Labor & Employment Law Daily Wrap Up, CLASS ACTIONS—M.D. Fla.: Class certification denied in suit over allegedly deficient COBRA notice, (Aug 20, 2025)

By Nicholas Kaster, J.D.

At the class certification stage, it may be necessary for a court to probe behind the pleadings to assess standing.

A federal district court in Florida has denied class certification in a case in which a terminated employee claimed that her former employer failed to comply with the regulations governing COBRA notices. The employee failed to convince the court that she has Article III standing, and she failed to demonstrate that issues common to either of her proposed classes predominated over individualized standing issues. The court ordered the employee to submit evidence proving she has standing to sue (Marrow v. E.R. Carpenter Company, Inc., No. 8:23-cv-02959-KKM-LSG (M.D. Fla. Aug. 18, 2025)).

Discharge and COBRA notice. An employee was terminated for reasons other than gross misconduct. The employer mailed the employee a COBRA notice about a week after her termination, but the employee alleged that the employer failed, for several reasons, to comply with the regulations governing COBRA notices. As a result of the employer’s alleged noncompliance, the employee said she did not elect COBRA coverage and suffered both economic and informational injuries. The employee sued and moved to certify the case as a class action.

Employee may lack standing. To satisfy Article III, only the named plaintiff needs standing. To have standing, a plaintiff must show (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, (3) that is likely to be redressed by the requested relief. The court concluded that, based on the allegations in her complaint, the employee adequately alleged all three elements.

At the class certification stage, however, it may be necessary for the court to probe behind the pleadings to assess standing. Here, the court explained, some of the facts developed in discovery contradicted the employee’s allegations.

In her complaint, the employee alleged both informational and economic injuries. Precedent makes clear that informational injury alone is insufficient to convey standing. The employee, however, alleged some downstream consequences, namely loss of insurance and resulting medical bills. Those allegations sufficed at the pleadings stage, said the court, but evidence revealed during discovery has called them into question.

First, the employee testified that she was on Medicaid after the employer terminated her and until she next received employment. Second, although she alleged that at least one of her daughters lost health insurance as a result of the notice, and has since stated the same in a declaration, other evidence indicated that the employee never enrolled her daughters in the employer’s health coverage in the first place. Third, the employee alleged that her dentist cancelled her because she had to request a refund of pre-emptively paid co-pays for upcoming procedures that she then had to cancel due to not having medical coverage. However, the employee’s dental records did not demonstrate that she cancelled any procedures after she was terminated. Finally, beyond a conclusory statement in her declaration, the employee failed to produce any tangible evidence of increased medical expenses. The employee alleged that she incurred significant medicals bills related to her hospitalization for liver problems, but the employer contended that she failed produce proof of these bills. The same appears to be true concerning other alleged expenses too, the court noted.

Traceability. Even assuming that the employee was injured in fact, said the court, questions remained about traceability. The employee claimed four problems with the COBRA notice. Taken on its own, she did not demonstrate that any injury-in-fact was traceable to the first issue, which concerned the notice’s omission of a specific due date for the decision to elect continuation coverage and the notice’s creation of a shortened election period. She failed to explain, in the light of the fact that she never attempted to elect continuation coverage, how the notice’s errors in this regard caused her stated injuries. Two other issues cited—the notice’s description of the cost of continuation coverage and the notice’s description of the qualified beneficiaries—were not issues at all, said the court. Also, beyond conclusory statements of confusion, the employee did not explain why these provisions prevented her from electing COBRA coverage.

The employee’s final issue with the notice was that it provided conflicting information as to when, if she wanted to elect continuation coverage, her first payment would be due. The notice first informs its reader that a check must be sent with the election form. But the notice later provides the opposite. The employee testified, however, that she had the necessary funds to send payment with her election form. This testimony cast doubt on her assertion that the notice’s contradictory statements caused her not to elect continuation coverage. Further casting doubt on her traceability argument was the fact that she consulted with counsel about the COBRA notice before the employer sent it. This conversation suggested that the employee may have already been aware of her COBRA rights before she received the notice, the court noted.

In all, some of the facts developed in discovery suggested that the employee lacked standing, and she must prove her standing before this action may proceed, the court determined.

Individualized standing issues precluded certification. The employee sought certification of a class under Fed. R. Civ. P. 23(b)(3). She was therefore required to show, among other things, that “the questions of law or fact common to class members predominate over any questions affecting only individual members.”

The employee proposed a nationwide class and, in the alternative, a Florida class. The two classes were defined as:

1. All participants and beneficiaries in the employer’s health plan who were sent a COBRA notice by the employer, in the form attached, during the applicable four-year statute of limitations period as a result of a qualifying event, as determined by the employer and who did not elect continuation coverage.

2. All Florida participants and beneficiaries in the employer’s health plan who were sent a COBRA notice by the employer, in the form attached, during the applicable four-year statute of limitations period as a result of a qualifying event, as determined by the employer and who did not elect continuation coverage.

The individualized standing issues within either proposed class prevented certification under Rule 23(b)(3), the court found.

For each class member, the court will have to determine whether they suffered an injury-in-fact as the result of not electing continuation coverage. This will require review of insurance records and medical expenses for each and every class member. The court will also have to determine, assuming some class members suffered an injury-in-fact, whether the alleged deficiencies in the employer’s notice caused the injuries. This will require inquiry into the reason each class member declined to elect continuation coverage. Some class members, may, for example, have not elected continuation coverage because it was too expensive, not because of any technical deficiency with the notice.

Answering these questions would require each plaintiff to “provide some individualized proof that they have standing.” In other words, before awarding relief, the court would have to conduct hundreds, if not thousands, of individualized mini-trials on the first two elements of the standing test. This means that, contrary to the employee’s contention, issues common to the class—mainly whether the COBRA notice complied with the governing law—would not predominate over individual questions. Even after adjudication of the classwide issues, the court noted, each plaintiff would still have to introduce a great deal of individualized proof and argue a number of individualized legal points.

Accordingly, the court ordered that: (1) no later than September 2, 2025, the employee must submit evidence proving she has standing to sue, and (2) the employee’s motion for class certification was denied.

The case is No. 8:23-cv-02959-KKM-LSG.

Judge: Mizelle, K.

Attorneys: Amanda E. Heystek (Wenzel Fenton Cabassa) for Saroya Marrow. Christopher Michael Michalik (McGuireWoods) for E.R. Carpenter Co., Inc. d/b/a Carpenter Co.

Companies: E.R. Carpenter Co., Inc.; Carpenter Co.

Cases: ClassActions Discharge Procedure FloridaNews