Forward Momentum, LLC et al v. Team Health, Inc. et al

Filing 133

FINAL APPROVAL ORDER: Plaintiffs' Unopposed Motion for Final Approval of Class Settlement (Doc. # 102 ) is GRANTED, and Plaintiffs' Unopposed Motion for Award of Attorneys' Fees and Expenses (Doc. # 101 ) is GRANTED, as further set out in order. Signed by Honorable Judge William Keith Watkins on 9/2/2022. (cwl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FORWARD MOMENTUM, LLC,
et al.,
Plaintiffs,
v.
TEAM HEALTH, INC., et al.,
Defendants.

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CASE NO. 2:17-CV-346-WKW
[WO]

FINAL APPROVAL ORDER
On July 28, 2022, the court held a Final Settlement Approval Hearing. Having
considered the Settlement Agreement and all papers and arguments related thereto,
Class Members’ and third-party input, and all submissions to the court, Plaintiffs’
Unopposed Motion for Final Approval of Class Settlement (Doc. # 102) is
GRANTED, and Plaintiffs’ Unopposed Motion for Award of Attorneys’ Fees and
Expenses (Doc. # 101) is GRANTED.
WHEREAS, a class action is pending in this court entitled Forward
Momentum, LLC, et al. v. Team Health, Inc., et al., No. 2:17-cv-00346-WKW;
WHEREAS, the Named Plaintiffs1 (on behalf of themselves and the

The “Named Plaintiffs” are as follows: Forward Momentum, LLC; Argo Consulting, PC; Lisa M. Bundy, MD, LLC;
Dr. Steven Bobo; Dr. Raymond J. Maguire; Dr. Landon E. Argo; Dr. Nima Bahraini; Dr. Dawn Donald; Dr. Roger D.
Eiland; and Dr. Lisa M. Bundy. References to “Named Plaintiffs” or “Class Representatives” or “Plaintiffs” will refer
to this group unless otherwise specified.
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Settlement Class) (“Named Plaintiffs” or “Class Representatives”) and Settling
Defendants (together, the “Parties”) have entered into and executed a Settlement
Agreement, to fully and finally resolve all of Named Plaintiffs’ claims against the
Settling Defendants in the Action, subject to approval of this Court;2
WHEREAS, unless otherwise defined in this Final Approval Order and
Judgment, the terms capitalized herein shall have the same meaning as in the
Settlement Agreement;
WHEREAS, in full and final settlement of the claims asserted against them in
this Action, the Settling Defendants have agreed to pay $15,032,500.00 (the
“Settlement Fund”) as set forth in the Settlement Agreement;
WHEREAS, by Order dated March 11, 2022 (Doc. # 97 “Order Preliminarily
Approving Settlement”), this court: (1) granted preliminary approval of the
settlement, (2) found that the Settlement Class is likely to be certified at final
approval, (3) preliminarily approved the Plan of Distribution, (4) set a Final Approval
Hearing on July 28, 2022, (5) approved the Notice Plan, (6) appointed the Claims
Administrator, (7) appointed the undersigned as Class Counsel, and (8) appointed
the Named Plaintiffs as Class Representatives;

The “Settlement Agreement” Preliminarily Approved by the Court is Doc. 95-1. The “Action” means the abovecaptioned lawsuit, which is currently pending in the Court.
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WHEREAS, due and adequate Notice has been given to the Settlement Class
in satisfaction of the requirements of Rules 23(c)(2) and 23(e)(1) of the Federal Rules
of Civil Procedure and Constitutional Due Process;
WHEREAS, the 90-day period provided by the Class Action Fairness Act, 28
U.S.C. § 1715(d), has expired;
WHEREAS, the Court conducted a hearing on July 28, 2022 (“Final Approval
Hearing”) to consider, among other things, (a) whether the terms and conditions of
the Settlement are fair, reasonable, and adequate to the Settlement Class, and should
therefore be approved; and (b) whether a judgment should be entered dismissing the
Action with prejudice against the Settling Defendants; and
WHEREAS, the court has considered the Settlement Agreement, all papers
filed and proceedings held herein in connection with the Settlement, all oral and
written comments and objections received regarding the Settlement, and the record
in the Action, and good cause appearing therefor,
The court hereby ORDERS the following:
Jurisdiction
1.

The court has jurisdiction over the subject matter of this action and

personal jurisdiction over the Parties and the members of the Settlement Class
described below.

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2.

This Final Order and Judgment incorporates and makes a part hereof;

(a) the Settlement Agreement; (b) the Notice Plan and Claim Form, which were
approved by the court on the date of signature below; and (c) the Plan of Distribution,
which was approved by the court on the date of signature below.
Final Approval of Settlement Agreement
3.

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the

court grants Final Approval of the Settlement agreement in all respects (including,
without limitation: the Settlement Fund amount, the releases, the modifications as
approved in Doc. # 129, and the dismissal with prejudice of the claims asserted
against Settling Defendants in the Action), and finds that the Settlement Agreement
is, in all respects, fair, reasonable, and adequate to the Settlement Class. In reaching
this conclusion, the court considered the factors set forth in Rule 23(e), as well as
the factors set forth in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).
Moreover, the court concludes that:
a.

The Settlement Agreement was fairly and honestly
negotiated by counsel with significant experience
litigating class actions and is the result of vigorous
arm’s-length negotiations undertaken in good faith
and with assistance of multiple mediators, who are
experienced and well-regarded mediators of
complex cases;

b.

The Action involves contested issues of law and
facts, such that the value of immediate monetary
recovery, outweighs the mere possibility of future
relief after protracted and expensive litigation;
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4.

c.

Success in complex medical, billing, and coding
litigation such as this one is inherently uncertain,
and there is no guarantee that continued litigation
would yield a superior result (particularly given the
costs, risks, and delay of trial and appeal); and

d.

There is a substantial basis for Settlement Class
Counsel’s judgment that the Settlement Agreement
is fair, reasonable, and adequate.

The proposed method of distributing relief to the Settlement Class is

adequate, including the method of processing Class Member claims.
5.

The Settlement treats Class Members equitably relative to each other

when considering the differences in their claims.
6.

The court further grants Final Approval to the Plan of Distribution,

which was preliminarily approved by the court on March 11, 2022. The Plan of
Distribution was developed and recommended by experienced Class Counsel. The
Plan of Distribution represents an efficient and equitable means of distributing the
Net Settlement Fund to the Settlement Class in a timely fashion, without overly
burdening claimants, and treats members of the Settlement Class equitably relative
to each other. In particular, the court finds that the use of the claimants own billing
and coding data possessed by Defendants, to create the allocation, is appropriate.
The Plan of Distribution’s methodology maximizes both precision and efficiency.
7.

The court further observes that the Settlement Agreement is the

product of over five years of litigation, including multiple motions to dismiss,
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discovery (including the production and review of tens of thousands of medical
coding and billing documentation), depositions, and expert retention, in which the
Parties have had ample opportunity to develop and test their claims and defenses.
8.

Having considered the record, the court finds that the Settlement

Agreement is sufficiently within the range of reasonableness and that Final Approval
should be granted.

Thus, the terms of the Settlement Agreement are hereby

approved, with the modifications outlined in Doc. # 129, including the release
contained therein, as being fair, reasonable, and adequate to the Settlement Class.
Releases
9.

The Action and all claims contained therein, as well as all of the

Released Claims against any of the Releasees by Releasors, are each hereby
dismissed with prejudice.
10.

While the Settlement Agreement provided for Opt-Outs to be excluded

from the Settlement Class, no Settlement Class Member chose to Opt-out.
11.

The releases set forth in Section 3 of the Settlement Agreement

(including the modifications referenced in Docs. # 128 and 129), together with the
Definitions contained in Section 1 of the Settlement Agreement relating thereto, are
expressly incorporated herein in all respects. The releases are effective as of the
Effective Date.

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12.

Upon the Effective Date the Releasors: (a) shall be deemed to have,

and by operation of the Final Judgment and Order of Dismissal shall have, fully,
finally, and forever released, relinquished, and discharged all Released Claims
against any and all of the Releasees, and (b) covenant not to sue any Releasee with
respect to any Released Claim, and are permanently barred and enjoined from
commencing, maintaining, prosecuting, or causing any action, suit, proceeding, or
claim in any court, tribunal administrative agency, regulatory body, arbitrator, or
other body in any jurisdiction against any Releasee based in whole or in part upon
or arising out of any Released Claim.
13.

This Final Order and Judgment shall not affect, in any way, the right

of Releasors, to pursue claims, if any, outside the scope of the Released Claims.
14.

All persons who have not objected to the Settlement Agreement in the

manner provided in the Settlement Agreement are deemed to have waived any
objections to the Settlement, including, without limitation, by appeal, collateral
attack, or otherwise.
Certification of the Settlement Class
15.

Pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil

Procedure, and based on the record before the court, including submissions in
support of the Settlement and any objections (since withdrawn) and responses

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thereto, the court hereby affirms its forecast in the Preliminary Approval Order and
certifies the following Settlement Class for settlement purposes only:
Settlement Class: Emergency room physicians located
anywhere in the United States who participated in one of
Defendant’s operating affiliates RVU incentive plans from
2014 until the physician executed a new contract with a
Variable RVU Compensation Plan, whether as an
independent contractor or employee, who had Supervisory
RVUs associated with the physician’s name as a primary
or secondary provider, but was not paid for some or all of
those RVUs under the relevant RVU incentive plan.
“Class Member” or “Class Members” does not include
(i) physicians enrolled in “pool plans,” “tiered plans,” or
plans where all RVUs were determined within the “sole
discretion” of Defendant (ii) physicians working at
facilities where Defendant paid all RVUs, regardless of
type, and (iii) physicians enrolled in plans that excluded
one or more types of Supervisory RVUs. A list of relevant
facilities and contractual dates excluded under subsections
(i), (ii), and (iii) is attached as Exhibit 2 to the Settlement
Agreement. Any physicians who participated in more
than one type of RVU incentive plan during the relevant
class period shall be part of the class, though such
physicians will not be paid on claims for contracts
excluded in subsections (i), (ii), and (iii) above, or to the
extent they filed similar complaints or claims against
Defendant or its affiliated companies.
16.

Excluded from the Settlement Class are (i) physicians enrolled in “pool

plans,” “tiered plans,” or plans where all RUVs were determined within the “sole
discretion” of Defendant, (ii) physicians working at facilities where Defendant paid
all RVUs regardless of type, and (iii) physicians enrolled in plans that excluded one
or more types of Supervisory RVUs. A list of relevant facilities and contractual
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dates excluded under subsections (i), (ii), or (iii) is attached as Exhibit 2 to the
Settlement Agreement.

Also excluded from the Settlement Class are Opt-Outs,

although there are none.
17.

Solely for purposes of the settlement set forth in the Settlement

Agreement, the court affirms that the requirements of Federal Rules of Civil
Procedure 23(a) and 23(b)(3) are satisfied for final approval, with particular findings
as follows: (a) the members of the Settlement Class are so numerous that joinder of all
Class Members in the Action is impracticable; (b) there are questions of law and fact
common to the Settlement Classes and these common questions predominate over
any individual questions; (c) the claims of Class Representatives are typical of the
claims of the Settlement Class; (d) Class Representatives and Settlement Class
Counsel have fairly and adequately represented and protected the interests of the
Settlement Class; and (e) a class action is superior to other available methods for the
fair and efficient adjudication of the controversy, considering (i) the interests of the
members of the Settlement Class in individually controlling the prosecution of
separate actions; (ii) the extent and nature of any litigation concerning the
controversy already begun by members of the Settlement Class; (iii) the desirability
or undesirability of concentrating the litigation of these claims in this particular
forum; and (iv) the likely difficulties in managing this Action as a class action.

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18.

If the Effective Date does not occur with respect to the Settlement

Agreement because of the failure of a condition of the Settlement Agreement, this
assessment of the certification of the Settlement Classes shall be deemed null and
void, and the Parties shall retain their rights to seek or to object to certification of
this litigation as a class action under Rule 23 of the Federal Rules of Civil Procedure
or under any other state or federal rule, statute, law or provision thereof, and to
contest and appeal any grant or denial of certification in this litigation or in any other
litigation on any other grounds.
Class Counsel and Class Representatives
19.

Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, and

solely for settlement purposes, the Co-Lead Counsel’s law firms: (1) D.G. Pantazis,
Jr. and Craig Lowell of Wiggins Childs Pantazis Fisher Goldfarb, LLC and (2) Floyd
Gaines and Daniel Snyder of Gaines, LLC are appointed as Settlement Class
Counsel. They have fairly and adequately represented the Settlement Class and will
continue to do so.
20.

The court appoints the following individuals and entities as Class

Representatives, who have fairly and adequately represented the Settlement Class
and will continue to do so:
Forward Momentum, LLC; Argo Consulting, PC; Lisa M.
Bundy, MD, LLC; Dr. Steven Bobo; Dr. Raymond J.
Maguire; Dr. Landon E. Argo; Dr. Nima Bahraini; Dr.
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Dawn Donald; Dr. Roger D. Eiland; and Dr. Lisa M.
Bundy.
Notice and Administration
21.

The court finds that the notice provisions of the Class Action Fairness

Act, 28 U.S.C. § 1715, have been satisfied.
22.

The court finds that the dissemination of Notice: (a) was implemented

in accordance with the Notice Plan as previously approved, (b) constituted the best
notice practicable under the circumstances; (c) constituted notice that was
reasonably calculated, under the circumstances, to apprise the Settlement Class of
(i) the pendency of the Action; (ii) the effect of the Settlement Agreement (including
the releases to be provided thereunder); (iii) Class Counsel’s motion for an award of
attorneys’ fees; (iv) the right to object to any aspect of the Settlement, the Plan of
Distribution, and/or Class Counsel’s motion for attorneys’ fees; (v) the right to opt
out of the Settlement Class; and (vi) the right to appear at the Fairness Hearing;
(d) constitutes due, adequate, and sufficient notice to all persons and entities entitled
to receive notice of the Settlement; and (e) satisfies the requirements of Rule 23 of
the Federal Rules of Civil Procedure and the United States Constitution (including
the Due Process Clause).
23.

KCC, LLC (“KCC”) has already been appointed as the Claims

Administrator, with responsibility for claims administration, the Notice Plan, and all
other obligations of the Claims Administrator as set forth in the Settlement
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Agreement and Notice and Distribution Plan. KCC is hereby also appointed as the
Settlement Administrator to assist in the implementation of the Plan of Distribution
and the resolution of any disputes between Settlement Class Members and the
Claims Administrator pursuant to the Plan of Distribution.
24.

KCC’s fees due to Notice, Claims, and Settlement Administration, as

well as all other costs and expenses associated with notice and administration, are to
be paid directly from the Settlement Fund.
Attorneys’ Fees
25.

Pursuant to Rule 23(h), the court awards Class Counsel the sum of

$3,750,000.00 as the Fee Award.

This award is reasonable in light of the

circumstances surrounding the prosecution of this action, commiserate with awards
in similar cases, and consistent with the 25% benchmark for approval in the Eleventh
Circuit. See Carroll v. Macy’s, Inc., No. 2:18-cv-01060-RDP, 2020 U.S. Dist.
LEXIS 99033, at *23 (N.D. Ala. June 5, 2020) (“the requested fees are within the
25% ‘benchmark’ range of percentages recognized by the Eleventh Circuit”). This
award shall be paid in accordance with the terms of the Settlement Agreement.
Objector
26.

On May 31, 2022, Dr. Mike Masiowski, through his counsel, Paul S.

Rothstein, filed objections to the Settlement Agreement. Dr. Masiowski appeared at
the Final Approval hearing on July 28, 2022, and provided testimony.
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27.

After the Final Approval hearing, Mr. Rothstein and counsel for the

Plaintiffs and Defendants agreed to modify certain terms of the Settlement
Agreement as reflected in Doc. # 128 and as approved in Doc. # 129.
28.

After the modifications were agreed to, the Objector withdrew his

objections. Plaintiffs and Defendants also agreed that they would not object to a
request for Attorneys’ Fees and Costs on behalf of the Objector’s counsel, for his
work performed that resulted in the modification of the Settlement Agreement.
29.

Because the modifications approved in Doc. # 129 benefit the class,

and because the court finds that the objections were made in good faith and
withdrawn in good faith after substantial modifications were made to the settlement
agreement, the Objector’s counsel (Paul S. Rothstein) is hereby awarded $65,000.00
in attorneys’ fees and costs, to be paid within fourteen (14) days of Plaintiffs’
counsel’s receipt of their Attorneys’ Fees and Costs. $32,500.00 of this money is to
come from the additional monies Defendants have added to the QSF. The other
$32,500.00 shall be paid out of the Attorneys’ Fees and Costs awarded to Plaintiffs’
counsel.
Modification to Settlement Agreement
30.

The court has previously approved modifications to the Settlement

Agreement at § 3.1 and § 3.3. See Doc. # 129.
31.

The approved changes are reflected below in bold and italics:
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a. 3.1. Class Release. . . . Plaintiffs and Class Members

further agree to waive any right to demand an
independent audit, review, or accounting for RVUs or
RVU incentive or compensation plans for RVUs
generated before the date of this agreement. The audit
waiver language in this section is not intended to
preclude a party from responding to governmental
investigation demands; requesting information
necessary to respond to or defend against a
governmental investigation; complying with court
orders in a different proceeding; responding to
discovery requests or subpoenas in a different
proceeding, or propounding discovery requests or
serving a subpoena in a different proceeding; or
otherwise using or complying with lawfully issued
process.
b. 3.3. Plaintiffs acknowledge and agree that none of the

Defendant or other Defendant Releasees have any
obligation to hire or rehire any Plaintiff as an employee
or independent contractor and that Plaintiffs shall have
no claim or cause of action against Defendant
Releasees or other Defendant for such decision failing
or refusing to hire any Plaintiff for any reason related
to RVUs, this Litigation, or this Agreement.
32.

The only other modification to the Settlement Agreement approved by

the court is Defendants will increase the total QSF to $15,032,500.00.
Further Matters
33.

The Parties to the Settlement Agreement shall carry out their

respective obligations thereunder and are directed to implement the Settlement
Agreement in accordance with its terms once the Settlement Agreement becomes
final.
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34.

Within the time period set forth in and consistent with the Settlement

Agreement, the relief provided for in the Settlement Agreement shall be made
available to the various Settlement Class Members submitting valid Claim Forms,
pursuant to the terms and conditions of the Settlement Agreement.
35.

In the event the Settlement Agreement does not become final, or is

otherwise rescinded or terminated, the Settlement Agreement shall be of no force or
effect and any and all parts of the Settlement Fund caused to be deposited in the
Escrow Account (other than Notice and Administration Costs reasonably and
actually incurred), along with any income accrued thereon, shall be returned to the
entities that paid such amounts into the Escrow Account, in proportion to those
entities’ respective contributions to the Settlement Fund within ten (10) calendar
days of rescission, termination, or a court’s final determination denying final
approval of the Agreement and/or any of the Settlement Class, whichever occurs
first.
36.

In the event the Settlement Agreement does not become final, or is

otherwise rescinded or terminated, litigation of the Action against Settling
Defendants will resume in a reasonable manner to be approved by the Court upon
application by the Parties. The Parties expressly reserve all of their rights if this
Agreement is rescinded or does not otherwise become final.

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37.

The Parties expressly reserve all of their rights if this Agreement is

rescinded or does not otherwise become final.
38.

The court hereby dismisses this action and all claims therein on the

merits and with prejudice, without award of any fees or costs to any Party except as
provided in this Final Judgment and consistent with the terms of the Settlement
Agreement.
39.

Pursuant to the All Writs Act, 28 U.S.C. § 1651, the court shall retain

the authority to issue any order necessary to protect its jurisdiction from any action,
whether in state or federal court.
40.

Without affecting the finality of this Final Order and Judgment, the

court retains jurisdiction over the subject matter and the Parties with respect to the
interpretation and implementation of the Settlement for all purposes, including
enforcement of its terms and the request of any party and resolution of any disputes
that may arise relating in any way to, arising from, the implementation of the
Settlement or the implementation of this Final Order and Judgment.
DONE this 2nd day of September, 2022.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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