Craft et al v. Health Care Service Corporation

Filing 167

MOTION by Plaintiffs Elizabeth A. Craft, Jane Doe, Mary Doe, Bryan L. Pautsch for order (Joint Motion to Modify Settlement Class Definition), MOTION by Plaintiffs Elizabeth A. Craft, Jane Doe, Mary Doe, Bryan L. Pautsch for judgment (Attachments: # 1 Exhibit A1 - Proposed Final Order and Judgment - clean, # 2 Exhibit A2 - Proposed Final Order and Judgment - redline)(Moylan, Daniel)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH A. CRAFT; JANE DOE, a minor, by
her next friend and parent, ELIZABETH A.
CRAFT; BRYAN L. PAUTSCH; MARY DOE, a
minor, by her next friend and parent, BRYAN L.
PAUTSCH; on their own behalf and on behalf of all
others similarly situated,
Plaintiffs,
v.
HEALTH CARE SERVICE CORPORATION,
Defendant.

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) Case No. 14-CV-5853
) Judge Virginia Kendall
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JOINT MOTION TO MODIFY SETTLEMENT CLASS DEFINITION
EXPEDITED RELIEF REQUESTED
Through their respective counsel, Plaintiffs Elizabeth A. Craft, Jane Doe, Bryan L.
Pautsch and Mary Doe (“Plaintiffs”), on behalf of themselves and the putative Settlement Class,1
and Defendant Health Care Service Corporation, a Mutual Legal Reserve Company (“HCSC”)
(collectively, the “Parties”), respectfully submit this joint motion to modify the Settlement Class
definition contained in the attached Final Order and Judgment Approving Settlement and
Dismissing Action with Prejudice.
In support of their joint request, the Parties state as follows:
1.

On September 20, 2017, the Court entered an Order (ECF No. 153) preliminarily

certifying the Settlement Class and approving the Settlement Agreement (ECF No. 148-01).

1

Capitalized terms not otherwise defined in this joint motion have the same meaning as in the Parties’ Settlement
Agreement, ECF No. 148-01.

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2.

The Settlement Agreement contains a procedure for one or more individuals to be

added to the Settlement Class if, at any time before entry of the Final Approval Order, the Parties
confirm that such individuals otherwise met the Settlement Class definition but were not
included in the Request Data produced by HCSC.2 See ECF No. 148-01, at 17-18 ¶ 19.
3.

Shortly before the Fairness Hearing on January 22, 2018, Class Counsel was

contacted by an individual who did not appear in the Request Data, who believed that he and his
daughter met the Settlement Class definition. After reviewing documentation submitted by that
individual and researching the issue, the Parties’ respective counsel verified that the individual
and his daughter meet the Settlement Class definition, see ECF No. 153 ¶ 5, and added them to
the Settlement Class pursuant to the approved procedure in ¶ 19 of the Settlement Agreement.
4.

At the Fairness Hearing on January 22, 2018, counsel advised the Court of this

development based on then-available information, and undertook to research the issue further in
order to determine whether to recommend additional actions to the Court. Based upon these
representations, the Court continued Plaintiffs’ Motion for Final Order and Judgment Approving
Settlement and Dismissing Action with Prejudice until February 26, 2018. ECF No. 166.
5.

The Parties, having now completed their review, jointly propose a modification to

the Settlement Class definition. In particular, the Parties recommend modifying the Settlement
Class definition to encompass only those individuals identified in the updated Request Data.
Due to the sensitive nature of that data, the Parties propose submitting a final list of Settlement
Class members, excluding opt outs, to the Court under seal promptly following entry of the
modified Final Approval Order, attached at Exhibit A1.

2

Pursuant to the Notice Plan, the Settlement Administrator included the Settlement Agreement on a website
accessible to the Settlement Class Members as well as members of the general public. ECF No. 148-05.

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6.

The proposed modification to the Settlement Class definition ensures that persons

who were not identified as potential Settlement Class Members in the updated Request Data will
not be deemed to have released any claims through this Settlement.
7.

The proposed modification does not affect the rights of any existing Settlement

Class Members, who stand in the same position as when they received the Notice. Therefore, the
Court may modify the class definition under its authority in Fed. R. Civ. P. 23(c) without
affecting class members’ rights, implicating due process considerations, and/or requiring a
supplemental notice. See generally Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies
class certification may be altered or amended before final judgment.”); Fed. R. Civ. P. 23(c)
2003 Advisory Committee Notes (discussing the court’s ability to alter or amend the class
definition); Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)(“The district court
can modify or amend its class-certification determination at any time before final judgment in
response to changing circumstances in the case.”) (citing Fed. R. Civ. P. 23(c)(1)(C)); In re
Initial Public Offering Sec. Litig., No. 21 MC 92 (SAS), 2011 WL 2732563 at *3 (S.D.N.Y. July
8, 2011) (holding that “the revised class definition satisfied Rule 23 certification requirements”
for purposes of a class settlement).
8.

On January 5, 2018, Plaintiffs filed a Proposed Final Order together with their

final approval papers. ECF No. 163-3. A revision to the Proposed Final Order is attached in
redline and clean versions that incorporate the recommended modification to the Settlement
Class definition. See Exhibit A1 (clean) & A2 (redline) at ¶ 10.
9.

The Parties jointly request that this Court enter the Final Order and Judgment in

the form attached as Exhibit A1. The Parties will be prepared to file under seal a list of all
Settlement Class Members promptly after entry of the Final Order and Judgment.

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10.

If the Court is inclined to enter the Final Order and Judgment in Exhibit A1

without further submissions from counsel, then Plaintiffs’ pending Motion for Final Order and
Judgment Approving Settlement and Dismissing Action with Prejudice may be removed from
the calendar for February 26, 2018.

Dated: February 20, 2018

Respectfully submitted,

/s/ Daniel P. Moylan

/s/ Brian P. Kavanaugh

Martin S. Himeles, Jr. (pro hac vice)
Daniel P. Moylan (pro hac vice)
ZUCKERMAN SPAEDER LLP
100 East Pratt St., Ste. 2440
Baltimore, Maryland 21202-1031
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Helen E. Witt, P.C.
Brian P. Kavanaugh
Devon M. Largio
KIRKLAND & ELLIS LLP
300 North LaSalle St.
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

D. Brian Hufford (pro hac vice)
Jason S. Cowart (pro hac vice)
ZUCKERMAN SPAEDER LLP
485 Madison Ave., 10th Floor
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Catie Ventura
KIRKLAND & ELLIS LLP
655 15th St., N.W
Washington, D.C. 20005-5793
Telephone: [phone]
[e-mail]
Counsel for Defendant

Caroline E. Reynolds (pro hac vice)
ZUCKERMAN SPAEDER LLP
1800 M St. NW
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]

Meiram Bendat (pro hac vice)
PSYCH-APPEAL, INC.
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8560 W. Sunset Blvd., Ste. 500
West Hollywood, CA 90069
Tel: [phone], ext. 101
Fax: [phone]
[e-mail]
George F. Galland, Jr.
David Baltmanis
MINER, BARNHILL & GALLAND, P.C.
325 N. LaSalle St., Ste. 350
Chicago, IL 60654
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs and Provisionally
Certified Settlement Class

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