(THE FAILURE TO PROVIDE THE SPD   IN VIOLATION OF ERISA 29 U.S.C. § 1024(b)(1))   (THE FAILURE TO PROVIDE THE CONTINUATION   COVERAGE ELECTION NOTICE TO MR. GILREATH   IN VIOLATION OF ERISA 29 U.S.C. § 1166(a)(4))   (THE FAILURE TO PROVIDE THE INITIAL RIGHTS   NOTICE TO MR. GILREATH IN VIOLATION OF ERISA § 606(a)(1))   (THE FAILURE TO PROVIDE THE INITIAL RIGHTS   NOTICE TO MRS. GILREATH IN VIOLATION OF ERISA § 606(a)(1))   (THE FAILURE TO PROVIDE THE CONTINUATION   COVERAGE ELECTION NOTICE TO MRS. GILREATH   IN VIOLATION OF ERISA 29 U.S.C. § 1166(a)(4))   (THE FAILURE TO PROVIDE THE OPEN ENROLLMENT RIGHTS   NOTICE TO MR. GILREATH IN VIOLATION OF ERISA § 606(a)(1))   (THE FAILURE TO PROVIDE THE OPEN ENROLLMENT RIGHTS   NOTICE TO MRS. GILREATH IN VIOLATION OF ERISA § 606(a)(1))   (VIOLATION OF ERISA § 606(a)(2) and (4))   14.  Numerosity. The members of the Class are so numerous that joinder of all the  Class members is impracticable. On information and belief, the Class is comprised of more than  500 employees and spouses who elected coverage under the Total Safety Health Plan and are or  were covered employees, participants and/or qualified beneficiaries in the Plan since June 20, 2015  and who did not receive (a) the Initial Rights Notice upon the commencement of coverage in the  Total Safety Health Plan, (b) a copy of the SPD for the Total Safety Health Plan within ninety (90)  days after the employee becoming a participant in the Plan, (c) the Continuation Coverage Election  Notice within fourteen (14) days of the occurrence of a qualifying event under COBRA, (d) the  opportunity to elect continuation health care coverage, (e) the Open Enrollment Notice, and/or (f)  the same opportunity to elect other medical coverage as other Plan participants during an open  enrollment period. All of these current and former employees and spouses are members of the  Class.   15.  Commonality. This case presents numerous common questions of law and fact.  The following questions of law and fact are among those applicable to the members of the Class:  a.  Whether Total Safety is an employer within the meaning of ERISA Section  23.  Total Safety is “the leading global provider of integrated industrial safety services,  strategies and equipment.” Based in Houston, Texas, Total Safety operates from 165 locations in  23 countries. On information and belief, Total Safety employs approximately 1500 people within  the United States and throughout the world.   24.  During the Class Period, Defendant Total Safety provided its employees and the  covered beneficiaries of the employees with health care coverage. Total Safety provided medical  insurance for employees working in the United States through the Total Safety Group Health Plan.  Upon information and belief, Defendant Total Safety has never provided a Summary Plan  Description in compliance with ERISA to employees and their spouses and families covered by  the Total Safety Group Health Plan.   25.  On or about April 14, 2016, Gregory Gilreath was extended an offer of  employment from Total Safety. On or about April 15, 2016, Mr. Gilreath signed the offer letter,  indicating his acceptance to its terms. He was employed as a Pipefitter Foreman, beginning on  April 22, 2016.   26.  As an employee of Total Safety, Mr. Gilreath was eligible for paid vacation, a  personal floating holiday, the Health & Welfare and 401(k) Retirement plans, and other employee  benefits outlined in the Total Safety Employee Handbook.   27.  When Mr. Gilreath became eligible to enroll in the Total Safety Health Plan, he  did so for himself and his spouse, Eula Gilreath.   29.  Likewise, Total Safety failed to send a copy of the SPD for the Total Safety Health  Plan to Mr. Gilreath or Mrs. Gilreath within ninety (90) days after Mr. Gilreath became a  participant in the Plan.   30.  On May 16, 2016, Mr. Gilreath was injured in a multi-car motor vehicle accident  while returning back to Total Safety’s shop in Pasadena, Texas. Although Mr. Gilreath was  working at the time of the accident, Total Safety told Mr. Gilreath to file a medical claim under  the Total Safety Group Health Plan. Mr. Gilreath did so.   31.  In June 2016, Mr. Gilreath was diagnosed with “discogenic cervical and lumbar  pain and a right knee contusion as a direct result of the motor vehicle accident.” In July 2016, it  was determined that Mr. Gilreath had a partial tear of the ACL.  On August 24, 2016, Mr. Gilreath  had knee arthroscopy, revision ACL reconstruction, and bone marrow aspiration. Total Safety told  Mr. Gilreath to use the Total Safety Group Health Plan for the surgery and treatment of his injuries.   32.  After his surgery, Mr. Gilreath determined that his Total Safety should have filed  a workers’ compensation claim for his injuries. On August 31, 2016, Mr. Gilreath emailed Michael  Brady, Sr. Manager – Human Resources North America for Total Safety, and requested that Total  Safety file a workers’ compensation claim for his injuries. Mr. Gilreath stated: “this is also a  Workers Compensation claim, and should have been processed as such. I was on the clock,  and getting paid for my duties.”    33.  Rather than indicate that he would ensure that Total Safety would file a workers’  compensation claim, Mr. Brady responded: “Thank you for sharing. I appreciate it.”   35.  Unbeknownst to Mr. Gilreath at the time, individuals within Total Safety’s Human  Resource Department were discussing Mr. Gilreath’s injuries and the possible termination of his  employment. Indeed, on August 29, 2016, Joe Saad, HR Manager sent an email to David Brown,  VP of Human Resources for Total Safety, and Aurora Chalbaud Schmidt, Sr. HR Manager – Total  Rewards for Total Safety, which stated: “Regarding termination, he [Mr. Gilreath] is protected  under two scenarios: FMLA and ADA.” Total Safety terminated Mr. Gilreath seven (7) days  later.    36.  Total Safety terminated Mr. Gilreath because he sustained on the job injuries and  requested that Total Safety file a workers’ compensation claim on his behalf. As of the date of his  termination, Total Safety had not initiated a workers’ compensation claim with the Texas  Department of Insurance for Mr. Gilreath’s injuries. Rather, Total Safety contended that Mr.  Gilreath’s injuries were personal in nature.   37.  While Total Safety required Mr. Gilreath to file medical claims with the Total  Safety Group Health Plan, neither Total Safety nor the Total Safety Group Health Plan provided  the Continuation Coverage Election Notice to Mr. Gilreath following the termination of his  employment.    38.  Neither Total Safety nor the Total Safety Group Health Plan provided the  Continuation Coverage Election Notice to Mrs. Gilreath following the termination of Mr.  Gilreath’s employment.    40.  Total Safety’s failure to send the Continuation Coverage Election Notice to Mr.  Gilreath, Total Safety deprived Mr. Gilreath of his right to elect continuation healthcare coverage  under COBRA. As a result, Mr. Gilreath was without the necessary medical treatment to properly  recover from his on the job injuries.   41.  Mr. Gilreath’s spouse, Eula Gilreath, worked with Mr. Gilreath to help strengthen  his leg and help him recover.    42.  On September 9, 2016, Mr. Gilreath filed an Employee’s Claim for Compensation  for a Work-Related Injury or Occupational Disease with the Texas Department of Insurance –   Division of Workers’ Compensation. Total Safety, through its workers’ compensation carrier,  denied the claim. On January 16, 2017, the Texas Department of Insurance – Division of Workers’  Compensation, found that Total Safety had failed to timely failed to report Mr. Gilreath’s injury.  As a result, the Texas Department of Insurance issued a Warning Letter to Total Safety.    43.  On February 24, 2017, the Texas Department of Insurance – Division of Workers’  Compensation found that Mr. Gilreath was, in fact, injured in the course and scope of his   employment and awarded workers’ compensation benefits to him.    44.  Following his wrongful termination, Mr. and Mrs. Gilreath were left without  medical and dental benefits. As of today’s date, neither Total Safety nor the Total Safety Group  Health Plan have provided Mr. Gilreath with a notice of his right to elect continuation health care  coverage.    46.  In  addition to the need for the medical benefits under the Total Safety Group  Health Plan to care for his knee, Mr. Gilreath has experienced other medical and dental conditions  that would have been covered under the Plan. In 2017, Mr. Gilreath had dental surgery, including  a tooth pulled and an implant and cap installed. Since Mr. Gilreath did not have the dental benefits  under the Total Safety Group Health Plan, he was required to pay for the cost of the dental work  himself.   47.  In 2017, Mr. Gilreath was diagnosed with high blood pressure and was briefly  hospitalized. Since Mr. Gilreath did not have the medical benefits under the Total Safety Group  Health Plan, he was required to pay for the cost of the hospitalization himself.   48.  Due to the lack of medical coverage, Mr. Gilreath was required to forgo some  medical care or pay for the treatment out of pocket. In 2018, Plaintiff was diagnosed with bladder  and prostate cancer. Since the diagnosis of cancer, Mr. Gilreath has had multiple surgeries and  radiation treatment. Mr. Gilreath was required to pay out of pocket for many of the expenses related  to the medical treatment, surgery, and follow up care.    49.  If Mr. Gilreath had been covered by the Total Safety Group Health Plan, it is  possible that Plaintiff’s cancer would have been discovered at an earlier stage.   50.  As a beneficiary under the Total Safety Group Health Plan, Total Safety – as the  Plan Sponsor and Plan Administrator of the Plan – was required under COBRA and ERISA to  provide Ms. Gilreath with notice of the right to elect continuation health care coverage. However,  neither Total Safety nor the Total Safety Group Health Plan sent a notice to Ms. Gilreath.   52.  Additionally, Ms. Gilreath became pregnant around the time of Mr. Gilreath’s  termination. Since Mr. and Mrs. Gilreath did not have regular medical coverage (due to the failure  of Total Safety and the Plan to provide notice of their right to elect continuation health care  coverage), and Mr. Gilreath could not work for a period of time, Ms. Gilreath was unable to receive  the necessary prenatal care. She ultimately suffered a miscarriage. Due to Mr. Gilreath’s prostate  cancer and the treatment for his cancer, the Gilreaths are unlikely to be able to have children in the  future.     53.  Mr. Gilreath has spent approximately $50,000.00 in out of pocket medical and  dental expenses for him and his wife since the termination of his employment by Total Safety,  exclusive of the expenses related to his cancer.    54.  While Mr. Gilreath has been employed since the termination of his employment  by Total Safety, many of his employers did not provide medical and dental insurance benefits.  When Mr. Gilreath was able to enroll in medical and dental insurance benefits with a subsequent  employer, the benefits provided by the employer were inferior to the health benefits provided by  Total Safety and the Total Safety Group Health Plan.   56.  On information and belief, other covered employees and qualified beneficiaries  were also deprived of these same rights and opportunities under COBRA and ERISA.  57.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 as if fully set forth herein.   58.  ERISA Section 606(a)(1), 29 U.S.C. § 1166(a)(1), requires a group health plan, at  the time of commencement of coverage under the plan, to provide written notice to each covered  employee and spouse of the covered employee (if any) of their rights under COBRA – the Initial  Rights Notice. Pursuant to 29 C.F.R. § 2590.606-1(a), the plan administrator is required to provide  this notice.   60.  Because of their failure to provide the Initial Rights Notice to Mr. Gilreath, he  requests that the Court award to him the statutory penalty of up to $110.00 per day from Total  Safety and the Total Safety Group Health Plan.  61.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 as if fully set forth herein.   62.  ERISA Section 606(a)(1), 29 U.S.C. § 1166(a)(1), requires a group health plan, at  the time of commencement of coverage under the plan, to provide written notice to each covered  employee and spouse of the employee (if any) of their rights under COBRA – the Initial Rights  Notice. Pursuant to 29 C.F.R. § 2590.606-1(a), the plan administrator is required to provide this  notice.   63.  Total Safety, as the Total Safety Group Health Plan Administrator, and Total  Safety Group Health Plan failed to provide, at the commencement of coverage under the Plan,  written notice to each covered employee and spouse of the employee (if any) with the Initial Rights  Notice in violation of ERISA Section 606(a)(1), 29 U.S.C. § 1166(a)(1). Because they were not  advised of their COBRA rights, covered employees and qualified beneficiaries did not have notice,  among other things, that they were responsible under ERISA Section 606(a)(3), 29 U.S.C. §  1166(a)(3), for notifying the Plan Administrator (in this case, Total Safety) of the occurrence of  qualifying events described in ERISA Section 603(3) and/or (5), 29 U.S.C. § 1163(3) and/or (5).   65.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 as if fully set forth herein.   66.  ERISA requires the plan administrator of a group health plan to furnish a copy of  the summary plan description for the Total Safety Health Plan to the employee and/or qualified  beneficiary within ninety (90) days after the employee becoming a participant in the Plan. See 29  U.S.C. § 1024(b)(1).   67.  Total Safety, as the Total Safety Group Health Plan Administrator, failed to  provide a copy of the summary plan description for the Total Safety Health Plan to each covered  employee and qualified beneficiary, including Mr. Gilreath and Mrs. Gilreath, within ninety (90)  days after the employee becoming a participant in the Plan. See 29 U.S.C. § 1024(b)(1).   68.  Because of Total Safety’s failure to provide a copy of the Summary Plan  Description to Mr. Gilreath and Mrs. Gilreath, Plaintiffs request that the Court award to them the  statutory penalty of up to $110.00 per day from Total Safety.  69.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 as if fully set forth herein.   71.  Total Safety, as the Total Safety Group Health Plan Administrator, and Total  Safety Group Health Plan failed to provide the Continuation Coverage Election Notice to Mr.  Gilreath following the termination of his employment by Total Safety. Because he was not advised  of his right to elect continuation healthcare coverage, Mr. Gilreath was unable to elect the  continuation health care coverage that he needed (a) to treat the injuries that he sustained as a result  of the motor vehicle accident; (b) to provide the necessary dental care that he needed when he had  the dental surgery; (c) to allow him to seek regular medical care which would have possibly  prevented his hospitalization for high blood pressure; (d) to provide the medical treatment when  he was hospitalized for high blood pressure; (e) to allow him to seek regular medical care which  would have possibly detected his prostate and bladder cancer; and (f) to provide the medical  treatment for prostate and bladder cancer. Mr. Gilreath requests that the Court order Total Safety  and the Total Safety Health Plan to reimburse him for his out of pocket expenses that he incurred  for the treatment that he received without the opportunity to elect continuation healthcare  coverage, as well as to provide the medical benefits that he would have received had he had the  opportunity to elect continuation healthcare coverage.    72.  Additionally, Mr. Gilreath requests that the Court award to him the statutory  penalty of up to $110.00 per day from Total Safety, as the Plan Administrator of the Total Safety  Group Health Plan, for the failure to provide the Continuation Coverage Election Notice to him.  74.  ERISA Section 606(a)(4), 29 U.S.C. § 1166(a)(4), requires a plan administrator  to notify any qualified beneficiary of their rights under COBRA upon the occurrence of a  qualifying event.   75.  Total Safety, as the Total Safety Group Health Plan Administrator, and Total  Safety Group Health Plan failed to provide the Continuation Coverage Election Notice to Mrs.  Gilreath following the termination of Mr. Gilreath’s employment by Total Safety. Because she  was not advised of her right to elect continuation healthcare coverage, Mrs. Gilreath was unable  to elect the continuation health care coverage that she needed (a) to provide the regular check –  ups on her left aortic heart valve and (b) to receive the regular prenatal care following her  pregnancy. Due to Mr. Gilreath’s prostate cancer and the treatment for his cancer, the Gilreaths  are unlikely to be able to have children in the future.     76.  Mrs. Gilreath requests that the Court order Total Safety and the Total Safety  Health Plan to reimburse her and her husband for her out of pocket expenses that they incurred for  the treatment that she received without the opportunity to elect continuation healthcare coverage,  as well as to provide the medical benefits that she would have received had she had the opportunity  to elect continuation healthcare coverage.    77.  Additionally, Mrs. Gilreath requests that the Court award to her the statutory  penalty of up to $110.00 per day from Total Safety, as the Plan Administrator of the Total Safety  Group Health Plan, for the failure to provide the Continuation Coverage Election Notice to her.  79.  Under COBRA, an employer must provide qualified beneficiaries with the same  open enrollment rights as similarly situated active employees. Indeed, guidance on COBRA issued  by the Internal Revenue Service (“IRS”)  states:  Q – 4.  Can a qualified beneficiary who elects COBRA continuation coverage ever  change from the coverage received by that individual immediately before the  qualifying event?  84.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 and Paragraphs 79 through 82 as if fully set forth herein.   85.  Total Safety, as the Total Safety Group Health Plan Administrator, and Total  Safety Group Health Plan failed to provide written notice to each covered employee and  beneficiaries, including Mrs. Gilreath, with the Open Enrollment Rights Notice in violation of  ERISA Section 606(a)(1), 29 U.S.C. § 1166(a)(1). Because she was not advised of her COBRA  rights, covered employees and qualified beneficiaries did not have notice, among other things, of  her right to enroll in other health plan types at open enrollment, change their plan option within  health plan types, and add dependents.    87.  Plaintiffs repeat and incorporate the allegations contained in Paragraphs 1 through  56 as if fully set forth herein.   88.  ERISA § 606(a)(2), 29 U.S.C. § 1166(a)(2), requires an employer of an employee  under a group health plan to notify the administrator of qualifying events described in paragraph  (1), (2), (4), or (6) of ERISA § 603, 29 U.S.C. § 1163, within 30 days of the of the date of the  qualifying event.   89.  ERISA § 606(a)(4), 29 U.S.C. § 1166(a)(4), requires an administrator of a group  health plan, at the time of a qualifying event, to notify any qualified beneficiary of the beneficiary’s  right to elect COBRA coverage.   90.  Total Safety was both the employer of employees under the Total Safety Group  Health Plan and the Total Safety Group Health Plan Administrator and Sponsor. Total Safety, as  the Total Safety Group Health Plan Administrator, was aware of qualifying events described in  paragraph (1), (2), (4), and/or (6) of ERISA § 603, 29 U.S.C. § 1163, and, therefore, had a duty to  notify any qualified beneficiary of his or her right to elect COBRA coverage as required by ERISA  § 606(a)(4), 29 U.S.C. § 1166(a)(4).   91.  Total Safety, as the Total Safety Group Health Plan Administrator, failed to  provide, at the time of qualifying events, written notice to qualified beneficiaries – including  Plaintiffs – of their rights under the COBRA provisions of ERISA in violation of ERISA §  606(a)(4), 29 U.S.C. § 1166(a)(4).  