George et al v. CNH Health & Welfare Benefit Plan et al

Filing 32

PRELIMINARY APPROVAL ORDER signed by Judge J.P. Stadtmueller on 9/20/2017 GRANTING 30 Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement. All remaining deadlines of the Court's 2/23/2017 Trial Scheduling Order (Docket #20), including the 12/12/2017 Final Pretrial Conference and the 12/18/2017 Bench Trial, are VACATED. Fairness Hearing set for 5/4/2018 at 8:30 AM in Courtroom 425, 517 E. Wisconsin Ave., Milwaukee, WI before Judge J.P. Stadtmueller. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENTEN GEORGE and DENISE
VALENTE-MCGEE,
Plaintiffs,
v.

Case No. 16-CV-1678-JPS

CNH HEALTH & WELFARE
BENEFIT PLAN, CNH EMPLOYEE
GROUP INSURANCE PLAN, CASE
NEW HOLLAND, INC., and BLUE
CROSS BLUE SHIELD OF
WISCONSIN,

ORDER

Defendants.

On September 1, 2017, Plaintiffs filed an unopposed motion for
preliminary approval of their class action settlement with Defendants.
(Docket #30). In accordance with Federal Rule of Civil Procedure 23(e),
such settlements require the Court’s approval. The Court’s task is to
determine whether the settlement is “fair, adequate, and reasonable, and
not a product of collusion.” Reynolds v. Beneficial Nat. Bank, 288 F.3d 277,
279 (7th Cir. 2002) (quotation omitted). At this stage, all of these factors
weigh in favor of finding a fair settlement. Plaintiffs have reached a
settlement for a substantial sum to compensate the approximately 2,000
anticipated class members. (Docket #31 at 2-4). The litigation has been
vigorous, proceeding through discovery to the dispositive motion stage,
and requiring the Court’s ruling on a prior dispositive motion by
Defendants. (Docket #28). Finally, the settlement was reached in arm’s

length negotiations and has not be objected to by anyone (as of now). The
Court thus finds no barrier to preliminary approval of the parties’
settlement.
The Court will therefore grant Plaintiffs’ motion and incorporate
their proposed order which will manage the settlement process and
ultimately conclude this litigation in the spring of next year. See (Docket
#31-2). The Court will also vacate the remaining dates and deadlines of the
trial scheduling order. (Docket #20).
Accordingly,
IT IS ORDERED that Plaintiffs’ motion for preliminary approval
of their class action settlement (Docket #30) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that all remaining dates and deadlines
of the Court’s trial scheduling order (Docket #20), including the December
12, 2017 final pretrial conference and the December 18, 2017 bench trial, be
and the same are hereby VACATED; and
IT IS FURTHER ORDERED that:
1.

This order (the “Preliminary Approval Order”) incorporates

herein, and makes a part hereof, the Settlement Agreement, its definitions,
and its Exhibits thereto (Docket #31-1). Unless otherwise provided herein,
the terms defined in the Settlement Agreement shall have the same
meanings herein.
2.

The terms of the Settlement Agreement are hereby

preliminarily approved, subject to further consideration at the Settlement
Hearing provided for below. The Court preliminarily finds that the
Settlement is fair, reasonable and adequate, warranting conditional
Page 2 of 15

certification of the Settlement Class, the scheduling of the Settlement
Hearing and the circulation of notice to potential Settlement Class
Members, each as provided for in this Order.
3.

All other proceedings in the Litigation are hereby stayed

until such time as the Court renders a final decision regarding approval of
the proposed Settlement or other order of the Court. No discovery with
regard to the Litigation, or with respect to this Settlement, shall be
permitted other than as may be directed by the Court upon a proper
showing by the party seeking such discovery by motion properly noticed
and served in accordance with this Court’s Local Rules. In addition,
pending a determination on final approval of the Settlement, and in
further aid of the Court’s jurisdiction to implement and enforce the
Settlement, Plaintiffs and all potential Settlement Class Members are
hereby preliminarily barred and enjoined under Federal Rule of Civil
Procedure 65 from commencing or prosecuting any action or proceeding
asserting any of the Released Claims in any court. All deadlines, hearings
and other proceedings in this Litigation, except the Settlement Hearing,
are hereby taken off the calendar.
Conditional Certification of the Settlement Class
4.

For purposes of settlement only, the Court preliminarily

finds that the proposed Settlement Class satisfies the applicable
requirements of Rule 23 of the Federal Rules of Civil Procedure, namely
that the proposed Settlement Class is so numerous that joinder of all
Settlement Class Members is impracticable; Settling Plaintiffs’ claims
are typical of the Settlement Class’s claims; there are questions of law
and fact common to the Settlement Class, which predominate over any
Page 3 of 15

questions affecting only individual Settlement Class Members; and class
certification is superior to other available methods for the fair and efficient
adjudication of the controversy.
5.

For purposes of settlement only, the following class

(“Settlement Class”) is conditionally certified pursuant to Federal Rule of
Civil Procedure 23(a) and (b)(3):
Persons who are or were Plan Members1 who, at any time
from August 1, 2010 through the Date of Preliminary
Approval, received Covered Professional Services from an
Out-of-Network Provider that were Partially Allowed and:
(i) whose claims for reimbursement under the Plan for such
services were submitted on or before the Preliminary
Approval Date, or (ii) who have received notice of this
Agreement before the Settlement Hearing Date.
The Settlement Class will exclude those potential members who have
properly excluded themselves (i.e., Opt-Out) of the Settlement Class in
accordance with the procedures approved by the Court. Also excluded
from the Settlement Class are: (1) Defendants and any current and former
Subsidiaries, divisions, Affiliates, predecessors, insurers, assignees, and
successors-in- interest; (2) any judge who presides or has presided over
the Litigation, together with his/her immediate family members and any
other individual residing in the judge’s household; and (3) the United
States and/or State governments and their agencies and departments.

As defined in the Settlement Agreement, Plan Members are participants
and/or beneficiaries enrolled in or otherwise covered under the CNH Health &
Welfare Plan n/k/a CNH Industrial U.S. Health and Welfare Plan, and the CNH
Employee Group Insurance Plan (merged with, and into the CNH Health &
Welfare Plan, effective January 1, 2009) (the “Plan”).
1

Page 4 of 15

6.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure,

and for purposes of Settlement only, Settling Plaintiffs, Brenten George
and Denise Valente-McGee, are preliminarily appointed as representatives
of the Settlement Class (“Class Representatives”).
7.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure,

and for purposes of Settlement only, Douglas P. Dehler and Christa
Wittenberg of O’Neil Cannon Hollman DeJong & Laing, S.C. and John B.
Tuffnell of Tuffnell Law S.C are appointed and designated as counsel for
the Settlement Class (“Settlement Class Counsel”). Settlement Class
Counsel is authorized to act on behalf of the Class Representatives and the
Settlement Class, with respect to all acts or consents required by or that
are reasonably necessary to consummate the Settlement.
Form and Timing of Notice
8.

As soon as practicable, but no later than one hundred twenty

(120) days after this Preliminary Approval Order is entered (the “Notice
Date”), the Settlement Administrator shall cause copies of the Notice of
Proposed Settlement of Class Action in the form attached as Exhibit E to
the Settlement Agreement (the “Mailed Notice”), the form of which is
hereby approved, to be mailed by first-class mail, postage prepaid to all
potential Settlement Class Members at the addresses identified by
reasonable efforts as set forth in the Settlement Agreement. The Court
specifically approves the Parties’ proposal (1) to be jointly responsible for
identifying names and addresses of potential Settlement Class Members
and to cooperate with each other and the Settlement Administrator to
make such identifications and determinations; and (2) for Defendants to
take reasonable steps to provide from their own records, at their own
Page 5 of 15

expense, information from which a list of potential Settlement Class
Members can be identified for the Mailed Notice. The Settlement
Administrator shall also cause copies of the claim form attached as Exhibit
A to the Settlement (“Claim Form”), the form of which is hereby
approved, to be included with the Mailed Notice sent to those potential
Eligible Settlement Class Members identified in the Claims Data Analysis
as having claims for compensation under the Settlement valued at $500 or
more.
9.

The Mailed Notice, Claim Form and Settlement Agreement

shall also be placed on the website created for this Settlement on or before
the Notice Date.
10.

The Court approves the form, substance and requirements of

the Mailed Notice and Claim Form, and finds that the procedures
established for mailing and distribution of the Mailed Notice and Claim
Form substantially in the manner and form set forth in Paragraph 8 of this
Preliminary Approval Order meet the requirements of Rule 23 of the
Federal Rules of Civil Procedure, and due process, and any other
applicable law, and constitute the best notice practicable under the
circumstances.
11.

Costs of providing the Notice to the Settlement Class that is

specified in this Preliminary Approval Order shall be paid as set forth in
the Settlement Agreement.
12.

No later than 21 calendar days prior to the Settlement

Hearing, Settlement Class Counsel shall cause to be filed with the Clerk of
this Court an affidavit or declaration of the Settlement Administrator,

Page 6 of 15

showing that such mailing has been made in accordance with this
Preliminary Approval Order.
Settlement Hearing: Right to be Heard
13.

The Court will hold a settlement hearing (the “Settlement

Hearing”) on Friday, May 4, 2018 at 8:30 AM, in the United States District
Court for the Eastern District of Wisconsin, 517 East Wisconsin Ave.,
Courtroom 425, Milwaukee, Wisconsin, for the following purposes: (a) to
determine whether the Court should grant final certification of the
Settlement Class solely for purposes of settlement; (b) to determine
whether the proposed Settlement is fair, reasonable, adequate and in the
best interests of the Settlement Class and should be approved by the
Court; (c) to determine whether the Judgment, in substantially the form
attached as Exhibit D to the Settlement Agreement, should be entered,
inter alia, dismissing the Litigation with prejudice and releasing the
Released Claims against the Released Parties; (d) to rule upon Settlement
Class Counsel’s application for an award of attorneys’ fees and
reimbursement of litigation expenses; (e) to rule upon Settlement Class
Counsel’s request for an award of incentive payments to the Class
Representatives; and (f) to consider any other matters that may properly
be brought before the Court in connection with the Settlement.
14.

The Settlement Hearing may be adjourned by the Court and

the Court may address the matters set out above, including final approval
of the Settlement, without further notice to the Settlement Class other than
notice that may be posted at the Court and on the Court’s and Settlement
Administrator’s websites.

Page 7 of 15

15.

Settlement Class Members wishing to object to the proposed

Settlement and/or be heard at the Settlement Hearing shall follow the
following procedures.
(a)

To object, a Settlement Class Member, individually or

through counsel, must file a written objection with the Clerk, and
must also serve a copy thereof upon the following, no later than 60
days after the Notice Date (the specific date for which shall be
identified in the Mailed Notice):
Class Counsel (on behalf of themselves and on behalf of Settling
Plaintiffs and Settlement Class Members):
Douglas P. Dehler
Christa Wittenberg
O’NEIL CANNON HOLLMAN DEJONG & LAING, S.C.
111 East Wisconsin Avenue Milwaukee, WI 53202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
John B. Tuffnell TUFFNELL LAW S.C.
790 N. Milwaukee Street Suite 200
Milwaukee, WI 53202
Telephone: [phone]
Facsimile: 414-437-9240
[e-mail]
Case New Holland, Inc. n/k/a Case New Holland Industrial, Inc.,
and the Plan:
Patrick J. Murphy Alexandra W. Shortridge Paul Parrish
QUARLES & BRADY LLP
411 East Wisconsin Avenue Suite 2400
Milwaukee, WI 53202-4426
Telephone: [phone]
Page 8 of 15

Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Blue Cross Blue Shield of Wisconsin d/b/a Anthem Blue Cross Blue
Shield:
Briana L. Black
E. Desmond Hogan
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Bartholomew F. Reuter
FOLEY & LARDNER LLP
777 East Wisconsin Avenue
Milwaukee, WI 53202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
(b)

The written objection must include (i) the Settlement Class

Member’s full name, address, and telephone number; (ii) the basis
for the objection(s), including all factual and legal grounds in
support of the objection, together with any documentation the
Settlement Class Member filing the objection wishes the Court to
consider; and (iii) the name of any lawyer who represents the
Settlement Class Member, including any former or current counsel

Page 9 of 15

who may be entitled to compensation for any reason related to the
objection to the Settlement.
(c)

Any Settlement Class Member who files and serves a written

objection by the deadline stated in this paragraph of this Order may
also appear at the Settlement Hearing, to the extent permitted by
the Court, either in person or through an attorney hired at the
Settlement Class Member’s expense, to object to the fairness,
reasonableness or adequacy of the proposed Settlement. He or she
must file and serve a letter stating it is his or her “Notice of
Intention to Appear in George et al. v. CNH Health & Welfare Benefit
Plan et al.” no later than 60 days after the Notice Date (the specific
date to be identified in the Mailed Notice). Any attorney
representing a Settlement Class Member for the purpose of making
objections must also file a Notice of Appearance with the Clerk,
and must also serve copies by mail to the counsel listed above.
(d)

Any Settlement Class Member who does not timely file and

serve a written objection and Notice of Intention to Appear, shall
not be permitted to appear at the Settlement Hearing, except for
good cause shown.
(e)

Any Settlement Class Member who does not make his or her

objection in the matter provided for herein shall be deemed to have
waived such objection and shall be forever foreclosed from making
any objection to the fairness or adequacy of the Settlement (whether
by appeal or otherwise). The manner in which a notice of objection
shall be filed and served shall be stated in the Notice. By objecting
to the Settlement or otherwise requesting to be heard at the
Page 10 of 15

Settlement Hearing, a Settlement Class Member shall be deemed to
have submitted to the jurisdiction of the Court with respect to the
member’s objection or request to be heard.
16.

If approved, all Settlement Class Members will be bound by

the proposed Settlement provided for in the Settlement Agreement, and
by all determinations and judgments concerning the Settlement or
affecting the Settlement Class, whether favorable or unfavorable to the
Settlement Class.
Request for Exclusion from the Settlement Class
17.

Any potential member of the Settlement Class who elects not

to participate in the Settlement (i.e., “Opt-Out”) must submit a written
request to Opt-Out that is postmarked no later than 60 days after the
Notice Date (“Opt-Out Deadline,” the specific date for which shall be
identified in the Mailed Notice). Any such person who wishes to Opt-Out
must provide: (a) the name, address and federal social security number or
tax identification number of the person requesting to Opt-Out; and (b) a
statement that the person wishes to be excluded (i.e., Opt-Out) of the
Settlement Class. The date of the postmark on the return mailing envelope
shall be the exclusive means used to determine whether a request for
exclusions has been timely submitted. The Settlement Administrator shall
compile a list of all Opt-Outs to be filed with the Court no later than 21
days before the Settlement Hearing. All persons who submit valid and
timely requests to Opt-Out in the manner set forth in this paragraph shall
have no rights under the Settlement Agreement, shall not share in
distribution of the Total Settlement Fund, and shall not be bound by the
Settlement Agreement or any final judgment.
Page 11 of 15

18.

Any potential Settlement Class Member failing to properly

and timely mail such a written request to Opt-Out shall be automatically
included in the Settlement Class, whether or not he or she objected to the
Settlement, and shall be bound by all the terms and provisions of the
Settlement Agreement, and Final Order and Judgment, including but not
limited to the release of Released Claims against Released Parties
provided for in the Settlement Agreement and the Judgment, if the Court
grants final approval to the Settlement.
Claims Process
19.

As set forth in the Settlement Agreement, by choosing not to

Opt-Out of the Settlement Class, each and every Settlement Class Member
shall be deemed to have submitted a claim for compensation under the
Settlement for the amount which they are eligible under the terms of the
Settlement Agreement.
20.

If the Court enters final approval of the Settlement

Agreement, each Settlement Class Member will receive not less than $20
pursuant to this Settlement.
21.

In addition, Eligible Settlement Class Members (as defined

in the Settlement Agreement) are eligible to receive additional
compensation (above the $20 minimum payment) under the Settlement up
to the value of their claim for compensation as determined in accordance
with the terms of the Settlement Agreement. Pursuant to the Settlement
Agreement, Eligible Settlement Class Members with a claim for
compensation valued at $500 or less under the Settlement are not required
to submit any proof of claim or other documentation to support a request
for additional compensation. Any Eligible Settlement Class Member
Page 12 of 15

whose claim for additional compensation under the Settlement is valued
at more than $500 must complete and submit a Claim Form and provide
required documentation in accordance with the instructions in the Mailed
Notice and the Claim Form if he or she wishes to seek additional
compensation based on the full value of the claim (in excess of $500). To
be valid and timely, Claims Forms and required documentation submitted
in connection with this Settlement must be postmarked no later than 60
days after the Notice Date (“Claims Submission Deadline,” the specific
date for which shall be identified in the Mailed Notice).
Settlement Administrator
22.

The Court hereby appoints Garden City Group, LLC

(“GCG”) as the Settlement Administrator. Responsibilities of the
Settlement Administrator including the following without limitation: (a)
obtaining requisite data for, and disseminating the Mailed Notice to
potential Settlement Class Members; (b) attesting that such mailing has
been made in accordance with this Preliminary Approval Order and
providing any other information relevant to the mailing of notice; (c)
establishing a toll-free telephone line and responding to telephonic and
written requests and other inquiries from potential Settlement Class
Members; (d) establishing a website for purposes of posting the Mailed
Notice, Settlement Agreement and related documents; (e) accepting and
maintaining documents sent from the potential Settlement Class Members
including Claim Forms, requests to Opt-Out, and other documents
relating to claims administration; (f) submitting to Class Counsel and
counsel for Defendants prior to the Settlement Hearing a list setting forth
the names and addresses of each Plan Member who would otherwise be a
Page 13 of 15

member of the Settlement Class who has validly and timely elected to
Opt-Out from the Settlement Class; (g) administering claims (submitted
and deemed submitted) for payment, in accordance with the terms of the
Settlement Agreement, including determining amounts to be paid; and (h)
all other responsibilities designated to the Settlement Administrator in the
Settlement Agreement.
Other Provisions
23.

As set forth in the Settlement Agreement, nothing in this

Preliminary Approval Order, the Settlement Agreement, or any
documents or statements related thereto, is or shall be deemed or
construed to be an admission or evidence of any violation of any statute or
law or of any liability or wrongdoing by the Defendants, or an admission
of the propriety of class certification for any purposes other than for
purposes of the current proposed Settlement.
24.

If, for any reason, the Settlement Agreement is terminated

pursuant to the provisions in section 6.3 of the Settlement Agreement, the
Parties fail to obtain a Final Order and Judgment as contemplated by the
Settlement Agreement, or final approval of the Settlement is reversed,
vacated or modified in any material respect, this Preliminary Approval
Order shall be void, the foregoing conditional certification of the
Settlement Class and appointment of Class Representatives and
Settlement Class Counsel shall be void and of no further effect, and the
Parties to the Settlement shall be returned to the status each occupied
before entry of this Order without prejudice to any right or legal argument
that any of the Parties to the Settlement Agreement might have had but
for the Settlement Agreement, all of which are reserved. In such event, no
Page 14 of 15

reference to the Settlement Agreement, Settlement Class or any
documents, communications or negotiations related in any way thereto
shall be made for any purpose in the Litigation or any action or
proceeding.
Dated at Milwaukee, Wisconsin, this 20th day of September, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 15 of 15