Wit et al v. UnitedHealthcare Insurance Company et al

Filing 174

ORDER by Judge Joseph C. Spero granting (133) Motion to Certify Class in case 3:14-cv-02346-JCS; granting (97) Motion to Certify Class in case 3:14-cv-05337-JCS. (jcslc1S, COURT STAFF) (Filed on 9/19/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID WIT, et al.,
Plaintiffs,

Case No. 14-cv-02346 JCS
Related Case No. 14-cv-05337 JCS

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v.
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UNITED BEHAVIORAL HEALTH,

ORDER GRANTING MOTION FOR
CLASS CERTIFICATION

Defendant.

United States District Court
Northern District of California

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GARY ALEXANDER, et al.,

Docket No. 133 (Case No. 14-cv-02346 JCS)
Docket No. 97 (Case No. 14-cv-05337 JCS)

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Plaintiffs,
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v.
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UNITED BEHAVIORAL HEALTH,
Defendant.

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I.

INTRODUCTION
Plaintiffs in these putative class actions allege that they were improperly denied coverage

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for mental health and substance use disorder treatment by Defendant United Behavioral Health

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(―UBH‖), which administers mental health and substance use disorder benefits under their health

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insurance plans. In Wit v. United Behavioral Health, Case No. 14-cv-02346 JCS (hereinafter,

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―Wit‖), Plaintiffs allege that they were wrongfully denied coverage for mental health and

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substance use-related residential treatment; in Alexander v. United Behavioral Health, Case No.

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14-cv-05337 JCS (hereinafter, ―Alexander‖), Plaintiffs allege that they were wrongfully denied

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coverage for outpatient and intensive outpatient treatment for mental health and substance use

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disorders.

Presently before the Court is Plaintiffs‘ Motion for Class Certification (―Motion‖).1 A

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hearing on the Motion was held on Wednesday, September 7, 2016 at 9:30 a.m. For the reasons

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stated below, the Motion is GRANTED.2

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II.

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BACKGROUND
A.

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Factual Background
1. UBH
UBH administers behavioral health plans throughout the country and is ―one of the

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nation‘s largest managed healthcare organizations.‖ Declaration of Jennifer S. Romano in Support

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of Defendant United Behavioral Health‘s Opposition to Motion for Class Certification (―Romano

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Decl.‖), Ex. 2 (Declaration of Lorenzo Triana in Support of Defendant‘s Opposition to Motion for

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Northern District of California

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Class Certification (―Triana Decl.‖)) ¶ 6; see also Declaration of Caroline E. Reynolds in Support

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of Plaintiffs‘ Motion for Class Certification (―Reynolds Decl.‖), Ex. E (2015 Utilization

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Management Program Description) (―Optum3 is a Managed Behavioral Health Care Organization

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designed to assist its members with the management of their behavioral health care needs. Benefits

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for behavioral health services are reviewed, managed and coverage is determined through offices

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located throughout the United States.‖). Typically, the benefit plans administered by UBH give it

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―discretion to make coverage determinations for specific treatment for specific members based on

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the coverage terms of the member‘s plan.‖ Romano Decl., Ex. 2 (Triana Decl.) ¶ 7. UBH is

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responsible for adjudicating mental health and substance use claims for the named Plaintiffs and

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all members of the putative classes. Wit, Docket No. 67 (Answer) ¶ 3; Alexander, Docket No. 44

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(Answer) ¶ 7.

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Plaintiffs filed identical class certification motions in Wit and Alexander in which they address
the issues relating to class certification in both cases.
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The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28
U.S.C. § 636(c).
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Optum and OptumHealth are brand names for United Behavioral Health. See Romano Decl., Ex.
2 (Triana Decl.) ¶ 2 (―OptumHealth is a brand name of United Behavioral Health‖); Reynolds
Decl., Ex. E at UBHWIT0070985 (―Optum is a brand name used by United Behavioral Health and
its affiliates‖).
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2. Plaintiffs’ Health Insurance Plans

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The Named Plaintiffs in this action sought coverage for mental health or substance use

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disorder treatment under ten different health insurance plans.4 See Romano Decl., Ex. 71 (Chart

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entitled ―Plan Terms that Require More than Adherence to ‗Generally Accepted Standards of

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Care‘‖). Based on electronic data produced by UBH, however, coverage may have been denied to

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putative class members under as many as 3,000 different health insurance plans. See Romano

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Decl., Ex. 4 (November 10, 2015 Expert Witness Report (―Edwards Report‖) at 7).
Because of the large number of claims that UBH denied during the relevant class period

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for the types of treatment that are at issue in this case, the parties stipulated to a sampling
methodology under which health insurance plan documents (―Sample Plans‖), as well as other

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Northern District of California

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information, were produced for 106 putative class members (―Sample Plaintiffs‖) who were

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denied coverage on claims for residential, outpatient or intensive outpatient treatment by UBH (the

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―Claim Sample‖). See Reynolds Decl., Ex. Q (Joint Stipulation Concerning Sampling

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Methodology) ¶¶ 3, 12-14, 20, 23, 25. UBH also produced to Plaintiffs Exel spreadsheets

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containing data from UBH‘s ARTT and LYNX data systems listing each adverse benefit

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determination issued for coverage requested in the relevant treatment settings between 2011 and

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2015 associated with mental health and substance use disorders (hereinafter, the ―ABD Data‖).

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Id., Ex. Q (Joint Stipulation Concerning Sampling Methodology), Exs. C & E attached thereto.

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With the exception of the Sample Plans and the Named Plaintiffs‘ health insurance plans,

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however, UBH did not produce the plan documents for the claims listed in the ABD Data. Id., Ex.

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Q (Joint Stipulation Concerning Sampling Methodology) ¶ 3.
UBH‘s expert, Mary Beth Edwards, states that she reviewed the Sample Plans5 and the

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Although there are eleven named Plaintiffs, both David Wit and his daughter Natasha Wit assert
claims based on denial of coverage for Natasha Wit, who was a minor at the time she received the
treatment at issue. Therefore, their claims are based on the same health insurance plan, of which
Natasha Wit is a beneficiary. See Wit Docket No. 39 (Complaint) ¶¶ 1, 39.
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Edwards states that she reviewed 110 Sample Plans corresponding to the individuals in the Claim
Sample. Romano Decl., Ex. 4 at 6. As the parties‘ stipulation makes clear, however, four of the
individuals included in the original Claim Sample were found not to meet the selection criteria to
which the parties had agreed and were removed from the sample sometime after December 11,
2015, leaving only 106 individuals and relevant health insurance plans. See Reynolds Decl., Ex.
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plan documents for the Named Plaintiffs and that these documents contain ―detailed and varying

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narrative descriptions surrounding‖ ―a) specific covered services associated with certain treatment

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categories, b) specific exclusions and limitations associated with the benefit, c) any particular

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medical necessity criteria covered services must meet, and d) any appeal procedures available to

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the member.‖ Romano Decl., Ex. 4 at 10. She opines that ―the possibility of variation in the

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terms of coverage‖ is expanded by the fact that the ABD Data lists ―over 3,000 distinct group

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names.‖ Id. at 12.
Notwithstanding these variations, the evidence in the record shows that all of the Sample

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Plans and the health insurance plans of the Named Plaintiffs require as one (though not the only)

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condition of coverage that the mental health or substance use disorder treatment at issue must be

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Northern District of California

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consistent with generally accepted standards of care. See Reynolds Decl. ¶ 13 & Ex. K (Summary

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of Plan Term Chart).6 Although UBH pointed out at oral argument that some plans use somewhat

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Q (Joint Stipulation Concerning Sampling Methodology) ¶ 25. Edwards also states that she
reviewed the plans of ―each of the eight Named Plaintiffs,‖ Romano Report at 13, apparently
counting Natasha and David Wit as a single Named Plaintiff; the Court had not yet permitted
Plaintiffs Tillitt and Driscoll to intervene at the time Edwards completed her report.
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Exhibit K lists all of the Named Plaintiffs and the Sample Plaintiffs. For each, the relevant plan
term documents are listed and in a separate column it is indicated whether the plan requires
―[a]dherence to [g]enerally [ac]cepted [s]tandards.‖ Reynolds Decl., Ex. K. For all of the plans
listed on the chart, the answer in this column is ―yes.‖ Id. In the Reynolds Declaration,
Plaintiffs‘ counsel explains that the exhibit ―indicates whether the terms of the Named Plaintiffs‘
plans and each of the plans in the agreed-upon Plan Sample conditions coverage for mental health
and substance use disorder treatment upon a finding that the services are consistent with generally
accepted standards of care.‖ Reynolds Decl. ¶ 13. Reynolds goes on to explain that ―the chart
answers ‗yes‘ to this question if the plan terms (a) define Covered Services as services that are
consistent with generally accepted standards of care or as services that are Medically Necessary;
(b) exclude coverage for services that are not consistent with generally accepted standards of care
or services that are not Medically Necessary; and/or (c) define Medically Necessary services as
those that are consistent with generally accepted standards of care.‖ Id.
UBH objects to Exhibit K, asserting that it is misleading to the extent Plaintiffs use it to
claim that ―coverage [under Plaintiffs‘ health insurance plans] is solely determined or conditioned
with generally accepted standards.‖ Defendant United Behavioral Health‘s Objections to
Evidence Filed in Support of Plaintiffs‘ Motion for Class Certification (―Objections‖) at 3-4
(emphasis added). The Court OVERRULES all of UBH‘s Objections on the ground that UBH
failed to adhere to Civil Local Rule 7-3(a), which requires that ―[a]ny evidentiary and procedural
objections to the motion must be contained within the brief or memorandum.‖ UBH failed to
include any of its objections in its Opposition brief. Even if the Court were to reach the merits on
UBH‘s Objections it would overrule its objection to Exhibit K on the ground that Plaintiffs do not
claim anywhere that adherence to generally accepted standards is the sole condition for coverage
under Plaintiffs‘ plans. Moreover, UBH implicitly concedes that the health insurance plans listed
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different phrasing in describing this requirement, it was not able to offer any evidence that these

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differences were material. Nor did it suggest that the Sample Plans were unrepresentative of the

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insurance plans of the classes as a whole. Accordingly, the Court finds, as a factual matter, that all

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of the putative class members‘ insurance plans require as a precondition for coverage that the

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treatment at issue must be consistent with generally accepted standards of care.

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3. The Claims Administration Process

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In making coverage determinations, UBH Peer Reviewers apply criteria that are set out in

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―Coverage Determination Guidelines‖ (―CDG Guidelines‖) and Level of Care Guidelines (―LOC

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Guidelines‖), hereinafter referred to collectively as ―Guidelines.‖ Romano Decl., Ex. 2 (Triana
Decl.) ¶ 8; Reynolds Decl., Ex. E at E0003 (describing Peer Review Process). The CDG

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Northern District of California

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Guidelines ―focus on the member‘s primary diagnosis, while the [LOC Guidelines] focus on

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particular treatment settings.‖ Id. There are ―at least 264 CDGs and 42 LOCs that UBH reviewers

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use or have used in making coverage determinations since 2010.‖ Romano Decl., Ex. 2 (Triana

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Decl.) ¶ 8. According to UBH‘s 30(b)(6) witness, Margaret Brennecke, the Guidelines are

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―reviewed annually and updated as needed.‖ Reynolds Decl., Ex. P, Brennecke Dep. at 154.

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When they join UBH, reviewers receive extensive training on how the Guidelines are to be

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applied. Reynolds Decl., Ex. P, Triana Dep. at 155-157. In addition, when Guidelines are

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updated, reviewers receive notifications of the change and may also receive additional training.

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Id.

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UBH describes the LOC Guidelines as ―objective and evidence-based behavioral health

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guidelines used to standardize coverage determinations, promote evidence-based practices, and

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support members‘ recovery, resiliency, and well-being.‖ Reynolds Decl., Ex. B at B0001 (2016

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Level of Care Guidelines). According to UBH, the LOC Guidelines are ―derived from generally

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accepted standards of behavioral health practice . . . [which] include guidelines and consensus

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statements produced by professional specialty societies, as well as guidance from governmental

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in the chart incorporate generally accepted standards of care as a condition for coverage (which is
exactly Plaintiffs‘ point) when they argue that this is but one of many bases to deny coverage
under the plans.
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sources . . . .‖ Id. The LOC Guidelines ―reflect [UBH‘s] understanding of current best practices

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in care . . . .‖ Id. at B0006.

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The LOC Guidelines begin with a set of ―Common Criteria and Best Practices for All

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Levels of Care‖ (hereinafter, ―Common Criteria‖). Reynolds Decl., Ex. B (Excerpts of LOC

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Guidelines 2011-2016) at B0007-13, B0049-55, B0088-93, B0125-29, B0152, B0158-61, B0182,

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B0187-89, B0210-11. These include ―Admissions Criteria,‖ ―Continued Service Criteria‖ and

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―Discharge Criteria.‖ See id. There are also specific LOC Guidelines that apply to particular

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levels of care, including residential treatment, intensive outpatient treatment and outpatient

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treatment, for both mental illness and substance use disorders. See id. at B0016-41, B0058-80,
B0094-118, B0130-51, B0162-81, B0191-209. These specific LOC Guidelines expressly

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Northern District of California

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incorporate the Common Criteria and also set forth criteria specific to that particular level of care.

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See id.

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The CDGs are described by UBH as ―a set of guidelines that standardize the interpretation

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and application of the terms of the benefit plan.‖ Reynolds Decl., Ex. E (Utilization Management

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Program Description 2015) at E0015. These are organized by diagnosis and expressly incorporate

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the LOC Guidelines (and particularly the Common Criteria). See Reynolds Decl., Ex. C (relevant

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CDG Guidelines for 2011-2016); id., Ex. A-2 (listing all of the CDG Guidelines that Plaintiffs

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contend are relevant to their claims and specifying whether each of them incorporates the LOC

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Guidelines); see also id., Ex. P, Brennecke Dep. at 180, 189-90 (deposition testimony of Margaret

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Brennecke, UBH 30(b)(6) witness, that Level of Care Guidelines are ―embedded‖ in the CDGs

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and therefore the coverage determination will be the same regardless of whether the UBH

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reviewer uses the CDG Guidelines or the LOC Guidelines ), Allchin Dep. at 53 (same), Zhu Dep.

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at 62 (same). 7 According to Dr. Triana, who is responsible for ―the national implementation,

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UBH objects to Exhibit P on the basis that some of the deposition excerpts do not include
questions and answers that UBH believes are relevant, rendering the excerpts ―misleading.‖ The
objection is OVERRULED. First, as discussed above, UBH failed to comply with Civil Local
Rule 7-3(a) as it did not include this objection in its brief. Second, the objection has no merit.
Even in its lengthy Objections to Evidence, UBH does not bother to explain why any of the
omitted portions render the cited testimony misleading, simply stating that the testimony in the
excerpt did not include the complete answers. As UBH had the opportunity to submit its own
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supervision, oversight, and evaluation of UBH‘s utilization management program,‖ the CDG

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Guidelines were developed in 2010 or 2011 in response to the enactment of mental health parity

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laws, which required that determinations of coverage for behavioral treatment had to be aligned

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with determinations on the ―medical side.‖ Romano Decl., Ex. 20 (Triana Dep.) at 163-64.

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Because UBH used guidelines for medical treatment that were specific to particular diagnoses, it

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needed to develop corresponding behavioral guidelines that were also specific to particular

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diagnoses. Id.
The Guidelines (LOC and CDG) are used by UBH Peer Reviewers in conducting clinical

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reviews for the purposes of making coverage determinations. Reynolds Decl., Ex. E (Utilization

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Management Program Description 2015) at E003. ―The role of the Peer Reviewer is to exercise

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clinical judgment in reviewing the relevant information, and to review the case against the

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pertinent Level of Care Guidelines, Coverage Determination Guidelines, Psychological and

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Neuropsychological Testing Guidelines, or other clinical guidelines required by contract or

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regulation, the member‘s benefit plan, available community resources, and individual member

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need.‖ Id. Clinical denials by the Peer Reviewers are to be based on these criteria and the written

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notification of denial must ―cite to the Level of Care Guidelines, Coverage Determination

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Guidelines, Psychological and Neuropsychological Testing Guidelines, or other clinical guidelines

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required by contract or regulation, as appropriate, on which the denial was based, with the

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rationale written in language that is easily understandable to the member, and that addresses the

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member‘s specific clinical presentation.‖ Id. at E003-4. According to UBH witnesses, this

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information is conveyed to members in the form of a letter that is generated once the Peer

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Reviewer enters the information into the member‘s electronic case record. See Reynolds Decl.,

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Ex. P, Brennecke Dep. at 132-33, Triana Dep. at 138-40 (describing creation of letters using

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information and findings from peer review entered into UBH‘s electronic database).8

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deposition excerpts (and did, in fact, submit additional pages of the depositions at issue), there is
no basis for striking the evidence in Exhibit P.
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Even if the Peer Reviewer finds that the treatment at issue is consistent with the applicable
criteria, coverage may be subject to administrative denial if the treatment is subject to an exclusion
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According to UBH, while the CDGs and LOCs provide ―certain criteria‖ for UBH

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clinicians to consider in making coverage determinations they do not ―dictate the result.‖ Romano

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Decl., Ex. 2 (Triana Decl.) ¶ 10. Nonetheless, one of the purposes of these Guidelines is to ensure

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consistency with respect to coverage determinations. Reynolds Decl., Ex. P (Triana Dep.) at

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P0040-41. To verify that this goal is met, UBH conducts audits of its reviewers, which consist of a

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second review of the same case file by the auditor to determine whether the coverage decision of

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the auditor matches the decision of the original reviewer. See Reynolds Decl., Ex. P, Beaty Dep.

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at 46, 77. The measure of consistency that is derived from the audits is referred to as inter-rater

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reliability. Reynolds Decl., Ex. P, Triana Dep. at 171. UBH‘s rate of inter-rater reliability for

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2013, 2014 and 2015 was 96.8%, 98 % and 98.8% respectively. Reynolds Decl., Ex. T (UBH

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Inter-Rater reliability Reports for 2013, 2014 and 2015) at T0003, T0017 and T0030.

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B.

Plaintiffs’ Claims
In the operative complaints, Plaintiffs assert two claims: 1) breach of fiduciary duty (the

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―Breach of Fiduciary Duty Claim‖ or ―Claim One‖); and 2) arbitrary and capricious denial of

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benefits (―the Arbitrary and Capricious Denial of Benefits Claim‖ or ―Claim Two‖). See Wit

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from coverage under the member‘s plan. Id. at E0004. In that case, the written denial must
expressly reference the ―member‘s relevant plan documents on which the denial was based.‖ Id.;
see also Reynolds Decl., Ex. P. Brennecke Dep. at P0014 (testifying that a denial based on a plan
exclusion would be considered an administrative denial and that the basis for such a denial would
be referenced in the communication to the member providing notice of the denial). It is
undisputed that the denials of coverage as to the Named Plaintiffs in this case, however, were
clinical denials based on the Guidelines, as were the denials of coverage at issue in the Claim
Sample. See Reynolds Decl., Ex. F (chart reflecting Guidelines cited in Named Plaintiffs‘ and
Claim Samples‘ denial letters).

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The Court notes that UBH objected to Exhibit F on the basis that it is misleading and
contains inaccuracies. Objections at 2-3. As discussed above, the Objections are overruled
because UBH failed to adhere to the Local Rules, which require that it raise its evidentiary
objections in its brief. The objection to Exhibit F also fails on the merits. The chart was prepared
using UBH‘s own data, which was summarized in spreadsheets that UBH prepared and produced
in discovery. Further, Plaintiffs provided the underlying spreadsheets to the Court as an exhibit in
support of its Motion. See Reynolds Decl., Ex. Q. Therefore, UBH‘s complaint that the chart is
misleading is to no avail; nor are its objections that some of the information in the chart apparently
is inaccurate given that the errors originated in the spreadsheets that UBH provided to Plaintiffs.

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Docket No. 39 (―Wit Compl.‖) ¶¶ 198, 210; Wit Docket No. 123 (―Tillitt Intervenor Compl.‖) ¶¶

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88, 99 ; Alexander Docket No. 1 (―Alexander Compl.‖) ¶¶ 136, 146; Alexander Docket No. 87

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(―Driscoll Intervenor Compl.‖) ¶¶ 86, 96. Plaintiffs assert the Breach of Fiduciary Duty Claim

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under 29 U.S.C. § 1132(a)(1)(B) (Count I in all of the operative complaints) and, to the extent the

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injunctive relief Plaintiffs seek is unavailable under that section, they assert the claim under 29

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U.S.C. § 1132(a)(3)(A) (Count III in all of the operative complaints). Similarly, Plaintiffs assert

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the Arbitrary and Capricious Denial of Benefits Claim under 29 U.S.C. § 1132(a)(1)(B) (Count II

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in all of the operative complaints) and under 29 U.S.C. § 1132(a)(3)(B) (Count IV in all of the

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operative complaints).9
The Breach of Fiduciary Duty Claim is based on the theory that UBH is an ERISA

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Northern District of California

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fiduciary under 29 U.S.C. § 1104(a) and therefore owes a duty to discharge its duties ―with . . .

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care, skill, prudence, and diligence‖ and ―solely in the interest of the participants and

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beneficiaries.‖ According to Plaintiffs, UBH violated this duty by developing guidelines that are

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far more restrictive than those that are generally accepted even though Plaintiffs‘ health insurance

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plans provide for coverage of treatment that is consistent with generally accepted standards of

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care, and by prioritizing cost savings over members‘ recovery of benefits. See Wit Compl. ¶¶ 198-

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99; Tillitt Intervenor Compl. ¶¶ 88-89; Alexander Compl. ¶¶ 136-37; Driscoll Intervenor Compl.

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¶¶ 86-87. According to Plaintiffs, they ―have been harmed by UBH‘s breaches of fiduciary duty

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because their claims have been subjected to UBH‘s restrictive guidelines making it less likely that

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UBH will determine that their claims are covered.‖ Wit Compl. ¶ 201; see also Alexander Compl.

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¶ 137 (alleging that ―[b]y promulgating improperly restrictive guidelines, UBH artificially

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decreases the number and value of covered claims, thereby benefiting its corporate affiliates at the

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expense of insureds‖); Tillitt Intervenor Compl. ¶¶ 89-90 (alleging that ―[b]y promulgating

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improperly restrictive guidelines, UBH artificially decreases the number and value of covered

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claims, thereby benefiting its corporate affiliates at the expense of insureds‖ and that ―Ms. Tillitt

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In the Motion, Plaintiffs state that both Counts III and IV are asserted under 29 U.S.C. §
1132(a)(3)(A). See Motion at 5, fns. 4 & 5. The Court assumes that this is a clerical error.
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and the members of the Class have been harmed by UBH‘s breaches of fiduciary duty because

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their claims have been subjected to UBH‘s restrictive guidelines, making it less likely that UBH

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will determine that their claims are covered‖).
The Arbitrary and Capricious Denial of Benefits Claim is based on the theory that UBH

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improperly adjudicated and denied Plaintiffs‘ requests for coverage by, inter alia, relying on the

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overly restrictive Guidelines.10 Wit Compl. ¶ 205 ; Tillitt Intervenor Compl. ¶ 94; Alexander

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Compl. ¶¶ 141-142; Driscoll Intervenor Compl. ¶ 91. The reliance on these Guidelines was

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arbitrary and capricious, Plaintiffs allege, because: 1) Plaintiffs‘ health insurance plans provided

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for coverage consistent with generally accepted standards of care; and 2) some of Plaintiffs‘ health

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insurance plans were subject to state laws that explicitly mandate the use of clinical criteria issued

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Northern District of California

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by the American Society of Addiction Medicine (―ASAM‖) or the Texas Department of Insurance

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(―TDI‖). See Wit Compl. ¶ 14. According to Plaintiffs, to prevail on this claim they must establish

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―1) that those Class members‘ plans required UBH to make clinical coverage determinations

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pursuant to criteria that were consistent with generally accepted standards of care; 2) that UBH‘s

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fatally flawed Guidelines were not, in fact, consistent with those required standards; and 3) that

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UBH adjudicated and denied the members‘ requests for coverage pursuant to a Guideline.‖

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Motion at 6.
Plaintiffs seek declaratory and injunctive relief as a remedy for UBH‘s alleged ERISA

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violations. In particular, in connection with Claim One they ask for: 1) a declaration that UBH‘s

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In the Wit and Tillitt Complaints, Plaintiffs also include other theories in support of their claim
that UBH‘s denial of benefits was improper. In particular, in the Wit Complaint, Plaintiffs allege
that UBH ―also denied these claims, in part, based on its systematic practice of: (i) improperly
applying acute inpatient treatment criteria to residential treatment claims; (ii) ignoring the
evidence presented to it; (iii) applying undisclosed additional criteria to benefit claims, such as a
length of stay ―benchmark‖; and (iv) relying upon its restrictive CDGs even though CDGs (as
opposed to LOCs) are not a recognized basis for denying claims under Plaintiffs‘ Plans.‖ Wit
Compl. ¶ 205; see also Tillitt Compl. ¶ 94 (―[UBH] also denied these claims, in part, based on its
systematic practice of: (i) improperly applying acute inpatient treatment criteria to residential
treatment claims; (ii) ignoring the evidence presented to it; and (iii) relying upon its restrictive
CDGs even though CDGs are not a recognized basis for denying claims under the Lockton
Plan.‖). At oral argument, Plaintiffs stipulated that if the Court certifies the proposed classes the
Named Plaintiffs will drop these theories of recovery and will proceed only with the theories that
apply to the entire class, described above.
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internal Guidelines complained of by Plaintiffs were developed in violation of its fiduciary duties;

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and 2) an injunction ordering UBH to stop utilizing the Guidelines and instead adopt or develop

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guidelines that are consistent with those that are generally accepted and with the requirements of

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applicable state law. In connection with Claim Two, the Arbitrary and Capricious Denial of

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Benefits Claim, Plaintiffs ask the Court: 1) to declare that UBH‘s denial of benefits was improper;

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2) to order UBH to reprocess claims for residential treatment, intensive outpatient treatment and

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outpatient treatment that were denied, in whole or in part, pursuant to the Guidelines, using the

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new guidelines; and 3) to order UBH to apply the new guidelines in processing all future claims.

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See Wit Compl. at 65-66; Alexander Compl. at 50-51.

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Plaintiffs also ask the Court to impose a surcharge on UBH as an equitable remedy, under

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Northern District of California

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either Counts I and II or Count IV. See Wit Compl. at 66; Alexander Compl. at 51. In the

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Complaints, Plaintiffs sought a surcharge in an amount ―equivalent to the revenue [UBH]

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generated from its corporate affiliates or the plans for providing mental health and substance

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abuse-related claims administration services with respect to claims filed by Plaintiffs and members

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of the Class, expenses that UBH‘s corporate affiliates saved due to UBH‘s wrongful denials, the

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out-of-pocket costs for . . . treatment Plaintiffs and members of the Class incurred following

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UBH‘s wrongful denials, and/or pre-judgment interest.‖

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clarify that they are not seeking to recover out-of-pocket expenses as part of the surcharge, at least

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as to the class members, stating as follows:

In their Reply brief, however, Plaintiffs

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To the extent Plaintiffs‘ Motion did not make it sufficiently clear to
UBH, Plaintiffs are not seeking to pursue, on a class basis, the
alternative measures of the surcharge identified in their Complaints
and in responses to Interrogatories. Moreover, the fact that certain
named Plaintiffs stated that they want to recover the out-of-pocket
costs that they incurred as a result of UBH‘s improper benefit
denials does not alter the prayer for relief set forth in Plaintiffs‘
Complaint. All Plaintiffs of course hope that when their benefit
claims are reprocessed, UBH will find that the previous clinical
coverage determination was improper and Plaintiffs will recover any
money that they lost. But that hope is not a prayer for relief[.]

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Reply at 16 n. 22. At oral argument, Plaintiffs stipulated that if the proposed classes are certified,

27

they will proceed only under the theory that they are entitled to disgorgement of the revenue UBH

28

generated from its corporate affiliates or the plans for providing mental health and substance

20
21

22
23
24

11

1

abuse-related claims administration services in connection with processing of the class members‘

2

claims.
Finally, Plaintiffs seek an award of attorneys‘ fees. Id.

3
4

C.

Plaintiffs ask the Court to certify two classes in Wit and one class in Alexander. Motion at

5
6

The Class Certification Motion

3. The proposed classes in Wit are defined as follows:

7
The Wit Guideline Class
8
Any member of a health benefit plan governed by ERISA whose
request for coverage of residential treatment services for a mental
illness or substance use disorder was denied by UBH, in whole or in
part, on or after May 22, 2011, based upon UBH‘s Level of Care
Guidelines or UBH‘s Coverage Determination Guidelines.

9
10

United States District Court
Northern District of California

11
12

The Wit Guideline Class excludes members of the Wit State
Mandate Class, as defined below.

13

The Wit State Mandate Class

14

Any member of a fully-insured health benefit plan governed by both
ERISA and the state law of Connecticut, Illinois, Rhode Island or
Texas, whose request for coverage of residential treatment services
for a substance use disorder was denied by UBH, in whole or in part,
on or after May 22, 2011, based upon UBH‘s Level of Care
Guidelines or UBH‘s Coverage Determination Guidelines and not
upon the level-of-care criteria mandated by the applicable state law.

15
16
17
18

The Wit State Mandate Class shall only include denials governed by
Illinois law that occurred on or after August 18, 2011, denials
governed by Connecticut law that occurred on or after October 1,
2013, and denials governed by Rhode Island law that occurred on or
after July 10, 2015.

19
20
21

The Wit State Mandate Class excludes members of the Wit
Guideline Class, as defined above.

22

Id.; see also Reply at 21 (amending proposed class definition for Wit State Mandate Class to take
23
into account the dates on which the relevant state laws were enacted by adding second paragraph
24

of definition).11 Plaintiffs propose that Named Plaintiffs David and Natasha Wit, Lori Flanzraich,

25
Cecelia Holdnak, Brian Muir, and Linda Tillitt serve as Class Representatives for the Wit
26
27
28

11

The Wit State Mandate class definition quoted above is the amended version offered in
Plaintiffs‘ Reply brief rather than the version originally proposed in the Motion.
12

1

Guidelines Class. They propose that Named Plaintiff Brandt Pfeifer serves as Class

2

Representative for the Wit State Mandate Class.

3

Plaintiffs propose the following class for certification in Alexander:

4

The Alexander Guideline Class

5

Any member of a health benefit plan governed by ERISA whose
request for coverage of outpatient or intensive outpatient services for
a mental illness or substance use disorder was denied by UBH, in
whole or in part, on or after May 22, 2011, based upon UBH‘s Level
of Care Guidelines or UBH‘s Coverage Determination Guidelines.

6
7
8
9
10

The Alexander Guideline Class excludes any member of a fully
insured plan governed by both ERISA and the state law of
Connecticut, Illinois, Rhode Island or Texas, whose request for
coverage of intensive outpatient treatment or outpatient treatment
related to a substance use disorder.

United States District Court
Northern District of California

11

Motion at 4. Plaintiffs propose that Named Plaintiffs Gary Alexander, David Haffner, Corinna

12

Klein, and Michael Driscoll serve as Class Representatives for the Alexander Guideline Class. Id.

13

In the Motion, Plaintiffs contend the key facts relating to their claims can be established

14

through common, class-wide evidence. Id. at 7. Plaintiffs point to UBH‘s development and

15

promulgation of the Guidelines to set forth its understanding of generally accepted standards of

16

care and standardize coverage decisions, the fact that all UBH reviewers are required to adhere to

17

the clinical criteria contained in the Guidelines in making coverage determinations, and the fact

18

that all of the Named Plaintiffs‘ claims and all the Sample Claims were denied on the basis of the

19

Guidelines. Id. at 8-12.

20

Plaintiffs also contend that they will be able to establish generally accepted standards of

21

care – and that the Guidelines are more restrictive than these standards – using common evidence.

22

Id. at 13-15. In particular, they point to criteria and guidelines relating to mental health and

23

substance use disorder treatment that have been adopted by various national organizations,

24

including the American Academy of Child and Adolescent Psychiatry (―AACAP‖), the American

25

Psychiatric Association (―APA‖) and the American Society of Addiction Medicine (―ASAM‖),

26

upon which UBH itself claims to have relied in developing the Guidelines. Id. at 14; see also

27
28
13

1

Reynolds Decl., Ex. D (chart listing sources of generally accepted standards relevant to Guidelines

2

used by UBH, produced by UBH to show the ―Evidence Base‖ for its Guidelines).12 Using these

3

criteria, Plaintiffs contend, they will be able to establish that the Guidelines used by UBH to make

4

coverage determinations are more restrictive than generally accepted standards in that they

5

―uniformly overemphasize acute criteria and symptoms, while at the same time, they omit criteria

6

for coverage of chronic conditions and ignore factors that are relevant to promoting patients‘ long-

7

term recovery.‖ Id. at 14.
As one example of alleged over-emphasis on acute symptoms as a criteria for determining

8
9

coverage, Plaintiffs point to the Guidelines‘ emphasis on a patient‘s ―presenting problems,‖ that is,
the so-called ―why-now factors.‖ Id. (citing Reynolds Decl., Ex. A-1 (―Summary of Selected

11
United States District Court
Northern District of California

10

Level of Care Guideline Provisions Over-Emphasizing Acute Criteria‖)13 & B (LOC Guidelines)).

12

According to Plaintiffs, ―UBH Guidelines make clear that the ‗presenting problems‘ refer to the

13

specific, acute symptoms that necessitated treatment in a particular level of care, as opposed to the

14

underlying mental health condition(s).‖ Id. As a consequence, they contend, ―[a]s soon as the

15

crisis precipitating admission eases (even if the patient‘s underlying condition remains

16

unresolved), the Guidelines call for coverage at that level of care to cease, unless the patient can

17

prove that stepping down to a lower level of care would be unsafe.‖ Id. Similarly, they assert, the

18

Guidelines require a patient to show ―constant improvement, even over relatively short timeframes

19
12

20
21

22
23
24
25
26
27
28

UBH objects to Exhibit D on the basis that it is not authenticated and contains hearsay.
Objections at 2. As discussed above, the Objections are overruled for failure to comply with Civil
Local Rule 7-3(a). Moreover, the objection to Exhibit D has no merit. As UBH produced this
document, it needs no further authentication at this stage of the case. The chart does not constitute
―hearsay‖ because Plaintiffs are not attempting to prove the truth of any statement contained in it;
they are simply using it to demonstrate that the generally accepted standards at issue in this case
are subject to common proof.
13
UBH objects to Exhibit A-1on the basis that it does not include all of the provisions of the
LOCs that UBH considers to be relevant to whether the Guidelines overemphasize acute criteria
and therefore is misleading. Objections at 1. The objection is OVERRULED. First, as discussed
above, UBH failed to comply with Civil Local Rule 7-3(a) as it did not include this objection in its
brief. Second, the objection has no merit. The title of the chart makes clear that it summarizes the
criteria that Plaintiffs believe show that the Guidelines overemphasize acute criteria and does not
purport to be a comprehensive summary of every provision that might be considered relevant to
the question of whether the Guidelines overestimate acute criteria. To the extent UBH seeks to
highlight provisions of the Guidelines that are not included in Plaintiffs‘ chart, it is free to do so in
its brief.
14

1

(every 2-3 days or each week), in order for coverage to continue, demonstrating that the

2

Guidelines‘ focus is on addressing short-term acute symptoms, rather than ensuring a patient‘s

3

long-term recovery.‖ Id. at 14-15. The Guidelines also do not cover treatment aimed at

4

preventing deterioration or maintaining a level of function, Plaintiffs assert. Id. at 15.
Rule 23 allows for certification of a class where all of the requirements of Rule 23(a)

5
6

(numerosity, commonality, typicality and adequacy) are satisfied and one of the requirements of

7

Rule 23(b) is met. Here, Plaintiffs contend the classes can be certified under any of the

8

subsections of Rule 23(b), that is Rule 23(b)(1), (b)(2) or (b)(3), because the requirements for each

9

of them are met.

Id. at 20-24. Even if the Court were to find that Plaintiffs have not met any of

the requirements of Rule 23(b), Plaintiffs ask the Court to certify any issues that it finds are

11
United States District Court
Northern District of California

10

capable of classwide resolution under Rule 23(c)(4).

12

III.

ANALYSIS

13

A.

14

A class action may be maintained under Rule 23 of the Federal Rules of Civil Procedure if

General Legal Standards Under Rule 23

15

all of the requirements of Rule 23(a) are satisfied and the plaintiff demonstrates that one of the

16

requirements of Rule 23(b) is met as well. Rule 23(a) requires that a plaintiff seeking to assert

17

claims on behalf of a class demonstrate: 1) numerosity; 2) commonality; 3) typicality; and 4) fair

18

and adequate representation of the interests of the class. Fed. R. Civ. P. 23(a).

19

Rule 23(b)(1)(A) allows a class to be certified where ―prosecuting separate actions by or

20

against individual class members would create a risk of . . . inconsistent or varying adjudications

21

with respect to individual class members that would establish incompatible standards of conduct

22

for the party opposing the class[.]‖ Fed. R. Civ. P. 23(b)(1)(A).14 Rule 23(b)(2) allows a class

23

action to be maintained where ―the party opposing the class has acted or refused to act on grounds

24

that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

25

appropriate respecting the class as a whole.‖ Fed. R. Civ. P. 23(b)(2).
Rule 23(b)(3) allows a class action to be maintained where ―the court finds that the

26
27
14

28

Plaintiffs do not invoke Rule 23(b)(1)(B) and therefore the Court does not address it here.
15

1

questions of law or fact common to class members predominate over any questions affecting only

2

individual members, and that a class action is superior to other available methods for fairly and

3

efficiently adjudicating the controversy.‖ Fed. R. Civ. P. 23(b)(3). ―An individual question is one

4

where ‗members of a proposed class will need to present evidence that varies from member to

5

member,‘ while a common question is one where ‗the same evidence will suffice for each member

6

to make a prima facie showing [or] the issue is susceptible to generalized, classwide proof.‘‖

7

Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S. Ct. 1036, 1045 (2016) (quoting 2 W.

8

Rubenstein, Newberg on Class Actions § 4:50, pp. 196-197 (5th ed. 2012) (internal quotation

9

marks omitted)).

10

In addition to the explicit requirements of Rule 23, courts have sometimes read into that

United States District Court
Northern District of California

11

rule an ascertainability requirement. Joyce v. City & County of San Francisco, No. C-93-4149

12

DLJ, 1994 WL 443464, at *3 (N.D. Cal. Aug. 4, 1994) (―A threshold inquiry in determining

13

whether a proposed class is appropriately certified is whether the class is sufficiently definite so as

14

to render it ‗administratively feasible to determine if a given individual is a member of the

15

class.‘‖) (quoting Aiken v. Obledo, 442 F. Supp. 628, 658 (E.D. Cal. 1977) (citing 7 Wright &

16

Miller, Federal Practice and Procedure, § 1760 at 582)). In addressing ascertainability, courts

17

have considered at least three types of concerns: ―1) whether the class can be ascertained by

18

reference to objective criteria; 2) whether the class includes members who are not entitled to

19

recovery; and 3) whether the putative named plaintiff can show that he will be able to locate

20

absent class members once a class is certified.‖ Dudum v. Carter’s Retail, Inc., No. 14-cv-00988-

21

HSG, 2016 WL 946008, at *5 (N.D. Cal. Mar. 14, 2016).

22
23
24
25
26

Ascertainability concerns relate primarily to classes certified under Rule 23(b)(3). As one
district court has noted, quoting the Manual of Complex Litigation:
Because individual class members must receive the best notice
practicable and have an opportunity to opt out, and because
individual damage claims are likely, Rule 23(b)(3) actions require a
class definition that will permit identification of individual class
members, while Rule 23(b)(1) or (b)(2) actions may not.

27

Santomenno v. Transamerica Life Ins. Co., No. CV1202782DDPMANX, 2016 WL 1158449, at

28

*17 (C.D. Cal. Mar. 14, 2016) (quoting Federal Judicial Center, Manual for Complex Litigation,
16

1

Fourth, § 21.222 (2004)). Thus, although the Ninth Circuit has not decided the question of

2

whether the ascertainability requirement is limited to Rule 23(b)(3) classes, in In re Yahoo Mail

3

Litig., 308 F.R.D. 577 (N.D. Cal. 2015), Judge Koh, of this Court, found that the ascertainability

4

requirement does not apply to classes that are certified under Rule 23(b)(2).

5

―At class certification, a court does not accept at face value a plaintiff‘s theory of the case;

6

the court must engage in a ‗rigorous analysis . . . [into whether] . . . the prerequisites of Rule 23(a)

7

have been satisfied,‘ and ‗frequently that ―rigorous analysis‖ will entail some overlap with the

8

merits of the plaintiff‘s underlying claim.‘‖ Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2014

9

WL 988992, at *6 (N.D. Cal. Mar. 10, 2014) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 351 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982))). ―While the

11
United States District Court
Northern District of California

10

trial court has broad discretion to certify a class, its discretion must be exercised within the

12

framework of Rule 23.‖ Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.),

13

opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001) (citing Doninger v. Pac. Nw.

14

Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977)).

15

B.

16

―ERISA protects employee pensions and other benefits by providing insurance . . . ,

Legal Standards Under ERISA

17

specifying certain plan characteristics in detail . . . , and by setting forth certain general fiduciary

18

duties applicable to the management of both pension and nonpension benefit plans.‖ Varity Corp.

19

v. Howe, 516 U.S. 489, 496 (1996)). The basic purpose of ERISA is ―to protect . . . the interests

20

of participants . . . and . . . beneficiaries . . . by establishing standards of conduct, responsibility,

21

and obligation for fiduciaries . . . and . . . providing for appropriate remedies . . . and ready access

22

to the Federal courts.‖ Id. at 513 (quoting ERISA § 2(b), 29 U.S.C. § 1001(b)). The fiduciary

23

duties established in ERISA ―draw much of their content from the common law of trusts, the law

24

that governed most benefit plans before ERISA‘s enactment.‖ Id. at 496. However, ―trust law

25

does not tell the entire story‖ because ―ERISA‘s standards and procedural protections partly

26

reflect a congressional determination that the common law of trusts did not offer completely

27

satisfactory protection.‖ Id. (citations omitted). ―Congress painted with a broad brush, expecting

28

the federal courts to develop a ‗federal common law of rights and obligations‘ interpreting
17

1

ERISA‘s fiduciary standards.‖ Bins v. Exxon Co. U.S.A., 220 F.3d 1042, 1047 (9th Cir. 2000) (en

2

banc) (citing Varity, 516 U.S. at 497). In developing this common law, ―courts may have to take

3

account of competing congressional purposes, such as Congress‘ desire to offer employees

4

enhanced protection for their benefits, on the one hand, and, on the other, its desire not to create a

5

system that is so complex that administrative costs, or litigation expenses, unduly discourage

6

employers from offering welfare benefit plans in the first place.‖ Varity, 516 U.S. at 497.

7

Pursuant to ERISA § 404(a)(1)(B), a ―fiduciary shall discharge his duties with respect to a
plan solely in the interest of the participants and beneficiaries and . . . with the care, skill,

9

prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like

10

capacity and familiar with such matters would use in the conduct of an enterprise of like character

11
United States District Court
Northern District of California

8

and with like aims.‖ 29 U.S.C. § 1104(a)(1)(B). Section 3(21)(A) provides, in part, that ―a person

12

is a fiduciary with respect to a plan to the extent . . . he exercises any discretionary authority or

13

discretionary control respecting management‖ of the plan or ―has any discretionary authority or

14

discretionary responsibility in the administration of such plan.‖ 29 U.S.C. § 1002(21)(A).

15
16
17

The remedial provisions of ERISA are set forth in § 502, 29 U.S.C. § 1132. Section 502(a)
governs the initiation of a civil action and provides, in relevant part, as follows:
A civil action may be brought–

18
19
20
21

22
23
24
25
26

(1) by a participant or beneficiary–
...
(B) to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan;
...
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act
or practice which violates any provision of this subchapter 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
subchapter or the terms of the plan;
ERISA § 502(a)(1) & (3), 29 U.S.C. § 1132(a)(1) & (3).

27
28
18

1
2
3

C.

Rule 23(a)
1. Numerosity
Rule 23(a)(1) requires that the size of the proposed class be ―so numerous that joinder of

4

all the class members is impracticable.‖ That requirement is satisfied here. Plaintiffs have

5

offered evidence that there are likely hundreds of individuals who fall within the class definition

6

for the Wit State Mandate Class and thousands of individuals who satisfy the requirements of the

7

Wit and Alexander Guideline Classes (collectively, the ―Guideline Classes‖). See Reynolds Decl.

8

¶ 19 (describing how spreadsheets provided by UBH in connections with Joint Stipulation

9

Concerning Sampling Methodology were used to determine that there were approximately 296
denials of coverage within the Wit State Mandate Class, 13,205 denials of coverage within the Wit

11
United States District Court
Northern District of California

10

Guideline Class, and 16,171 denials of coverage within the Alexander Guideline Class). UBH

12

does not dispute that the numerosity requirement is met.

13
14

2. Adequacy
Rule 23(a)(4) requires that the class representatives ―fairly and adequately protect the

15

interests of the class.‖ ―Determining whether the representative parties adequately represent a

16

class involves two inquiries: (1) whether the named plaintiff and his or her counsel have any

17

conflicts of interest with other class members and (2) whether the named plaintiff and his or her

18

counsel will act vigorously on behalf of the class.‖ Calvert v. Red Robin Int’l, Inc., No. C 11-

19

03026 WHA, 2012 WL 1668980, at *2 (N.D. Cal. May 11, 2012) (citing Lerwill v. Inflight Motion

20

Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). UBH has not identified any conflicts of interest

21

on the part of the named Plaintiffs or their counsel and the Court has no reason to doubt that they

22

will prosecute this case diligently. In addition, Plaintiffs‘ counsel have offered evidence that they

23

are experienced in prosecuting class actions involving insurance companies and denial of mental

24

health benefits in particular. See Reynolds Decl., Ex. U. The adequacy requirement is satisfied.

25
26

3. Commonality
The commonality requirement of Rule 23(a)(2) is met where ―the class members‘ claims

27

‗depend upon a common contention‘ such that ‗determination of its truth or falsity will resolve an

28

issue that is central to the validity of each [claim] with one stroke.‘‖ Mazza v. Am. Honda Motor
19

1

Co., 666 F.3d 581, 588 (9th Cir. 2012) (internal citation omitted) (quoting Wal-Mart Stores, Inc. v.

2

Dukes, 564 U.S. 338, 350 (2011)). Thus, plaintiffs seeking to certify a class must ―demonstrate

3

‗the capacity of classwide proceedings to generate common answers‘ to common questions of law

4

or fact that are ‗apt to drive the resolution of the litigation.‘‖ Id. (quoting Wal-Mart, 564 U.S. at

5

350). ―[C]ommonality only requires a single significant question of law or fact.‖ Id. at 589

6

(citing Wal-Mart, 564 U.S. at 359). ―The commonality preconditions of Rule 23(a)(2) are less

7

rigorous than the companion requirements of Rule 23(b)(3).‖ Hanlon v. Chrysler Corp., 150 F.3d

8

1011, 1019 (9th Cir. 1998). ―The existence of shared legal issues with divergent factual predicates

9

is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the

10

United States District Court
Northern District of California

11

class.‖ Id.
a. Contentions of the Parties

12

Plaintiffs contend the claims of the putative classes turn on a common core of factual and

13

legal issues arising from the fact that UBH ―developed and used its overly-restrictive Guidelines

14

to make clinical coverage determinations‖ for all class members. Motion at 16. Among the

15

―central questions‖ that Plaintiffs assert will be the same for all class members in the Guideline

16

Classes are: 1) was UBH acting as a fiduciary when it adopted the Guidelines and the policy and

17

practice of applying them to all coverage determinations; 2) are UBH‘s Guidelines consistent with

18

generally accepted standards; 3) did UBH breach its fiduciary duties when it developed the

19

Guidelines and/or when it applied them to adjudicate and deny claims; and 3) what remedies are

20

available to the class. Id. at 17. As to the Wit State Mandate Class there is also an ―overarching

21

issue,‖ according to Plaintiffs, namely, whether UBH ―abuse[d] its discretion by applying its

22

fatally-flawed Guidelines to deny claims for substance use disorder treatment where a state law

23

mandated the use of ASAM or TDI criteria.‖ Id. Not only are the questions the same but the

24

answers will also be the same for all class members, Plaintiffs assert. Id. Plaintiffs also contend

25

their request for declaratory and injunctive relief will raise common questions because they claim

26

UBH has ―acted or refused to act on grounds that apply generally to the class‖ and the question of

27

whether injunctive or declaratory relief is appropriate for the class as a whole also presents a

28

common question. Id.
20

1

UBH argues that the commonality requirement is not met because Plaintiffs‘ claims turn

2

on ―1) thousands of different insurance plans, 2) 169 different coverage guidelines, and 3) the

3

unique clinical presentation of each class member.‖ Opposition at 13.

4

With respect to the variations in plans, UBH contends, ―Courts have rejected class
certification motions seeking to unite members of different health plans under the umbrella of a

6

single ERISA action.‖ Id. at 14 (citing Lipstein v. UnitedHealth Group, 296 F.R.D. 279, 282-83,

7

286 (D.N.J. 2013); In re Wellpoint, Inc. Out-of-Network “UCR” Rates Litig., No. MDL 09-2074

8

PSG, 2014 WL 6888549 at *1 (C.D. Cal. Sept. 3, 2014); Bond v. Marriott Int’l, Inc., 296 F.R.D.

9

403, 411 (D. Md. 2014)). Here, they argue, the class members‘ claims raise individualized issues

10

because they turn on coverage determinations made under different plans with different exclusions

11
United States District Court
Northern District of California

5

and limitations. Id. at 14-15. Some plans expressly permit denial of coverage based on UBH‘s

12

levels of care guidelines, according to UBH, and as to these plans, denial of coverage under the

13

Guidelines was entirely consistent with its fiduciary duty to administer the plan in accordance with

14

its terms. Id. at 15. As another example of variation in plans, UBH points out that some putative

15

class members‘ plans exclude coverage for treatment that does ―not result in outcomes

16

demonstrably better than other available treatment alternatives that are less intrusive or more cost

17

effective.‖ Id. at 16 (citing Romano Decl., Ex. 71 (Plan Chart) at 5, 19, 21). Yet another variation

18

in insurance plans is the contractual limitations period for pursuing a claim, UBH contends. Id.

19

(citing Romano Decl., Ex. 77 (Sample Plan 8988) at 65-66 & Ex. 73 (Plaintiff Driscoll insurance

20

plan) at 76). UBH argues that because of all of these variations, even if the question of whether

21

the Guidelines are consistent with generally accepted standards of care can be resolved on a

22

classwide basis, it will not drive the resolution of the case as a whole ―because an individualized

23

inquiry would still be needed to determine whether a denial based on those guidelines was

24

improper or gives rise to any relief.‖ Id.

25

UBH also challenges Plaintiffs‘ characterization of the Guidelines, arguing that Plaintiffs

26

(wrongly) suggest that the Guidelines ―amount to a cohesive policy, applied to every class

27

member‖ and that ―such a policy is measurable against a uniform generally accepted standard of

28

care.‖ Id. at 17. According to UBH, Plaintiffs focus in their brief on the theory that the
21

1

Guidelines overemphasize ―acute criteria and symptoms‖ but in fact, they contend that the

2

Guidelines diverge from generally accepted standards of care in at least six different ways. Id.

3

(citing Romano Decl., Ex. 5 (Plaintiffs‘ Supp. Responses to Rog. No. 17).15 Moreover, UBH

4
15

5
6

Plaintiffs offered the following six ways in which the Guidelines are more restrictive than
generally accepted standards of care in response to UBH‘s interrogatory:


7
8

o For example, the level of care criteria contained in UBH‘s Guidelines focus heavily on
addressing the member‘s ―presenting problems‖ (also called the ―‗why now‘ factors‖).
UBH‘s Guidelines make clear that the ―presenting problems‖ refer to the specific,
acute symptoms that necessitated treatment in a particular level of care, as opposed to
the underlying mental health condition(s). As soon as the ―presenting problems‖
improve enough to safely transition the patient to a lower level of care (or to cease
treatment altogether), UBH‘s Guidelines make clear that treatment is no longer covered
for the requested level of care.

9
10

United States District Court
Northern District of California

11
12
13



In contrast to generally accepted standards of care, UBH‘s Guidelines fail to provide
coverage for the treatment of chronic conditions in the absence of an acute crisis
precipitating admission to care. This is true with respect to residential treatment, intensive
outpatient treatment and even outpatient treatment. From at least 2012 forward, UBH‘s
Guidelines do not provide for UBH to consider criteria that, under generally-accepted
standards, should be taken into account in determining whether coverage is available for
treatment at a proposed level of care, including but not limited to: (a) the presence of comorbid mental health conditions; (b) patient resiliency; (c) the member‘s age and/or
developmental progression; and (d) with respect to substance use disorders, the member‘s
motivation to recover.



UBH‘s Guidelines reverse the burden of proof for selection of the appropriate level of care,
providing that coverage is only available at a lower level unless a member or provider can
prove that a higher level of care is necessary because a lower level would be unsafe.
Generally accepted standards, by contrast, err on the side of caution and call for selection
[of] a higher level of care unless a lower level will be both safe and effective.



Under UBH‘s Guidelines, both residential and intensive outpatient treatment must focus on
rapid stabilization of the specific, acute symptoms precipitating admission (that is, the
―presenting problems‖ or ―‗why now‘ factors‖) with the goal of transitioning the member
as soon as possible to a lower level of care. According to generally accepted standards,
however, the goals of treatment include promoting the patient‘s long-term recovery and
resiliency and preventing deterioration or relapse.



In contrast to generally accepted standards of care, UBH‘s Guidelines do not include
prevention of deterioration as a goal for covered treatment. UBH‘s Guidelines for
residential treatment incorporate an overly-expansive definition of ―custodial care‖ that
precludes coverage for continued treatment if a member fails to show constant

14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

In contrast to generally accepted standards of care, UBH‘s Guidelines overemphasize acute
criteria and symptoms, indicating that coverage for mental health or substance abuse
treatment is only available to address specific crises and that, as soon as the crisis
precipitating admission has passed, coverage is no longer available.

22

1

asserts, the degree to which the CDGs emphasize acuity varies widely ―depending on the

2

diagnosis and clinical circumstances at issue.‖ Id. at 17-18 (citing as examples 2015 CDG for

3

Substance-Related & Addictive Disorders (―SRAD‖) (Romano Decl., Ex. 42 at 5-6, 9, 13, 30-31);

4

2015 CDG for Anorexia Nervosa (Romano Decl., Ex. 31 at 14); 2015 CDG for Generalized

5

Anxiety Disorder (―GAD‖) (Romano Decl., Ex. 36 at 9); 2015 CDG for Bipolar Disorder

6

(Romano Decl., Ex. 32 at 5-6); 2015 CDG for Depressive Disorders (Romano Decl., Ex. 34 at 5-

7

6); 2013 CDG for Major Depressive Disorder (Romano Decl., Ex. 34 at 6); 2015 CDG for

8

Bulimia Nervosa (Romano Decl., Ex. 33 at 10-14); 2015 CDG for Specific Phobias (Romano

9

Decl., Ex. 41 at 14); 2015 CDG for Schizophrenia (Romano Decl., Ex. 40 at 30, 33); 2015 CDG
for Disruptive Mood Dysregulation Disorder (Romano Decl., Ex. 35 at 22, 26)). Even the

11
United States District Court
Northern District of California

10

Common Criteria of the LOCs are applied flexibly according to the clinician‘s ―sound judgment,‖

12

UBH contends, taking into account the particular circumstances and diagnosis at issue and

13

allowing ―exceptions where case-specific circumstances warrant.‖ Id. at 18 (citing 2013 LOC

14

Common Criteria (Romano Decl., Ex. 45 at 8); 2014 LOC Common Criteria (Romano Decl. Ex.

15

46 at 6-7); 2011 LOC at 3, 2012 LOC at 3-4, 2013 LOC at 4, 2014 LOC at 5, and 2015 LOC at

16

5-6 (Romano Decl., Exs. 43-47)).

17

UBH further contends that Plaintiffs‘ challenges to the Guidelines raise a multitude of

18

diverse issues that defeat commonality because they ―rely on a host of different sources for what

19

they view as the standard of care.‖ Id. at 19. According to UBH, there are ―dozens of third-party

20

guidelines‖ promulgated by the national organizations cited by Plaintiffs but Plaintiffs have not

21

specified which of them constitute the standards of care for the 169 Guidelines that they challenge

22

in this case. Id. at 20. UBH argues that Plaintiffs must offer enough evidence to show that they

23
24
25
26
27
28

improvement. Generally accepted standards of care, by contrast, provide that
―improvement'‖ may include maintaining a level of function. Generally accepted standards
also take into account that the process of recovery may include periods of stability or even
regression, especially with respect to patients with chronic conditions or co-morbid
conditions, and that such periods do not indicate that treatment is ineffective or
unnecessary.
Romano Decl., Ex. 5 at 4-5.
23

1

can prove a ―class-wide standard of care‖ in order for the classes to be certified and that Plaintiffs

2

have failed to meet this burden. Id.
UBH makes several additional arguments relating to commonality as to the Wit State

3

Mandate Class. Opposition at 32-33. First, the members of this class will be governed by

5

different legal rules, UBH contends, because Illinois and Rhode Island require the use of ASAM

6

criteria in certain circumstances while Connecticut and Texas do not. Id. at 32. In particular, they

7

assert, ―Texas law requires the application of Texas-specific guidelines (referred to as ‗TDI‘

8

guidelines) for substance abuse treatment‖ whereas ―Connecticut law provides that ‗a health

9

carrier may develop its own clinical review criteria,‘ provided that it ‗is consistent with the most

10

recent edition‘ of ASAM.‖ Id. (citing Conn. Gen. State. Ann. § 38a-591c(a)(2), (3)(A)). Second,

11
United States District Court
Northern District of California

4

they argue, Plaintiffs have failed to take into account the fact that ―the four state laws specifying

12

coverage criteria were enacted at different times, with the Connecticut, Illinois and Rhode Island

13

laws being enacted at various times after the start of the class period (and in Rhode Island, after

14

the Wit case was filed).‖ Id. at 32-33 (emphasis in original).16 Third, they contend, UBH

15

reviewers look to a variety of sources for guidance and there is evidence (acknowledged by

16

Plaintiffs in their brief) that UBH did in fact look to the TDI guidelines in at least two cases from

17

the Claim Sample. Id. at 33 (citing Motion at 13, Reynolds Ex. F at 3 & Romano Decl., Ex. 61

18

(Sample ID 8873 ABD Letter)). This evidence demonstrates that individualized inquiries will be

19

necessary as to the Wit State Mandate Class, UBH asserts. Id.
Plaintiffs counter that none of the alleged variations that UBH says defeat commonality is

20
21

material. Reply at 2-12. First, with respect to UBH‘s reliance on alleged variations in class

22

members‘ plans, Plaintiffs contend that UBH has mischaracterized their argument by stating in its

23

Opposition brief that Plaintiffs‘ claims are based on the assertion that each plan requires UBH to

24

―‗cover all treatment that is consistent with generally accepted standards of care.‘‖ Id. at 2

25

(quoting Opposition at 15) (emphasis added in Reply brief). UBH then knocks down this ―straw

26
16

27
28

This argument was aimed at the original definition of the Wit State Mandate Class, which did
not include language taking into account the dates on which the various state laws were enacted.
That additional language was proposed in Plaintiffs‘ Reply brief.
24

man,‖ Plaintiffs contend, by pointing to the varying limitations and exclusions contained in

2

individual plans that preclude coverage even if a treatment is consistent with generally accepted

3

standards of care. Id. Plaintiffs emphasize in their Reply brief that they do not claim that

4

compliance with generally accepted standards of care is the only requirement for coverage; rather,

5

they contend such compliance is a ―baseline requirement for coverage under all Class Member

6

plans.‖ Id. at 3. Plaintiffs argue that their Breach of Fiduciary Duty Claim is based on the theory

7

that UBH breached its fiduciary duty by developing Guidelines that are intended to reflect

8

generally accepted standards and that variations in class members‘ insurance plans are irrelevant

9

to that theory. Id. They further contend that the variations in insurance plans are also irrelevant to

10

Claim Two, which is based on application of the Guidelines to coverage determinations, because it

11
United States District Court
Northern District of California

1

is undisputed that all of the insurance plans required that coverage determinations must be

12

consistent with generally accepted standards of care. Id.

13

Addressing the specific variations in insurance plans that UBH highlighted in its

14

Opposition brief, Plaintiffs reject UBH‘s reliance on the fact that some insurance plans expressly

15

permit denials based on the Guidelines. Id. at 2-3. These Guidelines were supposed to be based

16

on generally accepted standards of care, Plaintiffs contend. Id. Were the ―guideline‖ exclusion to

17

be read to give UBH ―unfettered discretion to adopt any deadline it please[d]‖ it would conflict

18

with the mandate, common to all of the plans, that ―coverage requires compliance with generally

19

accepted standards,‖ Plaintiffs assert. Id at 3.
Plaintiffs also reject UBH‘s reliance on alleged variations in limitations periods in class

20
21

members‘ insurance plans. Id. at 4. According to Plaintiffs, of the two examples UBH offers one

22

(Sample Plan 8988) does not even apply to coverage decisions made by UBH and the other

23

contains a limitations period that is longer than the three-year period contained in the proposed

24

class definition. Id. at 4 (citing Opposition at 15-16 & Romano Decl., Ex. 73 (Driscoll Plan)17 at

25
17

26
27

The Driscoll insurance plan provides that a claim for coverage must be submitted within 15
months of receiving treatment and also sets forth a series of deadlines for pursuing internal
appeals, including a six-month deadline. Romano Decl., Ex. 73 (Driscoll Plan) at 72-77. It
further provides:

28
25

1

72, 77; Ex. 77 (Sample Plan 8988) 18 at 65-66). Plaintiffs further assert that even if the limitations

2

periods of class members‘ insurance plans varied, these variations would be irrelevant to the

3

Breach of Fiduciary Duty claim because that claim is subject to a statutory limitations period

4

under ERISA that cannot be shortened by plan terms. Id. at 4 (citing 29 U.S.C. § 1113 (providing

5

that limitations period for breach of fiduciary duty claim under ERISA is ―(1) six years after (A)

6

the date of the last action which constituted a part of the breach or violation, or (B) in the case of

7

an omission the latest date on which the fiduciary could have cured the breach or violation, or (2)

8

three years after the earliest date on which the plaintiff had actual knowledge of the breach or

9

violation‖ except in cases of fraud or concealment); Kramer v. Smith Barney, 80 F.3d 1080, 1085

10

United States District Court
Northern District of California

11

(5th Cir. 1996)).
Plaintiffs also reject UBH‘s reliance on variations as to the clinical presentations of class

12

members, which UBH contends raise ―individualized issues of medical necessity.‖ Id. at 5

13

(quoting Opposition at 20). Plaintiffs argue that the clinical presentations of class members have

14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

If you want to bring a legal action against [the Plan Administrator]
or the Claims Administrator, you must do so within three years
from the expiration of the time period in which a request for
reimbursement must be submitted or you lose any rights to bring
such an action against [the Plan Administrator] or the Claims
Administrator.
Id. at 76. At oral argument, UBH conceded that this limitations period has no bearing on class
certification because it is longer than the three-year limitations period contained in the class
definitions.
18
Sample Plan 8988 provides for a ―Plan Administrator Appeals process‖ whereby a member can
submit a coverage dispute to the ―Plan Administrator.‖ Romano Decl., Ex. 77 at 66. The ―Plan
Administrator‖ for Sample Plan 8988 is Metropolitan Life Insurance Company. Id. at 66, 112.
One of the rules that governs such appeals (highlighted by UBH in the exhibit attached to its
Opposition and cited in its Opposition brief) is that ―[n]o civil action can be brought challenging
the denial of the claim on appeal more than six months following the date on which the written
response to your Plan Administrator Appeal is sent to you.‖ Id. at 66. Under this plan, however,
Plan Administrator Appeals ―cannot include review of medical determinations by the Claims
Administrator,‖ that is, UBH. Id. at 65. At oral argument, UBH conceded that the cited provision
does not apply to appeals of medical determinations by the Claims Administrator and therefore is
not relevant to the question of class certification. UBH‘s counsel stated that the citation in its brief
was incorrect and that the limitations period it had meant to cite was found on a different page of
the insurance plan. As Plaintiffs have not had an opportunity to respond to this argument, which is
untimely, the Court does not address it here. In any event, this potential variation in one plan is
insufficient to disprove commonality, especially in light of the common statutory statute of
limitations.
26

1

no bearing on the Breach of Fiduciary Duty Claim because that claim is based on UBH‘s

2

development of the Guidelines and addresses only the validity of the Guidelines. Id. Similarly,

3

they contend, individual issues relating to medical necessity have no relevance to Claim Two, the

4

Arbitrary and Capricious Denial of Benefits Claim, because that claim is based on the use of what

5

Plaintiffs contend are flawed Guidelines in making coverage determinations and does not ask the

6

Court to ―determine whether Class members were owed benefits or whether UBH should be

7

ordered to cause its plans to pay such benefits.‖ Id. Instead, Plaintiffs point out, they are only

8

seeking as a remedy the reprocessing of claims in a manner that is consistent with generally

9

accepted standards of care. Id. Consequently, they contend, they ―need not prove at trial that

10

United States District Court
Northern District of California

11

UBH reached the wrong outcome in every single one of its coverage determinations.‖ Id.
Indeed, Plaintiffs assert, courts are reluctant to usurp the role of the claims administrator

12

and therefore, where a denial of coverage is found to be arbitrary and capricious under ERISA, the

13

preferred remedy is to remand the claim for evaluation on the merits. Id. at 6 (citing Saffle v.

14

Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 460 (9th

15

Cir. 1996) (―[R]emand for reevaluation of the merits of a claim is the correct course to follow

16

when an ERISA plan administrator, with discretion to apply a plan, has misconstrued the Plan and

17

applied a wrong standard to a benefits determination.‖)). For this reason, Plaintiffs assert, UBH‘s

18

reliance on Dennis F. v. Aetna Life Insurance, No. 12-cv-2819 SC, 2013 WL 5377144, at *4 (N.D.

19

Cal. Sept. 25, 2013) and Graddy v. Blue Cross Blue Shield of Tennessee, Inc., No. 09-cv-84, 2010

20

WL 670081 (E.D. Tenn. Feb. 19, 2010) is misplaced. Id. at 7. In both cases, Plaintiffs contend,

21

the plaintiffs sought ―court-ordered benefit payments,‖ which would have required individualized

22

inquiries as to the medical necessity of treatment for each class member. Id. & n. 9. Plaintiffs

23

also distinguish Dennis F. on the basis that the plaintiffs in that case – unlike Plaintiffs here – did

24

not challenge the guidelines used by the insurance company to make coverage determinations but

25

instead only challenged the application of those guidelines. Id.

26

Plaintiffs also argue that UBH‘s reliance on the variations in the Guidelines themselves is

27

misplaced. Id. at 8-12. While UBH emphasizes that there are ―169 different CDGs and LOCs,‖ it

28

ignores the fact that all of the CDGs expressly incorporate the LOCs, including the Common
27

1

Criteria, for all Levels of Care, Plaintiffs assert. Id. at 8-9 (citing Reynolds Decl., Ex. A-2 (chart

2

identifying CDGs that incorporate LOCs)). Moreover, Plaintiffs assert, while the LOCs are

3

updated on a yearly basis, there are only six versions of the LOCs during the class period and

4

UBH does not even argue that the LOC criteria ―differ substantively from year to year.‖ Id. at 9.

5

In fact, Plaintiffs contend, for any given year the LOCs ―suffer from the same defects, which

6

means that Plaintiffs‘ evidence challenging those defects will also be the same for all LOCs.‖ Id.

7

at 10 (citing Reynolds Decl., Ex. A-1).19 UBH‘s argument that the Court will be required to

8

address the LOCs for many specific levels of care is overstated, Plaintiffs contend, because the

9

Court will only be required to examine the levels of care that are relevant to the Wit and Alexander
cases, that is, residential treatment, intensive outpatient treatment and outpatient treatment. Id. at

11
United States District Court
Northern District of California

10

10.

12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

19

The chart in Exhibit A-1 identifies fifteen LOC requirements that Plaintiffs contend
overemphasize acute care criteria for each version of the LOCs in the class period (2011 – 2016).
They are as follows:
 Treatment must focus on the acute crisis precipitating admission (i.e., the ―presenting
problems‖ or the ―‗why now‘ factors‖);
 Coverage requires finding that member‘s acute symptoms cannot be treated in a lower
level of care;
 Treatment must be expected to improve presenting symptoms ―within a reasonable period
of time‖;
 ―Improvement‖ defined as reduction or control of the symptoms precipitating admission;
 Coverage requires a finding that the member‘s current condition cannot be safely and
effectively treated in a lower level of care;
 Goal of treatment should be to improve the presenting symptoms enough so that step-down
to a lower level of care is safe;
 Coverage is available only for ―active‖ treatment;
 ―Active‖ treatment must focus on addressing the crisis precipitating admission (i.e., the
―critical presenting problems‖ or the ―‗why now‘ factors‖);
 Coverage for residential treatment is excluded if UBH deems services ―custodial‖;
 ―Custodial‖ defined to include services provided during any periods when the member is
not making ongoing progress (i.e., member‘s condition is ―not changing‖ or ―not
improving,‖ or member is ―maintaining a level of function‖);
 Preventing deterioration/relapse is not a permissible goal of treatment;
 Maintaining a level of function is not a permissible goal of treatment;
 Coverage for continued service requires that the admission criteria still be met;
 Guideline omits criteria providing for treatment of chronic conditions in the absence of an
acute crisis;
 Guideline omits consideration of co-morbid conditions as a factor necessitating a more
intense level of service.
Reynolds Decl., Ex. A-1 (based on Level of Care Guidelines for 2011-2016, found at
Reynolds Decl., Ex. B).
28

1

Plaintiffs also contend that UBH improperly relies on the ―Clinical Best Practices‖ sections

2

of some of the CDGs to show that ―some of the factors Plaintiffs identified as missing from

3

UBH‘s level-of-care criteria are actually present in some CDGs.‖ Id. According to Plaintiffs, ―the

4

Clinical Best Practices do not provide the criteria on which UBH conditions coverage – rather,

5

they set forth standards of practice UBH expects treatment providers to meet.‖ Id. (emphasis in

6

original). Thus, for example, even if some of the Best Practices Guidelines acknowledge that

7

certain behavioral health conditions may be chronic, coverage will not be approved under the

8

Guidelines unless the member experiences ―‗acute changes in . . . signs and symptoms and/or

9

psychosocial and environmental factors (i.e. the ―why now‖ factors leading to admission).‘‖ Id.
(quoting Romano Decl., Ex. 31 (2015 CDG Treatment of Anorexia Nervosa) at 24 § 1.4 and

11
United States District Court
Northern District of California

10

contrasting with ―Clinical Best Practices‖ section of same CDG, at pp.13-14, offering criteria for

12

provider to determine whether member‘s anorexia condition is ―Acute‖ or ―Chronic‖). In any

13

event, Plaintiffs contend, to the extent there is language in the LOCs that UBH contends meets the

14

requirements of general accepted standards with respect to treatment of chronic, the significance

15

of this language is a common question that may be adjudicated on a classwide basis. Id. at 12.

16

Plaintiffs argue further that the fact that the Guidelines are to be applied in a ―flexible

17

manner‖ does not mean that UBH does not follow a common course of conduct in applying the

18

Guidelines to all coverage determinations. Id. To the contrary, Plaintiffs contend, the evidence in

19

the case shows that UBH requires all Peer Reviewers to apply the Guidelines and to cite to those

20

Guidelines in their coverage decision and that any exceptions must be approved by UBH

21

management. Id. (citing Romano Decl., Ex. 43 (2011 LOC Guidelines) at 3 (―It is expected that

22

exceptions be carefully thought out, documented and approved by the responsible level of

23

management‖).

24

Finally, Plaintiffs assert that the variations among the guidelines and criteria of such

25

organizations as the American Academy of Child and Adolescent Psychiatry (―AACAP‖), the

26

American Association of Community Psychiatrists (―AACP‖) and ASAM, some of which are

27

condition-specific, do not defeat commonality, as UBH contends. Id. at 13. According to

28

Plaintiffs, they will ―submit evidence at trial from multiple sources sufficient to show that the
29

1

Guidelines are inconsistent across the board with generally accepted standards.‖ Id. The sources

2

have already been identified in their complaint and their interrogatory responses, Plaintiffs

3

contend, and therefore UBH‘s ―feign[ed] confusion‖ about which sources will be used in support

4

of Plaintiffs‘ claims should be rejected. Id. Nor is UBH correct in its assertion that it is

5

Plaintiffs‘ burden to establish which of the third-party standards of care represent the relevant

6

generally established standards as this is a merits question, Plaintiffs assert, and at this stage of the

7

case they need only demonstrate that the requirements of Rule 23 are met. Id. at 13-14.

8
9

Plaintiffs also reject UBH‘s argument specific to the Wit State Mandate Class that the
variations among the laws of the four states make certification inappropriate, arguing that these
variations are not material because the theory of Plaintiffs‘ claims for this class is that the laws of

11
United States District Court
Northern District of California

10

the four states ―prohibit UBH from using its own Guidelines and . . . common evidence can prove

12

that it did just that.‖ Id. at 21. Plaintiffs concede that the variations as to the dates on which the

13

state laws were enacted must be taken into account, however, and have proposed an amendment to

14

the class definition, as noted above. Id.

15
16

b.

Discussion

The Court concludes that Plaintiffs meet the commonality requirement as to both the

17

Guideline Classes and the Wit State Mandate Class. The theory of Plaintiffs‘ claims is, in essence,

18

that UBH breached its fiduciary duty and abused its discretion by developing and applying

19

Guidelines that were more restrictive than either: 1) the generally accepted standards all class

20

members‘ insurance plans required UBH to follow (the Guideline Classes); or 2) the applicable

21

standards under state law (the Wit State Mandate Class). The resolution of these claims will turn

22

on several common legal and factual questions, including whether UBH was acting as an ERISA

23

fiduciary when it developed the Guidelines and adopted a policy of applying them to all coverage

24

determinations, whether the Guidelines are consistent with generally accepted standards, whether

25

UBH breached its fiduciary duty by using its Guidelines to adjudicate claims for coverage, and

26

what remedies are available to the classes. These common questions of law and fact are sufficient

27

to satisfy the permissive requirements of Rule 23(a).

28

The Court is not persuaded by Defendants‘ assertions that variations relating to the
30

1

putative class members‘ insurances plans, medical necessity determinations or the Guidelines

2

themselves defeat commonality. These variations are not material to the theories upon which

3

Plaintiffs‘ claims are based. The harm alleged by Plaintiffs – the promulgation and application of

4

defective guidelines to the putative class members – is common to all of the putative class

5

members. Similarly, whether Plaintiffs are entitled to the requested remedy – adoption of new

6

Guidelines that are consistent with generally accepted standards and/or state law and reprocessing

7

of claims that were denied under the allegedly defective guidelines– can be addressed on a

8

common basis. Of particular significance is the fact that Plaintiffs do not ask the Court to make

9

determinations as to whether class members were actually entitled to benefits (which would
require the Court to consider a multitude of individualized circumstances relating to the medical

11
United States District Court
Northern District of California

10

necessity for coverage and the specific terms of the member‘s plan). Instead, Plaintiffs seek only

12

an order that UBH develop guidelines that are consistent with generally accepted standards and

13

reprocess claims for coverage that were denied under the allegedly faulty guidelines. For this

14

reason, Dennis F. v. Aetna Life Insurance, on which UBH relies in support of its contention that

15

Plaintiffs have not satisfied the commonality requirement, is not on point.

16

In Dennis F., Judge Conti found that commonality under Rule 23(a)(2) had not been

17

established where the plaintiffs sought to certify two classes of individuals who had allegedly been

18

denied coverage for care at residential treatment centers (―RTCs‖) based on incorrect tabulation of

19

their Level of Care Assessment Tool (―LOCAT‖) score. 2013 WL 5377144, at *1. The plaintiffs

20

did not challenge the validity of the levels of care guidelines used to assign the numeric values that

21

went into tabulating the overall score but rather, asserted that the tabulation method described on

22

the LOCAT Scoring Form was not followed by the insurer, resulting in denials of coverage in

23

some cases. Id. at *2. The court found that while the LOCAT scores were ―strongly correlated

24

with the level of care approved by‖ the insurer and that they ―might be probative‖ of medical

25

necessity, they were not ―dispositive.‖ Id. at *4. As a consequence, the court concluded, a

26

classwide proceeding on the insurer‘s scoring practices would not ―generate common answers apt

27

to drive resolution of the litigation.‖ Id. Although the court in Dennis F. did not address in any

28

detail the remedy sought in that case, the complaint reflects that Plaintiffs sought not only an
31

1

injunction requiring the insurer to fix the problem with its tabulation method but also an award of

2

the class members‘ denied benefits. See Northern District of California Case No. C-12-2819,

3

Docket No. 1 (Complaint) (―This case seeks correction of Aetna‘s systematic misapplication of the

4

LOCAT criteria and compensation for whom coverage for mental health treatment has been

5

improperly denied.‖). It was the latter that would have required the court to grapple with the

6

variations in class members‘ specific medical circumstances.

7

Other cases cited by UBH also are distinguishable because the courts in those cases found

8

that it would have been necessary to conduct individualized inquiries as to medical necessity to

9

determine liability. For example, in Graddy v. Blue Cross Blue Shield of Tennessee, Inc., the
court found that a breach of fiduciary duty claim based on an alleged policy of a health care plan

11
United States District Court
Northern District of California

10

of denying coverage for Applied Behavior Analysis (―ABA‖) to individuals with Autism

12

Spectrum Disorder (―ASD‖) could not proceed on a class basis because ―an individualized

13

assessment as to the ultimate propriety of the benefits decision affecting each and every class

14

member‖ would have had to have been conducted to resolve the plaintiffs‘ claims. 2010 WL

15

670081, at *9 (E.D. Tenn. Feb. 19, 2010). Similarly, in Pecere v. Empire Blue Cross and Blue

16

Shield, the court found that the plaintiffs‘ challenge under ERISA to an alleged policy of routinely

17

denying coverage for pain treatment without regard to medical necessity did not meet Rule 23‘s

18

commonality requirement because the claim ―hinge[d] on whether or not the treatment for each of

19

their individual conditions was ‗medically necessary.‘‖ 194 F.R.D. 66, 71 (E.D. N.Y. 2000).

20

The Court also rejects UBH‘s reliance on In re Wellpoint in support of its position that

21

Plaintiffs have not satisfied the commonality requirement because of the multitude of insurance

22

plans at issue in this case. In In re Wellpoint, the plaintiffs sought to certify several classes

23

asserting claims under ERISA for wrongly withheld benefits based on the allegation that the

24

insurer failed to reimburse providers and members the ―usual, customary and reasonable‖ rate for

25

services, as required under the plaintiffs‘ insurance plans. No. MDL 09-2074 PSG, 2014 WL

26

6888549, at *1 (C.D. Cal. Sept. 3, 2014). The court, however, concluded that the commonality

27

test was a ―major hurdle for class certification‖ because of the ―contractual nature‖ of the

28

plaintiffs‘ claims and in particular, the fact that there was material variation in the exemplar
32

1

ERISA plans regarding the meaning of the term ―usual, customary, and reasonable.‖ Id. at *4-8.

2

As a consequence, the court concluded, the ―common nature‖ of what the plaintiffs cited as the

3

―overarching issue‖– whether the insurer ―artificially deflated‖ the usual, customary and

4

reasonable rates paid to members and providers – would ―fragment[ ]‖ because the court would

5

first have to determine what rates the plaintiffs should have been paid, which varied across plans.

6

Id. at *4.

7

The court in In re Wellpoint did not, however, suggest that the mere fact that class

8

members were insured under different plans precluded commonality. To the contrary, it

9

recognized that it is possible to satisfy the commonality requirement when there are multiple
ERISA plans, for example, where the ―ERISA plans at issue had terms that were common across

11
United States District Court
Northern District of California

10

the proposed class.‖ Id. at 11. Under the facts of that case, however, the plaintiffs had not

12

demonstrated ―uniformity or at least substantial similarity in key plan language as to the entire

13

ERISA Class.‖ Id. at *8. In contrast, Plaintiffs here have demonstrated, as a factual matter, that

14

the insurance plans for the putative class members are substantially the same in a key respect,

15

namely, that they require as a condition of coverage adherence to generally accepted standards

16

and/or state law.

17

The Court also rejects UBH‘s reliance on the fact that some class members‘ health

18

insurance plans excluded coverage for treatment that is ―not consistent with the Mental Health/

19

Substance Use Disorder Designee‘s level of care guidelines or best practices as modified from

20

time to time‖ (the ―guidelines exception‖). See Romano Decl., Ex. 71 (Health plan chart) at 6, 10,

21

20, 25). To the extent it is undisputed that all Named Plaintiffs‘ and Sample Plaintiffs‘ insurance

22

plans incorporated generally accepted standards, UBH has pointed to nothing in any plan that

23

would suggest that the ―guidelines exception‖ would permit insurance plans to adopt rules that are

24

inconsistent with those standards. Nor has UBH pointed to any Sample Plan or insurance plan of

25

a Named Plaintiff with a limitations period that would require the Court to make any

26

individualized inquiries related to these alleged variations.

27
28

The Court also concludes that UBH‘s emphasis on the large number of LOCs and CDGs
that are at issue in this case exaggerates the problems that will be associated with adjudicating
33

1

Plaintiffs‘ claims on a classwide basis. To the extent this argument is even relevant to

2

commonality (as opposed to predominance), Plaintiffs offer evidence that the CDGs incorporate

3

the LOCs. Moreover, all of the LOCs contain the same Common Criteria, which are at the heart

4

of Plaintiffs‘ challenge to the Guidelines. Because of this overlap, the challenges Plaintiffs bring

5

to the Guidelines do not appear to be unmanageable.

6

Finally, while the variations in state law as to the Wit State Mandate Class may warrant the

7

creation of subclasses to address possible variations in state laws (and particularly, the possible

8

need to fashion discrete remedies that are tailored to each of the states‘ laws), the Court concludes

9

that the class shares sufficient common issues to meet the commonality requirement. At oral
argument, the parties disagreed whether the Wit State Mandate Class will be required to prove that

11
United States District Court
Northern District of California

10

the Guidelines are more restrictive than the standards that must be applied under state law or

12

simply different. Either way, these questions may be answered on a classwide basis and do not

13

require the Court to examine individualized issues such as the terms of class members‘ insurance

14

plans or medical necessity.

15
16

4. Typicality
Rule 23(a)(3) requires that ―the [legal] claims or defenses of the representative parties [be]

17

typical of the claims or defenses of the class.‖ Fed. R. Civ. P. 23(a)(3). ―Under the rule‘s

18

permissive standards, representative claims are ‗typical‘ if they are reasonably co-extensive with

19

those of absent class members; they need not be substantially identical.‖ Hanlon v. Chrysler

20

Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). The typicality requirement is satisfied as to all of the

21

proposed classes. With respect to the Guideline Classes, the named Plaintiffs who seek to

22

represent those classes (all of the named Plaintiffs except for Brandt Pfeifer), like the members of

23

those classes, are covered by insurance plans that require coverage consistent with generally

24

accepted standards of care but were denied coverage by UBH under Guidelines that Plaintiffs

25

allege are more restrictive than generally accepted standards of care. See Reynolds Decl., Ex. K.

26

Similarly, the named Plaintiff who seeks to represent the Wit State Mandate Class, Brandt Pfeifer,

27

asserts a claim that UBH denied coverage under its own Guidelines instead of the allegedly

28

broader standards mandated by State law, just as do the members of the Wit State Mandate Class.
34

1

UBH does not dispute that the typicality requirement is met.

2

D.

3

UBH contends the proposed classes are not ascertainable because it is not administratively

Ascertainability

4

feasible to determine which UBH benefits plans are governed by ERISA, which claims were

5

denied under the Guidelines, and what specific aspects of the Guidelines were relied upon in

6

denying the claim. Opposition at 23-24 (citing Daniel F. v. Blue Shield of Cal., 305 F.R.D. 115,

7

125 (N.D. Cal. 2014)). According to UBH, none of this information can be obtained by

8

―automated means‖ and therefore, manual review of thousands of records would be necessary to

9

determine class membership. Id.

10

Plaintiffs counter that ascertainability is not a requirement for Rule 23(b)(1) and 23(b)(2)

United States District Court
Northern District of California

11

classes. Reply at 22. In any event, they contend, there is evidence that will make determination of

12

which claims were denied under the Guidelines and which plans are governed by ERISA

13

manageable. Id. at 22-23. Nor is it necessary to determine what specific aspects of the Guidelines

14

UBH relied upon in making its coverage determination, Plaintiffs assert, as their claims are based

15

on the theory that taken as a whole, UBH Guidelines are overly restrictive. Id. The Court

16

concludes that the proposed classes are ascertainable and therefore does not address whether the

17

ascertainability requirement is limited to classes certified under Rule 23(b)(3).

18

―In order for a proposed class to satisfy the ascertainability requirement, membership must

19

be determinable from objective, rather than subjective, criteria.‖ Xavier v. Philip Morris USA Inc.,

20

787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011) (citing In re Initial Pub. Offerings Sec. Litig., 471

21

F.3d 24, 30 (2d Cir. 2006)). Here, it is undisputed that when a claim for coverage is denied by

22

UBH, a determination letter is sent to the member indicating the basis for the decision. See

23

Romano Decl., Ex. 1 (Declaration of Francis R. Bridge in Support of United Behavioral Health‘s

24

Opposition to Motion for Class Certification (―Bridge Decl.‖)) ¶ 15. According to Bridge,

25

―[t]ypically [the letter] will identify one or more UBH Coverage Determination Guideline

26

(‗CDG‘), UBH Level of Care Guideline (‗LOC‘), or external guideline . . . that was referenced in

27

making that determination.‖ Id. This information is contained in UBH‘s ARTT database, which

28

contains data regarding adverse benefits determinations prior to 2014, and its LINX database,
35

1

which contains such information for the period starting January 1, 2014. Id. ¶ 11. Further, both

2

databases have a field that reflects whether a CDG or LOC was referenced in the determination

3

letter, although only the LINX system has a field that tracks the specific Guideline. Id. ¶¶ 16, 23.

4

The Court concludes that these records are sufficient to permit the identification of individuals

5

who were denied coverage in the relevant categories for the purposes of ascertaining class

6

membership. See Kamakahi v. Am. Soc’y for Reprod. Med., 305 F.R.D. 164, 186 (N.D. Cal.

7

2015), leave to appeal denied (May 12, 2015) (―The fact that determining class membership would

8

involve reviewing these records does not render the class unascertainable.‖).

9

The Court rejects UBH‘s contention that it would take ―thousands of hours‖ to make this
determination, see id. ¶ 24, because it is based, in part, on the understanding that each of the

11
United States District Court
Northern District of California

10

30,000 member records would have to be reviewed to determine the specific rationale that was

12

used to deny coverage. See id. (―UBH would thus need to wade through the clinical records of at

13

least 30,000 members to determine whether each individual member was in an ERISA plan,

14

whether that individual was denied benefits as a result of one of the challenged Guidelines, and if

15

so, whether the denial relates to the complaints about the guidelines Plaintiffs raise in this case‖)

16

(emphasis added). Under that understanding, Bridge estimates that it would take 45 minutes to

17

review each record. Id. Plaintiffs‘ challenge, however, and the proposed class definitions, do not

18

require that UBH identify the specific rationale for any particular rejection; rather, UBH simply

19

must identify the members whose claims were rejected under the relevant Guidelines. Given that

20

all of this information is stored in UBH‘s databases, the process of identifying the claims that were

21

denied under the Guidelines at the relevant Levels of Care is not so burdensome that it renders the

22

classes unascertainable.

23

The Court also rejects UBH‘s contention that the class is not ascertainable because of the

24

difficulty of determining which insurance plans are governed by ERISA. UBH is required to

25

adhere to specific legal obligations for the plans it administers that are governed by ERISA.

26

Therefore, it is not surprising that this information is contained in the member records. See

27

Romano Decl., Ex. 1 (Bridge Decl.) ¶ 18 (―Both the ARTT database and the LINX database

28

contain a field identifying the plan at issue for each coverage determination. However, neither the
36

1

ARTT database nor the LINX database contains a field tracking whether ERISA applies to a

2

particular benefit plan or benefit request.‖); see also Reynolds Reply Decl., Ex. W at W0007

3

(Allchin Dep. at 76) (testifying that member records indicate whether the member‘s insurance plan

4

is an ERISA plan). Moreover, as Plaintiffs point out, where plans are covered by ERISA the

5

plan documents typically state as much. See, e.g., Romano Decl., Ex. 72 at WIT_PTFS_0000637;

6

Ex. 73 at UBHALEXANDER43979080; Ex. 74 at UBHWIT0042846; Ex. 77 at BHWIT0040972.

7

The Court concludes that UBH has exaggerated the difficulty of determining which members‘

8

plans are governed by ERISA, which is not of a sufficient magnitude to make the classes

9

unascertainable.
Finally, the Court is not persuaded that Judge Hamilton‘s decision in Daniel F. supports

10

United States District Court
Northern District of California

11

UBH‘s assertion that the classes here are not ascertainable. In that case, the plaintiffs are

12

challenging a policy by Blue Shield of California of excluding coverage of residential treatment

13

for mental health conditions, arguing that it violates California‘s Mental Health Parity Act. 305

14

F.R.D. 115, 118-19 (N.D. Cal. 2014).20 The plaintiffs sought to certify a class that included

15

―beneficiaries who received residential treatment for mental health and behavior disorders, whose

16

requests were denied by Blue Shield of California based on a policy exclusion for residential

17

treatment, and whose health insurance was governed by [ERISA]‖ and the beneficiaries‘ parents to

18

the extent they were financially responsible for the denied treatment. Id. at 123. The court found

19

that the class proposed by the plaintiffs was not ascertainable because ―individualized analysis of

20

all submitted claims‖ would be required to determine class membership. Id. at 125. The evidence

21

in that case differed, however, from the evidence here. In addition to the fact that the online

22

records of the health insurance administrator did not have a field that identified plans that were

23

subject to ERISA (as is also the case here), Blue Shield also introduced evidence that there was no

24

code or group of codes that was used by residential treatment service providers that would allow

25

claims from such providers to be easily be distinguished from claims submitted by other types of

26
27
28

20

An appeal of the district court‘s denial of the plaintiff‘s motion for class certification is currently
pending before the Ninth Circuit.
37

1

providers. Id. at 123. As a consequence, even individualized review of the member records would

2

not be sufficient to determine class membership. Nor was the court persuaded that the plaintiffs‘

3

proposed method of identifying residential service providers was workable; the plaintiffs proposed

4

that residential service providers could be identified by searching for providers with residential

5

treatment licenses but Blue Shield presented evidence that this approach would not work because

6

Blue Shield did not contract with out-of-state providers and California residential service

7

providers are not required to obtain a specific license. Id.

8
9

Here, in contrast to Daniel F., class membership is conditioned on denial of benefits under
guidelines that must be cited when they are the basis of the denial, and that information is stored in
UBH‘s electronic databases in the member records. Even assuming each member record would

11
United States District Court
Northern District of California

10

have to be reviewed to ascertain class membership – admittedly a burdensome task –

12

determination of class membership would not entail the type of individualized analysis that would

13

have been required in Daniel F. because the member records in this case (unlike in Daniel F.)

14

contain the required information to determine class membership.

15
16
17
18
19

For these reasons, the Court concludes that the classes proposed by Plaintiffs are
ascertainable.
E.

Rule 23(b)
1. Rule 23(b)(1)(A)
a. Contentions of the Parties

20

Plaintiffs contend certification of the proposed classes is appropriate under Rule

21

23(b)(1)(A) because all of the class members challenge the same Guidelines, which purportedly

22

capture the generally accepted standards that are a precondition for coverage under all of their

23

insurance plans. Motion at 20. Because UBH owes the same obligation to all class members,

24

namely, to provide coverage consistent with generally accepted standards, there is a possibility of

25

inconsistent outcomes if the classes are not certified, Plaintiffs contend. Id. (citing Amchem Prod.,

26

Inc. v. Windsor, 521 U.S. 591, 614 (1997) for the proposition that ―Rule 23(b)(1)(A) takes in cases

27

where the party is obliged by law to treat the members of the class alike‖). Plaintiffs assert that

28

certification of ERISA class actions under Rule 23(b)(1) has been found by courts to be
38

1

particularly appropriate ―because ERISA plan beneficiaries are all owed the same fiduciary

2

duties.‖ Id. at 21 (citing Kanawi v. Bechtel Corp., 254 F.R.D. 102, 111 (N.D. Cal. 2008); Z.D. v.

3

Grp. Health Coop., No C-11-1119 RSL, 2012 WL 1977962, at *7 (W.D. Wash. June 1, 2012)).
UBH agrees with Plaintiffs that under Amchem, certification under Rule 23(b)(1) is

4
5

appropriate where a party is obligated to treat all class members alike but contends it does not

6

apply here because UBH‘s obligations to the putative class members differ depending on their

7

insurance plan. Opposition at 24 (citing In re Wellpoint, 2014 WL 6888549, at *20; Pipefitters

8

Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 633 (6th Cir. 2011)).

9

UBH argues further that a class cannot be certified under Rule 23(b)(1) unless monetary relief
sought by the class is ―incidental‖ to the class members‘ claims. Id. at 25 (citing Wal-Mart Stores,

11
United States District Court
Northern District of California

10

Inc. v. Dukes, 564 U.S. 338, 360 (2011); Zinser, 253 F.3d at 1195; Daskalea v. Wash. Humane

12

Soc., 275 F.R.D. 346, 364 (D.D.C. 2011); In re First Am. Corp. ERISA Litig., 258 F.R.D. 610, 622

13

(C.D. Cal. 2009); Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 541 (N.D. Cal. 2012)).

14

UBH argues that the monetary relief sought in this case is not incidental to Plaintiffs‘ claims. Id.

15

UBH points to Plaintiffs‘ allegations in the Complaints that they spent significant amounts of

16

money paying for treatment for which UBH denied coverage and argue that they are ―suing to

17

recover that money,‖ citing the deposition testimony of ―several‖ of the Named Plaintiffs that it

18

contends reflects that recovery of the cost of the treatment is their ―primary (if not only) interest in

19

this case.‖ Id. at 26 & n. 21 (listing deposition testimony). The fact that some of the named

20

Plaintiffs are no longer members of insurance plans administered by UBH and therefore do not

21

have standing to seek injunctive relief further undermines Plaintiffs‘ argument that the monetary

22

relief they seek is incidental to their request for declaratory and injunctive relief, UBH argues. Id.

23

at 25 (citing to deposition testimony of Named Plaintiffs David Alexander and David and Natasha

24

Wit).

25

In their Reply brief, Plaintiffs reject UBH‘s reliance on variations among class members‘

26

plans for the same reasons they argue these differences do not defeat commonality, namely, that

27

they are not material to Plaintiffs‘ claims and therefore are not outcome determinative, in contrast

28

with the cases cited by UBH, such as In re Wellpoint, Lipstein, and Pipefitters Local 636
39

Insurance Fund. Reply at 14. Plaintiffs also reject UBH‘s assertion that their request for

2

monetary relief is not incidental to their request for declaratory and injunctive relief. Id. at 15-16.

3

First, they argue that all of the cases cited by UBH are distinguishable because in them the

4

plaintiffs asserted direct claims for monetary damages whereas Plaintiffs here do not ask the Court

5

to adjudicate any individualized claims for damages. Id. at 15. Nor are Plaintiffs‘ claims

6

converted to claims for money damages because the reprocessing of their claims might result in

7

the payment of benefits to some class members, Plaintiffs contend. Id. at 16 (citing Hart v.

8

Colvin, 310 F.R.D. 427 (N.D. Cal. 2015)). This is true even for the Named Plaintiffs who are no

9

longer members of UBH plans, according to Plaintiffs, regardless of whether they may receive

10

benefit payments after their claims are reprocessed. Id. at 16 n. 21 (citing Johnson v. Meriter

11
United States District Court
Northern District of California

1

Health Servs. Emp. Ret. Plan, 702 F.3d 364, 369 (7th Cir. 2012)).

12

Finally, Plaintiffs contend the surcharge they request ―cannot be considered anything but

13

incidental,‖ arguing that the class only seeks disgorgement by UBH of the ―unjust benefit it

14

received due to its inequitable conduct.‖ Id. (citing Skinner v. Northrop Gruman Ret. Plan B, 673

15

F.3d 1162, 1167 (9th Cir. 2012)). As discussed above, Plaintiffs also clarify that they do not seek

16

to use the class members‘ out-of-pocket payments for denied treatment as a measure of the

17

surcharge. Id. n. 16.

18
19

b. Discussion
As noted above, Rule 23(b)(1)(A) allows a class to be certified where ―prosecuting

20

separate actions by or against individual class members would create a risk of . . . inconsistent or

21

varying adjudications with respect to individual class members that would establish incompatible

22

standards of conduct for the party opposing the class[.]‖ As Judge Breyer noted in Kanawi v.

23

Bechtel Corp., ―[m]ost ERISA class action cases are certified under Rule 23(b)(1).‖ 254 F.R.D. at

24

111. Certification under Rule 23(b)(1) is particularly appropriate in cases involving ERISA

25

fiduciaries who must apply uniform standards to a large number of beneficiaries. See Z.D. ex rel.

26

J.D. v. Grp. Health Co-op., No. C11-1119RSL, 2012 WL 1977962, at *7 (W.D. Wash. June 1,

27

2012)(stating that ―[t]he Court can envision few better scenarios for certification under (b)(1)(A)

28

or (b)(1)(B)‖ than claims that an ERISA fiduciary‘s internal policy or practice was illegal); see
40

1

also Douglin v. GreatBanc Trust Co., 115 F. Supp. 3d 404, 412 (S.D.N.Y. 2015) (―The Supreme

2

Court has observed that actions for breach of fiduciary duties are ‗classic examples‘ of Rule

3

23(b)(1) cases, . . . and courts in this Circuit have indeed determined that claims for breach of

4

fiduciary duty brought under ERISA, 29 U.S.C. §§ 1132(a)(2) . . . are well suited to Rule

5

23(b)(1).‖).

6

Here, as to the Guideline Classes, Plaintiffs have demonstrated that all class members‘
plans require as one condition of coverage that the treatment at issue must be consistent with

8

generally accepted standards of care and that UBH Guidelines are intended to embody those

9

standards. Thus, regardless of any differences with respect to other aspects of the class members‘

10

insurance plans, this common requirement of all of the plans means that multiple challenges to the

11
United States District Court
Northern District of California

7

Guidelines by putative class members could lead to inconsistent results. Similarly, as to the Wit

12

State Mandate Class, UBH‘s Guidelines purportedly embody the standards that must be followed

13

under state law as to all members whose claims fall under the laws of the relevant states. As a

14

consequence, challenges to the Guidelines by multiple class members could subject UBH to

15

inconsistent legal obligations with respect to the use of its Guidelines, making certification under

16

Rule 23(b)(1) appropriate.

17

The Court is not persuaded by UBH‘s assertion that the relief sought by Plaintiffs involves

18

more than incidental monetary relief and therefore precludes certification under Rule 23(b)(1).

19

The rule that classes may not be certified under Rule 23(b)(1) or (2) if they seek anything more

20

than incidental monetary relief is grounded in the history and purpose of those subsections. In

21

Wal-Mart v. Dukes, the Supreme Court explained that ―[c]lasses certified under [Rule 23(b)(1) and

22

(b)(2)] share the most traditional justifications for class treatment—that individual adjudications

23

would be impossible or unworkable, as in a (b)(1) class, or that the relief sought must perforce

24

affect the entire class at once, as in a (b)(2) class.‖ 564 U.S. at 361-62. Certification under these

25

sections is not appropriate ―when each individual class member would be entitled to a different

26

injunction or declaratory judgment against the defendant‖ or ―an individualized award of monetary

27

damages.‖ Id. at 360-61. Nor do these types of classes offer the procedural protections of notice

28

or an opportunity to opt out. Id. Whereas this has generally been found to be acceptable where ―a
41

1

class seeks an indivisible injunction benefitting all its members at once,‖ where ―a class action [is]

2

predominantly for money damages [the Court has] held that absence of notice and opt-out violates

3

due process.‖ Id. at 362. Consequently, classes whose claims will require individualized inquiries

4

as to money damages ―belong in Rule23(b)(3),‖ id., which carries the procedural protections of

5

notice and an opportunity to opt out.
UBH makes much of the fact that Named Plaintiffs allege they incurred significant out-of-

6
7

pocket expenses in connection with the treatment that UBH declined to cover and that many of

8

them have testified that they hope to be reimbursed for those expenses as a result of this lawsuit.

9

In essence, it equates a request for an injunction requiring that it reprocess the denied claims under
new Guidelines with a request for an award of money damages to compensate the class members

11
United States District Court
Northern District of California

10

for the cost of the treatment for which UBH denied coverage. These two remedies are not

12

equivalent, however. What is of particular significance is that even if Plaintiffs prevail on their

13

request for an injunction requiring that all claims decided under the allegedly faulty Guidelines be

14

reprocessed, the Court will not be required to address individualized claims for damages.

15

Consequently, the absence of notice and an opportunity to opt out of the classes will not raise Due

16

Process concerns and the reasons for precluding certification under (b)(1) and (b)(2) where

17

individualized inquiries as to money damages are required do not apply. The mere possibility that

18

some class members may recover from UBH some of the money they spent on treatment as a

19

result of the reprocessing of their claims under new Guidelines does not mean that their claims are

20

―predominantly for money damages‖ for the purposes of Rule 23(b)(1) or 23(b)(2). See Hart v.

21

Colvin, 310 F.R.D. 427, 439 (N.D. Cal. 2015) (Tigar, J.) (holding that proposed class of social

22

security disability claimants whose claims had been denied and whose consultative examinations

23

had been conducted by a doctor who was later disqualified from conducting such examinations

24

could be certified under Rule 23(b)(2), even though the plaintiffs sought an injunction ordering

25

that all of their claims be reprocessed, based in part on conclusion that ―[p]laintiffs do not seek

26

monetary damages or individual disability determinations‖).21

27
21

28

UBH‘s reliance on the fact that Alexander and the Wits are no longer members of plans
42

1

The Court further notes that while Plaintiffs‘ attempt to recoup these expenses in the guise
of a ―surcharge‖ might raise the kind of individualized issues as to class members‘ monetary

3

losses that would preclude certification under Rule 23(b)(1) or (b)(2), Plaintiffs have now

4

stipulated that if the proposed classes are certified they will not pursue that theory as to their

5

request for award of a surcharge. With that modification, the surcharge that Plaintiffs request is

6

based only on the amount UBH was paid to process the claims that were denied. During the

7

sealed portion of the motion hearing, the parties made representations concerning the approximate

8

amount of money UBH is paid to administer the class members‘ claims; Plaintiffs‘ counsel also

9

offered an estimate of the total amount of the class members‘ out-of-pocket costs for denied

10

treatment, the reasonableness of which UBH did not challenge. The latter estimate must be

11
United States District Court
Northern District of California

2

considered in the context of the relief requested in this action, that is, with the understanding that it

12

is the maximum possible amount the class members might recover if their claims are reprocessed

13

under the new Guidelines and all of them are awarded benefits under those Guidelines. Even with

14

this understanding, though, it is significant that the surcharge Plaintiffs seek is miniscule in

15

comparison with the amount Plaintiffs may be able to recover through the reprocessing of their

16

denied claims. Under these circumstances, the Court finds that the surcharge is incidental to the

17

injunctive and declaratory relief that Plaintiffs seek, namely, the issuance of new Guidelines and

18

the reprocessing of their claims.

19

For the reasons stated above, the Court concludes that Plaintiffs have satisfied the

20

requirements of Rule 23(b)(1).

21

2. Rule 23(b)(2)

22
23
24

a. Contentions of the Parties
Plaintiffs argue that the proposed classes may also be certified under Rule 23(b)(2), which
permits certification where there is a ―‗pattern of alleged violations [that] can be remedied for all

25
26
27
28

administered by ERISA is also misplaced; these Named Plaintiffs, like the rest of the class
members, will be entitled to have their claims reprocessed by UBH if they prevail in this action
even if they likely will not submit any further claims for consideration by UBH. This remedy is
not the same as money damages and does not mean that their claims are predominantly for money
damages for the reasons discussed above.
43

putative class members by the same form of injunctive relief.‘‖ Motion at 21 (quoting Unknown

2

Parties v. Johnson, No. 15-cv-00250 TUC DCB, 2016 WL 267009, at *9 (D. Ariz. Jan. 11, 2016);

3

Lee v. Pep Boys – Manny Moe & Jack of Cal., No. 12-cv-05064 JSC, 2015 WL 9480475, at *12

4

(N.D. Cal. Dec. 23, 2015)). Quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998),

5

Plaintiffs point out that predominance is not required in order to certify a class under this section

6

and that ―[e]ven if some class members have not been injured by the challenged practice, a class

7

may nevertheless be appropriate‖ under Rule 23(b)(2). Id. Plaintiffs contend the classes that they

8

propose here are ―paradigmatic examples of (b)(2) classes because they primarily ‗seek uniform

9

injunctive [and] declaratory relief from policies or practices that are generally applicable to the

10

class[es] as a whole.‘‖ Id. (quoting Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014)). The

11
United States District Court
Northern District of California

1

common course of conduct that has affected all class members in the same way, according to

12

Plaintiffs, is the development and application to all class members of faulty Guidelines, in

13

violation of the class members‘ insurance plans and ERISA. Id. at 22 (citing Huynh v. Harasz,

14

Case No. 14-CV-02367-LHK, 2015 WL 7015567, at *10 (N.D. Cal. Nov. 12, 2015); A.F. v.

15

Providence Health Plan, 300 F.R.D. 474, 484-85 (D. Or. 2013); Berger v. Xerox Corp. Ret.

16

Income Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003)). They further assert that ―[t]he

17

injunctive and declaratory relief sought here – which aims to stop UBH from using its overly-

18

restrictive criteria and to require UBH to use appropriate criteria both going forward and in

19

reprocessing the claims it arbitrarily and capriciously denied – would offer all putative Class

20

members uniform and complete relief from the harm caused by UBH‘s common course of

21

conduct.‖ Id.

22

UBH argues that certification under Rule 23(b)(2), as under (b)(1), is inappropriate

23

because Plaintiffs seek more than incidental monetary relief. Opposition at 26. In addition, it

24

argues, the relief requested by Plaintiffs does not meet the requirements under Rule 23(b)(2) that

25

the relief sought by the class must be both ―final‖ and ―appropriate.‖ Id. at 27. With respect to

26

the former, UBH argues that the injunction Plaintiffs request does not provide ―final‖ relief

27

because ―Plaintiffs do not . . . contend that their new, unspecified guidelines will result in different

28

coverage determinations for all class members, nor is there any reason to believe that they will.‖
44

1

Id. (citing Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011)). UBH

2

argues that the ―reprocessing‖ injunction requested by Plaintiffs raises a host of issues, such as

3

what happens in situations in which class members never submitted formal claims for money

4

benefits and how UBH will reprocess claims submitted years ago when the processing of claims

5

turns on ―real-time clinical information and medical needs that change over time.‖ Id. at 27-28.

6

UBH also raises the possibility that claimants may want to appeal the determinations that result

7

from the reprocessing of claims, thus ―set[ting] the stage for further individual conflicts about

8

whether any particular denial of benefits was permissible under the new guidelines.‖ Id. at 28.

9

UBH also argues that the requested injunctive relief is not ―appropriate‖ because it violates
Rule 65(d) of the Federal Rules of Civil Procedure, which ―‗mandates that every injunction ―state

11
United States District Court
Northern District of California

10

its terms specifically‖ and ―describe in reasonable detail‖ the ―act or acts restrained or required‖ so

12

that the enjoined party is fairly apprised of his responsibilities and the court can objectively assess

13

compliance.‘‖ Id. at 28-29 (quoting Kartman, 634 F.3d at 893) (quoting Fed. R. Civ. P. 65(d)(1)).

14

According to UBH, an injunction that requires the defendant ―to create and then apply

15

hypothetical and unspecified guidelines‖ violates Rule 65(d). Id. at 29 (emphasis in UBH‘s brief)

16

(citing Thomas v. Cnty. of LA, 978 F.2d 504, 509 (9th Cir. 1992)).

17

Plaintiffs argue that certification under Rule 23(b)(2) is proper because UBH has

18

―breached its fiduciary duties and acted arbitrarily and capriciously in exactly the same way with

19

respect to all Class members.‖ Reply at 17. They further contend the injunctive relief they

20

request is both ―final‖ and ―appropriate.‖ Id. at 17-19. With respect to finality, Plaintiffs contend

21

the Kartman case on which UBH relies is distinguishable because in that case there was no duty to

22

use a particular method to evaluate the claims of the putative class members; here, in contrast,

23

―UBH had a duty under ERISA and the plans to ensure that its Guidelines did what they claimed

24

to do – capture generally accepted standards.‖ Id. at 17. Thus, while the claim in Kartman was

25

found to be non-actionable, the claims here can give rise to liability on the part of the class

26

members. Id. As a consequence, Plaintiffs contend, an injunction requiring reprocessing is a final

27

remedy here even though it was not a final remedy in Kartman. Id. at 17-18.

28

Further, Plaintiffs argue, the fact that the reprocessing of the class members‘ claims will
45

1

not result in an award of benefits for all class members does not mean that the remedy is not final.

2

Id. at 18. Plaintiffs point to Hart v. Colvin, in which Judge Tigar certified a class under Rule

3

23(b)(2) where the injunctive relief requested would require reprocessing of denied disability

4

claims with respect to all individuals whose consultative examinations had been conducted by a

5

subsequently disqualified doctor. Id. at 429. In certifying the class, Plaintiffs note, the court

6

acknowledged that not all class members would ultimately be awarded benefits but that this fact

7

did not preclude certification because ―‗the alleged wrong . . . is one of process, not outcome.‘‖

8

Id. (quoting Hart, 310 F.R.D. at 438-39).

9

Plaintiffs also contend UBH‘s reliance on Rule 65(d) to show that the injunction they seek
is not ―appropriate‖ is misplaced. Id. at 19. They argue that they are not required to ―come

11
United States District Court
Northern District of California

10

forward with an injunction that satisfie[s] Rule 65(d) with exacting precision at the class

12

certification stage.‖ Id. (citing Parsons v. Ryan, 289 F.R.D. 513, 524 (D. Ariz. 2013), aff’d 754

13

F.3d 657 (9th Cir. 2014)).

14

distinguishable. Id. As to Thomas, Plaintiffs argue that the court was ruling on a specific

15

injunction and made clear that its holding was limited to the facts before it; nor did it rule out the

16

possibility that it would grant a narrower injunction if the plaintiffs ―more fully‖ developed the

17

record. Id. (citing Thomas, 978 F.2d at 508). Consequently, Thomas has no bearing on this case,

18

Plaintiffs assert. Id. With respect to Kartman, the court found that the insurer owed no ―contract

19

or tort-based duty . . . to use a particular standard,‖ in contrast to the situation here. Id. (quoting

20

634 F.3d at 886). As a result, Plaintiffs contend, the court‘s conclusion in that case regarding the

21

requested injunctive relief is not relevant here. Id.

22

b. Discussion

23

They also argue that both Thomas and Kartman, cited by UBH, are

Rule 23(b)(2) allows a class action to be maintained where ―the party opposing the class

24

has acted or refused to act on grounds that apply generally to the class, so that final injunctive

25

relief or corresponding declaratory relief is appropriate respecting the class as a whole.‖ Fed. R.

26

Civ. P. 23(b)(2). In Parsons v. Ryan, for example, the Ninth Circuit held that inmates of Arizona

27

prison facilities who were ―allegedly exposed to a substantial risk of serious harm by a specified

28

set of centralized [Arizona Department of Corrections] policies and practices of uniform and
46

1

statewide application‖ could proceed as a class under Rule 23(b)(2). 754 F.3d at 688. The court

2

reasoned that even though the challenged policies and practices might not affect every member of

3

the proposed class in exactly the same way, ―they constitute[d] shared grounds for all inmates in

4

the proposed class . . . .‖ Id. Therefore, the court concluded, ―every inmate in the proposed class

5

is allegedly suffering the same (or at least a similar) injury and that injury can be alleviated for

6

every class member by uniform changes in statewide ADC policy and practice.‖ Id.

7

Similarly, certification under Rule 23(b)(2) is appropriate here because all of the class

8

members have been subjected to the same Guidelines which, according to Plaintiffs, are more

9

restrictive than the generally accepted standards that are a precondition for coverage under all of
their plans (for the Guideline Classes) or the relevant state law mandates (for the Wit State

11
United States District Court
Northern District of California

10

Mandate Class). While application of the Guidelines may not have had an identical impact on

12

every member of the proposed classes, the Guidelines constitute ―shared grounds‖ for all of the

13

members of the proposed classes to proceed on a collective basis. See id. Moreover, the

14

Plaintiffs‘ injury can be remedied for all class members by requiring UBH to modify its

15

Guidelines and reprocess claims that were denied under the allegedly defective guidelines.

16

The Court is not persuaded by UBH‘s argument that the injunctive relief requested here is

17

not ―final‖ for the purposes of Rule 23(b)(2) because the outcome of the reprocessing of claims is

18

uncertain. The Ninth Circuit has held that ―remand for reevaluation of the merits of a claim is the

19

correct course to follow when an ERISA plan administrator, with discretion to apply a plan, has

20

misconstrued the Plan and applied a wrong standard to a benefits determination.‖ Saffle v. Sierra

21

Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir.

22

1996). A similar remedy was approved in the class context in Bowen v. City of New York, 476

23

U.S. 467 (1986). In that case, the district court certified a class of individuals who alleged that the

24

Social Security Administration had applied an unlawful policy under which it presumed ―that a

25

failure to meet or equal [certain criteria] was tantamount to a finding of ability to do at least

26

unskilled work; that the presumption led to routine denials of benefits to eligible claimants; and

27

that such a presumption was arbitrary, capricious, and violative of the Constitution, the Social

28

Security Act, and the applicable regulations.‖ 476 U.S. at 473. The plaintiffs prevailed and ―[a]s
47

1

a remedy, the District Court ordered the Secretary to reopen the decisions denying or terminating

2

benefits, and to redetermine eligibility.‖ Id. at 476. The Second Circuit affirmed and while the

3

scope of the class was challenged on appeal to the Supreme Court, the remedy was not. Id. In

4

Hart v. Colvin, the court relied on Bowen in certifying a class under Rule 23(b)(2) that sought to

5

have the class members‘ benefits claims reprocessed where their consultative examinations had

6

been conducted by a subsequently-disqualified doctors and their claims had been denied. 310

7

F.R.D. 427, 434 (N.D. Cal. 2015)). Based on these cases, the Court concludes that where a

8

defendant has relied on an unlawful policy to determine eligibility for benefits, ordering the

9

defendant to redetermine the plaintiffs‘ eligibility without the taint of the unlawful policy is a

10

United States District Court
Northern District of California

11

―final‖ remedy for the purposes of Rule 65(d).
The Seventh Circuit‘s decision in Kartman does not support a contrary result. In

12

Kartman, the plaintiffs were homeowners who held insurance policies issued by the defendant,

13

State Farm Fire and Casualty Company (―State Farm‖). 634 F.3d at 886. After a severe hail

14

storm, thousands of policyholders filed claims with State Farm, and several who were dissatisfied

15

with the insurance payment they received brought a putative class action alleging breach of

16

contract, bad-faith denial of insurance benefits and unjust enrichment. Id. The plaintiffs sought to

17

certify a damages class under Rule 23(b)(3) and an injunctive relief class under Rule 23(b)(2) to

18

―determine whether State Farm should be required to reinspect policyholders‘ roofs pursuant to a

19

‗uniform and objective standard.‘‖ Id. The district court declined to certify the damages class but

20

certified an injunctive relief class under Rule 23(b)(2). Id. State Farm appealed and the Seventh

21

Circuit concluded that the injunctive relief class should not have been certified. Id. at 887.

22

The Court of Appeals in Kartman concluded that the certification of the injunctive relief

23

class under Rule 23(b)(2) resulted from a ―legal misunderstanding about the nature of the

24

plaintiffs‘ claims.‖ Id. at 888. In particular, the court explained that ―[a]lthough the complaint

25

invokes several legal theories, the plaintiffs have only one cognizable injury – underpayment of

26

their insurance claims for hail damage to their roofs – and prospective injunctive relief is not a

27

remedy for that kind of injury. Id. at 888-889. To obtain certification under Rule 23(b)(2),

28

however, the ―plaintiffs claimed that they suffered two separate injuries – underpayment of their
48

1

hail-damage claims and a violation of a distinct right to have their hail-damaged roofs evaluated

2

under a uniform and objective standard.‖ Id. at 889. According to the Court of Appeals, ―[t]his

3

parsing of remedies gave the plaintiffs a fall-back position on the class-certification question. If

4

they failed to win certification of a damages class under Rule 23(b)(3) based on lack of

5

commonality, they could still argue for an injunction class under Rule 23(b)(2) to adjudicate

6

whether State Farm breached an obligation to use a uniform and objective standard to evaluate

7

hail-damaged roofs.‖ Id.

8

The plaintiff‘s approach ―[ran] into trouble,‖ the Kartman court explained, because ―State

9

Farm had no independent duty – whether sounding in contract or tort – to use a particular method
to evaluate hail-damage claims.‖ Id. at 890. The court found that ―[a]t bottom, the actionable

11
United States District Court
Northern District of California

10

claims in this case are for State Farm‘s alleged underpayment of the plaintiffs‘ hail-damage claims

12

– nothing more, nothing less.‖ Id. at 891. As a result, the court concluded, while ―the insurer‘s

13

use of an ad hoc loss-assessment standard may be evidence that it underpaid in some cases [it] is

14

not an independently actionable wrong.‖ Id. at 891-92 (emphasis added). For this reason, the

15

court held that an injunction would not provide a ―final‖ remedy under Rule 23(b)(2), reasoning

16

that ―[a]n injunction is not a final remedy if it would merely lay an evidentiary foundation for

17

subsequent determinations of liability.‖ Id. at 893.

18

The situation here differs from Kartman in that Plaintiffs are asserting claims to obtain

19

injunctive relief based on an injury that is distinct from the actual denial of benefits and that is

20

cognizable under ERISA, namely, the use of Guidelines that are more restrictive than the plans

21

under which they are insured or the standards mandated by state law in adjudicating their claims.

22

As a result, the conclusion that the injunction in Kartman was not ―final‖ does not apply here. In

23

particular, that conclusion was based on the fact that the failure to apply a ―uniform and objective

24

standard‖ to the assessment of roof damage in Kartman was not a violation of any legal duty and

25

did not give rise liability. Consequently, the requested injunctive relief of reassessing class

26

members‘ roof damage under such a standard was not a remedy for any cognizable claim. That is

27

not the case here.

28

The Court also rejects UBH‘s argument that the injunctive relief sought by Plaintiffs in this
49

1

case does not satisfy Rule 65(d) of the Federal Rules of Civil Procedure because it would require

2

UBH ―to create and then apply hypothetical and unspecified guidelines.‖ Opposition at 29. First,

3

―[P]laintiffs are not ‗required to come forward with an injunction that satisfies Rule 65(d) with

4

exacting precision at the class certification stage.‘‖ Parsons v. Ryan, 289 F.R.D. 513, 524 (D.

5

Ariz. 2013), aff'd, 754 F.3d 657 (9th Cir. 2014). Second, Thomas v. County of Los Angeles, 978

6

F.2d 504 (9th Cir. 1992), cited by UBH, sheds little light on this issue. In that case, the Ninth

7

Circuit struck down a preliminary injunction in a civil rights case based, in part, on the fact that

8

the injunction ―direct[ed] compliance, under penalty of contempt, with all department policies and

9

guidelines for conducting searches and for the use of force‖ without defining ―what the policies
are, or how they can be identified.‖ Id. at 509 (citing Fed.R.Civ.P. 65(d)). While the court found

11
United States District Court
Northern District of California

10

the injunction in that case to be overbroad, however, it acknowledged that it may be permissible to

12

incorporate specific policies into an injunction where there is some description of the specific acts

13

to be restrained. Id. at 511 (citing Davis v. City and County of San Francisco, 890 F.2d 1438 (9th

14

Cir. 1989)). The court further made clear that its holding was ―limited to the record before it and

15

[did] not preclude the grant of narrower preliminary or permanent injunctive relief on the basis of

16

a more fully developed record.‖ Id. at 508. Nothing in Thomas suggests that the injunction

17

requested by Plaintiffs here could not be drafted with sufficient detail to satisfy Rule 65(d) or that

18

Plaintiffs are required to offer the specific language of such an injunction at this stage of the case.

19

UBH‘s reliance on Kartman for the proposition that an injunction is not ―appropriate‖

20

under Rule 65(d) if it merely orders UBH to develop and apply unspecified guidelines is also

21

misplaced. There, the court noted that ordering State Farm to reprocess the plaintiffs‘ claims

22

applying a ―reasonable, uniform and objective standard‖ would ―essentially require the court to

23

write an insurance –adjustment code.‖ 634 F.3d at 893. That case differed from the facts here,

24

however, because there was no ―reasonable, uniform and objective standard‖ in the plaintiffs‘

25

insurance policies, meaning that such a standard would have had to have been created out of

26

whole cloth in order for State Farm to comply with the injunction and the court to enforce it. In

27

contrast, Plaintiffs have pointed to several sets of standards that will provide guidance for UBH in

28

coming up with new Guidelines. Indeed, many of them were the very standards that UBH relied
50

1

upon in creating the original Guidelines, indicating that there is little or no disagreement that these

2

standards reflect generally accepted standards. 22
The Court concludes that Plaintiffs have met the requirements for class certification under

3
4

Rule 23(b)(2).

5

3. Rule 23(b)(3)

6

a. Contentions of the parties

7

Plaintiffs move in the alternative for certification under Rule 23(b)(3) if the Court declines

8

to certify the classes under Rule 23(b)(1) or (b)(2) or finds that Plaintiffs may not seek award of a

9

surcharge under those sections. Motion at 22; Reply at 20. Plaintiffs contend they meet both the
predominance and superiority requirements of Rule 23(b)(3). Motion at 22-24. The

11
United States District Court
Northern District of California

10

predominance requirement is met, they assert, because UBH ―breached its fiduciary duty to all

12

class members in the same way: by developing Guidelines for its use in making coverage

13

determinations that were inconsistent with generally accepted standards of care and contrary to the

14

terms of the Class members‘ plans.‖ Id. at 22. Similarly, they contend, UBH acted in a manner

15

that was arbitrary and capricious – and common to all class members – by applying the Guidelines

16

to class members‘ coverage determinations. Id. at 23. The remedy Plaintiffs seek is also a

17

common remedy, Plaintiffs, assert, which supports a finding of predominance. Id. Plaintiffs argue

18

that the request for a surcharge remedy does not defeat predominance because the surcharge they

19

request does not depend on any particular class members‘ injury and would be determined ―on a

20

class-wide basis on UBH‘s own records.‖ Id.
Plaintiffs argue that the superiority requirement also is met, citing the four factors listed in

21

22

Rule 23(b)(3)(A) – (D). Id. at 24. According to Plaintiffs, ―[e]ach of these factors favor

23

certification‖ because ―there are overriding common issues in this case that allow for a finding of

24
25
26
27
28

22

Plaintiffs state that they ―anticipate that they will submit a proposed injunction after trial, to be
briefed by the parties under Rule 65.‖ They further state that they ―currently expect that, based
upon the presented evidence and the Court‘s findings, the injunction would order UBH to propose
new Guidelines that remedy the specific defects that render the current Guidelines inconsistent
with generally accepted standards of care and would set forth a process for the Court to evaluate
such new Guidelines. Reply at 19 n. 24.
51

1

liability against UBH under ERISA and for the application of a common remedy – injunctive

2

relief to require compliance with UBH‘s fiduciary duties and reprocessing of benefit claims.‖ Id.

3

As a result, they assert, ―certification would best serve the interest of both the individual Class

4

members and judicial economy.‖ Id.

5

Plaintiffs also argue that the class is ascertainable because membership can be determined

6

from objective rather than subjective criteria. Id. In particular, they contend, membership can be

7

ascertained from UBH‘s records because UBH ―maintains an electronic record of each benefit

8

denial it issues, which identifies the level of care for which coverage was sought; whether

9

coverage was sought for mental health or substance use disorder treatment; the date of the denial;
the governing state; and whether the denial was a clinical determination that required the use of

11
United States District Court
Northern District of California

10

clinical criteria.‖ Id. (citing Reynolds Decl., Ex. P at P0016-23).

12

UBH argues that the classes should not be certified under Rule 23(b)(3) because the

13

predominance requirement is not satisfied, pointing to the individualized inquiries that it contends

14

also defeat commonality. Opposition at 29-30. It also argues that the surcharge requested by

15

Plaintiffs involves individualized inquiries to the extent it is based on class members‘ out-of-

16

pocket costs for treatment. Id. at 30. UBH points to the deposition testimony of Named Plaintiffs

17

that they are seeking to recover the cost of treatment, arguing that the amounts vary widely among

18

class members and that in order to obtain such a surcharge Plaintiffs would have to present

19

individualized proof of harm and causation. Id. at 31 (citing Gabriel v. Alaska Elec. Pension

20

Fund, 773 F.3d 945, 957-58 (9th Cir. 2014)). Not only will there be individualized issues as to the

21

amount of damages, UBH argues, but there will also be individualized issues with respect to the

22

fact of damages. Id. (citing In re Live Concert Antitrust Litig., 247 F.R.D. 98, 135 (C.D. Cal.

23

2007)). Specifically, UBH argues that there will be individualized issues because denial of

24

coverage at the authorization stage does not necessarily result in the patient paying out-of-pocket

25

for treatment because a patient may have successfully appealed an adverse benefits determination

26

or received coverage for an alternative treatment. Id. In addition, UBH points out that in the case

27

of one Named Plaintiff there is evidence that the provider did not charge for the treatment that was

28

provided after UBH denied coverage. Id. Finally, UBH argues that the surcharge precludes
52

1

certification under Rule 23(b)(3) because Plaintiffs have not offered ―any model or explanation for

2

how the surcharge would be calculated or allocated among class members.‖ Id. at 31-32. Without

3

proof that damages are capable of measurement on a classwide basis, UBH asserts, a class cannot

4

be certified under Rule 23(b)(3). Id. at 32 (citing Comcast Corp. v. Behrend, 133 S. Ct. 1426,

5

1432-33 (2013)).

6

Plaintiffs reject UBH‘s argument that the predominance requirement is not met because
their claims involve individualized inquiries related to the requested surcharge. Reply at 20. They

8

contend UBH‘s argument is based solely on Plaintiffs‘ theory based on entitlement to out-of-

9

pocket costs but state that they ―do not seek certification to pursue such a surcharge.‖ Id. As to the

10

theory upon which they do seek a surcharge, their entitlement to the money that UBH receives for

11
United States District Court
Northern District of California

7

administering class claims, Plaintiffs argue that there are no individualized issues. Id. Plaintiffs

12

emphasize that the harm on which the requested surcharge is based is the defective process used in

13

making coverage determinations, which is a cognizable injury under ERISA and is the same for all

14

class members. Id. at 20 n. 27 (citing Cigna Corp. v. Amara, 563 U.S. 421 (2011)). Moreover,

15

they assert, the amount of the surcharge is capable of being measured on a class-wide basis under

16

Comcast because the surcharge can be calculated simply by multiplying the amount UBH is paid

17

to administer class members‘ claims by the number of individuals in the class. Id. n. 28. Plaintiffs

18

also point to evidence that UBH is paid on a per-member basis for administering claims. Id. n. 28

19

(citing Reynolds Reply Decl., Ex. X at UBHWIT0254826-37 (reflecting per member/ per month

20

rates for UBH‘s services to United Healthcare Insurance Company)).

21

b. Discussion

22

As discussed above, Rule 23(b)(3) allows a class action to be maintained where ―questions

23

of law or fact common to class members predominate over any questions affecting only individual

24

members‖ and ―a class action is superior to other available methods for fairly and efficiently

25

adjudicating the controversy.‖ The Court finds that the predominance requirement is satisfied for

26

the same reasons the commonality requirement is met, namely, that the case stands or falls based

27

on the question of whether the use of UBH‘s Guidelines to adjudicate the class members‘ claims

28

constituted a breach of fiduciary duty or was arbitrary and capricious. Nor is the Court persuaded
53

1

by UBH‘s argument that the surcharge sought by Plaintiffs raises individualized issues that

2

preclude certification under Rule 23(b)(3). UBH relies almost exclusively on Plaintiffs‘ theory

3

that the surcharge should account for their out-of-pocket costs of treatment, but Plaintiffs have

4

now dropped that theory. Moreover, to the extent Plaintiffs seek a surcharge that reflects the

5

amount of money paid to UBH to administer the Class members‘ claims, Plaintiffs have offered

6

evidence showing that that amount can be determined without the need to conduct a class-

7

member-by-class-member inquiry.

8

The Court also finds that a ―class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.‖ Fed. R. Civ. P. 23(b)(3). The factors considered in

10

making this determination include ―(A) the class members‘ interests in individually controlling the

11
United States District Court
Northern District of California

9

prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning

12

the controversy already begun by or against class members; (C) the desirability or undesirability

13

of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties

14

in managing a class action.‖ Fed. R. Civ. P. 23(b)(3)(A) – (D). In addition, the Ninth Circuit has

15

explained that ―[w]here recovery on an individual basis would be dwarfed by the cost of litigating

16

on an individual basis, this factor weighs in favor of class certification.‖ Wolin v. Jaguar Land

17

Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (citation omitted). An overriding

18

concern of the ―superiority‖ inquiry is judicial economy which, in turn, is related to the question

19

of commonality. Id.

20

Here, it is in the interest of judicial economy to adjudicate the class members‘ challenge to

21

the Guidelines, which is the main issue as to all of the putative class members, in a single forum

22

on a classwide basis. While the amounts spent on treatment by putative class members are not

23

insignificant, they pale in comparison to the expense of bringing a legal challenge to UBH‘s

24

Guidelines in an individual legal action. In any event, to the extent that the Wit and Alexander

25

actions do not require the Court to adjudicate the individualized issues relating to the class

26

members‘ coverage but leave those questions to be addressed in the course of the reprocessing of

27

claims and any subsequent appeals, the remedy requested in this case will not directly impact the

28

class members‘ ability to recover those amounts. For the same reason, the interests of individual
54

1

class members in controlling the litigation does not outweigh the advantages of a class action in

2

these related cases.
In sum, the Court concludes that Plaintiffs have met the requirements for class certification

3
4

under Rule 23(b)(3).

5

4. Rule 23(c)(4)
Plaintiffs ask the Court to consider certifying ―issues‖ classes under Rule 23(c)(4) if it

6
7

finds that the proposed classes may not be certified under Rule 23(b). Because the Court

8

concludes that Plaintiffs have met the requirements for class certification under Rule 23(b) it does

9

not need to reach this issue.

10

IV.

CONCLUSION

United States District Court
Northern District of California

11

For the reasons stated above, the Motion is GRANTED.

12

IT IS SO ORDERED.

13
14
15

Dated: September 19, 2016
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

16
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