Alford et al v. The NFL Player Disability & Survivor Benefit Plan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Case No. 1:23-cv-00358-JRR
MEMORANDUM OPINION
Pending before the court is Plaintiffs’ Motion for Class Certification (ECF No. 102; the
“Class Certification Motion”). The court has reviewed all papers; no hearing is necessary.1 Local
Rule 105.6 (D. Md. 2025). 	For the reasons that follow, by accompanying order, the Class
Certification Motion will be denied.
I. 	BACKGROUND
As set forth in the court’s memorandum opinion at ECF No. 78, Plaintiffs Jason Alford,
Willis McGahee, Daniel Loper, Michael McKenzie, Jamize Olawale, Alex Parsons,2 Eric Smith,
Charles Sims, Joey Thomas, and Lance Zeno bring a class action pursuant to the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). They bring this
1 The papers filed in connection with the instant Motion are as follows:
Plaintiffs’ Motion for Class Certification and Memorandum of Law (public: ECF
Nos. 102, 102-1); Defendants’ Opposition to Plaintiffs’ Motion for Class
Certification (public: ECF No. 111); Plaintiffs’ Reply in Support of Motion for
Class Certification (public: ECF No. 127; sealed: ECF No. 173); and Defendants’
Surreply in Opposition to Plaintiffs’ Motion for Class Certification (public: ECF
No. 278; sealed: ECF No. 219).
2 Pursuant to the court’s memorandum opinion and order at ECF Nos. 78 and 79 (as amended by ECF No. 85), Plaintiff
Alex Parsons’ claim for wrongful denial of benefits is barred by the statute of limitations where the Board’s final
appeal letter was issued prior to August 9, 2019.
JASON ALFORD, et al.,
Plaintiffs,
v.
THE NFL PLAYER DISABILITY,
& SURVIVOR BENEFIT PLAN, et al.,
Defendants.
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case against Defendants The NFL Player Disability & Survivor Benefit Plan and NFL Player
Disability & Neurocognitive Benefit Plan (formerly, the Bert Bell/Pete Rozelle NFL Player
Retirement Plan) (the “Plan”) and the Disability Board of the Plan (the “Board”). The Plan is an
employee welfare benefit plan, as defined by Section 3(1) of ERISA, 29 U.S.C. § 1002(1). (ECF
No. 56 ¶ 16.) 	The Board is the administrator and fiduciary of the Plan, within the meaning of
Section 3(16) of ERISA, 29 U.S.C. § 1002(16). Id. ¶ 19. Plaintiffs are retired National Football
League (“NFL”) players who applied for one or more of the disability benefits available under the
Plan. (ECF No. 56 ¶¶ 1, 147–266.) They are Plan “participants” as defined by Section 3(7) of
ERISA, codified at 29 U.S.C. § 1002(7).
Plaintiffs initiated this action on February 9, 2023. 	(ECF No. 1.) 	Following motions
practice and pleading amendment, the following claims remain:
Count I: Wrongful Denial of Benefits pursuant to Section 502(1)(B)
of ERISA, 29 U.S.C. § 1132(a)(1)(B);
Count II: Failure to Provide Adequate Notice in Writing of Specific
Reasons for Denial in violation of Section 503(1) of ERISA, 29
U.S.C. § 1133(1);
Count III: Denial of Right to Full and Fair Review in violation of
Section 503(2) of ERISA, 29 U.S.C. § 1133(2);
Count V: Breaches of Fiduciary Duties in violation of Sections
404(a)(1), 404(a)(1)(B), and 405(a) of ERISA, 29 U.S.C. § 1104(a),
(a)(1)(B) and 1105(a), on behalf of the Plan Only.
(ECF No. 56 ¶¶ 281–349; ECF Nos. 78, 79.)
On September 3, 2024,3 Plaintiffs filed their Class Certification Motion to certify the
following class (the “Class”):
All participants in the Plan who filed one or more applications for
one or more categories of disability benefits under the Plan between
August 1, 1970 and [the date of class certification] and are members
3 For administrative purposes, this motion was administratively re-docketed as of March 4, 2025.
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of at least one of the five Subclasses, defined as the T & P
SUBCLASS, the ACTIVE SUBCLASS, the LOD SUBCLASS, the
NC SUBCLASS, and the FIDUCIARY SUBCLASS.
“The Plan” includes the NFL Player Disability & Survivor Benefit
Plan (formerly the NFL Player Disability, Neurocognitive & Death
Benefit Plan, the NFL Player Disability & Neurocognitive Benefit
Plan, the NFL Player Supplemental Disability & Neurocognitive
Benefit Plan, and the NFL Player Supplemental Disability Plan); the
Bert Bell/Pete Rozelle NFL Player Retirement Plan; the Bert Bell
NFL Player Retirement Plan; and the Pete Rozelle NFL Player
Retirement Plan.
(ECF No. 102-1 at p. 1.)
Plaintiffs seek to certify five subclasses:
The T & P SUBCLASS: All members of the Class who filed one or
more applications for Total & Permanent Disability benefits under
the Plan; received an adverse determination as part of at least one
such application(s) between August 9, 2019 and [the date of class
certification]; and are not members of the ACTIVE SUBCLASS.
The ACTIVE SUBCLASS: All members of the Class who filed one
or more applications for Total & Permanent Disability benefits
under the Plan; received an adverse determination as part of at least
one such application between August 9, 2019 and [the date of class
certification]; and were within the timeframe to qualify for Active
Football or Active Nonfootball Total & Permanent Disability
benefits at the time that they applied.
The LOD SUBCLASS: All members of the Class who filed one or
more applications for Line-of-Duty Disability Benefits under the
Plan and received an adverse determination as part of at least one
such application between August 9, 2019 and [the date of class
certification].
The NC SUBCLASS: All members of the Class who filed an
application for Neurocognitive Disability benefits under the Plan
and received an adverse determination as part of at least one such
application 	between 	August 	9, 	2019 	and 	[the 	date 	of 	class
certification].
The FIDUCIARY SUBCLASS: All members of the Class who filed
an application for one or more categories of disability benefits under
the Plan between August 1, 1970 and [the date of class certification].
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(ECF No. 102-1 at pp. 1–2.)
Plaintiffs contend that “Defendants have rigged the claims process against those in whose
best interests they are supposed to be administering the Plan,” as shown by multiple policies or
practices, including:
[F]ailing to consider all evidence in applicants’ files; misinforming
applicants that they have reviewed the entirety of their claim file
when 	they 	have 	not; 	emphasizing 	evidence 	unfavorable 	to
applicants; inconsistently 	treating similarly situated applicants;
maintaining 	and 	compensating 	a 	network 	of 	physicians 	who
evaluate Players in a manner that fails to ensure the physicians’
independence and impartiality; employing financially conflicted
physicians; wasting Plan assets on conflicted physicians who
demonstrate inadequate work performance; failing to consider the
combined effect of applicants’ impairments; considering factors
(education and training) explicitly prohibited by the Plan’s terms for
T&P 	benefits 	eligibility; 	resorting 	to 	clandestine 	Plan
interpretations; 	and 	abdicating 	decisionmaking 	to 	advisors,
compounded 	by 	the 	same 	advisors’ 	involvement 	at 	both 	the
Committee and Board levels, thereby turning the independent
administrative appellate review that both ERISA and the Plan
require into a charade.
Id. at pp. 2–3.
In reviewing Plaintiffs’ Class Certification Motion, the court incorporates herein the
relevant background set forth in its memorandum opinion at ECF No. 78 (addressing Plaintiffs’
allegations in the Amended Complaint) and its statement of undisputed facts set forth in its
contemporaneously issued memorandum opinion denying defense summary judgments as to
Plaintiffs Loper, Olawale, and Sims.
II. 	LEGAL STANDARD
“The class-action device, which allows a representative party to prosecute [its] own claims
and the claims of those who present similar issues, is an exception to the general rule that a party
in federal court may vindicate only [its] own interests.” Thorn v. Jefferson-Pilot Life Ins. Co., 445
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F.3d 311, 318 (4th Cir. 2006). It “is a carefully constructed compromise in our legal system—one
which Article III courts play a critical role in maintaining.” Stafford v. Bojangles’ Restaurants,
Inc., 123 F.4th 671, 683 (4th Cir. 2024). 	It is built upon the premise that “litigation by
representative parties adjudicates the rights of all class members.” G.T. v. Bd. of Educ. of Cnty. of
Kanawha, 117 F.4th 193, 202 (4th Cir. 2024) (quoting Broussard v. Meineke Disc. Muffler Shops,
Inc., 155 F.3d 331, 338 (4th Cir. 1998)).
Plaintiffs seeking to certify a class must meet the criteria set forth in Federal Rule of Civil
Procedure 23. 	First, the moving party must comply with the requirements of Rule 23(a). 	It
provides:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
FED. R. C IV. P. 23(a). 	These prerequisites are commonly referred to as “(1) numerosity; (2)
commonality; (3) typicality; and (4) adequacy of representation.” EQT Prod. Co. v. Adair, 764
F.3d 347, 357 (4th Cir. 2014). “The first two prerequisites (numerosity and commonality) focus
on the absent or represented class while the latter two tests (typicality and adequacy) address the
desired qualifications of the class representative.”4 	1 William B. Rubenstein, Newberg and
Rubenstein on Class Actions § 1:2 (6th ed. 2025). “The Fourth Circuit also reads into Rule 23 an
implied requirement of ‘ascertainability,’ meaning that the [] court can readily identify the class
4 The latter three categories tend to merge. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 n.3 (2011) (quoting
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157–58, n.13 (1982)); see Broussard v. Meineke Disc.
Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir. 1998) (same).
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members in reference to objective criteria.”5 	McMillan v. Kansas City Life Ins. Co., 762 F. Supp.
3d 443, 457 (D. Md. 2025) (citation omitted); see Krakauer v. Dish Network, L.L.C., 925 F.3d 643,
655 (4th Cir. 2019) (same); EQT Prod., 764 F.3d at 358 (same).
After satisfying these criteria, the moving party must then show that the class action falls
into one or more of the categories described in Rule 23(b). Plaintiffs here seek certification under
Rule 23(b)(1) and 23(b)(2). Rule 23(b) permits class treatment where:
(1) prosecuting separate actions by or against individual class
members would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual
adjudications or would substantially impair or impede their
ability to protect their interests; [or]
(2) the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting
the class as a whole[.]
FED. R. C IV. P. 23(b)(1), (2).
“As a general matter, the limits of Rule 23 are designed to ensure vigorous adversarial
process, efficient adjudication of class-wide questions, and a practical means of identifying and
notifying those who may be affected by a judgment.” Krakauer, 925 F.3d at 655. It is not “a mere
pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, a plaintiff
must “be prepared to prove that there are in fact sufficiently numerous parties, common questions
of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule
5 Recently, the Fourth Circuit recognized that “[t]here is no threshold ascertainability requirement in [a] Rule 23(b)(2)
case, which seeks only declaratory and injunctive relief from a discriminatory policy.” Kadel v. Folwell, 100 F.4th
122, 161 (4th Cir. 2024), judgment vacated on other grounds, — U.S. — , 145 S. Ct. 2838 (2025); see CASA, Inc. v.
Trump, 793 F. Supp. 3d 703, 717 n.3 (D. Md. 2025) (discussing same).
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23(a),” and “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).”
Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (emphasis in original) (citation omitted).
While “[i]t is the plaintiffs’ burden to demonstrate compliance with Rule 23, . . . the district
court has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the
prerequisites have been satisfied.” EQT Prod., 764 F.3d at 358 (citing Wal-Mart, 564 U.S. at 350–
51); see Krakauer, 925 F.3d at 654 (explaining that “the district court must rigorously examine the
core issues of the case at the certification stage”). This rigorous analysis does not grant the court
“license to engage in free-ranging merits inquiries at the certification stage;” rather, the court
“consider[s] merits questions to the extent ‘that they are relevant to determining whether the Rule
23 prerequisites for class certification are satisfied.’” EQT Prod., 764 F.3d at 358 (quoting Amgen
Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013)). 	Indeed, “in a class
certification analysis, the court determines whether the Rule 23 requirements have been satisfied
without considering whether the proposed class is likely to prevail on the merits.” Elegant
Massage, LLC v. State Farm Mut. Auto. Ins. Co., 95 F.4th 181, 188 (4th Cir. 2024) (citing Gariety
v. Grant Thornton, LLP, 368 F.3d 356, 362, 366 (4th Cir. 2004)). 	At the same time, the party
seeking class certification “must present evidence” in support of their purported compliance with
Rule 23. Career Counseling, Inc. v. AmeriFactors Fin. Grp., LLC, 91 F.4th 202, 206 (4th Cir.
2024), cert. denied, 145 S. Ct. 2845 (2025).
III. 	ANALYSIS
Because the court ultimately concludes the commonality and typicality prerequisites are
not met here, it directs its analysis accordingly.
1. 	Commonality
To satisfy the commonality requirement, there must be “questions of law or fact common
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to the class.” FED. R. C IV. P. 23(a)(2). As the Supreme Court explained in the foundational case
of Wal-Mart Stores, Inc. v. Dukes, “[w]hat matters to class certification . . . is not the raising of
common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to
generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011) (emphasis in original) (citation omitted); see G.T. v. Bd. of Educ.
of Cnty. of Kanawha, 117 F.4th 193, 202 (4th Cir. 2024) (discussing same). 	Common answers
may be impeded by “[d]issimilarities within the proposed class.” Id. While “[a] single common
question will suffice, . . . it must be of such a nature that its determination ‘will resolve an issue
that is central to the validity of each one of the claims in one stroke.’” EQT Prod. Co. v. Adair,
764 F.3d 347, 360 (4th Cir. 2014) (quoting Wal-Mart, 564 U.S. at 350, 359); see Peters v. Aetna
Inc., 2 F.4th 199, 242 (4th Cir. 2021) (same). “A question is not common . . . if its resolution turns
on a consideration of the individual circumstances of each class member.” 	Thorn v. Jefferson-
Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006) (citation omitted); see Yost v. Elon Prop.
Mgmt. Co.-Lexford Pools 1/3, LLC, No. CV ELH-21-1520, 2023 WL 185178, at *6 (D. Md. Jan.
13, 2023) (same).
While commonality requires that class members “have suffered the same injury,” it is
insufficient to assert merely that “they have all suffered a violation of the same provision of law.”
Wal-Mart, 564 U.S. at 349–50 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)).
By way of example, the Supreme Court in Wal-Mart pointed to Title VII of the Civil Rights Act
of 1964 (“Title VII”). 	Title VII, the Court explained, “can be violated in many ways—by
intentional discrimination, or by hiring and promotion criteria that result in disparate impact . . . .”
Id. at 350. Thus, “the mere claim by employees of the same company that they have suffered a
Title VII injury . . . gives no cause to believe that all their claims can productively be litigated at
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once.” Id. Instead, the “claims must depend upon a common contention,” one of “such a nature
that it is capable of classwide resolution—which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at
349–50.
On this issue, the Fourth Circuit cautions:
Allegations of generalized policies are not usually sufficient for the
purposes of class certification. Appellate courts are skeptical, for
instance, 	when 	plaintiffs 	or 	district 	courts 	rely 	on 	nebulous
references to “systemic failures” or “systemic deficiencies” to
satisfy commonality. See, e.g., J.B. ex rel. Hart v. Valdez, 186 F.3d
1280, 1289 (10th Cir. 1999); M.D. ex rel. Stukenberg v. Perry, 675
F.3d 832, 842 (5th Cir. 2012). Such vagueness may mask a
multitude of disparities. Plaintiffs may invoke overly general
policies precisely because “they are at a loss for a more specific
thread to tie claims together.” In re White, 64 F.4th 302, 314 (D.C.
Cir. 2023). Indeed, it is circular logic for plaintiffs to create a
laundry list of factually diverse claims and then assert that these
claims, in turn, prove the existence of a uniform company policy.
We endeavor to ensure that commonality is not based on such
“semantic dexterity.” Brown, 785 F.3d at 909.
“Rule 23 does not allow for [ ] a 30,000 foot view of commonality,”
In re White, 64 F.4th at 314, and courts have the obligation to
“examine whether differences between class members impede the
discovery of common answers,” Brown, 785 F.3d at 909; see also
Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541 (“[P]laintiff[s] [must]
demonstrate that the class members ‘have suffered the same
injury’”). Here it is unclear from the district court’s analysis that the
many types of claims plaintiffs advance can be united by a common
question of liability. The district court pointed to no specific
documentation or concrete evidence narrowing the broad theoretical
policy by which [the defendant] allegedly mandated all different
forms of off-the-clock work and time-shaving.
Stafford, 123 F.4th at 680 (citation modified).6
Further, in G.T. v. Board of Education of County of Kanawha, 117 F.4th 193 (4th Cir.
6 The Fourth Circuit’s decision in Stafford v. Bojangles’ Restaurants, Inc, 123 F.4th 671 (4th Cir. 2024), concerned a
class action brought pursuant to Rule 23(b)(3).
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2024), the Fourth Circuit opined on the commonality requirement in the context of an Individuals
with Disabilities Education Act (“IDEA”) class. Its analysis turned in part on the fact that “[t]he
typical IDEA lawsuit involves a highly individualized assessment.” Id. at 205. The Fourth Circuit
held:
We agree with our sister circuits that, to meet the commonality
prerequisite for class certification, plaintiffs in an IDEA case like
this one must identify a “uniformly applied, official policy of the
school district, or an unofficial yet well-defined practice, that drives
the alleged violation.” Id. The typical IDEA lawsuit involves a
highly individualized assessment of whether a child was denied a
FAPE. In a suit challenging hundreds of individualized special
education 	decisions, 	satisfying 	the 	commonality 	prerequisite
requires proof of some common driver—the “‘glue’” holding all
those decisions together in a way that suggests they can productively
be litigated all at once. Jamie S., 668 F.3d at 498 (quoting Wal-Mart,
564 U.S. at 352, 131 S.Ct. 2541); see also Parent/Pro. Advoc.
League, 934 F.3d at 29. “[A] uniform policy or practice that affects
all class members” can supply this connection, DL, 713 F.3d at 128,
by “anchor[ing] common questions . . . the answers to which could
‘resolve an issue that is central to the validity of each one of the
claims in one stroke,’” Parent/Pro. Advoc. League, 934 F.3d at 29
(quoting 	Wal-Mart, 	564 	U.S. 	at 	350, 	131 	S.Ct. 	2541).
. 	. 	.
We 	conclude 	that 	this 	class 	fails 	to 	satisfy 	Rule 	23(a)(2)’s
commonality requirement because Plaintiffs do not identify a
common contention central to the validity of all class members'
claims. Plaintiffs assert that all class members are harmed “in the
same manner” because the Board deprived them of “the educational
services to which they are entitled by federal law” and “subjected
them to disability-based discrimination.” J.A. 37. But it is not
enough that “they have all suffered a violation of the same provision
of law.” Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541. As we will
explain, 	the 	class 	members’ 	claims 	are 	highly 	diverse 	and
individualized, and Plaintiffs have not identified a “single or
uniform policy or practice that bridges all their claims.” DL, 713
F.3d at 127. The district court acknowledged that “Plaintiffs cannot
point to a single policy” that underlies all class members’ claims.
G.T., 2021 WL 3744607, at *14. Nor do Plaintiffs identify “a well-
defined practice (or set of practices) that is consistently and
uniformly 	applied” which 	drives 	each 	class 	member’s 	claim.
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Parent/Pro. Advoc. League, 934 F.3d at 29. The absence of a
common contention forecloses class treatment.
Id.7
Turning to the instant action, Plaintiffs seek to certify a class spanning over five decades
of NFL players. 	Plaintiffs raise a litany of asserted common questions that stem from their
overarching contention that Defendants have a biased claims administration process.8 (ECF No.
102-1 at pp. 10–15.) 	Plaintiffs acknowledge that, as they frame it, an individual Plaintiff “may
have been unaffected by one or more of the policies and practices at issue.”9 (ECF No. 172 at p.
5.) 	But they urge that commonality is met here because their claims rest on a “common legal
theory that Defendants’ conduct, considered in the aggregate . . . breached Defendants’ duties to
the Plan.” Id. (citation modified). Plaintiffs contend:
Plaintiffs’ theory of injury, however, is that Defendants’ panoply of
practices and policies steeply tilted the playing field against benefits
applicants 	and 	amounted, 	in 	their 	totality, 	to 	objectively
unreasonable conduct—to the point where Defendants injured the
Plan itself, including by expending tens of millions of dollars on
biased physicians and harming the Plan’s integrity, and that such
conduct warrants removal of these fiduciaries.
(ECF No. 172 at p. 11.) 	The court disagrees that Plaintiffs’ theory is sufficient to satisfy the
commonality requirement.10
7 Plaintiffs seemingly challenge the applicability or relevance of the Fourth Circuit’s reasoning in G.T. v. Bd. of Educ.
of Cnty. of Kanawha, noting that it addressed “commonality in the unique context of the Individuals with Disabilities
Education Act,” which, in the normal case, involves a highly individualized assessment.
8 The court’s analysis here turns on the asserted common questions that remain live after the court’s contemporaneous
ruling on Defendants’ motions for summary judgment, which is to say, the court does not consider Plaintiffs’ assertion
of a fraudulent scheme wherein Defendants induced negative findings by Plan physicians via its compensation,
referral, retention, training, and hiring systems.
9 For example, Plaintiffs identify a common question of “[w]hether Defendants’ long history of diminishing and
concealing the impact of neurocognitive impairments from football activities affected their benefits decisions.” (ECF
No. 102 at p. 11.) Whether Defendants in fact have such a history would have no bearing on a player applicant who,
for instance, did not assert or present a neurocognitive impairment.
10 For purposes of this opinion, the court assumes without finding that the proposed class is not overbroad to the extent
it does not expressly carve out individuals whose claims were denied due to untimeliness or other non-medical criteria.
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As Defendants note, this is not a case where Plaintiffs point to a uniformly-applied or well-
defined common practice that affected (or affects) each member of the proposed class; instead,
Plaintiffs claims rest on the theory that Defendants employ a “panoply of practices and policies”
that arise based on the specific circumstances of a claim applicant presents, e.g., a player’s
application, the conditions asserted, the medical relevancy of the records provided, the Plan
physician’s treatment of the records provided, and the Board’s treatment of the records provided.
The parties’ summary judgment papers make that abundantly clear.
The court cannot square Plaintiffs’ theory of commonality with the controlling law recited
above. 	The claims at issue “must depend upon a common contention,” one for which
“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.” See Wal-Mart, 564 U.S. at 349–50. That all members may have been
affected by the same generalized policy (or “panoply of practices and policies”) that resulted in
claim denials is insufficient; indeed, as the Fourth Circuit cautions, assertion of “[s]uch vagueness
may mask a multitude of disparities.” See Stafford, 123 F.4th at 680, supra. Commonality is not
satisfied where “differences between class members impede the discovery of common answers.”
Id. The differences here do, in fact, impede discovery of common answers.
Plaintiffs’ overarching practice theory is akin to an allegation of a generalized policy, see
Stafford, 123 F.4th at 680, that relies upon a series or collection of separate policies and practices
that manifest in different ways for different Plaintiffs. This is most apparent with regard to Counts
I, II, and III, where the court would ordinarily need to look to the underlying administrative record
to determine whether the administrator’s decision was supported by substantial evidence (Count
I), and to the notices provided to determine whether the requisite procedural requirements were
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followed (Counts II and III).11 See, e.g., Smith v. Cox Enters., Inc. Welfare Benefits Plan, 127
F.4th 541, 545 (4th Cir. 2025); Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15, 21 (4th Cir.
2014).
The court agrees with Defendants that the Fourth Circuit’s decision in G.T. further informs
the court’s analysis here. 	While the analysis pertaining to the IDEA is not directly on point, it
nonetheless provides guidance (and urges caution) where plaintiffs seek class treatment despite
the fact that their underlying claims would ordinarily involve “a highly individualized assessment,”
which is the case here.12 See G.T., 117 F.4th at 205, supra. Where such individualized assessment
underlies the individual claims, there must necessarily be some common thread or “glue” (such as
a uniform or common application of a policy) to tie “those decisions together in a way that suggests
that they can productively be litigated all at once.” See id. Relying on a series of policies applied
in different ways to different Plaintiffs (and putative class members) fails to satisfy the
commonality prerequisite as discussed in Wal-Mart and its progeny.
While Plaintiffs are correct that “‘[c]ommonality does not require class members to share
all issues in the suit, but simply a single common issue,’ and ‘[t]hus, factual differences among
members’ cases will not preclude certification if the class members share the same legal theory,’”
J.O.P. v. U.S. Dep’t of Homeland Sec., 338 F.R.D. 33, 55 (D. Md. 2020) (emphasis in original)
(quoting Bullock v. Bd. of Educ. of Montgomery Cty., 210 F.R.D. 556, 560 (D. Md. 2002)), that is
not persuasive here where the “common issue” is the alleged broad, over-arching policy that
11 Further, to find abuse of discretion by Defendants in support of Plaintiffs’ Counts II and III for procedural violations
of ERISA, the factfinder must find “a causal connection between [procedural defects] and the final denial of a claim.”
Donnell v. Metro. Life Ins. Co., 165 F. App’x 288, 297 (4th Cir. 2006); see Carl A. B. v. Blue Cross Blue Shield of N.
Carolina, No. 1:22CV84, 2024 WL 3860072, at *7 (M.D.N.C. Aug. 19, 2024) (same). The necessary individualized
factfinding would impede the capacity of a question to “resolve an issue that is central to the validity of each one of
the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
12 The court makes no commentary as to whether the claims at issue in this action could meet Rule 23 requirements
as a general proposition; rather, the court’s analysis is cabined to the case before it.
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Plaintiffs acknowledge manifests in a “panoply of practices and policies,” and where the factual
distinctions themselves are determinative, or at least highly probative, of the legal issues
presented.13
In addition to the issues discussed above, Plaintiffs fail to demonstrate how the questions
they raise are common to proposed class members ranging as far back as 1970. For example, while
Plaintiffs make frequent reference to application of the Plan’s Neutral Rule, that rule has only been
in effect since 2017; therefore, application or practice as to the Neutral Rule cannot serve as the
requisite “glue.”14 Plaintiffs also point to Defendants’ refusal to conform to legal precedent, but
do not explain how such a failure affects a putative class member where the relied upon legal
precedent was not in effect during the relevant time period. Instead, what these examples illustrate
is the inadequacy of the broad scheme or practice upon which Plaintiffs rely (i.e., the “panoply of
practices and policies”) to meet the commonality requirement.
Plaintiffs have therefore not demonstrated that the commonality requirement under Rule
23(a)(2) is met.
2. 	Typicality
To satisfy the typicality requirement, “the claims or defenses of the representative parties”
must be “typical of the claims or defenses of the class.” FED. R. C IV. P. 23(a)(3). “The typicality
requirement goes to the heart of a representative parties’ ability to represent a class, particularly as
it tends to merge with the commonality and adequacy-of-representation requirements.” Deiter v.
Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). Thus, a named plaintiff’s claim “cannot be
13 The court does not foreclose that an assertion that an ERISA administrator has a well-defined policy of utilizing
bad faith in reviewing claims is capable of satisfying the commonality requirement, especially as to a breach of
fiduciary duty claim. The facts and circumstances simply do not support as such here. Similarly, the court makes no
findings as to whether a specific identified policy or practice (e.g., the Board’s deference to the Neutral Rule), and a
proposed class and claims tailored to same, would satisfy the commonality requirement.
14 The court discusses the Neutral Rule at length in its contemporaneous memorandum opinion on Defendants’
motions for summary judgment.
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so different from the claims of absent class members that their claims will not be advanced by
plaintiff’s proof of [her] own individual claim.” 	Id. at 466–67. 	“The premise of the typicality
requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the
class.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998) (citation
omitted).
“That is not to say that typicality requires that the plaintiff’s claim and the claims of class
members be perfectly identical or perfectly aligned.” 	Deiter v. Microsoft Corp., 436 F.3d 461,
467 (4th Cir. 2006). While the claims “do not have to be factually or legal identical, . . . the class
claims should be fairly encompassed by those of the named plaintiffs.” Amaya v. DGS Constr.,
LLC, 326 F.R.D. 439, 447 (D. Md. 2018) (citing Broussard, 155 F.3d at 344). To that end, the
court “compares the class representative’s claims and defenses to those of the absent class
members, considers the facts needed to prove the class representative’s claims, and determines the
extent to which those facts would also prove the claims of the absent class members.” Coreas v.
Bounds, No. CV TDC-20-0780, 2020 WL 5593338, at *13 (D. Md. Sept. 18, 2020) (citing Deiter,
436 F.3d at 467).
Where Plaintiffs’ theory of recovery hinges on application of multiple policies and
practices (that apply to some, but not all Plaintiffs and putative class members) as part of some
greater scheme favoring denial of benefits, Plaintiffs fail to show that their claims are typical of
putative class members’ claims. 	Stated differently, Plaintiffs have not persuaded the court that
their claims arising from this overarching policy are typical of the claims of class members from
decades ago, asserting their own unique medical conditions and applications, under different Plan
terms. Plaintiffs have not shown that their claims “arise from the same factual nexus and are based
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on the same legal theories as” those of the proposed class members.15 	Hutton v. Nat’l Bd. of
Exam’rs in Optometry, Inc., No. CV JKB-16-3025, 2019 WL 3183651, at *3 (D. Md. July 15,
2019).
Plaintiffs therefore fail to demonstrate typicality as required by Rule 23(a)(3).
IV. 	CONCLUSION
For the reasons set forth herein, by separate order, the Class Certification Motion will be
denied.
/s/
Julie R. Rubin
January 28, 2026 	United States District Judge
15 Plaintiffs cite Peters v. Aetna, Inc., No. 1:15-CV-00109-MR, 2023 WL 3829407 (W.D.N.C. June 5, 2023), where
the Western District of North Carolina found the typicality requirement satisfied in a Section 502(a)(2) claim to
prevent the defendants’ misconduct. (ECF No. 172 at pp. 7–8.) Plaintiffs’ general reliance on Peters absent analysis
of the facts underlying the claims at issue there is not compelling. In any event, upon the court’s review of Peters, it
is not persuaded that it saves the day here. Although Peters supports the notion that a broad, common question (e.g.,
“whether Aetna’s breach amounted to a harm to the particular plan and plan participants”) may satisfy commonality,
as far as the court can discern, recovery in that case was not based on a series of policies and practices that affected
different class members in different ways, as is the case here. Id. at *2–3, *10. As the court noted:
[T]he dispute is whether Optum is a “provider” of the chiropractic and physical
therapy services. If it is a “provider” that simply subcontracts for the services and
charges a fee for serving as the “general contractor,” then its arrangement is
consistent with the Plan. On the other hand, if Aetna has simply contracted with
Optum for Optum to provide some administrative services that Aetna had agreed
to perform in its contract with the Plan, then the Aetna/Optum arrangement allows
for charging a fee greater than allowed by the plan contract, and further serves to
hide that excess fee from the Plan and its members by misidentifying it as part of
a claim for services.
Id. at *3. Unlike what is asserted here, Peters dealt with a discrete, identifiable policy. That case does not appear to
have involved significant and relevant factual dissimilarities among class members thus impeding typicality
(excepting perhaps that class members may have been subject to different plans—an issue for which the plaintiffs
advanced argument and evidence to support the various plans did not contain “any meaningful variation in their
relevant terms”). Id. at *10–11 (citation omitted).
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