claims or defens es ‘are ... typical of the class.’ ” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Fed. R. Civ. Proc. 23) (alterations in original). Kennedy’s claims are not typical because she may maintain her claim for disability benefits only under the Employees Retirement Insurance Security Act (ERISA), but the claims of other members of the proposed class are not limited to those provided by ERISA; they can maintain claims under state law. See generally 29 U.S.C. § 1144 (stating that ERISA preempts state law regulation of employer provided benefit plans). As a result, Kennedy’s claim is based on a different legal and remedial theory than the claims of other class members. See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988) (<HOLDING>). Indeed, other courts, in analogous
recognizing that where representative plaintiff and other members of class share an interest in prevailing on similar legal claims particular differences in amount of damages claimed or of availability of certain defenses against class representative may not render his or her claims atypical holding that the filing of a class action by a class representative without standing tolls the period of limitations with regard to all asserted members of the class and that the amendment of the complaint by the addition of a class member with standing relates back to the original complaint holding that in class action the claim or defense of the representative party must be typical of the claim or defense of each member of the class holding that the claims of the class representative and class members must be based on the same legal or remedial theory recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members