Chacon et al v. Nebraska Medicine
PRELIMINARY APPROVAL ORDER. Final Approval Hearing set for 9/15/2021 at 9:00 AM in Courtroom 4, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Judge Robert F. Rossiter, Jr. Ordered by Judge Robert F. Rossiter, Jr. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN CHACON, individually and on behalf
of all others similarly situated; and
LEONARD BRADLEY, individually and on
behalf of all others similarly situated,
This putative class action arises from an alleged data breach at defendant Nebraska
Medicine (“Nebraska Medicine”).
Plaintiffs John Chacon and Leonard Bradley
(collectively, “Plaintiffs”) filed suit, individually and on behalf of others similarly
situated, “to obtain damages, restitution, and injunctive relief for” a proposed class of
Nebraska Medicine patients whose personal and private information may have been
impacted by the alleged data breach.
Before the Court is the Plaintiffs’ Unopposed Motion for Preliminary Approval of
Class Action Settlement (Filing No. 16).
The Plaintiffs report they entered into a
settlement agreement with Nebraska Medicine on May 25, 2021 (“Settlement
Among other things, they ask the Court to conditionally certify the
settlement class and grant preliminary approval of the Settlement Agreement and the
related documents, including the proposed notice forms and claim form.
carefully reviewed the Settlement Agreement, the supporting documents, and the balance
of the record in this case, the Court finds the Plaintiffs’ motion should be granted.
IT IS ORDERED:
Preliminary Approval of Settlement Agreement
Unless otherwise defined in this order, all capitalized terms have the
meaning ascribed to them in the Settlement Agreement.
This Court has jurisdiction over the Litigation, the Plaintiffs, all Settlement
Class Members, all Credit Monitoring Subclass Members, Nebraska Medicine, and any
party to any agreement that is part of or related to the settlement.
The Court finds the proposed settlement set forth in the Settlement
Agreement is sufficiently fair, reasonable, and adequate such that it is hereby
preliminarily approved, and notice of the settlement should be provided to the Settlement
Class as defined below and that a hearing should be held.
Solely for purposes of the settlement, the Court conditionally certifies the
following class pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) (“Settlement
The approximately 125,902 persons who were mailed notification
that their PII was potentially impacted as a result of the Data
Incident that occurred between August 27, 2020 and September 20,
Solely for purposes of the Settlement, the Court also conditionally certifies
the following subclass pursuant to Rule 23(a) and (b)(3) (“Credit Monitoring Subclass”):
The approximately 13,497 persons who were mailed notification that
their Social Security and/or driver’s license numbers were
potentially accessed as a result of the Data Incident that occurred
between August 27, 2020 and September 20, 2020.
Excluded from the Settlement Class and Credit Monitoring Subclass are
(i) Nebraska Medicine, the Related Entities, and their officers and directors; (ii) all
Settlement Class Members who timely and validly request exclusion from the Settlement
Class; (iii) Judge Robert F. Rossiter and his staff and family; (iv) Magistrate Judge
Cheryl R. Zwart and her staff and family; and (v) any other Person found by a court of
competent jurisdiction to be guilty under criminal law of initiating, causing, aiding or
abetting the criminal activity occurrence of the Data Incident or who pleads nolo
contendere to any such charge.
Subject to final approval of the settlement, the Court finds and concludes
for settlement purposes only that the prerequisites to a class action, set forth in Rule 23(a)
and (b), are satisfied in that
The Settlement Class “is so numerous that joinder of all members is
“[T]here are questions of law or fact common to the” Settlement Class;
Plaintiffs and Class Counsel (as defined below) fairly and adequately
represent the Settlement Class;
Plaintiffs’ claims are typical of those of Settlement Class Members;
Common issues predominate over any individual issues affecting the
members of the Settlement Class;
Plaintiffs will fairly and adequately protect and represent the interests of all
members of the Settlement Class, and Plaintiffs’ interests are aligned with
the interests of all other members of the Settlement Class; and
Settlement of the action on a class-action basis is superior to other means of
resolving this matter.
The Court appoints Gary M. Klinger and David K. Lietz of Mason Lietz &
Klinger LLP (“Class Counsel”), having determined that the requirements of Rule 23(g)
are fully satisfied by this appointment.
The Court hereby appoints Plaintiffs John Chacon and Leonard Bradley as
the Class Representatives for settlement purposes only on behalf of the Settlement Class.
Notice to Settlement Class Members
The Court approves the notices of pendency and proposed settlement of
class action (the “Settlement Notices”), and finds that the dissemination of the Settlement
Notices substantially in the manner and form set forth in Section 3.2 of the Settlement
Agreement (“Notice Plan”) and attached as Exhibits A–C to the Settlement Agreement
complies fully with the requirements of Rule 23 and due process of law, and is the best
notice practicable under the circumstances.
The notice procedures described in the Notice Plan are hereby found to be
the best means of providing notice under the circumstances and, when completed, shall
constitute due and sufficient notice of the proposed Settlement Agreement and the Final
Approval Hearing (as defined below), comply fully with the requirements of Rule 23 and
due process of law, and constitute the best notice practicable under the circumstances.
No later than thirty (30) days from the date of this Preliminary Approval
Order, Class Counsel shall cause the Claims Administrator to send the Short Notice to
each Settlement Class Member via direct mail; and shall cause to be published the Long
Notice available to the rest of the Settlement Class as stated in the proposed Notice Plan.
At least fourteen (14) days prior to the Final Approval Hearing, Class Counsel shall file
with the Court and serve on Nebraska Medicine a verification of compliance with the
All costs incurred in disseminating and otherwise in connection with the
Settlement Notices shall be paid by Nebraska Medicine pursuant to the Settlement
The Settlement Notices satisfy the requirements of due process and of
Rule 23(e) and thus are approved for dissemination to the Settlement Class. The Claim
Form shall be made available to the Settlement Class as set forth on the Notice Plan and
shall be made available to any potential Settlement Class Member that requests one.
Responses by Class Members and the Scheduling of a Final Approval Hearing
Settlement Class Members may opt-out or object up to sixty (60) days from
the date on which the notice program commences (the “Opt-Out Deadline”).
Any member of the Settlement Class who or that wishes to be excluded
(“opt out”) from the Settlement Class must send a written request for exclusion to Class
Counsel and counsel for Nebraska Medicine on or before the close of the Opt-Out
Members of the Settlement Class may not exclude themselves by filing
requests for exclusion as a group or class but must in each instance individually and
personally execute a request for exclusion. All Settlement Class Members that exclude
themselves from the Settlement Class will not be eligible to receive any benefits under
the settlement, will not be bound by any further orders or judgments entered for or
against the Settlement Class, and will preserve their ability to independently pursue any
claims they may have against Nebraska Medicine.
Any member of the Settlement Class that does not properly and timely
request exclusion from the Settlement Class shall, upon entry of a final order and
judgment, be bound by all the terms and provisions of the Settlement Agreement,
whether or not such Settlement Class Member objected to the settlement and whether or
not such Settlement Class Member received consideration under the Settlement
The Court adopts the following schedule for the remaining events in this
case, which ensures that the appropriate state and federal officials are served with the
notification required by the Class Action Fairness Act of 2005 (“CAFA”):
Nebraska Medicine provides CAFA notice Within 10 days after the filing of the
required by 28 U.S.C. § 1715(b).
Notice program commences.
Within 30 days after entry of Preliminary
Notice program concludes.
Within 45 days after entry of Preliminary
Compliance with CAFA waiting period
under 28 U.S.C. § 1715(d).
90 days after the appropriate
governmental officials are served with
Postmark deadline for request for
exclusion (Opt-Out) or objections.
60 days after commencement of notice
Postmark/filing deadline for filing claims.
90 days after commencement of notice
Motion for Attorney Fees, Reimbursement
of Expenses, and Incentive Awards filed
14 days before the Objection Date.
by Class Counsel.
Motion for Final Approval to be filed by
14 days before the Final Approval
Final Approval Hearing.
September 15, 2021 at 9:00 a.m.
A hearing on the settlement (the “Final Approval Hearing”) shall be held
before this Court on September 15, 2021 at 9:00 a.m., Courtroom No. 4, of the Roman L.
Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska 68102.
At the Final Approval Hearing, the Court will consider (a) the fairness,
reasonableness, and adequacy of the proposed class settlement and whether the settlement
should be granted final approval by the Court; (b) dismissal with prejudice of the action;
(c) entry of an order including the release; (d) entry of the final approval order; and
(e) entry of final judgment in this action. Class Counsel’s application for award of
attorneys’ fees and costs, and request for the Court to award an incentive award to the
named Plaintiffs, shall also be heard at the time of the hearing.
The date and time of the Final Approval Hearing shall be subject to
adjournment by the Court without further notice to the members of the Settlement Class,
other than that which may be posted by the Court. Should the Court adjourn the date for
the Final Approval Hearing, that shall not alter the deadlines for mailing and publication
of notice, the Opt-Out Deadline, or the deadlines for submissions of settlement
objections, claims, and notices of intention to appear at the Final Approval Hearing
unless those dates are explicitly changed by subsequent order.
Any person who or entity which does not elect to be excluded from the
Settlement Class may, but need not, enter an appearance through their or its own
attorney. Settlement Class Members that do not timely object or opt out and that do not
have an attorney enter an appearance on their behalf will be represented by Class
Any person or entity who or which does not elect to be excluded from the
Settlement Class may object to the proposed settlement. Any Settlement Class Member
may object to, inter alia, (a) the proposed settlement, (b) entry of a final approval order
and the judgment approving the settlement, (c) Class Counsel’s application for fees and
expenses, or (d) incentive award requests, by serving a written objection upon Class
Counsel, Nebraska Medicine’s counsel, and the Court.
Any Settlement Class Member making the objection (an “Objector”) must
sign the objection personally or through the Objector’s counsel. An objection must state
why the Objector objects to the proposed settlement and provide the basis to support such
position. If an Objector intends to appear at the hearing, personally or through counsel,
the Objector must include with the objection a notice of the Objector’s intent to appear at
the hearing. The objection must also contain a detailed list of any other objections by the
Objector and/or by the attorney representing the Objector to any class action settlement
submitted to any state or federal court in the United States in the previous three (3) years.
Objections, along with any notices of intent to appear, must be filed with
the Court no later than sixty (60) days after the notice program commences. If counsel is
appearing on behalf of more than one Settlement Class Member, counsel must identify
each such Settlement Class Member, all of whom must have complied with the
requirements of this order. The notice of objection shall be sent to (a) Class Counsel,
(b) Nebraska Medicine’s counsel, and (c) the Court. Such objection shall state: (i) the
Objector’s full name, address, telephone number, and e-mail address (if any);
(ii) information identifying the Objector as a Settlement Class Member, including proof
that the Objector is a member of the Settlement Class (e.g., copy of notice, copy of
original notice of the Data Incident); (iii) a written statement of all grounds for the
objection, accompanied by any legal support for the objection the Objector believes
applicable; (iv) the identity of any and all counsel representing the Objector in connection
with the objection; (v) a statement whether the Objector and/or his or her counsel will
appear at the Final Approval Hearing; (vi) the Objector’s signature and the signature of
the Objector’s duly authorized attorney or other duly authorized representative (along
with documentation setting forth such representation); and (vii) a list, by case name,
court, and docket number, of all other cases in which the Objector and/or the Objector’s
counsel has filed an objection to any proposed class action settlement within the last three
(3) years. No Objector may appear at the hearing unless the Objector indicates an intent
to appear. These documents must be filed with the Clerk of Court electronically or at the
address below and served concurrently with the counsel listed below:
Clerk of Court
111 South 18th Plaza
Omaha, NE 68102
Gary M. Klinger
MASON, LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, Illinois 60606
Gary E. Mason
David K. Lietz
MASON, LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington DC 20016
Nebraska Medicine’s Counsel
Casie D. Collignon
Matthew D. Pearson
BAKER & HOSTETLER LLP
1801 California Street, Suite 4400
Denver, CO 80202
Only Settlement Class Members that have filed and served valid and timely
notices of objection shall be entitled to be heard at the Final Approval Hearing. Any
Settlement Class Member that does not timely file and serve an objection in writing in
accordance with the procedure set forth in the class notice and mandated in this order
shall be deemed to have waived any objection to (a) the settlement; (b) the release;
(c) entry of a final approval order or any judgment; (d) Class Counsel’s application for
fees, costs, and expenses; and (e) incentive award requests for the named Plaintiffs,
whether by appeal, collateral attack, or otherwise.
Settlement Class Members need not appear at the hearing or take any other
action to indicate their approval.
Upon entry of a final order and judgment all members of the Settlement
Class that have not personally and timely requested to be excluded from the Settlement
Class will be enjoined from proceeding against Nebraska Medicine with respect to all of
the Released Claims.
Nebraska Medicine shall prepare and send, at Nebraska Medicine’s
expense, all notices that are required by CAFA as specified in 28 U.S.C. § 1715. Class
Counsel and counsel for Nebraska Medicine shall cooperate promptly and fully in the
preparation of such notices, including providing Nebraska Medicine with any and all
information in their possession necessary for the preparation of these notices. Nebraska
Medicine shall provide courtesy copies of the notices to Class Counsel for the purpose of
implementing the settlement. Nebraska Medicine shall provide notice to Class Counsel
of compliance with the CAFA requirements within ten (10) days of providing notice to
Attorneys General under CAFA.
Administration of the Settlement
The Court hereby appoints the claims administrator proposed by the parties,
Heffler Claims Group (the “Claims Administrator”).
Responsibilities of the Claims
Administrator shall include the following: (a) establishing a post-office box for purposes
of communicating with Settlement Class Members; (b) disseminating notice to the class;
(c) developing a website to enable Settlement Class Members to access documents;
(d) accepting and maintaining documents sent from Settlement Class Members relating to
Claims Administration; and (e) distributing settlement checks to Settlement Class
Members. Pursuant to the Settlement Agreement, the Claims Administrator and costs of
Claims Administration shall be paid by Nebraska Medicine.
In the event the Settlement Agreement and the proposed settlement are
terminated in accordance with the applicable provisions of the Settlement Agreement, the
Settlement Agreement, the proposed settlement, and all related proceedings shall, except
as expressly provided to the contrary in the Settlement Agreement, become null and void,
shall have no further force and effect, and Settlement Class Members shall retain all of
their current rights to assert any and all claims against Nebraska Medicine and any other
Released Persons, and Nebraska Medicine and any other Released Persons shall retain
any and all of their current defenses and arguments thereto (including but not limited to
arguments that the requirements of Rule 23(a) and (b)(3) are not satisfied for purposes of
continued litigation). The Litigation shall thereupon revert forthwith to its respective
procedural and substantive status prior to the date of execution of the Settlement
Agreement and shall proceed as if the Settlement Agreement and all other related orders
and papers had not been executed.
Neither this order nor the Settlement Agreement nor any other settlement-
related document nor anything contained herein or therein or contemplated hereby or
thereby nor any proceedings undertaken in accordance with the terms set forth in the
Settlement Agreement or herein or in any other settlement-related document, shall
constitute, be construed as or be deemed to be evidence of or an admission or concession
by Nebraska Medicine as to the validity of any claim that has been or could have been
asserted against it or as to any liability by it as to any matter set forth in this order, or as
to the propriety of class certification for any purposes other than for purposes of the
current proposed settlement.
Dated this 4th day of June 2021.
BY THE COURT:
Robert F. Rossiter, Jr.
United States District Judge
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