17.  Definition of Class.  E.S. proposes the following class:  All individuals:  (1) who have been, are, or will be participants or beneficiaries  in the Marsh McLennan Companies Health & Welfare  Benefit Programs administered by Aetna at any time since  January 1, 2014 and/or the relevant statute of limitations;    (2) who have received, require, or are expected to require out- of-network residential psychiatric treatment services; and   (3) whose request for coverage of the out-of-network  residential psychiatric treatment was “administratively  excluded” based upon requirements that are not part of  the terms of the Plan document.     18.  Size of Class.  The Class of persons who have received, require or are  expected to require residential psychiatric treatment services is expected to number  over 40 individuals and is so large that joinder of all members is impracticable.   20.  Common Questions of Law and Fact.  This action requires a  determination of whether the Defendants’ application of a hidden exclusion to deny  coverage of out-of-network treatment facilities violates the Federal Parity Act, the  Affordable Care Act and the terms of the Plan as modified by applicable federal law.   Adjudication of this issue will in turn determine whether the Defendants are liable  under ERISA for their conduct.   21.  Separate suits would create risk of varying conduct requirements.  The  prosecution of separate actions by class members against the Plan would create a risk of  inconsistent or varying adjudications with respect to individual class members that  would establish incompatible standards of conduct.  Certification is therefore proper  under Federal Rule of Civil Procedure 23(b)(1).     22.  Defendants have acted on grounds generally applicable to the Class.   Defendants, by applying policies and practices that result in the improper exclusion of  out-of-network coverage of residential psychiatric treatment services, have acted on  grounds generally applicable to the Class, rendering declaratory relief appropriate  respecting the entire class.  Certification is therefore proper under Federal Rule of Civil  Procedure 23(b)(2).   24.  No pending class action.  Upon information and belief, there is no  pending class action suit filed against these defendant for the same relief requested in  this action, for a class of ERISA insureds.    25.  Venue.  This action can be most efficiently prosecuted as a class action in  the District of New Jersey, where Defendants are located.     26.  Class Counsel.  E.S. has retained experienced and competent class  counsel.  27.  During certain time periods, E.S. and members of the Class have been, are  or will be participants or beneficiaries of the Plan, which is subject to ERISA pursuant to  34.  E.S. re-alleges all paragraphs above.   35.  Defendant Marsh & McLennan Companies, Inc. Benefits Administration  Committee is a fiduciary under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), because it is  the Plan Administrator and exercises discretionary authority or discretionary control  with respect to the Plan.   37.  Defendant Aetna is a fiduciary under ERISA because it has been delegated  discretionary authority to make claims determinations, and exercised that discretionary  authority to adjudicate claims submitted on behalf of E.S. and members of the Class.   38.  ERISA imposes strict fiduciary duties upon plan fiduciaries.  ERISA  § 404(a)(1)(C), 29 U.S.C. § 1104(a)(1)(C), states, in relevant part, that a plan fiduciary  must discharge its duties with respect to a plan “solely in the interest of the participants  and beneficiaries and … in accordance with the documents and instruments governing  the plan insofar as such documents and instruments are consistent with the provisions  of this title and Title IV.”   39.  ERISA § 409(a), 29 U.S.C. § 1109(a), states, in relevant part:    Any person who is a fiduciary with respect to a plan who breaches any of  the responsibilities, obligations, or duties imposed upon fiduciaries by this  title shall be personally liable to make good to such plan any losses to the  Plan resulting from each such breach, and to restore to such plan any  profits of such fiduciary which have been made through each such breach,  and to restore to such plan any profits of such fiduciary which have been  made through use of assets of the Plan by the fiduciary, and shall be subject  to such other equitable or remedial relief as the court may deem  appropriate, including removal of such fiduciary.   40.  The terms of an ERISA plan include applicable provisions of substantive  law, such as the requirements in the Federal Parity Act and certain provisions of the  Affordable Care Act.  Defendants have failed to comply with the terms of the Plan,  which include the applicable requirements of the Federal Parity Act, the Affordable  Care Act and their implementing regulations.  Under ERISA, Defendants have both a  fiduciary and a legal duty to ensure that the Plan complies with the applicable federal  law.   42.  As a direct and proximate result of these acts and omissions, E.S., Class  members and the Plan have suffered harm and losses and are entitled to relief under  ERISA against Defendants.   43.  E.S., Class members and the Plan seek recovery of all losses to the Plan,  including, but not limited to, relief compelling Defendants to restore to the Plan all  losses, including interest, arising from the breaches of fiduciary duties when treatment  required by the terms of the Plan as governed by the Federal Parity Act and the  Affordable Care Act was denied.  44.  E.S. re-alleges all the paragraphs above.   45.  ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides that a participant  or beneficiary may bring an action to “recover benefits due to [her] under the terms of  [her] plan, to enforce [her] rights under the terms of the plan, or to clarify [her] rights to  future benefits under the terms of the plan.”   46.  E.S. and the Class are entitled to recover benefits due them under the  terms of the Plan.  They are also entitled to a declaration of present and future rights to  coverage of medically necessary out-of-network residential psychiatric treatment  services without the application of hidden, invalid exclusions.    48.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), provides that a participant or  beneficiary may “enjoin any act or practice which violates any provision of this  subchapter or the terms of the plan.”  E.S. and the Class seek to enjoin Defendants from  continuing to apply a hidden, illegal exclusion on out-of-network residential psychiatric  treatment services.  E.S. and the Class also seek to have Defendants provide the Class  with corrective notice and reformation of the relevant Plan documents.   49.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), further provides that a  participant or beneficiary may obtain other appropriate equitable relief to redress  violations of ERISA or enforce plan terms.  To the extent full relief is not available under  ERISA § 502(a)(1)(b), 29 U.S.C. § 1132(a)(1)(B) or ERISA § 502(a)(2), 29 U.S.C.  § 1132(a)(2), then E.S. and the Class seek equitable remedies including, without  limitation, unjust enrichment, disgorgement, restitution, surcharge and consequential  damages arising out of the Defendants’ failure to administer the terms of the Plan as  governed by the applicable provisions of the Federal Parity Act and the Affordable Care  Act.  BREACH OF FIDUCIARY DUTIES  ERISA § 404(a)(1); §502(a)(2), 29 U.S.C. § 1104(a)   CLAIM FOR RECOVERY OF BENEFITS, CLARIFICATION OF RIGHTS  UNDER TERMS OF THE PLANS AND CLARIFICATION OF  RIGHT TO FUTURE BENEFITS UNDER THE PLAN  ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)   CLAIM TO ENJOIN ACTS AND PRACTICES IN VIOLATION OF THE TERMS  OF THE PLANS, TO OBTAIN OTHER EQUITABLE RELIEF AND TO  ENFORCE THE TERMS OF THE PLANS  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3)  