The US Court of Appeals for the Seventh Circuit issued an opinion on December 4, 2012, in Johnson v. Meriter Health Services Employee Retirement Plan, affirming the district court's grant of class certification in an ERISA case under FRCP 23(b)(2). The class, which consists of over 4,000 current and former participants in defendant's pension plan, claimed that they were not credited with all of the benefits to which they were entitled under the plan. The class sought a declaration of its members' rights and an injunction directing the plan to be reformed to reflect those rights.

The defendant appealed the district court's certification of the class on several grounds. Most notably, the defendant argued that the class should not have been certified because if the class were awarded the relief it seeks, each member would be entitled to an individualized award of monetary damages. The defendant cited the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, which precludes a FRCP 23(b)(2) class action where each member seeks individualized monetary damages that are not incidental to declaratory or injunctive relief. The Seventh Circuit distinguished the Wal-Mart case, holding that if the plaintiffs in this case are successful, each member would be entitled to monetary relief that amounts to the difference between the benefit already credited to the member and the amount to which the member is entitled under the reformed plan. The court determined that this monetary relief is incidental to the declaratory and injunctive relief sought in the complaint, and therefore does not preclude class certification under FRCP 23(b)(2).

The decision also flags a recurring problem that should be recognized and avoided by attorneys submitting briefs to the Seventh Circuit. Writing for the court, Judge Posner complained that the judges were forced to dig deep into the record for a complete description of the defendant's pension plan. He noted that attorneys often fail to appreciate the judges' limited understanding of esoteric financial instruments.