Casey v. Coventry Healthcare of Kansas, Inc.

Filing 129

ORDER Preliminarily Approving Class Action Settlement, Provisionally Certifying a Settlement Class, Approving Proposed Notice, and Scheduling Fairness Hearing. Signed on 5/4/11 by District Judge Greg Kays. (Francis, Alexandra)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MARY CASEY, on behalf of herself and all
others similarly situated,
Plaintiff,
v.
COVENTRY HEALTHCARE OF KANSAS,
INC.,

Case No. 08-0201-CV-W-DGK
ORDER PRELIMINARILY APPROVING
CLASS ACTION SETTLEMENT,
PROVISIONALLY CERTIFYING A
SETTLEMENT CLASS, APPROVING
PROPOSED NOTICE, AND SCHEDULING
FAIRNESS HEARING

Defendant.

Upon review and consideration of the Stipulation of Settlement, and the attachments
thereto, which have been filed with the Court, it is HEREBY ORDERED, ADJUDGED and
DECREED as follows:
1.

The Court has carefully reviewed the Stipulation of Settlement, records, and

proceedings to date in this matter. The definitions in the Stipulation of Settlement are hereby
incorporated as though fully set forth in this Order, and capitalized terms shall have the
meanings attributed to them in the Stipulation of Settlement.
2.

This Order addresses the settlement reached in the above-captioned matter

pending before this Court: Casey v. Coventry Healthcare of Kansas, Inc., Case No. 08-0201CV-W-DGK (hereinafter “Casey” or the “Action”).
3.

The parties have agreed to settle the Action upon the terms and conditions set

forth in the Stipulation of Settlement, which has been filed with the Court. The Stipulation of
Settlement, including all exhibits thereto, is preliminarily approved as fair, reasonable, and
adequate. Plaintiff in the Action, by and through her counsel, has investigated the facts and
law relating to the matters alleged, including pretrial discovery, pretrial motion practice, legal
research as to the sufficiency of the claims, and an evaluation of the risks associated with
continued litigation, trial, and/or appeal. The settlement was reached as a result of extensive
arm’s length negotiations between counsel for Plaintiff, on the one hand, and counsel for

Coventry, on the other hand, which occurred over several months. The settlement confers
substantial benefits upon the Settlement Class, particularly in light of the relief that Plaintiff
and Class Counsel believe is potentially recoverable or provable at trial, without the costs,
uncertainties, delays, and other risks associated with continued litigation, trial, and/or appeal.
4.

The Court conditionally certifies, for settlement purposes only, a class (the

“Settlement Class”) of all individuals enrolled in a Coventry Missouri HMO plan between
May 30, 1998 and May 4, 2011 upon whom Coventry imposed both a co-payment and
coinsurance charge for the same healthcare service. The Settlement Class excludes (i) the
Court presiding over any motion to approve this Settlement Agreement and its immediate
family and staff; and (ii) those persons who timely and validly request exclusion from the

Settlement Class.
5.

The Court conditionally finds, for settlement purposes only and conditioned

upon the entry of this Order and the Final Order and Judgment, and the occurrence of the
Effective Date, that the prerequisites for a class action under Rules 23(a) and (b)(3) of the
Federal Rules of Civil Procedure have been satisfied in that, for purposes of settlement:
(a) the number of Settlement Class Members is so numerous that joinder of all members
thereof is impracticable; (b) there are questions of law and fact common to the Settlement
Class; (c) the claims of Plaintiff are typical of the claims of the Settlement Class she seeks to
represent for purposes of settlement; (d) Plaintiff has fairly and adequately represented the
interests of the Settlement Class and will continue to do so, and Plaintiff has retained
experienced counsel to represent her and the Settlement Class; (e) the questions of law and
fact common to the Settlement Class Members predominate over any questions affecting any
individual Settlement Class Member; and (f) a class action is superior to the other available
methods for the fair and efficient adjudication of the controversy. The Court also concludes
that, because this Action is being settled rather than litigated, the Court need not consider
manageability issues that might be presented by the trial of a class action involving the issues
in this case. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). In making

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these findings, the Court has exercised its discretion in conditionally certifying the
Settlement Class.
6.

The Court appoints the law firms of McGonagle Spencer, P.C. and The Law

Offices of Ralph K. Phalen as counsel for the Class (“Class Counsel”). For purposes of these
settlement approval proceedings, the Court finds that these law firms are competent and
capable of exercising their responsibilities as Class Counsel. The Court designates named
Plaintiff Mary Casey as the representative of the Settlement Class.
7.

The Fairness Hearing shall be held before this Court 120 days following entry

of the Preliminary Approval Order, September 1 2011, at 9:00 a.m., to determine whether
the Stipulation of Settlement is fair, reasonable, and adequate and should receive final
approval. The Court will rule on Class Counsel’s application for an award of attorneys’ fees,
costs, and expenses (the “Fee Application”) at or after that time. Papers in support of final
approval of the Stipulation of Settlement and the Fee Application shall be filed with the
Court according to the schedule set forth below. The Fairness Hearing may be postponed,
adjourned, or continued by order of the Court without further notice to the Settlement Class.
After the Fairness Hearing, the Court may enter a Final Order and Judgment in accordance
with the Stipulation of Settlement that will adjudicate the rights of the Settlement Class
Members (as defined in the Stipulation of Settlement) with respect to the claims being
settled.
8.

Pending the Fairness Hearing, all proceedings in the Action, other than

proceedings necessary to carry out or enforce the terms and conditions of the Stipulation of
Settlement and this Order, are stayed.
9.

The Court approves, as to form and content, the Notice Plan set forth in the

Stipulation of Settlement. Notice will be sent on or before 30 days after the entry of this
Order. Coventry will coordinate with the Settlement Administrator and Coventry or the
Settlement Administrator, as appropriate, and will provide notice to the Settlement Class as
follows:

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a. Coventry and/or the Settlement Administrator will provide Publication
Notice to Settlement Class Members by publication in the Kansas City
Star Newspaper, such notice to be approximately 1/8 of a page and
substantially in the form attached as Exhibit “F” to the Stipulation of
Settlement, published once a week for three consecutive weeks. The
Publication Notice will direct Settlement Class Members to the dedicated
toll-free number and the settlement website;
b. Coventry and/or the Settlement Administrator will send a Postcard Notice
to the last known address of each Settlement Class Member, substantially
in the form attached as Exhibit “E” to the Stipulation of Settlement. The
Postcard Notice will direct Settlement Class Members to the dedicated
toll-free number and the settlement website; and
c. The settlement website will be designed and administered by the
Settlement Administrator, and will contain the settlement documents,
including, but not limited to, a Long Form Notice of Class Action
Settlement (“Long Form Notice”) substantially in the form attached as
Exhibit “B” to the Stipulation of Settlement, the Claim Form substantially
in the form of Exhibit “D” to the Stipulation of Settlement, as well as a list
of important dates, and any other information to which the parties may
agree.
10.

The Court finds that the Notice Plan is reasonable, that it constitutes due,

adequate, and sufficient notice to all persons entitled to receive notice, and that it meets the
requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
Specifically, the Court finds that the manner of dissemination of the Notice Plan described in
Paragraph 9 complies with Rule 23(e) of the Federal Rules of Civil Procedure as it is a
reasonable manner of providing notice to those Settlement Class Members who would be
bound by the Settlement. The Court also finds that the manner of dissemination of the

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Notice Plan described in Paragraph 9 complies with Rule 23(c)(2), as it is also the best
practicable notice under the circumstances, provides individual notice to all Settlement Class
Members who can be identified through a reasonable effort, and is reasonably calculated,
under all the circumstances, to apprise the members of the Settlement Class of the pendency
of this Action, the terms of the Settlement, and their right to object to the Settlement or
exclude themselves from the Settlement Class. The parties may make minor changes to the
proposed notice, by agreement, without further approval of the Court.
11.

Settlement Class Members will have 90 days following the entry of this Order

to submit a Claim Form such that the Claim Forms must be received by the Settlement
Administrator, or postmarked if sent by mail, on or before that date, which is due, adequate,
and sufficient time.
12.

Each Settlement Class member who wishes to be excluded from the

Settlement Class and follows the procedures set forth in this Paragraph shall be excluded.
Putative members of the Settlement Class who wish to opt out of the Settlement must send a
letter in the form specified in the Stipulation of Settlement and Long Form Notice to the
Settlement Administrator at the address set forth below, by mail and postmarked no later than
90 days following the entry of this Order, or by fax or e-mail to the Settlement Administrator
by that same date. All persons who properly elect to opt out of the Settlement shall not be
Settlement Class Members and shall relinquish their rights to benefits with respect to the
Stipulation of Settlement, should it be approved.
13.

Any member of the Settlement Class who has not timely submitted a written

request for exclusion from the Settlement Class, and thus is a Settlement Class Member, may
object to the proposed Settlement contained in the Stipulation of Settlement, the certification
of the Settlement Class, the entry of the Final Order and Judgment, the amount of fees
requested by Class Counsel, and/or the amount of the incentive award requested by the
named Plaintiff. Any objection must set forth the full name, current address, and telephone
number of the objecting Settlement Class Member. Any Settlement Class Member who

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intends to object to the Stipulation of Settlement must, no later than 90 days following the
entry of this Order (1) file a copy of the objection with the Court at the address listed below
(meaning that the objection must be filed with and received by the Court on or before this
date), and (2) serve the objection by fax, e-mail or U.S. Mail to the Settlement Administrator
with a copy, by U.S. Mail or e-mail, to Class Counsel and Defense Counsel at the addresses
listed below (objections served on the Settlement Administrator, Class Counsel and Defense
Counsel by U.S. Mail must be postmarked by this date). No Settlement Class Member shall
be entitled to be heard at the Fairness Hearing (whether individually or through separate
counsel) or to object to the settlement, and no written objections, briefs or materials
submitted by an objecting Settlement Class Member shall be received or considered by the
Court at the Fairness Hearing, unless written notice of the objecting class member’s intention
to appear at the Fairness Hearing and copies of any written objections, briefs and/or materials
upon which the Settlement Class Member intends to rely shall have been filed with the Court
and served on the Settlement Administrator, Class Counsel and Defense Counsel by the time
required and in the manner specified above. Settlement Class Members who fail to file and
serve timely written objections in the manner specified above shall be deemed to have
waived all objections and shall be foreclosed from making any objection (whether by appeal
or otherwise) to the settlement. Objections must be delivered to the following addresses in
the manner specified above:
Settlement Administrator
Casey Coventry Settlement Administrator
P.O. Box 2061
Faribault, MN 55021-2061
[phone]
E-mail: [e-mail]
Facsimile: [phone]

Counsel for the Class
Gerald McGonagle
David J. Spencer

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McGonagle Spencer, P.C.
1533 Locust Street
Kansas City, MO 64106
E-mail: [e-mail]
[e-mail]
Counsel for Coventry
Jeffrey Simon
Michael Hargens
Husch Blackwell LLP
4801 Main St, Suite 1000
Kansas City, MO 64112
E-mail: [e-mail]
[e-mail]
Clerk of Court
U.S. District Court
Western District of Missouri
Charles Evans Whittaker Courthouse
400 East 9th Street
1st Floor, Rm 1510
Kansas City, Missouri 64106
14.

Class Counsel shall file their fee application no later than 60 days after the

entry of this Order.
15.

Papers in support of final approval of the Stipulation of Settlement, and in

response to objections to the Stipulation of Settlement shall be filed with the Court fourteen
(14) days prior to the Fairness Hearing date.
16.

In summary, the dates of performance are as follows:
(a)

The Publication Notice required per the Stipulation of Settlement shall

be published by June 3, 2011;
(b)

The Postcard Notice required to be sent by mail to the Settlement

Class per the Stipulation of Settlement shall be sent by June 3, 2011;
(c)

The settlement website required to be created per the Stipulation of

Settlement shall be active by June 3, 2011;

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(d)

Members of the Settlement Class who desire to be excluded shall mail

requests for exclusion postmarked no later than August 2, 2011, or e-mail or fax a request for
exclusion on or before the same date;
(e)

All objections to the Stipulation of Settlement and written notices of

the objecting class member’s intention to appear at the Fairness Hearing shall be filed and
served by August 2, 2011,;
(f)

Class Counsel shall file their fee application on or before July 5, 2011.

(g)

Papers in support of final approval of the Stipulation of Settlement,

and in response to objections to the Stipulation of Settlement shall be filed with the Court on
or before August 18, 2011; and
(h)

The Fairness Hearing shall be held on September 1, 2011, at 9:00

a.m., via telephone conference initiated by class counsel.
17.

These dates of performance may be extended by order of the Court, for good

cause shown, without further notice to the Settlement Class. Settlement Class Members must
check the settlement website at www.CoventryMissouriSettlement.com regularly for updates
and further details regarding extensions of these dates of performance.
18.

In the event the Stipulation of Settlement is not approved by the Court, or for

any reason the parties fail to obtain a Final Order and Judgment as contemplated in the
Stipulation of Settlement, or the Stipulation of Settlement is terminated pursuant to its terms
for any reason or the Effective Date does not occur for any reason, then the following shall
apply:
(a)

All orders and findings entered in connection with the Stipulation of

Settlement shall become null and void and have no force and effect whatsoever, shall not be
used or referred to for any purposes whatsoever, and shall not be admissible or discoverable
in this or any other proceeding;
(b)

The conditional certification of the Settlement Class pursuant to this

Order shall be vacated automatically, and the Actions shall proceed as though the Settlement

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Class had never been certified pursuant to this Stipulation of Settlement and such findings
had never been made;
(c)

Nothing contained in this Order is, or may be construed as, a

presumption, concession or admission by or against Coventry or Plaintiff of any default,
liability or wrongdoing as to any facts or claims alleged or asserted in the Action, or in any
actions or proceedings, whether civil, criminal or administrative, including, but not limited
to, factual or legal matters relating to any effort to try the Action as a class action;
(d)

Nothing in this Order or pertaining to the Stipulation of Settlement,

including any of the documents or statements generated or received pursuant to the claims
administration process, shall be used as evidence in any further proceeding in this case,
including, but not limited to, motions or proceedings regarding any effort to try the Action as
a class action; and
(e)

All of the Court’s prior Orders having nothing whatsoever to do with

certification of the Settlement Class shall, subject to this Order, remain in force and effect.
19.

Pending final determination of whether the proposed settlement should be

approved, no Settlement Class Member directly, derivatively, in a representative capacity, or
in any other capacity, shall commence or continue any action against any of the Released
Parties (as that term is defined in the Stipulation of Settlement) in any court or tribunal
asserting any of the Released Claims (as that term is defined in the Stipulation of Settlement).
20.

Dahl, Inc. is hereby appointed as Settlement Administrator for this Settlement

and shall perform all of the duties of the Settlement Administrator set forth in the Stipulation
of Settlement.
21.

Class Counsel and Defense Counsel are hereby authorized to use all

reasonable procedures in connection with approval and administration of the settlement that
are not materially inconsistent with this Order or the Stipulation of Settlement, including
making, without further approval of the Court, minor changes to the Stipulation of
Settlement, to the form or content of the Publication Notice, Postcard Notice, Long Form

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Notice, or the Claim Form, or to any other exhibit to the Stipulation of Settlement that the
parties jointly agree are reasonable or necessary.
IT IS SO ORDERED, this 4th day of May, 2011

/s/ Greg Kays
GREG KAYS
UNITED STATES DISTRICT COURT JUDGE

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