31.  Mercy Health (formerly Catholic Health Partners) purports to be a Catholic health  organization, supervising market delivery systems consisting of hospitals, physician clinics, and  other organizations providing health-related services.   32.  Mercy Health employs 32,000 employees and is the fourth largest employer in Ohio.   33.  Mercy Health renders services to patients under contractual arrangements with the  Medicare and Medicaid programs.  Payment for the majority of Medicare and Medicaid services is  based on a prospectively determined fixed price, according to a patient classification system, based  on clinical and other diagnostic factors.  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 8 of 25  PAGEID #: 8 9   34.  Contractual adjustments for the Medicare and Medicaid programs are recognized  when the related patient service revenue is reported in the consolidated financial statements.  These  contractual adjustments represent the difference between established rates and the prospectively  determined payments and amounts reimbursed. Amounts earned under these contractual  arrangements are subject to review and final determination by Medicare and Medicaid intermediaries  and other appropriate governmental authorities or their agents, and may be adjusted in future periods  as settlements are determined.   35.  The executive leadership structure at Mercy Health is not controlled by a church.  The  leadership is comprised of the following lay persons: John M. Starcher, Jr. (President and CEO of  Mercy Health); Drew Banks (Chief Strategy Officer); Michael Bezney (Chief Legal Officer and  General Counsel); Debbie Bloomfield (Chief Financial Officer); Randy Curnow, MD (Chief  Medical Officer and President, Mercy Health Select); Joe Gage (Chief Human Resources Officer);  Sr. Kathy Green (Chief Mission and Values Officer); Anton Decker, MBBCh (Chief Clinical Officer  and President, Mercy Health Physicians); Dave Nowiski (CFO, Mercy Health Physicians and Mercy  Health Select); Matt Love (SVP and Regional CFO); Todd Lupton (SVP and Regional CFO); Brian  Smith (Chief Operating Officer); Imran Andrabi, MD (CEO, Mercy Health – Toledo Region Senior  Vice President, Mercy Health); Bob Baxter (CEO, Mercy Health – Lima Region Senior Vice  President, Mercy Health); Mike Garfield (CEO, Mercy Health – Cincinnati Region  Senior Vice  President, Mercy Health); Steve Grinnell (CEO, Mercy Health – Paducah Region  Senior Vice  President, Mercy Health); Paul Hiltz (CEO, Mercy Health – Springfield Region Senior Vice  President, Mercy Health); Don Kline (CEO, Mercy Health – Youngstown Region, Senior Vice  President, Mercy Health); and Ed Oley (CEO, Mercy Health – Lorain Region Senior Vice President,  Mercy Health).  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 9 of 25  PAGEID #: 9 10   36.  The Mercy Health Corporate Board of Trustees is not controlled by a church.  The  Mercy Health Corporate Board of Trustees provides overall system direction, approves appointments  to regional boards, and appoints and evaluates the system CEO.  It approves system and regional  strategic and financial plans. It also is responsible for mergers, acquisitions, divestitures and  dissolutions of subsidiaries; approves debt and expenditures in excess of the amount authorized for  the CEO; and annually appoints an external auditing firm.  The Mercy Health Corporate Board of  Trustees is comprised of the following:    Katherine A. Arbuckle, CPA;    Michael D. Connelly, M.A., J.D., FACHE;    Sister Doris Gottemoeller, RSM;    Lawrence L. Grypp;    George J. Isham, MD, MS;    Catherine A. Jacobson, FHFMA, C.P.A.;    Denise Koo, MD, MPH;    David C. Leach, M.D.;    Joel A. Levine, J.D.;    Iliana A. Mora;    Sister Jean Orsuto, HM, R.N., M.S.N.;    Leonard M. Randolph, Jr., M.D., Vice Chair, Board of Trustees;    Donald Rohling;    Fr. Myles N. Sheenan, SJ;    Sister Carol Anne Smith, HM;    Sister Mary Stanton, RSM;    John M. Starcher; and    Katherine W. Vestal, R.N., Ph.D., FAAN, FACHE, Chair, Board of Trustees.   37.  The Mercy Health Corporate Board of Trustees is mostly comprised individuals  outside the church.   38.  Mercy Health is not, and does not claim to be, a church.   39.  Under Section 3(33)(A) of ERISA, 29 U.S.C. § 1002(33)(A), a plan must be both  established and maintained by a church or by a convention or association of churches to qualify for  the church plan exemption.  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 10 of 25  PAGEID #: 10 11   40.  The Plan was established by the Company or its predecessors, not by a church or  convention or association of churches.   41.  The Plan is maintained by the Company, not by a church or convention or association  of churches.   42.  The principal purpose of Mercy Health is to provide healthcare services, not to  operate a pension system.   43.  Since the Plan is maintained by a healthcare company, the Plan is not maintained by  “an organization … the principal purpose of which is the administration or funding of a plan or  program for the provision of retirement benefits….” 11 U.S.C. § 1002 (33)(C)(i).   44.  Moreover, the Plan is not maintained for employees of any church or convention or  association of churches.  It is maintained for employees of the Company -- a hospital system.  The Plan Is Not A Church Plan   45.  Under section 3(33) of ERISA, 29 U.S.C. 1002(33), only the following two types of  plans may qualify as a Church Plan:     First, under Section 3(33)(A) of ERISA, 29 U.S.C. 1002(33)(A), a plan  established and maintained by a church or convention or association of  churches, can qualify under certain circumstances and subject to the  restrictions of Section 3(33)(B) of ERISA, 29 U.S.C. 1002(33)(B); and    Second, under Section 3(33)(C)(i) of ERISA, 29 U.S.C. 1002(33)(C)(i), a  plan established by a church or by a convention or association of churches  that is maintained by an organization, the principal purpose or function of  which is the administration or funding of a retirement plan, if such  organization is controlled by or associated with a church or convention or  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 11 of 25  PAGEID #: 11 12  association of churches, can qualify under certain circumstances and subject  to the restrictions of Section 3(33)(B) of ERISA, 29 U.S.C. 1002(33)(B).  Both types of plans must be “established” by a church or by a convention or association of churches  in order to qualify as a “Church Plan.”   46.  Although other portions of ERISA section 3(33)(C) address, among other matters,  who can be participants in a Church Plan — in other words, which employees can be in a Church  Plan, these other portions of ERISA Section 3(33)(C) do not add any other type of plan that can be a  Church Plan.  29 U.S.C. 1002(33)(C).  The only two types of plans that can qualify as a Church Plan  are those described in ERISA Section 3(33)(A) and in section 3(33)(C)(i), 29 U.S.C. 3(33)(A) and  (C)(i).  The Plan here does not qualify as a Church Plan under either ERISA Section 3(33)(A) or  Section 3(33)(C)(i), 29 U.S.C. 3(33)(A) or (C)(i).   47.  First, under ERISA Section 3(33)(A), a Church Plan is “a plan established and  maintained for its employees by a church or by a convention or association of churches which is  exempt from tax under Section 501 of title 26.”  ERISA 3(33)(A), 29 U.S.C. 1002(33)(A).   48.  The Plan at issue here is not and has never been a “Church Plan” as defined in ERISA  Section 3(33)(A), 29 U.S.C. 1002(33)(A), because the Plan was established and maintained by  Mercy Health for its own employees.  Because Mercy Health is not a church or a convention or  association of churches, nor does it claim to be, the Plan was not “established and maintained by” a  church or a convention or association of churches and was not maintained for employees of a church  or a convention or association of churches.  That is the end of the inquiry under ERISA Section  61.  Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules  of Civil Procedure on behalf of himself and the class (the “Class”) defined as follows: “All  participants in and beneficiaries of the Plan. Excluded from the Class are Defendants and any  individuals who are subsequently to be determined to be fiduciaries of the Plan.”   62.  The members of the Class are so numerous that joinder of all members is impractical.  Upon information and belief, the Class includes thousands of persons.   63.  Plaintiff’s claims are typical of the claims of the members of the Class because  Plaintiff’s claims, and the claims of all Class members, arise out of the same conduct, policies, and  practices of Defendants as alleged herein, and all members of the Class are similarly affected by  Defendants’ wrongful conduct.   64.  There are questions of law and fact common to the Class, and these questions  predominate over questions affecting only individual Class members. Common legal and factual  questions include, but are not limited to:    Whether the Plan is covered by ERISA;    Whether the Plan Administrator failed to comply with ERISA’s reporting and  disclosure provisions;    Whether the Plan fiduciaries failed to establish a funding policy and fund the Plan in  compliance with ERISA; and    Whether the Plan fiduciaries breached their fiduciary duties in failing to comply with  the provisions of ERISA set forth above.  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 16 of 25  PAGEID #: 16 17   65.  Plaintiff will fairly and adequately represent the Class and has retained counsel  experienced and competent in the prosecution of ERISA class action litigation.  Plaintiff has no  interests antagonistic to those of other members of the Class.  Plaintiff is committed to the vigorous  prosecution of this action, and anticipates no difficulty in the management of this litigation as a class  action.   66.  This action may be properly certified under either subsection of Rule 23(b)(1).  Class  action status in this action is warranted under Rule 23(b)(1)(A) because prosecution of separate  actions by the members of the Class would create a risk of establishing incompatible standards of  conduct for Defendants.  Class action status is also warranted under Rule 23(b)(1)(B) because  prosecution of separate actions by the members of the Class would create a risk of adjudications with  respect to individual members of the Class that, as a practical matter, would be dispositive of the  interests of other members not parties to this action, or that would substantially impair or impede  their ability to protect their interests.   67.  In the alternative, certification under Rule 23(b)(2) is warranted because Defendants  have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate  final injunctive, declaratory, or other appropriate equitable relief with respect to the Class as a  whole.   68.  In the alternative, certification under Rule 23(b)(3) is also appropriate.  A class action  is superior to other available methods for the fair and efficient adjudication of the controversy within  the meaning of Rule 23(b) and in consideration of the matters set forth in Rule 23(b)(3)(A)-(D).  Because of the amount of the individual Class members’ claims, relative to the complexity of the  litigation and the financial resources of Defendants, few, if any, members of the Class would seek  legal redress individually for the wrongs complained of herein.  The maintenance of separate actions  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 17 of 25  PAGEID #: 17 18  would place a substantial and unnecessary burden on the courts, and could result in inconsistent  adjudications, while a single class action can determine, with judicial economy, the rights of all  Class members.  Absent a class action, Class members will continue to suffer damages, and  Defendants’ misconduct will proceed without remedy.  69.  Plaintiff re-alleges and incorporates herein by reference all prior allegations in this  Complaint.   70.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), authorizes a participant or beneficiary to  bring a civil action to: “(A) enjoin any act or practice which violates any provision of this title or the  terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or  (ii) to enforce any provisions of this title or the terms of the plan.”   71.  Pursuant to this provision, 28 U.S.C. § 2201 and 2202, and Federal Rule of Civil  Procedure 57, Plaintiff seeks declaratory relief that the Plan is not a “church plan” within the  meaning of ERISA § 3(33), 29 U.S.C. § 1002(33), and is thus subject to the provisions of Title I and  Title IV of ERISA.   72.  Plaintiff further seeks orders directing all Defendants to bring the Plan into  compliance with ERISA, including the reporting and funding requirements of ERISA, 29 U.S.C. §§  1021, 1023, 1082, 1102, and 1104, and by remedying the additional violations set forth below.   73.  Additionally, Plaintiff seeks an order that Mercy Health make all contributions to the  Plan as necessary to remedy the Plan’s funding shortfall.  74.  Plaintiff re-alleges and incorporates herein by reference all prior allegations in this  Complaint.   75.  ERISA § 502(a)(1)(A), 29 U.S.C. 1132(a)(1)(A), permits a plan participant to bring a  suit for penalties when a defendant violates the recordkeeping obligations set forth in ERISA.   76.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), permits a plan participant to bring a suit  to obtain appropriate equitable relief to enforce the provisions of Title I of ERISA or to enforce the  terms of a plan.   77.  Under ERISA § 103, 29 U.S.C. § 1023, employee benefit plans are required to file an  annual report with the Secretary of Labor. This report, submitted via Form 5500, must include  certain specified information about the plan’s finances, participants, and administration.   78.  Defendants failed to file an annual report concerning the Plan with the Secretary of  Labor in compliance with ERISA § 103, 29 U.S.C. § 1023, or a Form 5500 (and associated  schedules and attachments) which the Secretary has approved as an alternative method of  compliance with ERISA § 103, 29 U.S.C. § 1023.   79.  Defendants have violated ERISA § 104(a), 29 U.S.C. § 1024(a), by failing to file  annual reports with respect to the Plan with the Secretary of Labor in compliance with ERISA § 103,  29 U.S.C. § 1023, or Form 5500s and associated schedules and attachments.   80.  Under ERISA § 101(d)(1), 29 U.S.C. § 1021(d)(1), employers maintaining employee  benefit plans are required to issue a notice to beneficiaries and participants whenever the plan fails to  make a required installment or other payment required to meet the minimum funding standards  under ERISA.   81.  Mercy Health has failed to furnish Plaintiff, or any member of the Class, with a  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 19 of 25  PAGEID #: 19 20  Notice with respect to the Plan pursuant to ERISA § 101(d)(1), 29 U.S.C. § 1021(d)(1), informing  them that it failed to make payments required to comply with ERISA § 302, 29 U.S.C. § 1082.   82.  Under ERISA § 101(f), 29 U.S.C. § 1021(f), administrators of defined benefit plans  are required to provide annual plan funding notices to all participants and beneficiaries of such  defined benefit plans.   83.  At no time has the Committee furnished Plaintiff, or any member of the Class, with a  Funding Notice with respect to the Plan pursuant to ERISA § 101(f), 29 U.S.C. § 1021(f).   84.  As the Administrator of the Plan, the Committee has violated ERISA § 101(f), 29  U.S.C. § 1021(f), by failing to provide each participant and beneficiary of the Plan with the Funding  Notice required by ERISA § 101(f), 29 U.S.C. § 1021(f), and as such, the Committee may be  required by the Court to pay Plaintiff and each Class member up to $110 per day (as permitted by 29  C.F.R. § 2575.502(c)(3)) for each day that the Committee has failed to provide Plaintiff and each  Class member with the Funding Notice required by ERISA § 101(f), 29 U.S.C. § 1021(f).  85.  Plaintiff re-alleges and incorporates herein by reference all prior allegations in this  Complaint.   86.  ERISA § 302, 29 U.S.C. § 1082, establishes minimum funding standards for defined  benefit plans that require employers to make minimum contributions to their plans so that each plan  will have assets available to fund plan benefits if the employer maintaining the plan is unable to pay  benefits out of its general assets.   87.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), permits a plan participant to bring a suit  to obtain appropriate equitable relief to enforce the provisions of Title I of ERISA or to enforce the  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 20 of 25  PAGEID #: 20 21  terms of a plan.   88.  As the employer maintaining the Plan, Mercy Health was responsible for making the  contributions that should have been made pursuant to ERISA § 302, 29 U.S.C. § 1082, at a level  commensurate with ERISA’s requirements.   89.  Mercy Health has failed to make contributions in satisfaction of the minimum funding  standards of ERISA § 302, 29 U.S.C. § 1082.   90.  By failing to make the required contributions to the Plan, Mercy Health has violated  Declaratory and Equitable Relief  (Declaratory Judgement Act and ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3))   Failure to Provide Minimum Funding  (ERISA §§ 302 and 502(a)(3), 29 U.S.C. §§ 1082, 1132(a)(3))   Mercy Health   Violation of Reporting and Disclosure Provisions  Case: 1:16-cv-00726-SKB Doc #: 1 Filed: 06/30/16 Page: 18 of 25  PAGEID #: 18 19  (ERISA §§ 101-104, 502(a)(1)(A), (a)(3), 29 U.S.C. §§ 1021-1024, 1132(a)(1)(A), (a)(3))  