15, 2011

Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. When Blanca Gomez and Joan
Wagner-Barnett left their jobs with St. Vincent Health,
Inc. (the “Company”), they did not receive notices de-
scribing how to extend their health insurance coverage
within the period prescribed by statute. Responding to
a solicitation from a lawyer, Barnett and Gomez became
the named plaintiffs in a proposed class action seeking
2 No. 10-2379

damages from and statutory penalties against the Com-
pany for its violation of the notice provisions. The
district court declined to certify the class, however,
having found the proposed class counsel to be inade-
quate for the purposes of class representation. It then
considered the named plaintiffs’ individual claims on
cross-motions for summary judgment. The district court
denied their request for statutory penalties against the
Company and Gomez’s request for damages, but it
awarded damages to Barnett. Barnett and Gomez now
appeal the district court’s decisions not to certify the
class and not to award statutory penalties, and Barnett
appeals the amount of damages the district court
awarded her. We affirm.

I. B ACKGROUND
St. Vincent Health, Inc. is the parent corporation for
a system of hospitals and healthcare service facilities
in central Indiana. During the period covered by the
proposed class description, the Company administered
group health plans for approximately sixteen facilities
that employed thousands of individuals. In that capacity,
it was responsible for complying with federal statutes
and regulations relating to its employer-sponsored
health insurance programs. This case involves the Com-
pany’s obligation to timely notify qualified departing
employees of their right to extend their health insurance
coverage at their own cost after their employment ends.
These notices are commonly called “COBRA notices,” as
the obligation was imposed by an amendment to the
No. 10-2379 3

Employee Retirement Income Security Act (ERISA) of
1974 contained in the Consolidated Omnibus Budget
Reconciliation Act (COBRA) of 1985.
Between May 2004 and January 2006, approximately
1,570 employees in the St. Vincent network experi-
enced a qualifying event that obligated the Company
to provide them with COBRA notices. Because of the
organization’s complexity, the Company employed third-
party administrators (“TPAs”) to assist in distributing
COBRA notifications. The TPAs would receive auto-
mated notification from the human resources depart-
ments at various St. Vincent network facilities; they
would then produce the required COBRA notices and
mail them to the qualified beneficiaries on the Company’s
behalf.
The Company also established an oversight system for
its employee-benefit programs. It hired outside auditors
to investigate compliance with statutory, regulatory,
and internal policy requirements for all of its benefit
programs; part of those audits involved monitoring the
COBRA notification program. Bradley & Associates, a
public accounting firm, performed the audits during the
period relevant to this case. The firm would procure a
random sample of terminated-employee files and the
associated TPA data to ensure that the Company was
meeting its COBRA obligations. In addition, the Com-
pany operated a call center where current and former
employees could inquire about plan benefits. The center
logged over 55,000 calls during the period of the com-
plaint. Neither the audits nor the call center yielded any
4 No. 10-2379

indication that the Company was faltering in its COBRA
obligations.
Despite these efforts, the Company later determined
that some notices had slipped through the cracks. In
February 2006, three former employees brought a pro-
posed class action against the Company in the Southern
District of Indiana, alleging that at least forty former
employees either received their COBRA notices late
or never received them at all. In response, the Company
fully investigated its COBRA compliance. It determined
that between May 2004 and January 2006, an estimated
266 of the 1,570 participants who experienced qualifying
events apparently did not timely receive their COBRA
notices. The Company promptly contacted those indi-
viduals, provided the overdue notices, allowed retroac-
tive election of benefits, and offered to negotiate pay-
ment plans for those who could not afford to immediately
pay the accrued premium obligations.
The initial class action suit was terminated by court order
in September 2007. Brown-Pfifer v. St. Vincent Health, Inc.,
No. 1:06-cv-0236, 2007 WL 2757264 (S.D. Ind. Sept. 20,
2007). The district court declined to certify the pro-
posed class for multiple reasons, including its finding
that the proposed class counsel was inadequate to repre-
sent the proposed class. It then entered summary judg-
ment in the Company’s favor on the named plaintiffs’
individual claims. Those named plaintiffs appealed the
district court’s judgment, but later voluntarily dismissed
their appeal.
Instead of pursuing the appeal, the spurned proposed
class counsel in the Brown-Pfifer case chose to pursue a
No. 10-2379 5

new class action involving the same operative circum-
stances. Using the list of qualified beneficiaries produced
by the Company during discovery in the Brown-Pfifer
litigation, counsel contacted those participants who had
received untimely COBRA notices and solicited their
participation in another lawsuit against the Company.
Among others, Gomez and Barnett responded to his
solicitation and authorized him to file, on their behalf,
the lawsuit we review today.1 As the only remaining
named plaintiffs, they sought to represent a class materi-
ally identical to that proposed in Brown-Pfifer.
Gomez had worked as an Environmental Services
Attendant at the St. Vincent Carmel Hospital until Novem-
ber 30, 2004. While working at the hospital, she and her
husband were enrolled in health and dental insurance
plans administered by the Company. After she left the
job, her insurance coverage continued through Decem-
ber 31, 2004. Under COBRA, Gomez was eligible to
extend her coverage for eighteen months by paying
monthly premiums that had been previously paid by
her employer. She should have received the COBRA
notice by January 13, 2005, but she did not receive
mailed notice until approximately June 22, 2006. If she
had elected extended coverage, her monthly premiums
would have been $304.10 for health insurance and an

1
Two other plaintiffs, Techila Mugodi and Asira Evans, were
initially included as plaintiffs named to represent the
proposed class. The district court later removed them as
named plaintiffs pursuant to their unopposed motion.
6 No. 10-2379

additional $35.54 for dental benefits. Gomez testified,
however, that she would not have elected to extend
her benefits because she could not have afforded the
monthly premiums.
Barnett worked as a Registered Nurse at the St. Vincent
Indianapolis Hospital. Her last day of employment was
November 28, 2004. She had been enrolled in health,
dental, and vision insurance plans administered by the
Company. Like Gomez, Barnett had insurance coverage
through St. Vincent that continued through December 31,
2004. She should have received the COBRA notice by
January 11, 2005, but she did not receive mailed notice
until June 25, 2006. Unlike Gomez, Barnett testified that
she would have elected to pay the premiums to extend
her benefits in order to offset her monthly prescription
costs and other medical expenses. Her monthly COBRA
premiums would have been $304.10 for health insurance,
an additional $33.54 for dental benefits, and an addi-
tional $7.98 for vision benefits.
Barnett described having paid approximately $700 for
prescription medications during the period between
leaving St. Vincent Indianapolis and being covered by
the health insurance program at her new employer in
February 2005. She also provided evidence showing
she incurred $648 of expenses for vision care between
November 2004 and December 2005. She contends that
she would not have incurred $940 in out-of-pocket
health care expenses if she had received the required
COBRA notice.
As in the preceding case, the district court denied the
named plaintiffs’ motion for class certification. It noted
No. 10-2379 7

that the allegations and arguments before the court at the
certification stage were identical to those in the Brown-
Pfifer litigation, concluding that this suit was filed in lieu
of following through on the appeal originally filed in
Brown-Pfifer. The district court found that the proposed
class counsel had been deficient in both the former and
current proceedings and that he lacked regard for scarce
judicial resources, as he was attempting to relitigate the
same operative facts and issues involved in the Brown-
Pfifer case. It therefore concluded that the proposed class
counsel would inadequately represent the proposed
class, thus requiring it to deny certification.
The named plaintiffs’ individual claims were subse-
quently addressed on cross-motions for summary judg-
ment. The district court first denied their request for
statutory penalties against the Company, finding that the
circumstances did not warrant imposing a daily penalty
for the Company’s admitted failure to provide timely
COBRA notices. It then denied Gomez’s request for dam-
ages, finding that she had not substantiated any medical
expenses and that she would not have extended her
insurance coverage even if she had received a timely
COBRA notice. But it awarded damages to Barnett for
part of her out-of-pocket medical expenses, as she had
testified that she would have paid to extend her coverage.
Barnett had testified that she could not remember when
or if she had dental or vision coverage, and she had not
provided evidence of co-payments or deductibles for
any potential coverage. Yet she credibly testified that
she was not covered under any insurance plan when she
incurred over $700 in prescription costs shortly after
8 No. 10-2379

leaving the St. Vincent Indianapolis Hospital. The district
court therefore awarded Barnett $396 in damages, the
difference between her prescriptions costs and the pre-
mium she would have paid in order to extend her cover-
age.

II. A NALYSIS
Gomez and Barnett present three issues on appeal.
First, they contend that the district court erred in its
decision to deny class certification on the ground that
their proposed class counsel was inadequate. They ask
us to vacate the certification denial order and to certify
their proposed class. Second, they contend that the
district court’s decision not to impose $55,220 in discre-
tionary statutory penalties against the Company was
erroneous. They ask us to reverse the entry of summary
judgment and impose an appropriate daily penalty for
the Company’s delay in sending COBRA notices. Finally,
Barnett contends that her damages award did not ade-
quately compensate her for all of her out-of-pocket ex-
penses resulting from the belated COBRA notice. She
asks us to increase the award from $396 to $940. For ease
of analysis, we will take up these issues in reverse order.

A. Barnett’s Damages Award
Barnett finds no fault in the district court’s damages
calculation for her out-of-pocket prescription costs, but
she argues that the evidence supported an additional
award of $544 to compensate her for vision-care expenses
No. 10-2379 9

she sustained. In her appellate briefs, Barnett does not
specifically identify the statutory source of her entitle-
ment to what she calls “equitable damages.” 2 In their
amended complaint, however, Gomez and Barnett
alleged that the Company is liable for equitable damages
because of its breaches of its duty under 29 U.S.C. § 1166
to provide timely COBRA notices; their summary judg-
ment memorandum then clarified that they sought equi-
table damages pursuant to 29 U.S.C. § 1132(c)(1), the
COBRA notification enforcement provision. That provi-
sion allows the district court both to assess statutory
penalties against the administrator failing to issue
timely notice and also to “order such other relief as it
deems proper.” 29 U.S.C. § 1132(c)(1)(B). The preliminary
question thus arises whether the “equitable damages”
sought by Barnett fall within subsection (c)(1)’s “such

2
We suspect that the plaintiffs use that term because com-
pensatory damages are not authorized in suits under ERISA’s
general enforcement provision, which allows courts to
provide only equitable forms of relief. See 29 U.S.C. § 1132(a);
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209-
10 (2002) (distinguishing equitable and legal relief in the
ERISA context). The kind of relief sought in the plaintiffs’ claim
for “equitable damages”—recovery for pecuniary loss as a
result of the Company’s inaction despite its obligation to
timely provide COBRA notices—appears legal rather than
equitable in nature and is therefore generally not available
under 29 U.S.C. § 1132(a)(3). Kenseth v. Dean Health Plan, Inc.,
610 F.3d 452, 483 (7th Cir. 2010); see also Mondry v. Am. Family
Mut. Ins. Co., 557 F.3d 781, 804 (7th Cir. 2009).
10 No. 10-2379

other relief” category when they would seem to be ex-
cluded from subsection (a)(3)’s available remedies.
The ERISA enforcement provision “expressly distin-
guishes between suits brought to penalize a failure to
comply with statutory disclosure requirements like
section 1166 and suits brought to enforce the specific
terms of an employee benefit plan.” Lopez ex rel. Gutierrez
v. Premium Auto Acceptance Corp., 389 F.3d 504, 509 (5th
Cir. 2004). Section 1132(a)(1)(A) provides that a bene-
ficiary may bring a civil action “for the relief provided for
in subsection (c) of this section”—the notification compli-
ance subsection—implying that the available relief in
that subsection would be broader than the equitable
remedies specified in subsections (a)(1)(B) and (a)(3).
Indeed, the broad language of the subsection invoked
by Barnett does not, on its face, preclude monetary dam-
ages. See 29 U.S.C. § 1132(c)(1)(B) (“[T]he court may in
its discretion order such other relief as it deems proper.”).
The district court, relying on decisions from other
districts, determined that “such other relief” could include
an award of medical expenses incurred as a result of
the COBRA notification violation, less deductibles and
premiums that the beneficiary would have paid to obtain
extended coverage under COBRA. Gomez v. St. Vincent
Health, Inc., No. 1:08-cv-0153, 2010 WL 1854106, at *4 (S.D.
Ind. May 6, 2010). We and other courts of appeals have
previously acknowledged this practice of district courts
without explicitly condoning it. E.g., Schleibaum v. Kmart
Corp., 153 F.3d 496, 504 (7th Cir. 1998); Smith v. Rogers
Galvanizing Co., 148 F.3d 1196, 1198-99 (10th Cir. 1998).
No. 10-2379 11

In this case, the Company has not contested the
propriety of the relief secured by Barnett, and neither
party has provided any briefing regarding the limits of
this kind of relief.
While we are reticent to condone without limitation
this method of compensation in COBRA-notification
violation cases, we find no error in this particular case.
The district court awarded the monetary damages pursu-
ant to subsection 1132(c)(1)’s “such other relief” provi-
sion, and the award does not contradict the section’s
plain text. The awarded damages were far less than the
potential statutory penalties the district court could
have awarded pursuant to that subsection. See Mondry
v. Am. Family Mut. Ins. Co., 557 F.3d 781, 806 (7th Cir.
2009) (the purpose of statutory penalties under section
1132(c)(1) “is to induce the plan administrator to
comply with the statutory mandate rather than to com-
pensate the plan participant for any injury she suffered
as a result of non-compliance.”). It also did not ef-
fectively transfer the risk of paying exorbitant medical
costs from an insurer to an employer-based admin-
istrator by virtue of the administrator’s mere technical
violation of notification provisions. Finally, the Company
did not appeal the award as inappropriate or beyond
the scope of the statute. Accordingly, we conclude that
the district court did not err in awarding Barnett $396
in damages pursuant to 29 U.S.C. § 1132(c)(1).
Nor did the district court err in declining to award
Barnett $544 in additional compensation for her vision-
care expenses. It found that Barnett’s “failure to recall
12 No. 10-2379

specific times when she had . . . vision coverage
combined with the lack of evidence regarding the
co-payments and deductibles associated with [it] leaves
the court with nothing beyond mere speculation to estab-
lish an amount that would properly compensate her for
the . . . vision bills she allegedly paid in late 2005.” Gomez,
2010 WL 1854106, at *4. On appeal, Barnett argues she
specifically testified that she did not have vision in-
surance as of October 24, 2005, or December 24, 2005, the
dates she claims to have incurred the expenses. In her
reply brief, she refers to this testimony as unrefuted.3
She contends that the district court therefore erred in
denying her additional compensation for her vision
expenses.
Yet the deposition testimony to which she refers
actually indicates that she did not have vision insurance
on December 24, 2004; it does not refer to any dates in
2005. (Docket 107-7 at 26.) This makes sense, as the
$46 receipt for her eye exam at Walmart is dated
“12/24/2004,” as opposed to the 2005 date her counsel
repeatedly alleges throughout the briefs. (Appellant’s Br.
at 11, 39; Reply Br. at 15.) The receipt for her deposit
of $179 on her new glasses is undated, but she testified
that it was from the same time. Because her insurance

3
She also contends that the Company conceded that she “did
testify that she did not have vision insurance as of October 24,
2005 or December 24, 2005.” (Reply Br. at 15 (citing Appellee’s
Br. p. 43 fn. 9).) Her contention is misleading, as the alleged
concession only acknowledges that Barnett gave conflicting
testimony.
No. 10-2379 13

benefits through the St. Vincent Indianapolis Hospital
did not expire until the end of 2004, she was—contrary
to her testimony—still covered by vision insurance at
that time. Further, Barnett testified that she would have
dropped extended vision coverage under COBRA once
coverage became available from a subsequent employer.
She also testified that she did not know whether on
October 24, 2005—the date she incurred $244.95 in vision
expenses from a J. C. Penney store—she had insurance
coverage. (Docket 107-7 at 21-22.) The district court was,
therefore, well within its discretion to deny additional
compensation for these expenses, as there was no
evidence to indicate that Barnett incurred them as a
result of the Company’s failure to provide her timely
notice of her COBRA rights.

B. Denial of Statutory Penalties
Gomez and Barnett contend that the district court erred
by not imposing statutory penalties on the Company for
its failure to ensure they received timely COBRA notices.
The Company concedes that it did not meet the notice
requirements in 29 U.S.C. § 1166 after Gomez and
Barnett left their respective St. Vincent hospitals. Because
of the Company’s violation, the district court had the
discretion to hold the Company liable for statutory penal-
ties of up to $110 a day from the date of the violation.
29 U.S.C. § 1132(c)(1); 29 C.F.R. § 2575.502c-1. The
district court declined to impose the penalties, however,
noting that neither woman was significantly prejudiced
by the delay in notification, that there was no indication
14 No. 10-2379

of bad faith or gross negligence, and that the Company
offered to provide retroactive coverage through a pay-
ment plan. We review the district court’s decision re-
garding statutory penalties under 29 U.S.C. § 1132 for
an abuse of discretion. Mlsna v. Unitel Commc’ns, Inc., 91
F.3d 876, 883 (7th Cir. 1996).
Gomez and Barnett first argue that the Company was,
as a matter of law, obligated to have an oversight system
in place to ensure that the COBRA notices reached all
qualified beneficiaries on time. They are incorrect. There
is no mandate for an administrator—even one that uses
TPAs to assist it in fulfilling its ERISA and COBRA obliga-
tions—to adopt an oversight system, no matter how wise
adopting such a system would be. The named plaintiffs
argue that Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d
1223 (11th Cir. 2002), established this oversight mandate,
but they overstate the case’s holding. In Scott, the
Eleventh Circuit concluded only that an administrator
or employer cannot meet its COBRA notification obliga-
tions by contracting with a TPA, providing the TPA
with information regarding a qualifying event, and then
assuming the TPA sent the notifications that it was con-
tractually required to. Id. at 1231. The case did not
require that the administrator or employer take “the
necessary steps to ensure that the [TPA] would, in
all cases, make such notification.” Id. Rather, it held—as
we do now—that in the absence of such an oversight
system, the use of a TPA cannot shield the administrator
from liability for violations of COBRA’s notification
requirements. It is not the absence of an oversight
system that violates COBRA; it is the insufficiency or
No. 10-2379 15

lateness of the COBRA notice that breaches the admini-
strators’ duty.
Regardless, the Company did have an oversight
system in place, albeit an imperfect one. Despite Gomez
and Barnett’s arguments to the contrary, the record
indicates that the Company received COBRA compliance
feedback from annual audits performed by Bradley &
Associates. Though this feedback concerned only a
random subset of qualified beneficiaries each year,
it nevertheless provided some indication of the perfor-
mance of the Company’s TPAs. In addition, the
Company’s call center provided another means of moni-
toring performance. Over the course of 55,000 calls, the
center never received any complaints regarding insuf-
ficient or late COBRA notifications during the period
covered by the complaint in this case.
Gomez and Barnett next argue that the district court
was incorrect to focus on the lack of prejudice instead
of focusing on the Company’s conduct as the administra-
tor. They are correct that the district court could have
imposed statutory penalties even if it had found that
they had suffered no prejudice as a result of the late
notices. See Scott, 295 F.3d at 1232; Starr v. Metro Sys., Inc.,
461 F.3d 1036, 1040 (8th Cir. 2006); accord Mondry, 557
F.3d at 806 (construing analogous ERISA disclosure
requirement). But prejudice is among the valid factors
district courts may evaluate when determining whether
to impose statutory penalties for COBRA-notification
violations. Scott, 295 F.3d at 1232. Courts should also
consider the nature of the plan administrator’s con-
16 No. 10-2379

duct, including its demonstration of good or bad faith.
Starr, 461 F.3d at 1040.
This case lacks any evidence of an administrator’s
bad faith (such as misrepresentations or willful delay
in response to beneficiaries’ requests for information) or
gross negligence—behaviors that a district court could
readily assume would be deterred by statutory penalties.
See id. (“The purpose of this statutory penalty is to
provide plan administrators with an incentive to
comply with the requirements of ERISA . . . and to punish
noncompliance” (citations omitted)). In such a case,
evidence of the administrator’s good faith (such as im-
mediate corrective efforts when notification violations
come to light and offers to negotiate payment plans
for premiums to establish retroactive coverage) and
of the lack of significant injury or prejudice caused by
technical violations become more significant to the
district court’s analysis. That is exactly the kind of
analysis the district court engaged in here, and we find
no error in its reasoning.
We find the appellants’ remaining legal and policy
arguments unpersuasive. In support of their conten-
tion that “it is unconscionable to fail to impose a daily
statutory penalty” in this case, (Appellants’ Br. at 34), they
analogize their case to an unpublished case in which
the Fourth Circuit determined that the maximum
statutory penalty needed to be imposed as a matter of
law for the administrator’s COBRA violations, Underwood
v. Fluor Daniel, Inc., No. 95-3036, 1997 WL 33123, at *4
(4th Cir. Jan. 28, 1997). But the circumstances of their
No. 10-2379 17

case could be no further from those in Underwood,
where the administrator altogether failed to comply
with COBRA from its passage until at least eight years
later. Id. Their unconscionability “argument” is unsup-
ported hyperbole, and we give it no credence. We
likewise find unpersuasive their policy-based asser-
tions that the district court’s decision will “be the ‘dar-
ling’ of the defense bar across the nation,” (Reply Br. at 14),
that it “will actually encourage plan administrators to
worry less about their COBRA duties,” (Appellants’ Br. at
35), and that if we “give [our] stamp of approval to this
decision, this will effectively end COBRA litigation in this
Circuit,” (Reply Br. at 14). We are unmoved by invec-
tive that neither addresses the district court’s rationale
nor attempts to build a policy argument through persua-
sive reasoning. We remain confident that the risk of
statutory penalties and other relief district courts deem
proper will continue to deter violations of ERISA and
COBRA—even if the proposed class counsel in this case
does not collect his contingency share of the $55,220
in statutory penalties sought in this case.

C. Denial of Class Certification
That brings us to the final issue in this appeal, the dis-
trict court’s denial of the named plaintiffs’ motion to
certify the proposed class. In the related antecedent case
of Brown-Pfifer, another judge in the same district court
declined to certify a nearly identical class on multiple
grounds. But in this case the district court declined to
certify the class on a single ground: that the proposed class
18 No. 10-2379

counsel was not an adequate representative of the class.
On appeal, Gomez and Barnett argue—through the same
counsel that sought to become class counsel below—that
the evidence demonstrated that the proposed class
counsel was “more than competent” to represent the
proposed class. We review the district court’s denial of
the class-certification motion for an abuse of discretion.
Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010).
Before a district court may certify a proposed class, the
class must meet the requirements of Federal Rule of
Civil Procedure 23(a). Sec’y of Labor v. Fitzsimmons, 805
F.2d 682, 697 (7th Cir. 1986). One of those requirements
is that “the representative parties will fairly and ade-
quately protect the interests of the class.” Fed. R. Civ.
P. 23(a)(4). This adequate representation inquiry consists
of two parts: (1) the adequacy of the named plaintiffs
as representatives of the proposed class’s myriad
members, with their differing and separate interests, and
(2) the adequacy of the proposed class counsel. Retired
Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598
(7th Cir. 1993); Greisz v. Household Bank (Ill.), N.A., 176
F.3d 1012, 1013 (7th Cir. 1999) (the district court judge
must “assess the class lawyer’s competence before certi-
fying a suit to proceed as a class action”).
The district court assessed the proposed class counsel
in this case and determined that his “actions during his
attempts to represent the proposed class through two
separate suits [did] not make him an adequate class
counsel.” It based this conclusion on counsel’s conduct
during both the Brown-Pfifer case and this case. In the
No. 10-2379 19

Brown-Pfifer litigation, another judge in the same district
court found that counsel was not diligent in prosecuting
his proposed class action, had engaged in faulty dis-
covery efforts, had been subjected to orders to compel
and awards of cost, and had failed to develop a full
record for summary judgment consideration; that judge
denied class certification in part based upon proposed
class counsel’s inadequacy. In this case, the district court
judge considered those findings from Brown-Pfifer. It
then noted that the same proposed class counsel had
brought a nearly identical case here and that—at the
certification stage—he made “no arguments that are
different from those” in Brown-Pfifer. The district court
went on to note that counsel had already been ordered
to pay expenses in conjunction with the Company’s
motion to compel in this case. It also found that counsel’s
“questionable work in [the Brown-Pfifer] case and his
decision to relitigate the same issues in this court show
a lack of regard for scarce judicial resources.” Gomez v. St.
Vincent Health, Inc., 1:08-cv-0153, 2009 WL 1853120, at *3
(S.D. Ind. June 25, 2009). Based on these considerations,
the district court determined that proposed class coun-
sel was an inadequate representative of the proposed
class and that certification had to be denied accordingly.
On appeal, counsel does not directly address the con-
cerns identified by the district court. Instead, he argues
first that he is qualified as class counsel because (1) he
knew the case well from his involvement in the Brown-
Pfifer litigation, (2) no other lawyer had sufficient famili-
arity to take on class representation without signifi-
cant additional work, and (3) he had been certified as
20 No. 10-2379

class counsel in another similar class action suit before
a different judge in the district. He then argues that the
district court impermissibly looked outside the record
of this case by considering the proceedings in the Brown-
Pfifer case. His final argument is that this case differs
significantly from the facts in Brown-Pfifer, so the basis
of the district court’s certification decision was flawed.
We find these arguments unpersuasive for a number
of reasons. First, his arguments do not address the
district court’s conclusions regarding diligence, respect
for judicial resources, and promptness. Second, while
counsel’s familiarity with both this case and the Brown-
Pfifer case is clear—discovery he acquired in the Brown-
Pfifer case enabled him to solicit the named plaintiffs
as proposed class representatives in this litigation—the
efficiency he claims results from that familiarity has not
been demonstrated. He has, for example, already been
subjected to a successful motion to compel and an ac-
companying order to pay costs and fees. Regardless,
familiarity does not equate to adequacy; it is only a part
of the analysis. See Fed. R. Civ. P. 23(g); 7A Charles
Alan Wright et al., Federal Practice and Procedure § 1769.1
(3d ed. 2005) (discussing quality of work, briefing skills,
diligence, care, and attention to detail as factors courts
evaluate).
We also note that he moved the district court to allow
his use of discovery materials from Brown-Pfifer in this
case. To suggest, then, that the district court erred in its
consideration of the class certification motion in this
case by referring to the proceedings and the district
No. 10-2379 21

court judge’s reasoning in the Brown-Pfifer case is—in a
word—absurd. A court’s experience with a particular
counsel—even if that experience is not reflected in desig-
nated evidence—may be relevant to its determination
of the counsel’s adequacy to represent a proposed class.
See, e.g., Greisz, 176 F.3d at 1014. Further, the proposed
class counsel himself urges us to consider his certification
as class counsel in a separate case before then-Chief
Judge McKinney as evidence of his competence.
Finally, by arguing that some facts in Gomez’s and
Barnett’s cases differ from the named plaintiffs in the
Brown-Pfifer case, counsel misconstrues the district court’s
order. The class certification was not denied in this case
because the facts were materially identical to those in
Brown-Pfifer; rather, the district court found the nearly
identical arguments at the class certification stage to
be indicative of counsel’s competence and attitude. And
if the alleged factual distinction was significant to the
certification decision, counsel had in fact forfeited
the issue by waiting until his motion to reconsider the
certification denial to argue it.
If counsel wished to convince us that the district court
abused its discretion by finding him inadequate to repre-
sent the proposed class, his demeanor on appeal has not
helped his cause. He has misrepresented fundamental
facts. And he has relied on hyperbole in the place of
persuasive argument,4 failing to refute the district

4
In addition to the examples already described, he also wrote
the following, without any outward sign of deliberate irony:
(continued...)
22 No. 10-2379

court’s reasoning. The district court did not consider
improper materials, and nothing from our own observa-
tions of counsel suggests that its findings were flawed.
Accordingly, the district court did not err in denying
class certification because it found the proposed class
counsel inadequate to represent the class.

III. C ONCLUSION
The district court did not err by declining to certify
the proposed class or by denying the named plaintiffs’
request for statutory penalties. It also did not err in de-
termining that the evidence did not support an additional
damage award based on Barnett’s vision-care expenses.
Accordingly, we A FFIRM the district court’s judgment
in all respects.

4
(...continued)
“Given that Administrator can make no ‘real’ arguments to
support the erroneous finding of the District Court, it is left
with mudding the waters in the hopes of confusing this issue
beyond comprehension.” (Reply Br. at 4.)

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