 (Against Defendant Home Depot U.S.A., Inc.)    (Against the Administrative Committee Home Depot U.S.A., Inc.)   23.  The COBRA amendments to ERISA included certain provisions relating to  continuation of health coverage upon termination of employment or another “qualifying  event” as defined by the statute.      24.  Among other things, COBRA requires the plan sponsor of each group health  plan normally employing more than 20 employees on a typical business day during the  preceding year to provide “each qualified beneficiary who would lose coverage under the  plan as a result of a qualifying event … to elect, within the election period, continuation  coverage under the plan.”  29 U.S.C. § 1161.       26.  Moreover, existing case law makes it ostensibly clear that notice is not only  required to be delivered to covered employees but to qualifying beneficiaries, as well.      27.  COBRA further requires the administrator of such a group health plan to  provide notice to any qualified beneficiary of their continuation of coverage rights under  COBRA upon the occurrence of a qualifying event. 29 U.S.C. § 1166(a)(4).    28.  This notice must be “[i]n accordance with the regulations prescribed by the  Secretary” of Labor.  29 U.S.C. § 1166(a).    29.  To facilitate compliance with notice obligations, the United States Department  of Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election Notice  (“Model Notice”), which is included in the Appendix to 29 C.F.R. § 2590.606-4. The DOL  website states that the DOL “will consider use of the model election notice, appropriately  completed, good faith compliance with the election notice content requirements of COBRA.”    31.  Home Depot partially adhered to the Model Notice provided by the Secretary  of Labor, but only to the extent that served Home Depot’s best interests, as critical parts are  omitted or altered in violation of 29 C.F.R. § 2590.606-4. Among other things:   a.  Home Depot’s COBRA notice violates 29 C.F.R. § 2590.606- 4(b)(4)(v) because the notice itself never actually explains how to  enroll in COBRA, nor does it bother including a physical election  form (both of which the model Department of Labor form  includes);     b.  Home Depot’s COBRA notice violates 29 C.F.R. § 2590.606- 4(b)(4)(i) because they fail to provide the name, address and  telephone number of the party responsible under the plan for  administration of continuation coverage benefits, including as to  both the Plan Administrator and COBRA Administrator;    c.  Home Depot’s COBRA notice violates 29 C.F.R. § 2590.606- 4(b)(4)(i) because they fail to provide the name of the plan;    d.  Home Depot’s COBRA forms violate 29 C.F.R. § 2590.606-4(b)(4)  because Home Depot has failed to provide a notice written in a  manner calculated to be understood by the average plan  participant.    32.  Home Depot’s COBRA notice confused Plaintiff and resulted in his inability  to make an informed decision as to electing COBRA continuation coverage.  In fact, Plaintiff  did not understand the notice and, further, Plaintiff was unable to elect COBRA because of  the confusing and incomplete Home Depot’s COBRA notice.     34.  Named Plaintiff Travis Mendiola is a former long-time employee of Home  Depot, where he worked for approximately nineteen (19) years until his abrupt termination  on or about July 15, 2019.     35.  Plaintiff was not fired for gross misconduct.      36.  As a result of his termination, Plaintiff experienced a qualifying event as  defined by 29 U.S.C. § 1163(2).      37.  Following this qualifying event, Home Depot caused its COBRA  Administrator, Alight Solutions, to mail Plaintiff the deficient COBRA enrollment notice at  issue in this lawsuit.       38.  The deficient COBRA notice that Plaintiff received was violative of COBRA’s  mandates for the reasons set forth herein.        39.  Home Depot has in place no administrative remedies Plaintiff was required to  exhaust prior to bringing suit as this is not a claim for benefits.     40.  Additionally, even if such administrative remedies exist as to Plaintiff’  statutory damages claims, any attempt to exhaust the same would have been futile as this is  not an ERISA benefits case.   In fact, exhaustion of administrative remedies is not required  because Plaintiff was not provided with proper notice of his rights in the first instance.     41.  Plaintiff suffered a tangible injury in the form of economic loss, specifically  the loss of insurance coverage, due to Home Depot’s deficient COBRA election notice.      43.  And, when Plaintiff was forced to finally seek medical treatment, he incurred  out-of-pocket medical expenses due to lacking insurance coverage.     44.  Finally, Plaintiff suffered an informational injury as a result of Home Depot’s  COBRA notice because he was never provided all information to which she was entitled by  29 C.F.R. § 2590.606-4(b).   Violation of 29 C.F.R. 29 C.F.R. § 2590.606-4(b)(4)(v)    Failure to explain how to enroll in COBRA    45.  The governing statute clearly requires that “[t]he notice … shall be written in  a manner calculated to be understood by the average plan participant and shall contain the  following information:…(v) [a]n explanation of the plan's procedures for electing  continuation coverage, including an explanation of the time period during which the election  must be made, and the date by which the election must be made.”   29 C.F.R. § 2590.606- 4(b)(4)(v).    46.  As a threshold matter, Home Depot’s COBRA enrollment notices fail to  adequately explain the procedures for electing coverage.  By failing to including explain the  procedures for electing coverage, Home Depot interfered with Plaintiff‘s ability to elect  COBRA continuation coverage.  And, furthermore, by failing to adequately explain the  procedures for electing coverage, Home Depot prevented Plaintiff from understanding his  rights under COBRA and how to make an informed decision about continuation coverage.      48.  This “catch-all” number is actually a phone number to a third-party  administrator, Alight Solutions (an entity never identified in the COBRA notice), as is the  website.        49.  A “catch-all” number provided by Home Depot and then routed to a third-party  call center designed to answer anything HR-related simply cannot meet the strict  informational statutory requirements of 29 C.F.R. § 2590.606-4(b)(4)(v) required of all  COBRA notices as to enrollment.  The same is true as to the generic website link provided.   Merely directing individuals to a website link and assuming he/she will be able to figure out  how to enroll in COBRA once the website is visited simply is very different than actually  explaining how to enroll in COBRA.       50.  Unlike the Home Depot COBRA notice, the Model DOL notice provides a  near fool-proof way to elect COBRA coverage by providing a physical election form to mail  in, the date it is due, the name and address to where election forms should be sent, spaces for  the names, social security numbers, and type of coverage elected by each plan participant or  beneficiary.     52.  Plaintiff was unable – based on the content of Home Depot’s COBRA notice  – to ascertain the name, address and telephone number of the party responsible under the plan  for the administration of continuation coverage benefits.        53.  Home Depot was required to provide “in a manner calculated to be understood  by the average plan participant ... the name, address and telephone number of the party  responsible  under the plan for administration of continuation coverage benefits.” 29 C.F.R. § 2590.606-  4(b)(4)(i).  Also, the name of the plan, the Home Depot Medical and Dental Plan, must be  included, but it is not.  29 C.F.R. § 2590.606- 4(b)(4)(i).         54.  Home Depot’s Notice fails to comply with this straightforward requirement.     56.  By failing to adequately explain the procedures for electing coverage, as  required by 29 C.F.R. § 2590.606-4(b)(4)(v), coupled with the complete omission from Home  Depot’s COBRA notice of how to actually enroll in COBRA, and even who the Plan  Administrator is/was, Home Depot cumulatively violated 29 C.F.R. § 2590.606- 4(b)(4).   This particular section mandates that employers, like Home Depot, must provide a notice of  continuation coverage written in a manner calculated “to be understood by the average plan  participant.”  Without the aforementioned critical pieces of, Home Depot’s COBRA notice  cannot be said to be written in a manner calculated “to be understood by the average plan  participant.”  Thus, Home Depot violated 29 C.F.R. § 2590.6064(b)(4)(v).    57.  Plaintiff bring this action as a class action pursuant to the Federal Rules of  Civil Procedure on behalf of the following persons:   All participants and beneficiaries in the Home Depot’s Health and  Dental Plan who were sent a COBRA  notice, as a result of a  qualifying event, during the applicable statute of limitations  period, as determined by Home Depot’s records, and did not elect  continuation coverage.    59.  Numerosity: The Class is so numerous that joinder of all Class members is  impracticable.  On information and belief thousands of individuals satisfy the definition of  the Class.    60.  Typicality: Plaintiff’s claims are typical of the Class.  The COBRA notice that  Home Depot sent to Plaintiff was a form notice that was uniformly provided to all Class  members. As such, the COBRA notice that Plaintiff received were typical of the COBRA  notices that other Class Members received and suffered from the same deficiencies.    61.  Adequacy: Plaintiff will fairly and adequately protect the interests of the Class  members, he has no interests antagonistic to the class, and has retained counsel experienced  in complex class action litigation.    63.  Class Members do not have an interest in pursuing separate individual actions  against Home Depot, as the amount of each Class Member’s individual claims is relatively  small compared to the expense and burden of individual prosecution. Class certification also  will obviate the need for unduly duplicative litigation that might result in inconsistent  judgments concerning Home Depot’s practices and the adequacy of its COBRA notice.  Moreover, management of this action as a class action will not present any likely difficulties.  In the interests of justice and judicial efficiency, it would be desirable to concentrate the  litigation of all Class Members’ claims in a single action.    64.  Plaintiff intends to send notice to all Class Members to the extent required the  Federal Rules of Civil Procedure.  The names and addresses of the Class Members are  available from Home Depot’s records, as well as from Home Depot’s third-party  administrator, Alight Solutions.   65.  The Plan is a group health plan within the meaning of 29 U.S.C. § 1167(1).    66.  The Corporate Home Depot Defendant is the plan sponsor and plan  administrator of the Plan and was subject to the continuation of coverage and notice  requirements of COBRA.    68.  On account of such qualifying event, the Corporate Home Depot Defendant  sent Plaintiff and the Class Members a deficient COBRA notice.    69.  The COBRA notice that the Corporate Home Depot Defendant sent to Plaintiff  and other Class Members violated 29 U.S.C. § 1166(a), 29 C.F.R. § 2590.606-4, and § 502(c)  for the reasons set forth above.      70.  These violations were material and willful.    71.  The Corporate Home Depot Defendant knew that its notice was inconsistent  with the Secretary of Labor’s Model Notice and failed to comply with 29 U.S.C. § 1166(a)  and 29 C.F.R. § 2590.606-4, but chose to use a non-compliant notice in deliberate or reckless  disregard of the rights of Plaintiff and other Class Members.   72.  Here, to the extent the Corporate Home Depot Defendant denies it has  liability to Plaintiffs, in the alternative Plaintiff pleads this count against the  Administrative Committee Home Depot Defendant.     73.  Plaintiff repeats and incorporates the allegations contained in the foregoing  paragraphs as if fully set forth herein.   74.  The Plan is a group health plan within the meaning of 29 U.S.C. § 1167(1).     76.  There is no Plan Administrator named in the COBRA notice.    77.  This is particularly problematic, and confusing, because Home Depot’s  Summary Plan Description identifies the Plan Administrator as, “The Administrative  Committee Home Depot U.S.A., Inc.,” while Home Depot reported in its Department of  Labor filings that the plan administrator is actually “Home Depot U.S.A., Inc.”      78.  In fact, the confusion created by Home Depot’s naming of two separate  entities as both serving as plan administrator forced Plaintiff to name both entities as  defendants to this lawsuit, as pled in the alternative here.   79.  Thus, Plaintiff brings this claim against the Administrative Committee  Home Depot Defendant to ensure there is an entity with liability named in this lawsuit.     80.  The potential penalty that Plaintiff seeks under ERISA § 502(c)(1) for the  alleged notice deficiency likewise is imposed upon the “administrator” of a plan.     81.  Under 29 U.S.C. § 1132(c), “Any administrator (A) who fails to meet the  requirements of paragraph (1) or (4) of section 1166 of this title, section 1021(e)(1) of this  title, section 1021(f) of this title, or section 1025(a) of this title with respect to a participant  or beneficiary   83.  On account of such qualifying event, the Administrative Committee Home  Depot Defendant caused to be sent Plaintiffs and the Class Members a deficient COBRA  notice.   84.  The COBRA notice that the Administrative Committee Home Depot  Defendant sent to Plaintiff and other Class Members violated 29 U.S.C. § 1166(a), 29  C.F.R. § 2590.606-4, and § 502(c) for the reasons set forth in above.      85.  These violations were material and willful.   86.  The Administrative Committee Home Depot Defendant knew that its notice  was inconsistent with the Secretary of Labor’s Model Notice and failed to comply with 29  U.S.C. § 1166(a) and 29 C.F.R. § 2590.606-4, but chose to use a non-compliant notice in  deliberate or reckless disregard of the rights of Plaintiff and other Class Members.  COBRA Notice Requirements  