In re: : Household International Tax Reduction Plan

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-8001
I N RE :
H OUSEHOLD I NTERNATIONAL T AX R EDUCTION P LAN ,
Petitioner.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 1095—Joan B. Gotschall, Judge.
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S UBMITTED J ANUARY 31, 2006—D ECIDED M ARCH 20, 2006
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Before POSNER , R IPPLE , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. An ERISA plan has asked us for
permission to appeal from the district court’s decision to
certify a suit against the plan as a class action. (For an earlier
stage of our engagement with this protracted litigation,
which produced three interlocutory appeals before class
certification, see Matz v. Household International Tax Reduc-
tion Investment Plan, 388 F.3d 570 (7th Cir. 2004).) Rule 23(f)
of the civil rules gives us discretion to entertain such an
appeal, but sets forth no criteria to guide the exercise of that
discretion. We have devised our own criteria. The only one
of the criteria that is applicable to this case—and it is
applicable to only one of the issues that the plan would
like us to resolve and so it’s the only issue we shall

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2 No. 06-8001
resolve—is whether deciding the appeal would advance the
development of the law governing class actions. Blair
v. Equifax Check Services, Inc., 181 F.3d 832, 834-35 (7th
Cir. 1999); see also Carnegie v. Household Int’l, Inc., 376 F.3d
656, 658 (7th Cir. 2004). That issue, a novel though not
difficult one, is whether unnamed class members in an
ERISA class action suit must always exhaust their plan
remedies as a condition to being allowed to be members
of the class. The district judge thought not, and we agree.
Although technically only the petition for leave to appeal is
before us, the parties have briefed the merits of the appeal
and so we can proceed to decision.
Even in a Title VII case, where the plaintiff, including the
named plaintiff in a class action, must exhaust his adminis-
trative remedies before suing, 42 U.S.C. § 2000e-5(e)(1);
Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1158 (7th
Cir. 1999); Banas v. American Airlines, 969 F.2d 477, 481 (7th
Cir. 1992), the class members need not also do so if, as
will usually be the case (for otherwise class treatment would
be inappropriate), their claims are very similar to those of
the named plaintiff. Albemarle Paper Co. v. Moody, 422 U.S.
405, 414 n. 8 (1975); Robinson v. Sheriff of Cook County, supra,
167 F.3d at 1158; Schnellbaecher v. Baskin Clothing Co., 887
F.2d 124, 127 (7th Cir. 1989); Romasanta v. United Airlines,
Inc., 537 F.2d 915, 919 (7th Cir. 1976); Snell v. Suffolk County,
782 F.2d 1094, 1100-02 (2d Cir. 1986). Such exhaustion is
required in social security class action cases, but that is
because of the wording of the exhaustion provision in the
social security statute. See 42 U.S.C. § 405(g); Califano v.
Yamasaki, 442 U.S. 682, 699-701 (1979). That wording has no
counterpart in Title VII’s exhaustion provision—and ERISA
does not mention exhaustion at all.

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No. 06-8001 3
Exhaustion of nonjudicial remedies, whether administra-
tive or, in an ERISA case, of the arbitral-like internal reme-
dies prescribed by the ERISA plan, “furthers the goals of
minimizing the number of frivolous lawsuits, promoting
non-adversarial dispute resolution, and decreasing the cost
and time necessary for claim settlement . . . and enables the
compilation of a complete record.” Gallegos v. Mount Sinai
Medical Center, 210 F.3d 803, 808 (7th Cir. 2000); see also
Ames v. American Nat’l Can Co., 170 F.3d 751 (7th Cir. 1999);
Communications Workers of America v. American Tel. & Tel.
Co., 40 F.3d 426, 432 (D.C. Cir. 1994); Makar v. Health Care
Corp., 872 F.2d 80, 83 (4th Cir. 1989). These purposes
determine how much exhaustion to require in a class action.
If the complaint or subsequent filings adequately identify
the class members’ claims and demonstrate that they are
indeed very similar to those of the named plaintiff, the
defendant knows what he is facing and can make efforts to
settle the full array of claims. In such a case, requiring
exhaustion by the individual class members would merely
produce an avalanche of duplicative proceedings and
accidental forfeitures, and so is not required.
This is emphatically the case when dealing with class
actions under ERISA, where, there being no statutory
requirement of exhaustion, the district court has discretion
to require no exhaustion by anyone. Powell v. A.T. & T.
Communications, Inc., 938 F.2d 823, 825 (7th Cir. 1991);
Gallegos v. Mount Sinai Medical Center, supra, 210 F.3d at 808.
The district judge in this case did not abuse his discretion by
requiring only the named plaintiff to exhaust, given the
similarity of the plaintiff’s claim to the claims of the un-
named class members; both he and they are complaining
about the termination of their rights under Household’s
pension plan. We need not consider the effect of a provision
in the plan document itself requiring exhaustion of internal

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4 No. 06-8001
remedies as a precondition to any right of relief, including
as an unnamed class member. Household does not contend
that the plan document (which is not in the record) contains
any such requirement or argue the legal effect if it did.
But we disagree with the district judge’s alternative
ground, which was that the plaintiff had in fact exhausted
the remedies of the unnamed class members. This would be
true if the plaintiff had presented his claim to the defendant
plan as if it were a class action claim, asking relief on behalf
of the members of the class. But that is not (quite) what he
did, since he did not mention employees of two subsidiaries
of Household, though their employees are members of the
class too. Rather than asking whose internal remedies the
plaintiff was exhausting besides his own, the district court
should have asked whether some useful purpose would be
served by requiring any of the unnamed class members to
have exhausted their internal remedies. Fortunately she
asked that question too and gave an answer that cannot be
deemed an abuse of discretion. The two subsidiaries
apparently did not have a separate plan; their employees
contributed to the Household plan.
A FFIRMED .

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No. 06-8001 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-06

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