Preview
MARK E. BURTON, JR., State Bar No. 178400
1
JOSUE APARICIO, State Bar No. 322750
2 HERSH & HERSH
A Professional Corporation ELECTRONICALLY
3 601 Van Ness Avenue, Suite 2080 F I L E D
San Francisco, CA 94102-6316 Superior Court of California,
4 County of San Francisco
(415) 441-5544
mburton@hershlaw.com 11/01/2019
5 Clerk of the Court
japaricio@hershlaw.com BY: RONNIE OTERO
Deputy Clerk
6
LORI E. ANDRUS, State Bar No. 205816
7 JENNIE LEE ANDERSON, State Bar No. 203586
LELAND H. BELEW, State Bar No. 293096
8 ANDRUS ANDERSON LLP
155 Montgomery Street, Suite 900
9
San Francisco, CA 94104
10 (415) 986-1400
lori@andrusanderson.com
11 jennie@andrusanderson.com
leland@andrusanderson.com
12
13 Attorneys for Plaintiff and the Proposed Class
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF SAN FRANCISCO
16
17
KRISTEN NICODEMUS, on Behalf of ) CASE NO.: CGC-13-531076
18 Herself and All Others Similarly Situated, )
) Assigned for All Purposes to the
19 Plaintiff, ) Hon. Teri Jackson
)
20 ) DECLARATION OF MARK E. BURTON
21 vs. ) IN SUPPORT OF PLAINTIFF’S
) SUPPLEMENTAL MEMORANDUM IN
22 ) SUPPORT OF PRELIMINARY
SAINT FRANCIS MEMORIAL ) APPROVAL OF CLASS SETTLEMENT
23 HOSPITAL, CIOX HEALTH, LLC F/K/A )
HEALTHPORT TECHNOLOGIES, LLC, ) Date: November 19, 2019
24
and DOES 1-100, inclusive, ) Time: 10:00 a.m.
25 ) Dept.: 613
Defendants. ) Complaint Filed: May 1, 2013
26 )
)
27 )
28
BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
1 I, MARK E. BURTON, declare the following:
2 1. I am an attorney licensed to practice before this Court, and am a partner in the law
3 firm of Hersh & Hersh, located at 601 Van Ness Avenue, Suite 2080, San Francisco, California,
4 attorneys for Plaintiff and the Certified Class, herein.
5 2. The matters referred to in this declaration are based upon my personal knowledge,
6 except where otherwise indicated and, if called as a witness, I could and would testify competently
7 thereto.
8 3. I make this declaration in support of Plaintiff’s Supplemental Memorandum in
9 Support of Preliminary Approval of Class Settlement.
10 4. I started practicing law in 1995 and I am now a Senior Partner at Hersh & Hersh,
11 P.C., and Of Counsel at Audet & Partners LLP. My practice focuses on complex litigation, including
12 class and non-class action claims involving mass torts, product liability, personal injury,
13 employment claims and consumer class actions.
14 5. I have extensive experience in leading the prosecution of class actions and other
15 complex litigation. For example, in 2019, I served as class counsel and obtained a $1,650,000
16 settlement award on behalf of a class of 1,914 Federal Express workers in a novel legal malpractice
17 class action. See Zohrabians v. Leonard Carder, LLP, (2019) Alameda County Sup. Ct., Case No.
18 RG15796852. In 2015, I obtained a $625,000 dollar settlement award in a wage and hour class
19 action lawsuit involving a class of staff employed by a residential care facility. Aguilar v. Avalon
20 Group Homes LLC, et al., (2015) Marin County Sup. Ct., Case No. CIV1303453.
21 6. In 2018, I obtained a $289 million dollar jury verdict in a single personal injury case
22 against the Monsanto Company. See Johnson v. Monsanto Company, San Francisco Sup. Ct. Case
23 No. CGC-16-550128. For my trial team’s tremendous efforts and favorable resolution, my team and
24 I received “Mass Tort Trial Team of the Year” by the National Trial Lawyers in 2018. In addition,
25 I have been recognized as a Super Lawyer in the Super Lawyer magazine over the past 10 years, and
26 the Legal website AVVO has given me its highest rating at “Superb 10.0.” I am a frequent speaker
27 on a variety of topics involving complex litigation, I have written several articles, I served as a
28 trustee for Golden Gate University and as an advisor to the Dean of GGU Law School. I have also
1
BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
1 been appointed as a mediator, a discovery facilitator, an expert witness in legal malpractice cases
2 and as a state bar fee arbitrator.
3 7. Plaintiff commenced this class action lawsuit on May 1, 2013 to recover damages
4 and other relief for violations of Section 1158 of the Evidence Code (“Section 1158”) and the Unfair
5 Competition Law, Bus. and Prof. Code section 17200, et seq. (“UCL”).
6 8. The hard-fought litigation in this case resulted in one published appellate opinion,
7 multiple stays, class certification, two writ requests, two mediations, summary judgment and
8 summary adjudication motions filed by both sides, and significant trial preparations. In addition, all
9 non-expert discovery was completed, including at least four depositions (including Plaintiff’s
10 deposition), numerous interrogatories (special and form), document requests, requests for
11 admissions, and several rounds of supplemental responses.
12 9. On March 3, 2014, Plaintiff’s motion for class certification was denied, and Plaintiff
13 appealed. The Court of Appeal reversed and ordered the class certified on September 14, 2016. See
14 Nicodemus v. Saint Francis Mem’l Hosp., 3 Cal. App. 5th 1200 (2016), as modified on denial of
15 reh’g (Oct. 6, 2016).
16 10. The court thereafter approved Plaintiff’s plan for providing notice to the Certified
17 Class on January 11, 2018. Defendants filed a petition for writ of mandate regarding the Class notice
18 order, which was denied on January 22, 2018. See App. Case No. A153355 (1st Dist.). The
19 approved notice plan (including the Certified Class members’ deadline to exclude themselves from
20 the case) was completed on April 30, 2018. The “Class Period” for the Certified Class therefore
21 runs from May 1, 2009 to April 30, 2018. At the conclusion of that notice program there were zero
22 objections and fewer than ten (10) opt-outs.
23 11. On July 19, 2019, Plaintiff and Defendant CiOX Health, LLC, f/k/a HealthPort
24 Technologies, LLC entered into a settlement agreement. Attached hereto as Exhibit 1 is a true and
25 correct copy the parties’ Joint Stipulation of Settlement and Release of Claims (“Settlement
26 Agreement”) entered into by the parties.
27 12. The parties’ Settlement Agreement also includes Plaintiff’s proposed Notices of Class
28 Action Settlement and a Proposed Order Granting Preliminary Approval of Class Action Settlement.
2
BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
1 13. Subsequently, Plaintiff, Defendant HealthPort, and Defendant Saint Francis
2 Memorial Hospital (“Saint Francis”) entered into a side letter agreement. As part of the side letter
3 agreement, Plaintiff agrees to dismiss the complaint against Saint Francis without prejudice. In
4 exchange, Saint Francis will waive its costs of suit incurred in the action and will not seek to invoke
5 the removal jurisdiction of the federal courts. In addition, Saint Francis and HealthPort stipulate and
6 agree that the order dismissing Saint Francis may be set aside if the Court denies Plaintiff’s Motion
7 for a Final Approval Order and Judgment under the proposed Settlement Agreement. Attached
8 hereto as Exhibit 2 is a true and correct copy of the parties’ side letter agreement.
9 14. The Settlement Agreement was only possible following more than six years of
10 litigation, discovery, analysis, and evaluation of Defendant’s relevant policies and procedures, as well
11 as the Transaction List Defendants produced, with respect to the Certified Class, which allowed a
12 comprehensive analysis of liability and potential damages to prepare for trial.
13 15. While the Defendant’s Transaction List contains patient names, these names do not
14 perfectly overlap with the Settlement Class members (because the Settlement Class includes
15 individuals who were charged in excess of Section 1158, which is not always the same person for
16 whom the records were requested). Accordingly, neither party has a perfect list of Settlement Class
17 members nor knows their addresses. Given the ten-year breadth of the Settlement Class, it is further
18 presumed that many, if not most, of the Requesting Attorneys no longer actively represent the
19 Settlement Class member.
20 16. Through completion of non-expert discovery, Plaintiff determined the damages in the
21 lawsuit to be, at minimum, approximately $14,763,931.99. To calculate this amount Plaintiff first
22 combined Defendant HealthPort’s thirty-dollar ($30) ‘Basic Fee,’ fifteen-dollar ($15) ‘Retrieval
23 Fee,’ and the $0.15 per-page overcharge for every transaction from the Class Period identified by
24 Defendants as an “07 Atty Request”, totaling $16,570,069.57 for the approximately 350,000 relevant
25 requests identified on the Transaction List covering the Certified Class (i.e. only covering the time
26 period from May 1, 2009 through April 31, 2018).
27 17. Plaintiff interpret Section 1158 according to its explicit terms and is seeking the
28 enumerated relief. One of Defendant’s defenses is that its records do not reflect which requests were
3
BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
1 made prior to litigation and which ones were not. Although Plaintiff maintains that Defendant should
2 be burdened with substantiating this defense, Plaintiff has nevertheless engaged an expert—Jeffrey
3 Petersen, PhD—to address the “prior to litigation” question and therefore Defendants’ defenses.
4 Through a statistical survey of requesting attorneys randomly selected from Defendants’ transaction
5 data, Dr. Petersen concluded that 89.1% of the requests on the “Atty 07 Requests” list occurred
6 “prior to litigation” (within a +/- 5.1% margin of error). Defendant challenges the admissibility of
7 Plaintiff’s expert and the court has no yet admitted this testimony into evidence.
8 18. While Plaintiff believes in the merits of the case, both Plaintiff and Class Counsel
9 recognize the inherent risks of litigation and understand the benefit of the Settlement Class receiving
10 significant funds immediately as opposed to risking an unfavorable decision on the merits of the
11 case at trial, the damages awarded, and/or on an appeal that would likely take several more years to
12 litigate.
13 19. I declare under penalty of perjury that the foregoing is true and correct and if called
14 as a witness I could and would completely testify thereto.
15
16 Executed on November 1, 2019, at San Francisco, California.
17
18
19
20 _________________ ___________
21 MARK E. BURTON
22
23
24
25
26
27
28
4
BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
EXHIBIT 1
1
2
3
4
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
KRISTEN NICODEMUS, On Behalf of Civil Case No.: CGC-13-531076
11 Herself and All Others Similarly
Situated,
12
13 Plaintiff, CLASS ACTION SETTLEMENT
vs. AGREEMENT
14
CIOX HEALTH, LLC F/K/A
15 HEALTHPORT TECHNOLOGIES
LLC, and DOES 1-100, inclusive,
16
17 Defendants.
18
19
20
21
22
23
24
25
26
27
28
-1- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 TABLE OF CONTENTS
2
3
1. DEFINITIONS .................................................................................................. 4
4
5 2. GENERAL TERMS .......................................................................................... 8
6
3. CHANGES IN BUSINESS PRACTICES......................................................... 8
7
8 4. MONETARY RELIEF ...................................................................................... 9
9
5. ATTORNEYS’ FEES AND COSTS............................................................... 11
10
11 6. CLAIMS PROCESS ........................................................................................ 12
12
7. DISTRIBUTION OF INDIVIDUAL MONETARY AWARDS .................... 12
13
14 8. SETTLEMENT NOTICE PROCEDURES..................................................... 13
15
9. ADMINISTRATION OF SETTLEMENT...................................................... 14
16
17 10. PRELIMINARY AND FINAL APPROVAL ................................................. 16
18
19 11. RELEASES AND COVENANT NOT TO SUE ............................................ 17
20
12. INTERPRETATION AND ENFORCEMENT OF AGREEMENT ............... 18
21
22
23
24
25
26
27
28
-2- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 SETTLEMENT AGREEMENT
2 Subject to approval by the San Francisco Superior Court, this settlement agreement
(“Agreement”) is entered into by and between Plaintiff Kristen Nicodemus, on behalf of herself
3
and the class identified herein, and Defendant Ciox Health, LLC f/k/a HealthPort Technologies,
4 LLC (“Ciox”).
5 RECITALS
6 WHEREAS, Plaintiff1 filed a class action on May 1, 2013, alleging that Defendants2
charge fees for medical records in excess of those allowed under California Evidence Code
7 section 1158;
8 WHEREAS, Defendants, and each of them, deny that they are liable or owe damages to
9 Plaintiff, the Class3, and any of the Class Members4 for any relief concerning the allegations
made and causes of action asserted;
10
WHEREAS, without admitting or conceding any liability or damages or that Plaintiff or
11 other Class Members are entitled to any remedy or relief, the Parties5 have nevertheless agreed to
settle the lawsuit on the terms and conditions set forth herein to avoid the burden and expense of
12 continuing Litigation6;
13
WHEREAS, the Parties have engaged in substantial discovery, motion practice, and
14 appeals, and a class was previously certified in this Litigation;
15 WHEREAS, the Parties and their counsel recognize that, in the absence of an approved
settlement, they would face significant continued litigation, including trial and further appellate
16 proceedings that would consume time and resources and present each of them with ongoing
litigation risks and uncertainties;
17
WHEREAS, the Parties wish to avoid these risks and uncertainties, as well as the
18
consumption of time and resources, through settlement pursuant to the terms and conditions set
19 forth herein;
20 WHEREAS, based upon their analysis and evaluation of a number of factors, and
recognizing the substantial risks of continued litigation, including the possibility that the
21 Litigation, if not settled now, might result in no recovery or a recovery that is less favorable to
Plaintiffs7, Class Counsel8 is satisfied that the terms and conditions of this Agreement are fair,
22 reasonable, and adequate and that this Agreement is in the best interests of Plaintiff and the Class;
23
24 1
See, infra, Definitions 1.26 (“Plaintiff/Plaintiffs”).
2
See, infra, Definitions 1.16 (“Defendants”).
25 3
See, infra, Definitions 1.7 (“Class/Class Members”).
4
26 See, infra, id.
5
See, infra, Definitions 1.25 (“Parties”).
6
27 See, infra, Definitions 1.20 (“Litigation”).
7
See, infra, Definitions 1.26 (“Plaintiff/Plaintiffs”).
28 8
See, infra, Definitions 1.10 (“Class Counsel”).
-3- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 WHEREAS, named Plaintiff and class representative, Kristen Nicodemus, believes that
the settlement set forth herein serves the best interests of all Class Members based on all the facts
2 and circumstances, including the risk of significant delay and the uncertainty at trial, as it
3 provides prompt relief for the Class Members;
4 WHEREAS, it is the desire of the Parties to fully, finally, and forever settle, compromise,
and discharge all disputes and claims arising from or related to the Litigation which exist between
5 them;
6 NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
herein, as well as the good and valuable consideration provided for herein, the Parties agree to a
7 full and complete settlement of the Litigation on the following terms and conditions:
8
1. DEFINITIONS
9
The following terms shall have the meanings defined in this Section wherever used in
10 this Agreement and in all of its exhibits:
11 1.1 Agreement. “Agreement” means this settlement agreement and all exhibits attached
hereto.
12
1.2 Best Efforts. “Best Efforts” means reasonably designed to comply with the specified
13
objectives to which efforts are directed.
14
1.3 Claims Expiration Date. “Claims Expiration Date” means the date on which
15 reimbursement checks issued to Class Members, either personally or through their
attorneys, who submit valid Claims Forms are no longer valid for deposit, which is 90
16 days from mailing of the reimbursement checks.
17 1.4 Claim Form. “Claim Form” means the form, substantially in the form of Exhibit ___
hereto, to be timely and fully completed and submitted by any of the Class Members,
18
either personally or through an attorney on his or her behalf.
19
1.5 Claims Period. “Claims Period” means the time during which any of the Class
20 Members may submit a Claim Form, which will be a period of one hundred twenty (120)
days, commencing on the date the Claims Administrator emails the Short-Form
21 Settlement Notice.
22 1.6 Class/Class Members. The “Class” means:
23 All adult patients, guardians or conservators of adult patients (or of the adult patient’s
24 estate), parents or guardians of minor patients, personal representatives or heirs of
deceased patients, attorneys, or law firms who: (1) requested medical records from a
25 hospital or other medical provider (as enumerated in California Evidence Code § 1158)
located in California; (2)(i) through an attorney at law or his/her representative or (ii) as
26 an attorney at law or through such attorney’s representative pursuant to a signed
authorization (but in the case of 2(ii), only if such attorney paid for and was not
27
reimbursed for the applicable charges); (3) prior to litigation, and (4) were charged by
28
-4- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 Ciox Health, LLC f/k/a HealthPort Technologies, LLC9 (and paid) more than: (a) ten
cents ($0.10) per page for reproduction of medical records 8½ x 14 inches or less,
2 (b) twenty cents ($0.20) per page for reproduction of medical records from microfilm,
3 (c) $16.00 per hour (computed on the basis of four dollars per quarter hour or fraction
thereof) for clerical costs, (d) actual postage charges, and/or (e) actual costs charged by a
4 third person during the Class Period.
5 Excluded from the Class are: (1) Defendants, any entity or division in which Defendants
have a controlling interest, and its/their legal representatives, officers, directors, assigns
6 and successors; (2) the judge to whom this case is assigned and any member of the
judge’s immediate family; and (3) claims for personal injury, wrongful death and
7
emotional distress and claims of consequential property damage and loss.
8
“Class Members” means those persons who comprise the Class.
9
1.7 Claims Administrator. “Claims Administrator” means Analytics LLC or another
10 administrator which has been jointly designated by counsel for the Parties, and approved
by the Court, to administer the settlement pursued to the terms of this Agreement.
11 Plaintiff’s counsel may work directly with the Claims Administrator on the development and
12 execution of a robust notice and claims process.
13 1.8 Claims Administrator Fund. “Claims Administrator Fund” means two hundred fifty
thousand dollars ($250,000), which shall be paid by Defendant, to pay the Claims
14 Administrator for distribution of Settlement Notice(s), administration of the claims
process, and Class Member outreach. Any funds remaining in the Claims Administrator
15 Fund shall be transferred to the Cy Pres Fund after distribution of: (1) the individual
reimbursement amounts to Class Members, either directly or through their attorneys; and
16
(2) the Service Award to Plaintiff.
17
1.9 Class Counsel. “Class Counsel” means Lori E. Andrus of Andrus Anderson LLP and
18 Mark E. Burton of Hersh & Hersh, P.C.
19 1.10 Class Period. “Class Period” means May 1, 2009 to the date that the Court enters the
Order Granting Preliminary Approval.
20
1.11 Class Website. “Class Website” means the website to be published and maintained at
21 www.RecordsOverchargeClass.com, providing information and documents relating to the
22 Litigation to Class Members and the public.
23 1.12 Common Fund. “Common Fund” means the amount necessary to cover reimbursement
of all claims, including the Service Award to Plaintiff, in an amount not less than six
24 hundred ten thousand dollars ($610,000) and not to exceed ten million ten thousand dollars
($10,010,000).
25
26
27
9
See Order Granting Request for Change of Name From HealthPort Technologies, LLC, to CiOX
28 Health, LLC f/k/a HealthPort Technologies, LLC, entered April 7, 2017.
-5- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 1.13 Court. “Court” means the Court having jurisdiction over this Litigation, at any stage
(presently San Francisco Superior Court).
2
1.14 Cy Pres Fund. “Cy Pres Fund” means the remainder of the Common Fund, if any, after
3
the distribution of: (1) the individual reimbursement amounts to Class Members, either
4 directly or through their attorneys; and (2) the Service Award to Plaintiff. The Cy Pres
Fund, if any, shall be paid to a recipient or recipients chosen by Class Counsel, as
5 approved by the Court.
6 1.15 Defendants. “Defendants” means Ciox Health, LLC f/k/a HealthPort Technologies,
LLC.
7
1.16 Defendants’ Counsel. “Defendants’ Counsel” means Jay Woollacott of Woollacott PLC
8
and Scott Emery of Lynch Daskal Emery LLP.
9
1.17 Effective Date. “Effective Date” means the date on which the following have occurred:
10 (1) the Court has granted final approval of the Agreement; and (2) the deadline for taking
an appeal has passed, or, if there is an appeal of the Court’s Order Granting Final Approval,
11 the day after all appeals are fully and finally resolved in favor of final approval of the
Agreement.
12
13 1.18 Final Approval Hearing. “Final Approval Hearing” means the hearing during which
the Court shall finally approve the Agreement and make such other rulings as are
14 contemplated by this Agreement or as modified by any subsequent mutual agreement of the
Parties in writing and approved by the Court.
15
1.19 Litigation. “Litigation” means the Class Complaint filed in San Francisco Superior
16 Court, Civil Case No. CGC-13-531076, and the allegations and claims made therein.
17 1.20 Medical Provider. “Medical Provider” means physician and surgeon, dentist, registered
18 nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist,
osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical
19 laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws
of the state, or a licensed hospital.
20
1.21 Objections Period. “Objections Period” means the time in which a Class Member must
21 submit a valid objection, or forty-five (45) days after the Claims Administrator emails the
Long-Form Settlement Notice and the Tailored Settlement Notice.
22
23 1.22 Order Granting Final Approval. “Order Granting Final Approval” means the final
order entered by the Court after the Final Approval Hearing.
24
1.23 Order Granting Preliminary Approval. “Order Granting Preliminary Approval”
25 means the Order entered by the Court preliminarily approving, inter alia, the terms and
conditions of this Agreement, the manner and timing of providing Notice, and the time
26 period for, and the manner of, objections to the Agreement.
27
1.24 Parties. “Parties” means Plaintiffs and Defendants.
28
-6- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 1.25 Plaintiff/Plaintiffs. “Plaintiff” means Kristen Nicodemus. “Plaintiffs” means Kristen
Nicodemus and Class Members.
2
1.26 Records Request. “Records Request” means a request for medical records made by an
3
attorney on behalf of a client to a Medical Provider.
4
1.27 Released Parties. “Released Parties” means Saint Francis Memorial Hospital, LLC, and
5 Ciox Health, LLC f/k/a HealthPort Technologies, LLC, and each of their respective
affiliates, parents, subsidiaries, successors, customers and clients and all other related
6 entities, including but not limited to all of their incumbent and former officers, directors,
owners, members, managers, shareholders, investors, agents, insurers, attorneys, employees,
7 fiduciaries, successors, assigns, and representatives, in their individual and/or
8 representative capacities. For avoidance of doubt, and without limiting the foregoing,
“Released Parties” also means all Medical Providers for which the Released Parties
9 provided any services and each of their respective affiliates, parents, subsidiaries,
successors, customers and clients and all other related entities, including but not limited
10 to all of their incumbent and former officers, directors, owners, members, managers,
shareholders, investors, agents, insurers, attorneys, employees, fiduciaries, successors,
11
assigns, and representatives, in their individual and/or representative capacities.
12
1.28 Requesting Attorney. “Requesting Attorney” means an attorney who requested medical
13 records on behalf of one or more Class Members, as reflected in the Transactions List.10
14 1.29 ROI Services. “ROI services” means the release-of-information services provided by
Ciox to Medical Providers, including but not limited to receiving, reviewing, and
15 recording requests for medical information received by a medical provider; requesting,
gathering, or otherwise obtaining medical records responsive to the request; scanning
16
and/or copying the requested records in preparation for release to the requestor;
17 packaging, mailing, and/or electronically transmitting the records to the requestor; and
invoicing, billing, and collecting payment for medical records.
18
1.30 Section 1158 Request. “Section 1158 Request” means a request, made before the filing
19 of any action or the appearance of a defendant in an action, by an attorney at law or his or
her representative, accompanied by a written authorization therefor signed by an adult
20 patient, by the guardian or conservator of his or her person or estate, or, in the case of a
21 minor, by a parent or guardian of the minor, or by the personal representative or an heir
of a deceased patient, or a copy thereof, to a Medical Provider to make all of the patient’s
22 records under the Medical Provider’s custody or control available for inspection and
copying by the attorney at law or his or her representative. The Parties intend “Section
23 1158 Request” to encompass requests made within the scope of Cal. Evid. Code § 1158
and no other requests.
24
25 1.31 Service Award. “Service Award” means the additional amount paid to Plaintiff, subject
to Court approval, for her service in this Litigation.
26
27
28 10
See, infra, Definitions 1.34 (“Transactions List”).
-7- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 1.32 Settlement Notice(s). “Settlement Notice(s)” means the Notices of Class Action
Settlement, substantially in the forms attached hereto as Exhibits A - B, and as approved
2 by the Court. The Settlement Notices include:
3
1.32.1 Short-Form Settlement Notice, which provides basic information about the
4 Litigation, the Settlement, and the Claims Process (a sample thereof is attached
hereto as Exhibit A);
5
1.32.2 Long-Form Settlement Notice, which provides more detailed information regarding
6 the Litigation, the Settlement, and the Claims Process (a sample thereof is attached
hereto as Exhibit B); and
7
1.32.3 Tailored Settlement Notice, which is largely similar to the Long-Form Settlement
8
Notice but informs the recipient law firm that it has been identified as a
9 Requesting Attorney in the Transactions List, and includes a list of the patients on
the Transactions List for whom each Requesting Attorney made a Records
10 Request. The Parties shall work with the Claims Administrator to create the
Tailored Settlement Notice, which shall be approved by the Court prior to issuing.
11
1.33 Transactions List. “Transactions List” means the list of medical records requests paid
12
for during the Class Period by Requesting Attorneys on behalf of one or more Class
13 Members, including, inter alia, the name and mailing address of the requestor or
requesting law firm, the name of the patient for whom records were requested, the date
14 the request was processed by Ciox, the number of responsive pages, the amount charged
by Ciox to respond to the request, and the amount actually paid less a refund or write-off,
15 if any.
16 1.34 Qualified Settlement Fund or QSF. “Qualified Settlement Fund” or “QSF” means the
17 account established by the Claims Administrator for the Common Fund.
18 2. GENERAL TERMS
19 2.1 Mutual Full Cooperation. The Parties agree to cooperate fully with each other, and
shall exercise Best Efforts to effectuate and implement all terms and conditions of this
20 Agreement and to obtain the Court’s approval of this Agreement and all of its terms.
Each of the Parties, upon the reasonable request of any other, agrees to perform such
21 further acts and to execute and deliver such other documents as are reasonably necessary
22 to carry out the provisions of this Agreement.
23 3. CHANGES IN BUSINESS PRACTICES
24 3.1 Ciox shall, when Ciox responds to a Section 1158 Request by mail, include the following
information as part of its response:
25
3.1.1 That Ciox is offering to send the requestor copies of the records requested upon
26 the requestor’s employing Ciox as the requestor’s representative to make and send
27 the copies.
28
-8- CLASS ACTION
Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT
1 3.1.2 That Ciox’s rates for copying the records as the requestor’s representative are
$30.00 + $0.25 per page plus actual postage and applicable sales tax, that copies
2 from microfilm are $30.00 plus $0.75 per page, that the medical provider may
3 charge a flat fee of $15.00 for retrieving and making the records available for
copying, that additional charges may apply if records must be retrieved from off-
4 site locations, and that the charges are itemized on the included invoice if they
apply. (This information may be modified
Preview
MARK E. BURTON, JR., State Bar No. 178400 1 JOSUE APARICIO, State Bar No. 322750 2 HERSH & HERSH A Professional Corporation ELECTRONICALLY 3 601 Van Ness Avenue, Suite 2080 F I L E D San Francisco, CA 94102-6316 Superior Court of California, 4 County of San Francisco (415) 441-5544 mburton@hershlaw.com 11/01/2019 5 Clerk of the Court japaricio@hershlaw.com BY: RONNIE OTERO Deputy Clerk 6 LORI E. ANDRUS, State Bar No. 205816 7 JENNIE LEE ANDERSON, State Bar No. 203586 LELAND H. BELEW, State Bar No. 293096 8 ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 9 San Francisco, CA 94104 10 (415) 986-1400 lori@andrusanderson.com 11 jennie@andrusanderson.com leland@andrusanderson.com 12 13 Attorneys for Plaintiff and the Proposed Class 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SAN FRANCISCO 16 17 KRISTEN NICODEMUS, on Behalf of ) CASE NO.: CGC-13-531076 18 Herself and All Others Similarly Situated, ) ) Assigned for All Purposes to the 19 Plaintiff, ) Hon. Teri Jackson ) 20 ) DECLARATION OF MARK E. BURTON 21 vs. ) IN SUPPORT OF PLAINTIFF’S ) SUPPLEMENTAL MEMORANDUM IN 22 ) SUPPORT OF PRELIMINARY SAINT FRANCIS MEMORIAL ) APPROVAL OF CLASS SETTLEMENT 23 HOSPITAL, CIOX HEALTH, LLC F/K/A ) HEALTHPORT TECHNOLOGIES, LLC, ) Date: November 19, 2019 24 and DOES 1-100, inclusive, ) Time: 10:00 a.m. 25 ) Dept.: 613 Defendants. ) Complaint Filed: May 1, 2013 26 ) ) 27 ) 28 BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT 1 I, MARK E. BURTON, declare the following: 2 1. I am an attorney licensed to practice before this Court, and am a partner in the law 3 firm of Hersh & Hersh, located at 601 Van Ness Avenue, Suite 2080, San Francisco, California, 4 attorneys for Plaintiff and the Certified Class, herein. 5 2. The matters referred to in this declaration are based upon my personal knowledge, 6 except where otherwise indicated and, if called as a witness, I could and would testify competently 7 thereto. 8 3. I make this declaration in support of Plaintiff’s Supplemental Memorandum in 9 Support of Preliminary Approval of Class Settlement. 10 4. I started practicing law in 1995 and I am now a Senior Partner at Hersh & Hersh, 11 P.C., and Of Counsel at Audet & Partners LLP. My practice focuses on complex litigation, including 12 class and non-class action claims involving mass torts, product liability, personal injury, 13 employment claims and consumer class actions. 14 5. I have extensive experience in leading the prosecution of class actions and other 15 complex litigation. For example, in 2019, I served as class counsel and obtained a $1,650,000 16 settlement award on behalf of a class of 1,914 Federal Express workers in a novel legal malpractice 17 class action. See Zohrabians v. Leonard Carder, LLP, (2019) Alameda County Sup. Ct., Case No. 18 RG15796852. In 2015, I obtained a $625,000 dollar settlement award in a wage and hour class 19 action lawsuit involving a class of staff employed by a residential care facility. Aguilar v. Avalon 20 Group Homes LLC, et al., (2015) Marin County Sup. Ct., Case No. CIV1303453. 21 6. In 2018, I obtained a $289 million dollar jury verdict in a single personal injury case 22 against the Monsanto Company. See Johnson v. Monsanto Company, San Francisco Sup. Ct. Case 23 No. CGC-16-550128. For my trial team’s tremendous efforts and favorable resolution, my team and 24 I received “Mass Tort Trial Team of the Year” by the National Trial Lawyers in 2018. In addition, 25 I have been recognized as a Super Lawyer in the Super Lawyer magazine over the past 10 years, and 26 the Legal website AVVO has given me its highest rating at “Superb 10.0.” I am a frequent speaker 27 on a variety of topics involving complex litigation, I have written several articles, I served as a 28 trustee for Golden Gate University and as an advisor to the Dean of GGU Law School. I have also 1 BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT 1 been appointed as a mediator, a discovery facilitator, an expert witness in legal malpractice cases 2 and as a state bar fee arbitrator. 3 7. Plaintiff commenced this class action lawsuit on May 1, 2013 to recover damages 4 and other relief for violations of Section 1158 of the Evidence Code (“Section 1158”) and the Unfair 5 Competition Law, Bus. and Prof. Code section 17200, et seq. (“UCL”). 6 8. The hard-fought litigation in this case resulted in one published appellate opinion, 7 multiple stays, class certification, two writ requests, two mediations, summary judgment and 8 summary adjudication motions filed by both sides, and significant trial preparations. In addition, all 9 non-expert discovery was completed, including at least four depositions (including Plaintiff’s 10 deposition), numerous interrogatories (special and form), document requests, requests for 11 admissions, and several rounds of supplemental responses. 12 9. On March 3, 2014, Plaintiff’s motion for class certification was denied, and Plaintiff 13 appealed. The Court of Appeal reversed and ordered the class certified on September 14, 2016. See 14 Nicodemus v. Saint Francis Mem’l Hosp., 3 Cal. App. 5th 1200 (2016), as modified on denial of 15 reh’g (Oct. 6, 2016). 16 10. The court thereafter approved Plaintiff’s plan for providing notice to the Certified 17 Class on January 11, 2018. Defendants filed a petition for writ of mandate regarding the Class notice 18 order, which was denied on January 22, 2018. See App. Case No. A153355 (1st Dist.). The 19 approved notice plan (including the Certified Class members’ deadline to exclude themselves from 20 the case) was completed on April 30, 2018. The “Class Period” for the Certified Class therefore 21 runs from May 1, 2009 to April 30, 2018. At the conclusion of that notice program there were zero 22 objections and fewer than ten (10) opt-outs. 23 11. On July 19, 2019, Plaintiff and Defendant CiOX Health, LLC, f/k/a HealthPort 24 Technologies, LLC entered into a settlement agreement. Attached hereto as Exhibit 1 is a true and 25 correct copy the parties’ Joint Stipulation of Settlement and Release of Claims (“Settlement 26 Agreement”) entered into by the parties. 27 12. The parties’ Settlement Agreement also includes Plaintiff’s proposed Notices of Class 28 Action Settlement and a Proposed Order Granting Preliminary Approval of Class Action Settlement. 2 BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT 1 13. Subsequently, Plaintiff, Defendant HealthPort, and Defendant Saint Francis 2 Memorial Hospital (“Saint Francis”) entered into a side letter agreement. As part of the side letter 3 agreement, Plaintiff agrees to dismiss the complaint against Saint Francis without prejudice. In 4 exchange, Saint Francis will waive its costs of suit incurred in the action and will not seek to invoke 5 the removal jurisdiction of the federal courts. In addition, Saint Francis and HealthPort stipulate and 6 agree that the order dismissing Saint Francis may be set aside if the Court denies Plaintiff’s Motion 7 for a Final Approval Order and Judgment under the proposed Settlement Agreement. Attached 8 hereto as Exhibit 2 is a true and correct copy of the parties’ side letter agreement. 9 14. The Settlement Agreement was only possible following more than six years of 10 litigation, discovery, analysis, and evaluation of Defendant’s relevant policies and procedures, as well 11 as the Transaction List Defendants produced, with respect to the Certified Class, which allowed a 12 comprehensive analysis of liability and potential damages to prepare for trial. 13 15. While the Defendant’s Transaction List contains patient names, these names do not 14 perfectly overlap with the Settlement Class members (because the Settlement Class includes 15 individuals who were charged in excess of Section 1158, which is not always the same person for 16 whom the records were requested). Accordingly, neither party has a perfect list of Settlement Class 17 members nor knows their addresses. Given the ten-year breadth of the Settlement Class, it is further 18 presumed that many, if not most, of the Requesting Attorneys no longer actively represent the 19 Settlement Class member. 20 16. Through completion of non-expert discovery, Plaintiff determined the damages in the 21 lawsuit to be, at minimum, approximately $14,763,931.99. To calculate this amount Plaintiff first 22 combined Defendant HealthPort’s thirty-dollar ($30) ‘Basic Fee,’ fifteen-dollar ($15) ‘Retrieval 23 Fee,’ and the $0.15 per-page overcharge for every transaction from the Class Period identified by 24 Defendants as an “07 Atty Request”, totaling $16,570,069.57 for the approximately 350,000 relevant 25 requests identified on the Transaction List covering the Certified Class (i.e. only covering the time 26 period from May 1, 2009 through April 31, 2018). 27 17. Plaintiff interpret Section 1158 according to its explicit terms and is seeking the 28 enumerated relief. One of Defendant’s defenses is that its records do not reflect which requests were 3 BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT 1 made prior to litigation and which ones were not. Although Plaintiff maintains that Defendant should 2 be burdened with substantiating this defense, Plaintiff has nevertheless engaged an expert—Jeffrey 3 Petersen, PhD—to address the “prior to litigation” question and therefore Defendants’ defenses. 4 Through a statistical survey of requesting attorneys randomly selected from Defendants’ transaction 5 data, Dr. Petersen concluded that 89.1% of the requests on the “Atty 07 Requests” list occurred 6 “prior to litigation” (within a +/- 5.1% margin of error). Defendant challenges the admissibility of 7 Plaintiff’s expert and the court has no yet admitted this testimony into evidence. 8 18. While Plaintiff believes in the merits of the case, both Plaintiff and Class Counsel 9 recognize the inherent risks of litigation and understand the benefit of the Settlement Class receiving 10 significant funds immediately as opposed to risking an unfavorable decision on the merits of the 11 case at trial, the damages awarded, and/or on an appeal that would likely take several more years to 12 litigate. 13 19. I declare under penalty of perjury that the foregoing is true and correct and if called 14 as a witness I could and would completely testify thereto. 15 16 Executed on November 1, 2019, at San Francisco, California. 17 18 19 20 _________________ ___________ 21 MARK E. BURTON 22 23 24 25 26 27 28 4 BURTON DECLARATION IN SUPPORT OF PLAINTIFF’S SUPPLEMENTAL MEMO IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT EXHIBIT 1 1 2 3 4 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 KRISTEN NICODEMUS, On Behalf of Civil Case No.: CGC-13-531076 11 Herself and All Others Similarly Situated, 12 13 Plaintiff, CLASS ACTION SETTLEMENT vs. AGREEMENT 14 CIOX HEALTH, LLC F/K/A 15 HEALTHPORT TECHNOLOGIES LLC, and DOES 1-100, inclusive, 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 -1- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 TABLE OF CONTENTS 2 3 1. DEFINITIONS .................................................................................................. 4 4 5 2. GENERAL TERMS .......................................................................................... 8 6 3. CHANGES IN BUSINESS PRACTICES......................................................... 8 7 8 4. MONETARY RELIEF ...................................................................................... 9 9 5. ATTORNEYS’ FEES AND COSTS............................................................... 11 10 11 6. CLAIMS PROCESS ........................................................................................ 12 12 7. DISTRIBUTION OF INDIVIDUAL MONETARY AWARDS .................... 12 13 14 8. SETTLEMENT NOTICE PROCEDURES..................................................... 13 15 9. ADMINISTRATION OF SETTLEMENT...................................................... 14 16 17 10. PRELIMINARY AND FINAL APPROVAL ................................................. 16 18 19 11. RELEASES AND COVENANT NOT TO SUE ............................................ 17 20 12. INTERPRETATION AND ENFORCEMENT OF AGREEMENT ............... 18 21 22 23 24 25 26 27 28 -2- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 SETTLEMENT AGREEMENT 2 Subject to approval by the San Francisco Superior Court, this settlement agreement (“Agreement”) is entered into by and between Plaintiff Kristen Nicodemus, on behalf of herself 3 and the class identified herein, and Defendant Ciox Health, LLC f/k/a HealthPort Technologies, 4 LLC (“Ciox”). 5 RECITALS 6 WHEREAS, Plaintiff1 filed a class action on May 1, 2013, alleging that Defendants2 charge fees for medical records in excess of those allowed under California Evidence Code 7 section 1158; 8 WHEREAS, Defendants, and each of them, deny that they are liable or owe damages to 9 Plaintiff, the Class3, and any of the Class Members4 for any relief concerning the allegations made and causes of action asserted; 10 WHEREAS, without admitting or conceding any liability or damages or that Plaintiff or 11 other Class Members are entitled to any remedy or relief, the Parties5 have nevertheless agreed to settle the lawsuit on the terms and conditions set forth herein to avoid the burden and expense of 12 continuing Litigation6; 13 WHEREAS, the Parties have engaged in substantial discovery, motion practice, and 14 appeals, and a class was previously certified in this Litigation; 15 WHEREAS, the Parties and their counsel recognize that, in the absence of an approved settlement, they would face significant continued litigation, including trial and further appellate 16 proceedings that would consume time and resources and present each of them with ongoing litigation risks and uncertainties; 17 WHEREAS, the Parties wish to avoid these risks and uncertainties, as well as the 18 consumption of time and resources, through settlement pursuant to the terms and conditions set 19 forth herein; 20 WHEREAS, based upon their analysis and evaluation of a number of factors, and recognizing the substantial risks of continued litigation, including the possibility that the 21 Litigation, if not settled now, might result in no recovery or a recovery that is less favorable to Plaintiffs7, Class Counsel8 is satisfied that the terms and conditions of this Agreement are fair, 22 reasonable, and adequate and that this Agreement is in the best interests of Plaintiff and the Class; 23 24 1 See, infra, Definitions 1.26 (“Plaintiff/Plaintiffs”). 2 See, infra, Definitions 1.16 (“Defendants”). 25 3 See, infra, Definitions 1.7 (“Class/Class Members”). 4 26 See, infra, id. 5 See, infra, Definitions 1.25 (“Parties”). 6 27 See, infra, Definitions 1.20 (“Litigation”). 7 See, infra, Definitions 1.26 (“Plaintiff/Plaintiffs”). 28 8 See, infra, Definitions 1.10 (“Class Counsel”). -3- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 WHEREAS, named Plaintiff and class representative, Kristen Nicodemus, believes that the settlement set forth herein serves the best interests of all Class Members based on all the facts 2 and circumstances, including the risk of significant delay and the uncertainty at trial, as it 3 provides prompt relief for the Class Members; 4 WHEREAS, it is the desire of the Parties to fully, finally, and forever settle, compromise, and discharge all disputes and claims arising from or related to the Litigation which exist between 5 them; 6 NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, as well as the good and valuable consideration provided for herein, the Parties agree to a 7 full and complete settlement of the Litigation on the following terms and conditions: 8 1. DEFINITIONS 9 The following terms shall have the meanings defined in this Section wherever used in 10 this Agreement and in all of its exhibits: 11 1.1 Agreement. “Agreement” means this settlement agreement and all exhibits attached hereto. 12 1.2 Best Efforts. “Best Efforts” means reasonably designed to comply with the specified 13 objectives to which efforts are directed. 14 1.3 Claims Expiration Date. “Claims Expiration Date” means the date on which 15 reimbursement checks issued to Class Members, either personally or through their attorneys, who submit valid Claims Forms are no longer valid for deposit, which is 90 16 days from mailing of the reimbursement checks. 17 1.4 Claim Form. “Claim Form” means the form, substantially in the form of Exhibit ___ hereto, to be timely and fully completed and submitted by any of the Class Members, 18 either personally or through an attorney on his or her behalf. 19 1.5 Claims Period. “Claims Period” means the time during which any of the Class 20 Members may submit a Claim Form, which will be a period of one hundred twenty (120) days, commencing on the date the Claims Administrator emails the Short-Form 21 Settlement Notice. 22 1.6 Class/Class Members. The “Class” means: 23 All adult patients, guardians or conservators of adult patients (or of the adult patient’s 24 estate), parents or guardians of minor patients, personal representatives or heirs of deceased patients, attorneys, or law firms who: (1) requested medical records from a 25 hospital or other medical provider (as enumerated in California Evidence Code § 1158) located in California; (2)(i) through an attorney at law or his/her representative or (ii) as 26 an attorney at law or through such attorney’s representative pursuant to a signed authorization (but in the case of 2(ii), only if such attorney paid for and was not 27 reimbursed for the applicable charges); (3) prior to litigation, and (4) were charged by 28 -4- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 Ciox Health, LLC f/k/a HealthPort Technologies, LLC9 (and paid) more than: (a) ten cents ($0.10) per page for reproduction of medical records 8½ x 14 inches or less, 2 (b) twenty cents ($0.20) per page for reproduction of medical records from microfilm, 3 (c) $16.00 per hour (computed on the basis of four dollars per quarter hour or fraction thereof) for clerical costs, (d) actual postage charges, and/or (e) actual costs charged by a 4 third person during the Class Period. 5 Excluded from the Class are: (1) Defendants, any entity or division in which Defendants have a controlling interest, and its/their legal representatives, officers, directors, assigns 6 and successors; (2) the judge to whom this case is assigned and any member of the judge’s immediate family; and (3) claims for personal injury, wrongful death and 7 emotional distress and claims of consequential property damage and loss. 8 “Class Members” means those persons who comprise the Class. 9 1.7 Claims Administrator. “Claims Administrator” means Analytics LLC or another 10 administrator which has been jointly designated by counsel for the Parties, and approved by the Court, to administer the settlement pursued to the terms of this Agreement. 11 Plaintiff’s counsel may work directly with the Claims Administrator on the development and 12 execution of a robust notice and claims process. 13 1.8 Claims Administrator Fund. “Claims Administrator Fund” means two hundred fifty thousand dollars ($250,000), which shall be paid by Defendant, to pay the Claims 14 Administrator for distribution of Settlement Notice(s), administration of the claims process, and Class Member outreach. Any funds remaining in the Claims Administrator 15 Fund shall be transferred to the Cy Pres Fund after distribution of: (1) the individual reimbursement amounts to Class Members, either directly or through their attorneys; and 16 (2) the Service Award to Plaintiff. 17 1.9 Class Counsel. “Class Counsel” means Lori E. Andrus of Andrus Anderson LLP and 18 Mark E. Burton of Hersh & Hersh, P.C. 19 1.10 Class Period. “Class Period” means May 1, 2009 to the date that the Court enters the Order Granting Preliminary Approval. 20 1.11 Class Website. “Class Website” means the website to be published and maintained at 21 www.RecordsOverchargeClass.com, providing information and documents relating to the 22 Litigation to Class Members and the public. 23 1.12 Common Fund. “Common Fund” means the amount necessary to cover reimbursement of all claims, including the Service Award to Plaintiff, in an amount not less than six 24 hundred ten thousand dollars ($610,000) and not to exceed ten million ten thousand dollars ($10,010,000). 25 26 27 9 See Order Granting Request for Change of Name From HealthPort Technologies, LLC, to CiOX 28 Health, LLC f/k/a HealthPort Technologies, LLC, entered April 7, 2017. -5- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 1.13 Court. “Court” means the Court having jurisdiction over this Litigation, at any stage (presently San Francisco Superior Court). 2 1.14 Cy Pres Fund. “Cy Pres Fund” means the remainder of the Common Fund, if any, after 3 the distribution of: (1) the individual reimbursement amounts to Class Members, either 4 directly or through their attorneys; and (2) the Service Award to Plaintiff. The Cy Pres Fund, if any, shall be paid to a recipient or recipients chosen by Class Counsel, as 5 approved by the Court. 6 1.15 Defendants. “Defendants” means Ciox Health, LLC f/k/a HealthPort Technologies, LLC. 7 1.16 Defendants’ Counsel. “Defendants’ Counsel” means Jay Woollacott of Woollacott PLC 8 and Scott Emery of Lynch Daskal Emery LLP. 9 1.17 Effective Date. “Effective Date” means the date on which the following have occurred: 10 (1) the Court has granted final approval of the Agreement; and (2) the deadline for taking an appeal has passed, or, if there is an appeal of the Court’s Order Granting Final Approval, 11 the day after all appeals are fully and finally resolved in favor of final approval of the Agreement. 12 13 1.18 Final Approval Hearing. “Final Approval Hearing” means the hearing during which the Court shall finally approve the Agreement and make such other rulings as are 14 contemplated by this Agreement or as modified by any subsequent mutual agreement of the Parties in writing and approved by the Court. 15 1.19 Litigation. “Litigation” means the Class Complaint filed in San Francisco Superior 16 Court, Civil Case No. CGC-13-531076, and the allegations and claims made therein. 17 1.20 Medical Provider. “Medical Provider” means physician and surgeon, dentist, registered 18 nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical 19 laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws of the state, or a licensed hospital. 20 1.21 Objections Period. “Objections Period” means the time in which a Class Member must 21 submit a valid objection, or forty-five (45) days after the Claims Administrator emails the Long-Form Settlement Notice and the Tailored Settlement Notice. 22 23 1.22 Order Granting Final Approval. “Order Granting Final Approval” means the final order entered by the Court after the Final Approval Hearing. 24 1.23 Order Granting Preliminary Approval. “Order Granting Preliminary Approval” 25 means the Order entered by the Court preliminarily approving, inter alia, the terms and conditions of this Agreement, the manner and timing of providing Notice, and the time 26 period for, and the manner of, objections to the Agreement. 27 1.24 Parties. “Parties” means Plaintiffs and Defendants. 28 -6- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 1.25 Plaintiff/Plaintiffs. “Plaintiff” means Kristen Nicodemus. “Plaintiffs” means Kristen Nicodemus and Class Members. 2 1.26 Records Request. “Records Request” means a request for medical records made by an 3 attorney on behalf of a client to a Medical Provider. 4 1.27 Released Parties. “Released Parties” means Saint Francis Memorial Hospital, LLC, and 5 Ciox Health, LLC f/k/a HealthPort Technologies, LLC, and each of their respective affiliates, parents, subsidiaries, successors, customers and clients and all other related 6 entities, including but not limited to all of their incumbent and former officers, directors, owners, members, managers, shareholders, investors, agents, insurers, attorneys, employees, 7 fiduciaries, successors, assigns, and representatives, in their individual and/or 8 representative capacities. For avoidance of doubt, and without limiting the foregoing, “Released Parties” also means all Medical Providers for which the Released Parties 9 provided any services and each of their respective affiliates, parents, subsidiaries, successors, customers and clients and all other related entities, including but not limited 10 to all of their incumbent and former officers, directors, owners, members, managers, shareholders, investors, agents, insurers, attorneys, employees, fiduciaries, successors, 11 assigns, and representatives, in their individual and/or representative capacities. 12 1.28 Requesting Attorney. “Requesting Attorney” means an attorney who requested medical 13 records on behalf of one or more Class Members, as reflected in the Transactions List.10 14 1.29 ROI Services. “ROI services” means the release-of-information services provided by Ciox to Medical Providers, including but not limited to receiving, reviewing, and 15 recording requests for medical information received by a medical provider; requesting, gathering, or otherwise obtaining medical records responsive to the request; scanning 16 and/or copying the requested records in preparation for release to the requestor; 17 packaging, mailing, and/or electronically transmitting the records to the requestor; and invoicing, billing, and collecting payment for medical records. 18 1.30 Section 1158 Request. “Section 1158 Request” means a request, made before the filing 19 of any action or the appearance of a defendant in an action, by an attorney at law or his or her representative, accompanied by a written authorization therefor signed by an adult 20 patient, by the guardian or conservator of his or her person or estate, or, in the case of a 21 minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, to a Medical Provider to make all of the patient’s 22 records under the Medical Provider’s custody or control available for inspection and copying by the attorney at law or his or her representative. The Parties intend “Section 23 1158 Request” to encompass requests made within the scope of Cal. Evid. Code § 1158 and no other requests. 24 25 1.31 Service Award. “Service Award” means the additional amount paid to Plaintiff, subject to Court approval, for her service in this Litigation. 26 27 28 10 See, infra, Definitions 1.34 (“Transactions List”). -7- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 1.32 Settlement Notice(s). “Settlement Notice(s)” means the Notices of Class Action Settlement, substantially in the forms attached hereto as Exhibits A - B, and as approved 2 by the Court. The Settlement Notices include: 3 1.32.1 Short-Form Settlement Notice, which provides basic information about the 4 Litigation, the Settlement, and the Claims Process (a sample thereof is attached hereto as Exhibit A); 5 1.32.2 Long-Form Settlement Notice, which provides more detailed information regarding 6 the Litigation, the Settlement, and the Claims Process (a sample thereof is attached hereto as Exhibit B); and 7 1.32.3 Tailored Settlement Notice, which is largely similar to the Long-Form Settlement 8 Notice but informs the recipient law firm that it has been identified as a 9 Requesting Attorney in the Transactions List, and includes a list of the patients on the Transactions List for whom each Requesting Attorney made a Records 10 Request. The Parties shall work with the Claims Administrator to create the Tailored Settlement Notice, which shall be approved by the Court prior to issuing. 11 1.33 Transactions List. “Transactions List” means the list of medical records requests paid 12 for during the Class Period by Requesting Attorneys on behalf of one or more Class 13 Members, including, inter alia, the name and mailing address of the requestor or requesting law firm, the name of the patient for whom records were requested, the date 14 the request was processed by Ciox, the number of responsive pages, the amount charged by Ciox to respond to the request, and the amount actually paid less a refund or write-off, 15 if any. 16 1.34 Qualified Settlement Fund or QSF. “Qualified Settlement Fund” or “QSF” means the 17 account established by the Claims Administrator for the Common Fund. 18 2. GENERAL TERMS 19 2.1 Mutual Full Cooperation. The Parties agree to cooperate fully with each other, and shall exercise Best Efforts to effectuate and implement all terms and conditions of this 20 Agreement and to obtain the Court’s approval of this Agreement and all of its terms. Each of the Parties, upon the reasonable request of any other, agrees to perform such 21 further acts and to execute and deliver such other documents as are reasonably necessary 22 to carry out the provisions of this Agreement. 23 3. CHANGES IN BUSINESS PRACTICES 24 3.1 Ciox shall, when Ciox responds to a Section 1158 Request by mail, include the following information as part of its response: 25 3.1.1 That Ciox is offering to send the requestor copies of the records requested upon 26 the requestor’s employing Ciox as the requestor’s representative to make and send 27 the copies. 28 -8- CLASS ACTION Civil Case No.: CGC-13-531076 SETTLEMENT AGREEMENT 1 3.1.2 That Ciox’s rates for copying the records as the requestor’s representative are $30.00 + $0.25 per page plus actual postage and applicable sales tax, that copies 2 from microfilm are $30.00 plus $0.75 per page, that the medical provider may 3 charge a flat fee of $15.00 for retrieving and making the records available for copying, that additional charges may apply if records must be retrieved from off- 4 site locations, and that the charges are itemized on the included invoice if they apply. (This information may be modified