Duncan v. Aliera Companies, Inc.

• Court: District Court, E.D. California
• Decided: January 16, 2024
• Docket: 2:20-cv-00867
• Status: Unknown

Opinion

88 UNITED STATES DISTRICT COURT 99 EASTERN DISTRICT OF CALIFORNIA

1100 CORLYN DUNCAN, BRUCE DUNCAN, REBECCA WHITE, f/k/a REBECCA SMITH, Case No. 2:20-CV-00867-TLN-KJN 1111 ELLEN LARSON; JARED BEARD, JAIME BEARD, HANNA ALBINA, AND AUSTIN ORDER 1122 WILLARD, individually and on behalf of all others (1) FINALLY APPROVING 1133 similarly situated, SETTLEMENT AGREEMENT; (2) APPROVING DISBURSEMENTS 1144 Plaintiffs, PURSUANT TO THE

1155 v. SETTLEMENT AGREEMENT; (3) APPROVING PAYMENT OF

1166 THE ALIERA COMPANIES, INC., f/k/a ALIERA ATTORNEY FEES, 1177 HEALTHCARE, INC., a Delaware corporation; LITIGATION COSTS AND CASE TRINITY HEALTHSHARE, INC., a Delaware CONTRIBUTION AWARDS; 1188 corporation; and ONESHARE HEALTH, LLC, (4) ESTABLISHING A LATE CLAIM formerly known as UNITY HEALTHSHARE, LLC DEADLINE; AND 1199 and as KINGDOM HEALTHSHARE MINISTRIES, (5) ORDERING FINAL REPORT LLC, a Virginia limited liability corporation, 2200

2211 Defendants.

2244 2255 2266 2277 I. BACKGROUND 11 On June 13, 2023, the Court preliminarily approved an agreement of a class-wide 22 settlement of claims against Defendant OneShare Health, LLC. ECF Nos. 111 and 114 (amending 33 the 6/13/23 Order). The Court directed the Claims Processor to issue notice to the Settlement Class. 44 ECF No. 114, ¶¶8–9. Class Notice and Claim Form Materials were emailed and mailed in 55 accordance with the Court’s Order and Settlement Agreement on or about August 4 through 66 September 13, 2023. ECF No. 120, ¶4. The Claims Processor updated notice recipients’ addresses 77 when the notices were returned and re-mailed the notices to all updated addresses located. Id. 88 Class Counsel also established a settlement webpage within 30 days of the date of this 99 Order that contained the Class Notice, the Claim Form Materials, and key filings in the litigation. 1100 ECF No. 117, ¶17. The website includes Plaintiffs’ Motion for Attorney Fees, Litigation Costs, 1111 and Contribution Award. See https://www.symslaw.com/unitysettlement (last visited 12/21/23). 1122 Defendant OneShare provided the required notice under the Class Action Fairness Act (“CAFA”). 1133 ECF No. 112. 1144 The Order also provided that class members who wished to comment on or object to the 1155 proposed Agreement were required to do so by November 12, 2023. ECF No. 114, ¶14. Class 1166 members were informed of their rights and of this deadline in the notices that were mailed to them 1177 and on Class Counsel’s website. 1188 The Order further scheduled a final settlement hearing, which was held on January 11, 1199 2024, at 1:30 p.m. PT, to consider objections and comments by class members and to determine 2200 whether the proposed Agreement is fair, reasonable, adequate, and should be approved by the 2211 Court. Id., ¶20. 2222 2233 II. FINDINGS AND CONCLUSIONS RELATED TO MOTION FOR FINAL APPROVAL OF SETTLEMENT 2244 1. The parties reached a Settlement Agreement resolving claims brought in three 2255 nearly identical class action lawsuits brought against OneShare Health LLC (“OneShare”), 2266 formerly known as Unity Healthshare, LLC (“Unity”), on behalf of former members of both Unity 2277 11 and The Aliera Companies, Inc. (“Aliera”). See Rebecca Smith, et al. v. The Aliera Companies, et 22 al., No. 1:20-cv-02130-RBJ, in the United States District Court for the District of Colorado (the 33 “Colorado Lawsuit”), and Hanna Albina, et al. v. The Aliera Companies, Inc., et al., Case No. 44 5:20-CV-00496-DCR, in the United States District Court for the Eastern District Kentucky (the 55 “Kentucky Lawsuit”), in addition to this case. 66 2. Aliera is in bankruptcy, and its plan of liquidation was recently confirmed. ECF 77 No. 117, ¶8. Recovery for Unity members from Aliera will occur pursuant to the Aliera Plan of 88 Liquidation. Id. 99 3. The parties negotiated a nationwide Settlement Agreement to resolve all claims of 1100 Unity members against OneShare that will ensure some financial relief to class members who 1111 submit a claim. Specifically, the settlement requires: 1122 • OneShare to make an initial payment of $3 million into a Settlement Trust Account; 1133 • OneShare to pay another $3-$7 million to the Trust Account over time according 1144 to a detailed payment plan in the Settlement Agreement; 1155 • Assignment of OneShare’s $3.75 million claim in the Aliera Bankruptcy to the 1166 Class; 1177 • OneShare must cooperate with the Class and the Aliera Liquidating Trust to obtain 1188 further compensation for class members; and 1199 • Class members are entitled to an opportunity to correct their claim and participate 2200 in an arbitration process in the event of a dispute over whether a claim should be 2211 paid and/or the amount of such payment. 2222 Plaintiffs provided a full description of the lengthy history of the case and settlement in their 2233 Motion for Certification of Settlement Class and Preliminary Approval of Settlement. ECF 2244 No. 100-1. 2255 4. As of December 19, 2023, OneShare has paid a total of $3,366,666.63 into the 2266 Settlement Fund that is held in a Settlement Trust Account, pursuant to the Settlement Agreement. 2277 Together with accrued interest, the amount of the Settlement Fund, as of December 19, 2023, is 11 $3,446,569.66. The Court finds that the Settlement Fund is sufficient to make an Initial 22 Distribution and to pay costs and expenses before all sums under the Settlement Agreement are 33 received, and that Subsequent Distribution(s) may be made after the remaining sums due under 44 the Settlement Agreement are received. 55 5. The Court’s Preliminary Approval Order appointed BMC Group Inc. (“BMC”) as 66 Claims Administrator and directed the parties to work with BMC to email and mail the approved 77 Class Notice package to Settlement Class Members. ECF No. 114. The parties worked with BMC 88 and Aliera’s bankruptcy counsel to locate what is believed to be a list of former Unity/Aliera 99 enrollees. 1100 6. On August 4, 2023, BMC emailed the court-approved Class Notice package to the 1111 list provided by Aliera’s bankruptcy counsel. ECF No. 120, ¶¶2–4. BMC has also mailed the Class 1122 Notice package to any class members for whom it does not have a valid, working email, when a 1133 mailing address can be located. Id. 1144 7. Defendant timely provided notices and materials required under the Class Action 1155 Fairness Act (“CAFA”), 28 U.S.C. §1715(b). ECF No. 112. 1166 8. No class members objected to the Settlement Agreement. Hamburger Decl., ¶2. 1177 Only one class member opted out of the Settlement Agreement. Id. No comments or concerns were 1188 received from any of the state attorneys’ general offices. Id. 1199 9. Class Counsel and BMC received hundreds of calls and emails inquiring about the 2200 settlement and the claims process. Id., ¶¶3–4. All were positive about the settlement, although 2211 many contacts were related to the submission of late claims. Id. 2222 10. A total of 1,795 claims were received by the Claims Administrator by 2233 November 13, 2023 (the deadline of November 12, 2023, fell on a Sunday, so the Claims 2244 Administrator properly accepted claims on November 13, 2023, as timely). The total value of these 2255 claims, before they are adjudicated by the Claims Administrator, is approximately $19.4 million. 2266 Based upon the initial review of these claims, a significant portion of the claims fall outside of the 2277 11 Class Period and are thus ineligible for compensation. Id. Eliminating the claims outside of the 22 Class Period, the total value of the claims (without further adjudication) is $10,615,481.49. 33 11. A total of 209 additional claims were received by the Claims Administrator after 44 November 13, 2023, through December 13, 2023 (30 days after the original deadline) (“Late 55 Claims”). The total value of these Late Claims before they are adjudicated by the Claims Processor 66 is approximately $2.38 million. Eliminating claims outside the Class Period, the total value of all 77 claims, including the Late Claims, is $11,677,303.46. Based upon the claims received, no claims 88 will be paid in their valid and approved amounts, and all claims will be paid on a pro rata basis. 99 12. Class Counsel and BMC represent that any partial or full denial of claims will 1100 include information on how the claimant may submit additional information and the right to 1111 arbitrate any dispute over the payment of claims. Feil Decl., ¶8. 1122 13. Rule 23(e) provides that “a class action shall not be dismissed or compromised 1133 without the approval of the court….” Compromise and arbitration of complex litigation is 1144 encouraged and favored by public policy. See Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th 1155 Cir. 1999). 1166 14. A presumption of fairness and adequacy attaches to a class action settlement 1177 reached in arm’s-length negotiations by experienced class counsel after meaningful discovery. See, 1188 e.g., Officers for Justice v. Civil Service Com., 688 F.2d 615, 625 (9th Cir. 1982); Pickett v. 1199 Holland Am. Line-Westours, Inc., 145 Wn.2d 178, 209, 35 P.3d 351 (2001). 2200 15. The following factors are generally considered when determining whether a 2211 settlement is fair, adequate, and reasonable: the likelihood of success by plaintiff; the amount of 2222 discovery or evidence; the settlement terms and conditions; recommendation and experience of 2233 counsel; future expense and likely duration of litigation; recommendation of neutral parties, if any; 2244 number of objectors and nature of objections; and the presence of good faith and absence of 2255 collusion. Officers for Justice, 688 F.2d at 625. 2266 16. Based upon these factors, the Court finds that the Agreement is fair, reasonable, 2277 and in the best interests of the class. The requirements of Fed. R. Civ. P. 23 have been satisfied. 11 With the representations by Class Counsel and BMC that claimants whose claims are not approved 22 in full will have the opportunity to (a) submit additional information and (b) participate in 33 arbitration, due process is also satisfied. 44 17. Specifically, the Court concludes that the Agreement was the result of arm’s-length 55 bargaining. It was reached after sufficient discovery and other litigation activity, and after 66 mediation with Judge Thomas B. Griffith (D.C. Cir., Ret.). Although the Plaintiffs believed that 77 their claims had a strong likelihood of success, they faced years of appeals related to the validity 88 of the arbitration claims in the Unity/Aliera guide before the merits of the dispute could be reached. 99 The litigation likely involved complex questions of federal and state insurance regulation, 1100 consumer protection law, damages calculations, and class certification issues. Given the 1111 bankruptcy of Aliera, there was a significant risk that even if Plaintiffs were successful on the 1122 merits, they might be unable to collect against OneShare. The Court finds that there is no evidence 1133 of collusion between the parties, and the Agreement was reached in good faith. 1144 18. The class was provided with adequate notice, and due process has been satisfied in 1155 connection with the distribution of the Class Notice. No objections to the proposed Agreement 1166 were received by the Court or any of the parties. 1177 III. FINDINGS AND CONCLUSIONS RELATED TO PLAINTIFFS’ 1188 MOTION FOR ATTORNEY FEES, LITIGATION COSTS, AND CASE CONTRIBTUION AWARDS 1199 19. Plaintiffs moved for payment of attorney fees, litigation costs, and case contribution 2200 awards on August 24, 2023, in compliance with the schedule the Court specified in its Order 2211 granting preliminary approval. ECF No. 116. No objection to this motion has been filed. 2222 20. Where a class action settlement creates a common fund, as has been created here, 2233 the Court has discretion to choose either the percentage-of-the-fund or lodestar method in 2244 calculating the fee award. Vizcaino v. Microsoft Corp., 290 F. 3d 1043, 1047 (9th Cir. 2002). 2255 Typically, however, courts apply the percentage-of-the-fund method where the settlement involves 2266 a common fund. Kinney v. Nat’l Express Transit Servs. Corp., Case Nol 2:14-cv-01615-TLN-DB, 2277 11 2018 U.S. Dist. LEXIS 10808, *11 (E.D. Cal. Jan. 22, 2018). The Court adopts the percentage-of 22 -the-fund method here. 33 21. The Court concludes that 28% is a reasonable percentage for payment of attorney 44 fees in this settlement. In so concluding, the Court has considered the following facts: 55 (a) Class Counsel obtained an excellent result through this settlement. See In re 66 Activision Sec. Litig., 723 F. Supp. 1373, 1377–78 (N.D. Cal. 1989) (“nearly all common fund 77 awards range around 30%”). The settlement results in a substantial monetary benefit for the Class 88 by creating a fund of a minimum of $6 million over time. The Settlement Fund currently has over 99 $3.4 million and is sufficient for an Initial Distribution to class members. OneShare is obligated to 1100 pay an additional $2.6 million into that Settlement Fund if paid in full by December 31, 2024, but 1111 that amount will increase over time, incentivizing it to pay promptly. The settlement also requires 1122 assignment of a $3.75 million proof of claim in the Aliera bankruptcy with an estimated value of 1133 between $562,500 and $1,312,500. Hamburger Decl., ¶7. 1144 (b) Class Counsel undertook a significant risk in taking on these class action lawsuits 1155 on a contingent basis, and paid costs and expenses for which they would not be entitled to 1166 reimbursement absent a recovery. The claims that Defendants were selling illegal insurance struck 1177 at the heart of Defendants’ business model, and Class Counsel expected Defendants to mount a 1188 vigorous defense to those claims. There was also a substantial risk that litigation could leave 1199 Defendants without the means to pay a judgment, and indeed, two of the Defendants are in 2200 bankruptcy. 2211 (c) This case is complex and required a great deal of skill in achieving the settlement, 2222 including the navigation of different states’ insurance laws, arbitration, a variety of plans, and the 2233 bankruptcy of two of the Defendants, including the bankruptcy of Aliera, which possessed the 2244 relevant member data. 2255 (d) The settlement generates benefits beyond the cash settlement through OneShare’s 2266 cooperation agreement with respect to the Aleira bankruptcy. 2277 11 (e) Class Counsel has taken special efforts to assist class members who have large 22 unpaid medical bills. 33 22. The Court also finds that 28% is reasonable after performing a lodestar cross-check. 44 The total common Settlement Fund that will be created, assuming OneShare’s early payment of 55 $6 million and an estimated payment of 15% of OneShare’s $3.75 claim in the Aliera bankruptcy, 66 will be $6,562,500, and applying 28% to that amount, the total attorney fees will be $1,837,500. 77 Class Counsel have provided declarations outlining their hours spent in connection with the three 88 class action lawsuits settled here, and their respective hourly rates. The total lodestar is 99 $2,130,428.04. The Court finds this reasonable for the extensive work performed to achieve the 1100 settlement here, and considering additional work not included in the lodestar that will be required 1111 in order to finalize the settlement. That number represents a negative multiplier from the 28% 1122 award. Even if the hourly rates were reduced by 20% so that the lodestar would be reduced to 1133 $1,704,342.43, the multiplier would be only 1.07, well within reason. 1144 23. Class Counsel are entitled to 28% of the Settlement Fund under the terms of the 1155 Settlement Agreement, subject to Court approval. That approval is granted, and the Court awards 1166 28% of the total Settlement Fund paid as attorney fees to Class Counsel. 1177 24. Class Counsel have paid costs of $61,521.42 out of pocket. The Court has reviewed 1188 the costs and finds them reasonable. 1199 25. The Settlement Agreement provides that upon the occurrence of the conditions set 2200 forth in Section 2 of that Agreement, Named Plaintiffs Corlyn and Bruce Duncan, Rebecca White, 2211 Ellen Larson, Jaime and Jared Beard, Hanna Albina, and Austin Willard shall be awarded $10,000 2222 each as described in the Settlement Agreement, subject to the Court’s approval. ECF No. 110-2, 2233 §13.2. That approval is granted, and the Claims Administrator is ordered to pay the approved case 2244 contribution awards to the Named Plaintiffs as required by the Settlement Agreement. 2255 26. The Settlement Agreement provides that upon the occurrence of the conditions set 2266 forth in Section 2 of the Settlement Agreement, the Claims Administrator is authorized to pay the 2277 approved attorney fees and litigation costs to Class Counsel, subject to Court approval. ECF 11 No. 100-2, §13.1. That approval is granted. Specifically, the Claims Administrator shall pay Class 22 Counsel’s approved litigation costs with the Initial Disbursement of funds from the Settlement 33 Fund. Additionally, the Claims Processor shall pay Class Counsel on pro rata basis whenever 44 distributions are made to class members (i.e., if the Claims Processor has $3 million to distribute, 55 28%, or $840,000, shall be distributed to Class Counsel as attorney fees). Whenever additional 66 distributions are made to Claimants, the Claims Administrator shall distribute 28% of the gross 77 distributions to Class Counsel. The Claims Administrator shall ensure that the total payment of 88 attorney fees to Class Counsel equals 28% of the total Settlement Fund. 99 IV. APPROVAL OF DISBURSEMENTS AND 1100 PAYMENTS TO CLASS MEMBERS 27. To facilitate payments from the Settlement Fund, Class Counsel is authorized to 1111 delegate authority to the Claims Administrator to make all necessary distributions from the 1122 Settlement Fund required pursuant to this Order and/or the Settlement Agreement. 1133 28. Upon the occurrence of the conditions set forth in Section 2 of the Settlement 1144 Agreement, the Court authorizes the payment of valid and approved class member claims. The 1155 Court authorizes the disbursement of these funds from the Settlement Fund and authorizes the 1166 Claims Administrator, in consultation with Class Counsel, to make disbursements on a pro rata 1177 basis in whole or in part until all of the funds are distributed, consistent with the terms of the 1188 Settlement Agreement. 1199 29. Claimants must negotiate their checks within 90 days of issuance. The Claims 2200 Processor may extend this deadline on request from a class member and issue replacement checks 2211 for lost checks without further approval of the Court or additional cost to the claimant, provided 2222 the cost of replacing the check does not exceed the value of the lost check. 2233 2244 V. CLASS NOTICE AND CLAIMS ADMINISTRATION COSTS 2255 30. The Claims Administrator is authorized to reimburse itself for the cost of Class 2266 Notice and claims administration through December 15, 2023, totaling $20,070. 2277 11 31. The Claims Administrator may reimburse itself for the cost of claims 22 administration, taxes, etc. incurred after December 15, 2023, after notifying Class Counsel 33 regarding such payments at least 14 days in advance. 44 VI. AUTHORIZATION OF LATE-FILED CLAIMS 55 32. The Claims Administrator reports that 209 claims were filed within 30 days of the 66 deadline for submitting claims (“Late Claims”). The estimated amount of the Late Claims is 77 $1,061,821.97. Adjudication and payment of Late Claims may result in a slight reduction of the 88 pro rata payments to other class members. Specifically, Class Counsel anticipates that the 99 reduction will be approximately 4%. The Court concludes that this reduction does not unduly 1100 prejudice the class members who timely filed their claims. Courts have equitable authority to 1111 permit the inclusion of Late Filed claims. Cf. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1993). 1122 33. The Court orders the Claims Administrator to accept all Late Claims filed through 1133 December 13, 2023. The Claims Administrator is ordered to adjudicate and pay those claims as if 1144 they were timely filed. 1155 VII. CLASS COUNSEL’S FINAL REPORT AND DISMISSAL 1166 34. Class Counsel shall submit a final report to the Court regarding claims processing 1177 and disbursement of funds from the Settlement Fund by no later than 30 days after the Settlement 1188 Fund is fully funded and the Claims Administrator has processed and paid all valid and approved 1199 claims, including any Late Claims authorized for payment by the Court, and any claims allowed 2200 as a result of the arbitration process. The report shall detail the payment of court-awarded attorney 2211 fees and litigation costs, case contribution awards, payment of claims, as well as any other 2222 activities necessary to close the Settlement Fund. At the same time, Class Counsel shall file a 2233 proposed Order of Dismissal. 2244 2255 2266 2277 VIII. ORDER 11 It is hereby ORDERED that: 22 33 1. The Court GRANTS Plaintiffs’ Motion for Final Approval (ECF No. 115) and Motion for Attorneys’ Fees (ECF No. 116). 44 55 2. The Settlement Agreement is approved as fair, reasonable, and adequate under Fed. R. Civ. P. 23, and its terms shall bind all class members. 66 77 3. Class Counsel are awarded attorney fees of 28% of the Settlement Fund and litigation costs of $61,521.42, as set forth above. These amounts are ordered to be paid by the 88 Claims Administrator from the Settlement Fund. 99 1100 4. The Claims Administrator is ordered to accept, adjudicate, and pay all late-filed claims and emailed claims received by December 13, 2023, as if the claims were timely received. 1111 1122 5. The Claims Administrator is ordered to make payments and distribute checks to class members and the Named Plaintiffs in accordance with the Agreement and this Order, as 1133 approved by the Claims Administrator or on appeal by the Arbitrator, in whole or in part based 1144 upon the distributions to be made. These amounts are authorized to be paid from the Settlement 1155 Fund. 1166 1177 6. Case contribution awards of $10,000 each to Named Plaintiffs Corlyn and Bruce Duncan, Rebecca White, Ellen Larson, Jaime and Jared Beard, Hanna Albina, and Austin Willard 1188 shall be awarded as described in the Settlement Agreement. 1199 2200 7. Class Counsel is ordered to submit a Final Report in accordance with the Agreement and this Order. 2211 2222 8. The Court shall retain jurisdiction over this matter until the Settlement Amount is fully disbursed and an Order of Dismissal is entered. 2233

2277 11 IT IS SO ORDERED. 22 33 DATED: January 12, 2024 44 55 66 77 88 99 1100 1111 1122 1133 1144 1155 1166 1177 1188 1199 2200 2211 2222 2233 2244 2255 2266 2277