HEALTH AID OF OHIO, INC settlement agreement
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
KATHLEEN DEVINE, et al.,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
HEALTH AID OF OHIO, INC.,
Defendant.
:
:
:
Case No. CV-21-948117
Judge Nancy Margaret Russo
SETTLEMENT AGREEMENT
This Settlement Agreement, dated as of March 1, 2022, is made and entered into by and
among the following Settling Parties (as defined below): Kathleen Devine, Richard Rydzinski, and
Deshawn Beckham (“Plaintiffs”), individually and on behalf of the Settlement Class (as defined
below), by and through their counsel at MARKOVITS, STOCK & DEMARCO, LLC, MASON,
LIETZ & KLINGER, LLP, THE LYON FIRM, LLC (“Proposed Settlement Class Counsel” or
“Class Counsel” or “Plaintiffs’ Counsel”) and Health Aid of Ohio, Inc. (“Defendant” and, together
with Plaintiffs, the “Parties”) by and through their counsel of record, Walter A. (Scott) Lucas at
Weston Hurd, LLP and Claudia McCarron at Mullen Coughlin LLC. The Settlement Agreement
is subject to Court approval and is intended by the Settling Parties to fully, finally, and forever
resolve, discharge, and settle the Released Claims (as defined below), upon and subject to the
terms and conditions hereof.
I. THE LITIGATION
Plaintiffs allege that on or about February 19, 2021, the Defendant was the target of a
cybersecurity incident and alleged data breach (the “Data Incident”) in which a cybercriminal
launched an attack resulting in the unauthorized access of some personal information entrusted to
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the Defendant by Plaintiffs and the putative class members. Plaintiffs allege that, as a result of the
Data Incident, this unauthorized user gained access to Plaintiffs’ names, address, dates of birth,
phone numbers, Social Security Numbers, medical diagnosis, insurances information, type of
equipment delivered and/or repaired at the client’s home, and other protected health information
as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and
additional personally identifiable information (“PII”) and protected health information (“PHI”)
(collectively, “Personal Information”). After the Data Incident, the Defendant notified
approximately 141,149 individuals of the Data Incident.
Plaintiffs Devine and Rydzinski filed their Class Action Complaint on May 28,
2021.Plaintiff Beckham filed his Class Action Complaint on June 23, 2021 (collectively, “the
Litigation). On January 24, 2022, the Parties filed a Joint Notice of Class Action Settlement in
Principle after having engaged in settlement negotiations resulting in a settlement memorialized
in this settlement agreement (“Settlement Agreement”).
Pursuant to the terms set out below, this Settlement Agreement provides for the resolution
of all claims and causes of action asserted, or that could have been asserted, in the Litigation
against the Defendant and the Released Persons (as defined below) relating to the Data Incident,
by and on behalf of Representative Plaintiffs and Settlement Class Members.
II. CLAIMS OF REPRESENTATIVE PLAINTIFFS AND BENEFITS OF
SETTLING
Plaintiffs believe the claims asserted in the Litigation, as set forth in the Class Action
Complaints, have merit. Plaintiffs and Proposed Settlement Class Counsel recognize and
acknowledge, however, the expense and length of continued proceedings necessary to prosecute the
Litigation against the Defendant through motion practice, trial, and potential appeals. They have also
considered the uncertain outcome and risk of further litigation, as well as the difficulties and delays
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inherent in such litigation, especially in complex class actions. Proposed Settlement Class Counsel
are highly experienced in class action litigation and very knowledgeable regarding the relevant
claims, remedies, and defenses at issue generally in such litigation and in this Litigation. They have
concluded that the settlement set forth in this Settlement Agreement is fair, reasonable, and adequate,
and in the best interests of the Settlement Class Members.
III. DENIAL OF WRONGDOING AND LIABILITY
Defendant denies the claims and contentions alleged against them in the Litigation.
Defendant denies all charges of wrongdoing or liability as alleged, or which could be alleged, in
the Litigation. Nonetheless, Defendant has considered the uncertainty and risks inherent in any
litigation. Defendant has concluded that further conduct of the Litigation would be protracted and
expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and
upon the terms and conditions set forth in this Settlement Agreement.
IV. TERMS OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among
Plaintiffs, individually and on behalf of the Settlement Class Members, Proposed Settlement Class
Counsel, and Defendant that, subject to the approval of the Court, the Litigation and the Released
Claims shall be finally and fully compromised, settled, and released, and the Litigation shall be
dismissed with prejudice as to the Settling Parties and the Settlement Class Members, except those
Settlement Class Members who lawfully opt-out of the Settlement Agreement, upon and subject
to the terms and conditions of this Settlement Agreement, as follows:
1. Settlement Structure: The settlement shall be administered on a wholly claimsmade basis. To receive any relief, Settlement Class Members, as defined below, must submit a
Valid and Timely Claim to the Claims Administrator.
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2. Settlement Class Definition and Subclasses: The Settlement Class Members shall
include "all persons whose Private Information was maintained on Defendant Health Aid's system
and who were sent a Notice of Data Breach as a result of the Data Incident.” The Settlement Class
Members shall further be divided into two subclasses:
2.1 No SSNs Subclass Definition: The No SSNs Subclass shall be comprised
of all members of the Settlement Class whose Social Security numbers were not in
the database on which notice was based and who were not offered complimentary
credit monitoring in the notice of the Data Incident.
2.2 SSNs Included Subclass Definition: The SSNs Included Subclass shall be
comprised of all members of the Settlement Class whose Social Security numbers
were included in the database on which notice was based and who were offered
complimentary credit monitoring in the notice of the Data Incident.
Excluded from the Class and Subclasses are Defendant’s officers, directors, and employees; any
entity in which Defendant has a controlling interest; and the affiliates, legal representatives,
attorneys, successors, heirs, and assigns of Defendant. Excluded also from the Class and Subclasses
are members of the judiciary to whom this case is assigned, their families and Members of their
staff.
3. Additional Definitions
As used in this Settlement Agreement, the following terms have the meanings specified
below:
3.1 “Agreement” or “Settlement Agreement” means this agreement.
3.2 “Claim Form” means the form that will be used by Settlement Class
Members to submit a Settlement Claim to the Claims Administrator and that
is substantially in the form as shown in Exhibit A to this Settlement
Agreement.
3.3 “Claims Administration” means the processing and payment of claims
received from Settlement Class Members by the Claims Administrator.
3.4 “Claims Administrator” means the Angeion Group, a company experienced
in administering class action claims generally and specifically those of the
type provided for and made in data breach litigation.
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3.5 “Claims Deadline” means the postmark and/or online submission deadline
for Settlement Claims pursuant to Section 4.2, which shall be 90 days after
the Notice Commencement Date.
3.6 “Costs of Claims Administration” means all actual costs associated with or
arising from Claims Administration.
3.7 “Data Incident” means the security incident perpetrated on Defendant on
February 19, 2021, in which an unauthorized user accessed Defendant’s
network and computer systems and may have accessed the Personal
Information of Plaintiffs.
3.8 “Effective Date” means the first date by which all of the events and
conditions specified in Section 3.9 below have occurred and been met.
3.9 “Final” means the occurrence of all of the following events: (i) the
settlement pursuant to this Settlement Agreement is approved by the Court;
(ii) the Court has entered a Judgment (as that term is defined herein); and
(iii) the time to appeal or seek permission to appeal from the Judgment has
expired or, if appealed, the appeal has been dismissed in its entirety, or the
Judgment has been affirmed in its entirety by the court of last resort to which
such appeal may be taken, and such dismissal or affirmance has become no
longer subject to further appeal or review. Notwithstanding the above, any
order modifying or reversing any attorneys’ fees award or service award
made in this case shall not affect whether the Judgment is “Final” as defined
herein or any other aspect of the Judgment.
3.10 “Judgment” means a judgment rendered by the Court.
3.11 “Long Notice” means the long form notice of settlement to be posted on the
Settlement Website (as defined below), substantially in the form as shown
in Exhibit B to this Settlement Agreement.
3.12 “Notice Commencement Date” means thirty (30) days after the entry of the
Preliminary Approval Order.
3.13 “Objection Date” means the date by which Settlement Class Members must
file with the Court through the Court’s electronic case filing (“ECF”) system
and mail to Class Counsel and counsel for Defendant their objection to the
Settlement for that objection to be effective. The postmark date shall
constitute evidence of the date of mailing for these purposes. The Objection
Date shall be sixty (60) days after the Notice Commencement Date.
3.14 “Opt-Out Date” means the date by which Settlement Class Members must
mail to the Claims Administrator their requests to be excluded from the
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Settlement Class for that request to be effective. The postmark date shall
constitute evidence of the date of mailing for these purposes. The Opt-Out
Date shall be sixty (60) days after the Notice Commencement Date.
3.15 “Person” means an individual, corporation, partnership, limited partnership,
limited liability company or partnership, association, joint stock company,
estate, legal representative, trust, unincorporated association, government
or any political subdivision or agency thereof, and any business or legal
entity, and their respective spouses, heirs, predecessors, successors,
representatives, or assignees.
3.16 “Preliminary Approval Order” means the order preliminarily approving the
Settlement Agreement and ordering that notice be provided to the
Settlement Class. The Settling Parties’ proposed form of Preliminary
Approval Order is attached to this Settlement Agreement as Exhibit C.
3.17 “Released Claims” shall collectively mean any and all past, present, and
future claims and causes of action including, but not limited to, any causes of
action arising under or premised upon any statute, constitution, law,
ordinance, treaty, regulation, or common law of any country, state, province,
county, city, or municipality, including 15 U.S.C. § 45, et seq., and all similar
statutes in effect in any states in the United States; any claims under Ohio
common law for invasion of privacy or intrusion upon seclusion and all
similar statutes or recognized causes of action in effect in any states in the
United States; negligence; negligence per se; breach of contract; breach of
implied contract; breach of fiduciary duty; breach of confidence; invasion of
privacy; fraud; misrepresentation (whether fraudulent, negligent or innocent);
unjust enrichment; bailment; wantonness; failure to provide adequate notice
pursuant to any breach notification statute or common law duty; and
including, but not limited to, any and all claims for damages, injunctive relief,
disgorgement, declaratory relief, equitable relief, attorneys’ fees and
expenses, pre-judgment interest, credit monitoring services, the creation of a
fund for future damages, statutory damages, punitive damages, special
damages, exemplary damages, restitution, and/or the appointment of a
receiver, whether known or unknown, liquidated or unliquidated, accrued or
unaccrued, fixed or contingent, direct or derivative, and any other form of
legal or equitable relief that either has been asserted, was asserted, or could
have been asserted, by any Settlement Class Member against any of the
Released Persons based on, relating to, concerning or arising out of the
alleged access to and/or exfiltration of personal information related to the
Data Incident or the allegations, transactions, occurrences, facts, or
circumstances alleged in or otherwise described in the Litigation. Released
Claims shall not include the right of any Settlement Class Member or any of
the Released Persons to enforce the terms of the settlement contained in this
Settlement Agreement and shall not include the claims of Settlement Class
Members who have timely excluded themselves from the Settlement Class.
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3.18 “Released Persons” means Defendant and its Related Entities and each of
their past or present parents, subsidiaries, divisions, and related or affiliated
entities, and each of their respective predecessors, successors, directors,
officers, principals, agents, attorneys, insurers, and reinsurers.
3.19 “Related Entities” means Defendant’s respective past or present parents,
subsidiaries, divisions, and related or affiliated entities, and each of their
respective predecessors, successors, directors, officers, principals, agents,
attorneys, insurers, and reinsurers, and includes, without limitation, any
Person related to any such entity who is, was or could have been named as
a defendant in any of the actions in the Litigation, other than any Person
who is found by a court of competent jurisdiction to be guilty under criminal
law of initiating, causing, aiding or abetting the criminal activity occurrence
of the Data Incident or who pleads nolo contendere to any such charge.
3.20 “Settlement Claim” means a claim for settlement benefits made under the
terms of this Settlement Agreement in Section 4.2 below.
3.21 “Settling Parties” means, collectively, Defendant and Plaintiffs,
individually and on behalf of the Settlement Class.
3.22 “Short Notice” means the short notice of the proposed class action
settlement, substantially in the form as shown in Exhibit D to this
Settlement Agreement. The Short Notice will direct recipients to the
Settlement Website where recipients may view the Long Notice, preregister for Credit Monitoring and make a claim for monetary relief. The
Short Notice will also inform Settlement Class Members, inter alia, of the
Claims Deadline, the Opt-Out Date and Objection Date, and the date of the
Final Fairness Hearing (as defined below).
3.23 “United States” as used in this Settlement Agreement includes the District
of Columbia and all territories.
3.24 “Unknown Claims” means any of the Released Claims that any Settlement
Class Member, including any Plaintiff, does not know or suspect to exist
in his/her favor at the time of the release of the Released Persons that, if
known by him or her, might have affected his or her settlement with, and
release of, the Released Persons, or might have affected his or her decision
not to object to and/or to participate in this Settlement Agreement.
3.25 “Valid and Timely Claims” means Settlement Claims in an amount
approved by the Claims Administrator or found to be valid through the
claims processing and/or Dispute Resolution process.
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4. Settlement Benefits
4.1 Credit and Identity Monitoring: Both subclasses will be eligible for one (1)
year of credit monitoring and identity restoration services. At the time of
notice of the proposed settlement, each Settlement Class Member will
receive a unique identifier which will allow them to pre-register for Credit
Monitoring and otherwise interact with the Claims Administrator. Upon
Court approval of the Settlement Agreement, pre-registered class members
will be informed by the Claims Administrator that the credit monitoring has
been activated.
4.1.1 Credit Monitoring will be supplied by ID Experts (IDX). The
product to be provided by IDX includes single bureau credit
monitoring and instant alerts of any inquiries against the credit
records, dark web monitoring, identity theft insurance up to
$1,000,000 with no deductible, and fully managed identity
recovery services.
4.2 Monetary Recovery: Members of the SSNs Included Subclass will be
eligible to make claims for monetary recovery (“Settlement Claims”) set
forth in detail below. The total payments made to SSNs Included Subclass
members shall not exceed $125,000.00, which will include all monetary
compensation to be paid to the class as part of this settlement except for the
Service Awards to be paid pursuant to Section 12 below. In the event total
claims exceed $125,000.00, each claim shall be reduced on a pro rata basis.
4.2.1 Compensation for Out-of-Pocket Losses, Lost Time, and
Extraordinary Losses: Defendant agrees to make available the
following compensation to SSNs Included Subclass Members
who submit Valid and Timely Claims and Claim Forms and
support those claims with appropriate third-party
documentation. Claims will be subject to review for
completeness and plausibility by the Claims Administrator, and
both Settlement Class Members submitting claims and Defendant
will have the opportunity to seek review by a third-party claims
referee, to be mutually agreed upon by the Settling Parties, if they
dispute the Claim Administrator's initial determination.
4.2.2 Compensation for Ordinary Losses: Defendant will provide
compensation for unreimbursed losses, up to a total of $250.00
per person, upon submission of a claim, such as the following
losses:
a. Out of pocket expenses incurred as a result of the
Data Incident, including bank fees, long distance
phone charges, cell phone charges (only if charged by
the minute), data charges (only if charged based on
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the amount of data used), postage, or gasoline for
local travel.
b. Fees for credit reports, credit monitoring, or other
identity theft insurance product purchased following
the expiration of the credit monitoring and identify
theft insurance coverage that was offered at the time
of notification.
4.2.3 Compensation for Lost Time: Up to (4) hours of lost time, at
$15.00/hour, if at least one full hour was spent remedying fraud,
identity theft, or other alleged misuse of personal information
traceable to the Data Incident or spent on preventative and
remedial measures to protect personal information that are fairly
traceable to the Data Incident. Claims for lost time are included
within the $250.00 per person cap on ordinary losses. Claims for
lost time must be supported by an attestation setting forth the
amount of time spent dealing with the Data Incident.
4.2.4 Compensation for Extraordinary Losses: Defendant will
provide up to $2,500.00 in compensation to each Settlement
Class Member submitting a claim for proven monetary loss if:
a. The loss is an actual, documented, and unreimbursed
monetary loss of an extraordinary nature such as one
of the following categories (i) unreimbursed bank
fees; (ii) unreimbursed card reissuance fees;
(iii) unreimbursed overdraft fees; (iv) unreimbursed
charges related to unavailability of funds;
(v) unreimbursed late fees; (vi) unreimbursed overlimit fees; (vii) unreimbursed charges from banks or
credit card companies; and (viii) interest on payday
loans due to card cancellation or due to over-limit
situation incurred solely as a result of the Data
Incident.
b. The loss was more likely than not caused by the Data
Incident.
c. The loss occurred during the time period after the
Data Incident and before the Claim Deadline.
d. The loss is not already covered by one or more of the
normal reimbursement categories; and the
Settlement Class Member made reasonable efforts to
avoid, or seek reimbursement for, the loss, including
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but not limited to exhaustion of all available credit
monitoring insurance and identity theft insurance.
e. In addition to the requirement of Section 4.2, claims
for extraordinary losses must be verified by the SSN
Included Subclass Member with a statement that his
or her claim is true and correct, to the best of his or
her knowledge and belief, and it is being made under
penalty of perjury. The SSN Included Subclass
Member must submit reasonable documentation to
show that the extraordinary losses were actually
incurred and plausibly arose from the Data Incident.
5. Disputed Claims: If any dispute is submitted to the claims referee, the
claims referee may approve the Claims Administrator’s determination by making a ruling
within fifteen (15) days. The claims referee may make any other final determination of the
dispute or request further supplementation of a claim within thirty (30) days. The claims
referee’s determination shall be based on whether the claims referee is persuaded that the
claimed amounts are reasonably supported in fact and were more likely than not caused by
the Data Incident. The claims referee shall have the power to approve a claim in full or in
part. The claims referee’s decision will be final and non-appealable. Any claimant referred
to the claims referee shall reasonably cooperate with the claims referee, including by either
providing supplemental information as requested or, alternatively, signing an authorization
allowing the claims referee to verify the claim through third-party sources, and failure to
cooperate shall be grounds for denial of the claim in full. The claims referee shall make a
final decision within thirty (30) days of receipt of all supplemental information requested.
6. Objection Procedures: Each Settlement Class Member desiring to object to
the Settlement Agreement shall submit a timely written notice of his or her objection by the
Objection Date, as defined in Section 3.13. Such notice shall state: (i) the objector’s full name
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and address; (ii) the case name and docket number, Devine v. Health Aid of Ohio, Case No.
CV-21-948117; (iii) information identifying the objector as a Settlement Class Member,
including proof that the objector is a member of the Settlement Class (e.g., copy of the
objector’s settlement notice, copy of original notice of one of the Data Incidents, or a
statement explaining why the objector believes he or she is a Settlement Class Member);
(iv) a written statement of all grounds for the objection, accompanied by any legal support
for the objection the objector believes applicable; (v) the identity of any and all counsel
representing the objector in connection with the objection; (vi) a statement whether the
objector and/or his or her counsel will appear at the Final Fairness Hearing; and (vii) the
objector’s signature or the signature of the objector’s duly authorized attorney or other duly
authorized representative (if any) representing him or her in connection with the objection.
To be timely, written notice of an objection in the appropriate form must be mailed, with a
postmark date no later than the Objection Date, to Proposed Settlement Class Counsel,
Terence Coates at MARKOVITS, STOCK & DEMARCO, LLC and Gary M. Klinger at
MASON, LIETZ & KLINGER, LLP; and counsel for Defendant, Walter A. (Scott) Lucas
at Weston Hurd, LLP and Claudia McCarron at Mullen Coughlin LLC. The objector or his
or her counsel may also file an objection with the Court through the Court’s ECF system,
with service on Proposed Settlement Class Counsel and Defendant’s Counsel made
through the ECF system. For all objections mailed to Proposed Settlement Class Counsel
and counsel for Defendant, Proposed Settlement Class Counsel will file them with the
Court with the Motion for Final Approval of the Settlement.
Any Settlement Class Member who fails to comply with the requirements for
objecting in this Section shall waive and forfeit any and all rights he or she may have to appear
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separately and/or to object to the Settlement Agreement and shall be bound by all the terms of the
Settlement Agreement and by all proceedings, orders and judgments in the Litigation. The exclusive
means for any challenge to the Settlement Agreement shall be through the provisions of this
Section of the Settlement Agreement. Without limiting the foregoing, any challenge to the
Settlement Agreement, the final order approving this Settlement Agreement, or the Judgment to
be entered upon final approval shall be pursuant to appeal under applicable Ohio Rules of Civil
Procedure and not through a collateral attack.
7. Opt-Out Procedure: Each Person wishing to opt-out of the Settlement
Class shall individually sign and timely submit written notice of such intent to the
designated Post Office box established by the Claims Administrator. The written notice
must clearly manifest a Person’s intent to opt-out of the Settlement Class. To be effective,
written notice must be postmarked no later than the Opt-Out Date, as defined in Section
3.14.
All Persons who submit valid and timely notices of their intent to opt-out of the
Settlement Class, as set forth above, referred to herein as “Opt-Outs,” shall not receive any benefits
of and/or be bound by the terms of this Settlement Agreement. All Persons falling within the
definition of the Settlement Class who do not opt-out of the Settlement Class in the manner set
forth in above shall be bound by the terms of this Settlement Agreement and Judgment entered
thereon.
Within ten (10) days after the Opt-Out Date, the Claims Administrator shall notify
Defendant’s counsel of the number and identity of the persons opting out.
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8. Settlement Administration Fees: Defendant will pay the entirety of the
Costs of Claims Administration, including the cost of notice to Settlement Class Members
as discussed in section 9 below and in accordance with the Preliminary Approval Order.
9. Settlement Administration Process: After the settlement is preliminarily
approved by the Court, the Settlement Administrator will provide notice to the Settlement
Class Members. Notice shall be provided by the Claims Administrator as follows:
9.1 Class Member Information: No later than fourteen (14) days after entry
of the Preliminary Approval Order, Defendant shall provide the Claims
Administrator with the name and email address and/or last known physical
address of each Settlement Class Member (collectively, “Class Member
Information”) that Defendant possesses.
9.2 The Class Member Information and its contents shall be used by the
Claims Administrator solely for the purpose of performing its obligations
pursuant to this Agreement and shall not be used for any other purpose
at any time. Except to administer the settlement as provided in this
Settlement Agreement, or to provide all data and information in its
possession to the Settling Parties upon request, the Claims Administrator
shall not reproduce, copy, store, or distribute in any form, electronic or
otherwise, the Class Member Information.
9.3 Settlement Website: Prior to the dissemination of the Class Notice, the
Claims Administrator shall establish a settlement website after obtaining
the Parties’ agreement to the name/URL (“Settlement Website”). The
Settlement Website shall include, in .pdf format and available for
download, the following: (i) the Long Notice; (ii) the Claim Form; (iii)
the Preliminary Approval Order; (iv) this Agreement; (v) the Class Action
Complaint filed in the Litigation; and (vi) any other materials agreed upon
by the Parties and/or required by the Court. The Settlement Website shall
provide Class Members with the ability to complete and submit the Claim
Form electronically.
9.4 Short Notice: Within thirty (30) days after the entry of the Preliminary
Approval Order (“Notice Commencement Date”) and to be substantially
completed not later than forty-five (45) days after entry of the Preliminary
Approval Order, and subject to the requirements of this Settlement
Agreement and the Preliminary Approval Order, the Claims
Administrator will provide notice to the Settlement Class Members as
follows:
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9.4.1 via email to the email addresses in Defendant’s possession;
9.4.2 should any Short Notice be determined to be undeliverable
via email (the Claims Administrator will track delivered and
undelivered emails) or, in circumstances where a working
email address is not available, via mail to the postal address
in Defendant’s possession. Before any mailing under this
paragraph occurs, the Claims Administrator shall run the
postal addresses of Settlement Class Members through the
United States Postal Service (“USPS”) National Change of
Address database to update any change of address on file
with the USPS;
9.4.3 in the event that a Short Notice is returned to the Claims
Administrator by the USPS because the address of the
recipient is no longer valid, and the envelope contains a
forwarding address, the Claims Administrator shall re-send
the Short Notice to the forwarding address within seven (7)
days of receiving the returned Short Notice;
9.4.4 in the event that subsequent to the first mailing of a Short
Notice, and at least fourteen (14) days prior to the Opt-Out
Date and Objection Date, a Short Notice is returned to the
Claims Administrator by the USPS because the address of
the recipient is no longer valid, i.e., the envelope is marked
“Return to Sender” and does not contain a new forwarding
address, the Claims Administrator shall perform a standard
skip trace, in the manner that the Claims Administrator
customarily performs skip traces, in an effort to attempt to
ascertain the current address of the particular Settlement
Class Member in question and, if such an address is
ascertained, the Claims Administrator will re-send the Short
Notice within seven (7) days of receiving such information.
This shall be the final requirement for mailing
9.5 Publishing, on or before the Notice Commencement Date, the Claim
Form, Long Notice and this Settlement Agreement on the Settlement
Website, as specified in the Preliminary Approval Order, and
maintaining and updating the website until the Claims Deadline.
9.6 The Claims Administrator will provide copies of the Long Notice and
paper Claim Form, as well as this Settlement Agreement, upon request.
9.7 Contemporaneously with seeking final Court approval of the Settlement,
Proposed Settlement Class Counsel and Defendant shall cause to be filed
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with the Court an appropriate affidavit or declaration with respect to
complying with these provisions regarding notice.
9.8 The Short Notice, Long Notice, and other applicable communications to
the Settlement Class Members may be adjusted by the Claims
Administrator in consultation and agreement with the Settling Parties as
may be reasonable and not inconsistent with such approval. The Settlement
Administration and notice process shall commence within thirty (30) days
after entry of the Preliminary Approval Order and shall be completed
within forty-five (45) days after entry of the Preliminary Approval Order.
9.9 Proposed Settlement Class Counsel and Defendant’s counsel shall
request that after notice is completed the Court hold a hearing (the “Final
Fairness Hearing”) and grant final approval of the settlement set forth
herein.
9.10 Defendant will also cause the Claims Administrator to provide (at
Defendant’s expense) notice to the relevant state and federal
governmental officials as required by the Class Action Fairness Act.
10. Release: Settlement Class Members, including Representative Plaintiffs,
and any of them, may hereafter discover facts in addition to, or different from, those that
they, and any of them, now know or believe to be true with respect to the subject matter of
the Released Claims, but nevertheless Plaintiffs expressly shall have, and each other
Settlement Class Member shall be deemed to have, and by operation of the Judgment, upon
the Effective Date, fully, finally and forever settled and released Defendant, all Released
Persons, and all Released Entities from any and all Released Claims. The Plaintiffs and
Defendant acknowledge, and Settlement Class Members shall be deemed by operation of
the Judgment to have acknowledged, that the foregoing waiver is a material element of the
Settlement Agreement of which this release is a part. Further, the Plaintiffs and Settlement
Class Members covenant and agree that they shall not hereafter seek to establish liability
against Defendant, Released Persons and/or Related Entities in whole or in part on any
Released Claim. Notwithstanding any term herein, neither Defendant nor its Related Parties
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shall have or shall be deemed to have released, relinquished or discharged any claim or
defense against any Person other than Representative Plaintiffs, each and all of the
Settlement Class Members, and Proposed Settlement Class Counsel.
11. Claims Period: The Parties agree that the period for filing claims will be
set at a date certain at no more than 90 days from the date that notice is mailed to the
Settlement Class Members.
12. Service Award to Named Plaintiffs: Defendant will agree to pay an award
to each named Plaintiff that shall be separate and apart from any other sums agreed under
Section 4 (“Service Award”). The amount of the Service Award to be paid to each of the
three named Plaintiffs is $1,500, for a total of $4,500 in Service Awards. These Service
Awards were not discussed or negotiated until all other substantive terms for the Class
Action settlement were finalized and agreed upon.
13. Attorneys’ Fees: It is agreed and understood that attorneys’ fees and
reimbursement of expenses will be paid above and beyond the class compensation outlined
above and will not impact the amount of compensation allocable to the Settlement Class
Members. The amount of attorneys’ fees and reimbursement of expenses to be paid to
Plaintiffs' counsel related to the Class Action Lawsuit will be $235,000. These Attorneys’
Fee and reimbursed expenses were not discussed or negotiated until all other substantive
terms for the Class Action settlement were finalized and agreed upon.
14. Remedial Measures/Security Enhancements: Defendant will provide
Plaintiffs with detailed information on all security enhancements undertaken since
February 19, 2021 to the date of this Settlement Agreement. Defendant will commit to a
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security risk assessment in 2022 and 2023 and will enact reasonable and appropriate
security enhancements identified in the security risk assessment.
15. Order of Preliminary Approval and Publishing of Notice of Final Fairness
Hearing
As soon as practicable after the execution of the Settlement Agreement, Proposed Settlement
Class Counsel and counsel for Defendant shall jointly submit this Settlement Agreement to the
Court, and Proposed Settlement Class Counsel will file a motion for preliminary approval of the
settlement with the Court requesting entry of a Preliminary Approval Order in the form substantially
similar to Exhibit C in both terms and cost, requesting, inter alia:
15.1 Certification of the Settlement Class and Subclasses in Section 2;
15.2 Preliminary approval of the Settlement Agreement as set forth herein;
15.3 Appointment of Proposed Settlement Class Counsel as Settlement Class
Counsel;
15.4 Appointment of Plaintiffs as Class Representatives;
15.5 Approval of the Short Notice to be emailed or mailed to Settlement Class
Members in a form substantially similar to the one attached as Exhibit D this
Settlement Agreement;
15.6 Approval of the Long Notice to be posted on the Settlement Website in a form
substantially similar to the one attached as Exhibit B to this Settlement
Agreement, which, together with the Short Notice, shall include a fair summary
of the parties’ respective litigation positions, statements that the settlement and
notice of settlement are legitimate and that the Settlement Class Members are
entitled to benefits under the settlement, the general terms of the settlement set
forth in the Settlement Agreement, instructions for how to object to or opt-out
of the settlement, the process and instructions for making claims to the extent
contemplated herein, and the date, time and place of the Final Fairness
Hearing;
15.7 Approval of a Claim Form to be used by Settlement Class Members to make a
claim in a form substantially similar to the one attached as Exhibit A to this
Settlement Agreement; and
15.8 Appointment of the Angeion Group as the Claims Administrator.
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16. Motion for Attorneys’ Fees, Costs, and Service Awards and the Fairness
Hearing.
Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Service Awards, which will be filed
fourteen (14) days before the deadline for Settlement Class Members to object or exclude
themselves from the Settlement.
The Court will conduct the Fairness Hearing after the Claims Deadline. At the Fairness
Hearing, the Court will consider whether the Settlement, including execution of notice to the Class
and the claims administration, is fair, reasonable, and adequate. At least seven days before the
Fairness Hearing, Class Counsel will file a Motion for Final Approval.
17. Final Approval and Distribution of Settlement Funds.
Not later than 14 days after the Effective Date, Defendant will pay the $4,500.00 total
service award to the Class Representatives, the Attorneys’ Fees and Expenses, and the Settlement
Payments.
18. Conditions of Settlement, Effect of Disapproval, Cancellation or Termination
The Effective Date of the settlement shall be conditioned on the occurrence of all of the
following events:
18.1 The Court has entered the Judgment granting final approval to the
settlement as set forth herein; and
18.2 The Judgement has become Final, as defined in Section 3.9.
If all conditions specified in Sections 18.1, and 18.2 are not satisfied, the Settlement
Agreement shall be canceled and terminated subject to Section 18.4 unless Proposed Settlement
Class Counsel and Defendant’s counsel mutually agree in writing to proceed with the Settlement
Agreement.
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18.2 Within seven (7) days after the Opt-Out Date, the Claims Administrator
shall furnish to Proposed Settlement Class Counsel and to Defendant’s
counsel a complete list of all timely and valid requests for exclusion (the
“Opt-Out List”).
18.3 In the event that the Settlement Agreement or the releases set forth in
Sections 18.1 and 18.2 are not approved by the Court or the settlement set
forth in the Settlement Agreement is terminated in accordance with its
terms, (i) the Settling Parties shall be restored to their respective positions
in the Litigation and shall jointly request that all scheduled litigation
deadlines be reasonably extended by the Court so as to avoid prejudice to
any Settling Party or Settling Party’s counsel, and (ii) the terms and
provisions of the Settlement Agreement shall have no further force and
effect with respect to the Settling Parties and shall not be used in the
Litigation or in any other proceeding for any purpose, and any judgment or
order entered by the Court in accordance with the terms of the Settlement
Agreement shall be treated as vacated, nunc pro tunc. Notwithstanding any
statement in this Settlement Agreement to the contrary, no order of the
Court or modification or reversal on appeal of any order reducing the
amount of attorneys’ fees, costs, expenses, and/or service awards shall
constitute grounds for cancellation or termination of the Settlement
Agreement. Further, notwithstanding any statement in this Settlement
Agreement to the contrary, the Defendant shall be obligated to pay amounts
already billed or incurred for costs of notice to the Settlement Class, Claims
Administration, and Dispute Resolution pursuant to Sections 5 and 9 above
and shall not, at any time, seek recovery of same from any other party to the
Litigation or from counsel to any other party to the Litigation.
19. Settlement Subject to Confirmatory Discovery: Defendant agrees to provide
confirmatory discovery on establishing the appropriateness of the settlement terms as
contemplated under Fed. R. Civ. P. 23(b)(1) and any Ohio equivalent.
20. Miscellaneous Provisions
20.1 The Settling Parties (i) acknowledge that it is their intent to consummate this
Agreement; and (ii) agree to cooperate to the extent reasonably necessary to
effectuate and implement all terms and conditions of this Settlement
Agreement, and to exercise their best efforts to accomplish the terms and
conditions of this Settlement Agreement.
20.2 The Settling Parties intend this settlement to be a final and complete
resolution of all disputes between them with respect to the Litigation. The
settlement compromises claims that are contested and shall not be deemed an
admission by any Settling Party as to the merits of any claim or defense. The
20
Settling Parties each agree that the settlement was negotiated in good faith by
the Settling Parties, and reflects a settlement that was reached voluntarily after
consultation with competent legal counsel. The Settling Parties reserve their
right to rebut, in a manner that such party determines to be appropriate, any
contention made in any public forum that the Litigation was brought or
defended in bad faith or without a reasonable basis. It is agreed that no Party
shall have any liability to any other Party as it relates to the Litigation, except
as set forth herein.
20.3 Neither the Settlement Agreement, nor the settlement contained herein, nor
any act performed or document executed pursuant to or in furtherance of the
Settlement Agreement or the settlement (i) is or may be deemed to be or may
be used as an admission of, or evidence of, the validity or lack thereof of any
Released Claim, or of any wrongdoing or liability of any of the Released
Persons; or (ii) is or may be deemed to be or may be used as an admission of,
or evidence of, any fault or omission of any of the Released Persons in any
civil, criminal or administrative proceeding in any court, administrative
agency or other tribunal. Any of the Released Persons may file the Settlement
Agreement and/or the Judgment in any action that may be brought against
them or any of them in order to support a defense or counterclaim based on
principles of res judicata, collateral estoppel, release, good faith settlement,
judgment bar, or reduction or any other theory of claim preclusion or issue
preclusion or similar defense or counterclaim.
20.4 The Settlement Agreement may be amended or modified only by a written
instrument signed by or on behalf of all Settling Parties or their respective
successors-in-interest.
20.5 The exhibits to this Settlement Agreement and any exhibits thereto are a
material part of the Settlement and are incorporated and made a part of the
Agreement.
20.6 This Settlement Agreement, including all exhibits hereto, contains the entire
understanding between the Defendant and Plaintiffs regarding the payment of
the Litigation settlement and supersedes all previous negotiations,
agreements, commitments, understandings, and writings between the
Defendant and Plaintiffs in connection with the payment of the Litigation
settlement. Except as otherwise provided herein, each party shall bear its own
costs. This Settlement Agreement supersedes all previous agreements made
between the Defendant and Plaintiffs.
20.7 Proposed Settlement Class Counsel, on behalf of the Settlement Class, are
expressly authorized by Representative Plaintiffs to take all appropriate
actions required or permitted to be taken by the Settlement Class pursuant to
the Settlement Agreement to effectuate its terms, and also are expressly
authorized to enter into any modifications or amendments to the Settlement
Agreement on behalf of the Settlement Class which they deem appropriate in
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order to carry out the spirit of this Settlement Agreement and to ensure
fairness to the Settlement Class.
20.8 Each counsel or other Person executing the Settlement Agreement on behalf
of any party hereto hereby warrants that such Person has the full authority to
do so.
20.9 The Settlement Agreement may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the
same instrument. A complete set of original executed counterparts shall be
filed with the Court.
20.10 The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the Settlement Agreement, and all parties hereto
submit to the jurisdiction of the Court for purposes of implementing and
enforcing the settlement embodied in the Settlement Agreement. The Court
shall have exclusive jurisdiction over any suit, action, proceeding or dispute
arising out of or relating to this Agreement that cannot be resolved by
negotiation and agreement by counsel for the Parties. The Court shall retain
jurisdiction with respect to the administration, consummation and
enforcement of the Agreement and shall retain jurisdiction for the purpose of
enforcing all terms of the Agreement. The Court shall also retain jurisdiction
over all questions and/or disputes related to the Notice and the Claims
Administrator. As part of its agreement to render services in connection with
this Settlement, the Claims Administrator shall consent to the jurisdiction of
the Court for this purpose.
20.11 As used herein, “he” means “he, she, or it;” “his” means “his, hers, or its,”
and “him” means “him, her, or it.”
20.12 The Settlement Agreement shall be considered to have been negotiated,
executed, and delivered, and to be wholly performed, in the State of Ohio,
and the rights and obligations of the parties to the Settlement Agreement shall
be construed and enforced in accordance with, and governed by, the internal,
substantive laws of the State of Ohio.
20.13 All dollar amounts are in United States dollars (USD).
20.14 If a Settlement Class Member opts to receive settlement benefits via mailed
check, cashing the settlement check is a condition precedent to any Settlement
Class Member’s right to receive settlement benefits. All settlement checks
shall be void ninety (90) days after issuance and shall bear the language: “This
check must be cashed within ninety (90) days, after which time it is void.” If
a check becomes void, the Settlement Class Member shall have until six
months after the Effective Date to request re-issuance. If no request for reissuance is made within this period, the Settlement Class Member will have
failed to meet a condition precedent to recovery of settlement benefits, the
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Settlement Class Member’s right to receive monetary relief shall be
extinguished, and Defendant shall have no obligation to make payments to
the Settlement Class Member for expense reimbursement under Section 4 or
any other type of monetary relief. The same provisions shall apply to any reissued check. For any checks that are issued or re-issued for any reason more
than one hundred eighty (180) days after the Effective Date, requests for reissuance need not be honored after such checks become void.
20.15 All agreements made and orders entered during the course of the Litigation
relating to the confidentiality of information shall survive this Settlement
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the Settlement Agreement to be
executed, by their duly authorized attorneys.
Counsel for Health Aid of Ohio, Inc. Proposed Settlement Class Counsel
DATED: March 1, 2022 DATED: March 1, 2022
/s/ Walter A. (Scott) Lucas
Walter A. (Scott) Lucas
WESTON HURD, LLP
Cleveland, OH 44114
Phone: (216) 687-3244
Fax: (216) 621-8369
[email protected]
Claudia McCarron (pro hac vice forthcoming)
MULLEN COUGHLIN, LLC
426 W. Lancaster Avenue, Suite 200
Devon, PA 19333
Phone: (267) 930-4787
[email protected]
Attorneys for Defendant
/s/ Terence R. Coates
Terence R. Coates (0085579)
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Phone: (513) 651-3700
Fax: (513) 665-0219
[email protected]
Gary M. Klinger (pro hac vice)
MASON, LIETZ & KLINGER, LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (312) 283-3814
[email protected]
Joseph M. Lyon (0076050)
THE LYON FIRM, LLC
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 766-9011
[email protected]
Attorneys for Plaintiffs and the Proposed
Class
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
KATHLEEN DEVINE, et al.,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
HEALTH AID OF OHIO, INC.,
Defendant.
:
:
:
Case No. CV-21-948117
Judge Nancy Margaret Russo
SETTLEMENT AGREEMENT
This Settlement Agreement, dated as of March 1, 2022, is made and entered into by and
among the following Settling Parties (as defined below): Kathleen Devine, Richard Rydzinski, and
Deshawn Beckham (“Plaintiffs”), individually and on behalf of the Settlement Class (as defined
below), by and through their counsel at MARKOVITS, STOCK & DEMARCO, LLC, MASON,
LIETZ & KLINGER, LLP, THE LYON FIRM, LLC (“Proposed Settlement Class Counsel” or
“Class Counsel” or “Plaintiffs’ Counsel”) and Health Aid of Ohio, Inc. (“Defendant” and, together
with Plaintiffs, the “Parties”) by and through their counsel of record, Walter A. (Scott) Lucas at
Weston Hurd, LLP and Claudia McCarron at Mullen Coughlin LLC. The Settlement Agreement
is subject to Court approval and is intended by the Settling Parties to fully, finally, and forever
resolve, discharge, and settle the Released Claims (as defined below), upon and subject to the
terms and conditions hereof.
I. THE LITIGATION
Plaintiffs allege that on or about February 19, 2021, the Defendant was the target of a
cybersecurity incident and alleged data breach (the “Data Incident”) in which a cybercriminal
launched an attack resulting in the unauthorized access of some personal information entrusted to
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the Defendant by Plaintiffs and the putative class members. Plaintiffs allege that, as a result of the
Data Incident, this unauthorized user gained access to Plaintiffs’ names, address, dates of birth,
phone numbers, Social Security Numbers, medical diagnosis, insurances information, type of
equipment delivered and/or repaired at the client’s home, and other protected health information
as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and
additional personally identifiable information (“PII”) and protected health information (“PHI”)
(collectively, “Personal Information”). After the Data Incident, the Defendant notified
approximately 141,149 individuals of the Data Incident.
Plaintiffs Devine and Rydzinski filed their Class Action Complaint on May 28,
2021.Plaintiff Beckham filed his Class Action Complaint on June 23, 2021 (collectively, “the
Litigation). On January 24, 2022, the Parties filed a Joint Notice of Class Action Settlement in
Principle after having engaged in settlement negotiations resulting in a settlement memorialized
in this settlement agreement (“Settlement Agreement”).
Pursuant to the terms set out below, this Settlement Agreement provides for the resolution
of all claims and causes of action asserted, or that could have been asserted, in the Litigation
against the Defendant and the Released Persons (as defined below) relating to the Data Incident,
by and on behalf of Representative Plaintiffs and Settlement Class Members.
II. CLAIMS OF REPRESENTATIVE PLAINTIFFS AND BENEFITS OF
SETTLING
Plaintiffs believe the claims asserted in the Litigation, as set forth in the Class Action
Complaints, have merit. Plaintiffs and Proposed Settlement Class Counsel recognize and
acknowledge, however, the expense and length of continued proceedings necessary to prosecute the
Litigation against the Defendant through motion practice, trial, and potential appeals. They have also
considered the uncertain outcome and risk of further litigation, as well as the difficulties and delays
3
inherent in such litigation, especially in complex class actions. Proposed Settlement Class Counsel
are highly experienced in class action litigation and very knowledgeable regarding the relevant
claims, remedies, and defenses at issue generally in such litigation and in this Litigation. They have
concluded that the settlement set forth in this Settlement Agreement is fair, reasonable, and adequate,
and in the best interests of the Settlement Class Members.
III. DENIAL OF WRONGDOING AND LIABILITY
Defendant denies the claims and contentions alleged against them in the Litigation.
Defendant denies all charges of wrongdoing or liability as alleged, or which could be alleged, in
the Litigation. Nonetheless, Defendant has considered the uncertainty and risks inherent in any
litigation. Defendant has concluded that further conduct of the Litigation would be protracted and
expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and
upon the terms and conditions set forth in this Settlement Agreement.
IV. TERMS OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among
Plaintiffs, individually and on behalf of the Settlement Class Members, Proposed Settlement Class
Counsel, and Defendant that, subject to the approval of the Court, the Litigation and the Released
Claims shall be finally and fully compromised, settled, and released, and the Litigation shall be
dismissed with prejudice as to the Settling Parties and the Settlement Class Members, except those
Settlement Class Members who lawfully opt-out of the Settlement Agreement, upon and subject
to the terms and conditions of this Settlement Agreement, as follows:
1. Settlement Structure: The settlement shall be administered on a wholly claimsmade basis. To receive any relief, Settlement Class Members, as defined below, must submit a
Valid and Timely Claim to the Claims Administrator.
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2. Settlement Class Definition and Subclasses: The Settlement Class Members shall
include "all persons whose Private Information was maintained on Defendant Health Aid's system
and who were sent a Notice of Data Breach as a result of the Data Incident.” The Settlement Class
Members shall further be divided into two subclasses:
2.1 No SSNs Subclass Definition: The No SSNs Subclass shall be comprised
of all members of the Settlement Class whose Social Security numbers were not in
the database on which notice was based and who were not offered complimentary
credit monitoring in the notice of the Data Incident.
2.2 SSNs Included Subclass Definition: The SSNs Included Subclass shall be
comprised of all members of the Settlement Class whose Social Security numbers
were included in the database on which notice was based and who were offered
complimentary credit monitoring in the notice of the Data Incident.
Excluded from the Class and Subclasses are Defendant’s officers, directors, and employees; any
entity in which Defendant has a controlling interest; and the affiliates, legal representatives,
attorneys, successors, heirs, and assigns of Defendant. Excluded also from the Class and Subclasses
are members of the judiciary to whom this case is assigned, their families and Members of their
staff.
3. Additional Definitions
As used in this Settlement Agreement, the following terms have the meanings specified
below:
3.1 “Agreement” or “Settlement Agreement” means this agreement.
3.2 “Claim Form” means the form that will be used by Settlement Class
Members to submit a Settlement Claim to the Claims Administrator and that
is substantially in the form as shown in Exhibit A to this Settlement
Agreement.
3.3 “Claims Administration” means the processing and payment of claims
received from Settlement Class Members by the Claims Administrator.
3.4 “Claims Administrator” means the Angeion Group, a company experienced
in administering class action claims generally and specifically those of the
type provided for and made in data breach litigation.
5
3.5 “Claims Deadline” means the postmark and/or online submission deadline
for Settlement Claims pursuant to Section 4.2, which shall be 90 days after
the Notice Commencement Date.
3.6 “Costs of Claims Administration” means all actual costs associated with or
arising from Claims Administration.
3.7 “Data Incident” means the security incident perpetrated on Defendant on
February 19, 2021, in which an unauthorized user accessed Defendant’s
network and computer systems and may have accessed the Personal
Information of Plaintiffs.
3.8 “Effective Date” means the first date by which all of the events and
conditions specified in Section 3.9 below have occurred and been met.
3.9 “Final” means the occurrence of all of the following events: (i) the
settlement pursuant to this Settlement Agreement is approved by the Court;
(ii) the Court has entered a Judgment (as that term is defined herein); and
(iii) the time to appeal or seek permission to appeal from the Judgment has
expired or, if appealed, the appeal has been dismissed in its entirety, or the
Judgment has been affirmed in its entirety by the court of last resort to which
such appeal may be taken, and such dismissal or affirmance has become no
longer subject to further appeal or review. Notwithstanding the above, any
order modifying or reversing any attorneys’ fees award or service award
made in this case shall not affect whether the Judgment is “Final” as defined
herein or any other aspect of the Judgment.
3.10 “Judgment” means a judgment rendered by the Court.
3.11 “Long Notice” means the long form notice of settlement to be posted on the
Settlement Website (as defined below), substantially in the form as shown
in Exhibit B to this Settlement Agreement.
3.12 “Notice Commencement Date” means thirty (30) days after the entry of the
Preliminary Approval Order.
3.13 “Objection Date” means the date by which Settlement Class Members must
file with the Court through the Court’s electronic case filing (“ECF”) system
and mail to Class Counsel and counsel for Defendant their objection to the
Settlement for that objection to be effective. The postmark date shall
constitute evidence of the date of mailing for these purposes. The Objection
Date shall be sixty (60) days after the Notice Commencement Date.
3.14 “Opt-Out Date” means the date by which Settlement Class Members must
mail to the Claims Administrator their requests to be excluded from the
6
Settlement Class for that request to be effective. The postmark date shall
constitute evidence of the date of mailing for these purposes. The Opt-Out
Date shall be sixty (60) days after the Notice Commencement Date.
3.15 “Person” means an individual, corporation, partnership, limited partnership,
limited liability company or partnership, association, joint stock company,
estate, legal representative, trust, unincorporated association, government
or any political subdivision or agency thereof, and any business or legal
entity, and their respective spouses, heirs, predecessors, successors,
representatives, or assignees.
3.16 “Preliminary Approval Order” means the order preliminarily approving the
Settlement Agreement and ordering that notice be provided to the
Settlement Class. The Settling Parties’ proposed form of Preliminary
Approval Order is attached to this Settlement Agreement as Exhibit C.
3.17 “Released Claims” shall collectively mean any and all past, present, and
future claims and causes of action including, but not limited to, any causes of
action arising under or premised upon any statute, constitution, law,
ordinance, treaty, regulation, or common law of any country, state, province,
county, city, or municipality, including 15 U.S.C. § 45, et seq., and all similar
statutes in effect in any states in the United States; any claims under Ohio
common law for invasion of privacy or intrusion upon seclusion and all
similar statutes or recognized causes of action in effect in any states in the
United States; negligence; negligence per se; breach of contract; breach of
implied contract; breach of fiduciary duty; breach of confidence; invasion of
privacy; fraud; misrepresentation (whether fraudulent, negligent or innocent);
unjust enrichment; bailment; wantonness; failure to provide adequate notice
pursuant to any breach notification statute or common law duty; and
including, but not limited to, any and all claims for damages, injunctive relief,
disgorgement, declaratory relief, equitable relief, attorneys’ fees and
expenses, pre-judgment interest, credit monitoring services, the creation of a
fund for future damages, statutory damages, punitive damages, special
damages, exemplary damages, restitution, and/or the appointment of a
receiver, whether known or unknown, liquidated or unliquidated, accrued or
unaccrued, fixed or contingent, direct or derivative, and any other form of
legal or equitable relief that either has been asserted, was asserted, or could
have been asserted, by any Settlement Class Member against any of the
Released Persons based on, relating to, concerning or arising out of the
alleged access to and/or exfiltration of personal information related to the
Data Incident or the allegations, transactions, occurrences, facts, or
circumstances alleged in or otherwise described in the Litigation. Released
Claims shall not include the right of any Settlement Class Member or any of
the Released Persons to enforce the terms of the settlement contained in this
Settlement Agreement and shall not include the claims of Settlement Class
Members who have timely excluded themselves from the Settlement Class.
7
3.18 “Released Persons” means Defendant and its Related Entities and each of
their past or present parents, subsidiaries, divisions, and related or affiliated
entities, and each of their respective predecessors, successors, directors,
officers, principals, agents, attorneys, insurers, and reinsurers.
3.19 “Related Entities” means Defendant’s respective past or present parents,
subsidiaries, divisions, and related or affiliated entities, and each of their
respective predecessors, successors, directors, officers, principals, agents,
attorneys, insurers, and reinsurers, and includes, without limitation, any
Person related to any such entity who is, was or could have been named as
a defendant in any of the actions in the Litigation, other than any Person
who is found by a court of competent jurisdiction to be guilty under criminal
law of initiating, causing, aiding or abetting the criminal activity occurrence
of the Data Incident or who pleads nolo contendere to any such charge.
3.20 “Settlement Claim” means a claim for settlement benefits made under the
terms of this Settlement Agreement in Section 4.2 below.
3.21 “Settling Parties” means, collectively, Defendant and Plaintiffs,
individually and on behalf of the Settlement Class.
3.22 “Short Notice” means the short notice of the proposed class action
settlement, substantially in the form as shown in Exhibit D to this
Settlement Agreement. The Short Notice will direct recipients to the
Settlement Website where recipients may view the Long Notice, preregister for Credit Monitoring and make a claim for monetary relief. The
Short Notice will also inform Settlement Class Members, inter alia, of the
Claims Deadline, the Opt-Out Date and Objection Date, and the date of the
Final Fairness Hearing (as defined below).
3.23 “United States” as used in this Settlement Agreement includes the District
of Columbia and all territories.
3.24 “Unknown Claims” means any of the Released Claims that any Settlement
Class Member, including any Plaintiff, does not know or suspect to exist
in his/her favor at the time of the release of the Released Persons that, if
known by him or her, might have affected his or her settlement with, and
release of, the Released Persons, or might have affected his or her decision
not to object to and/or to participate in this Settlement Agreement.
3.25 “Valid and Timely Claims” means Settlement Claims in an amount
approved by the Claims Administrator or found to be valid through the
claims processing and/or Dispute Resolution process.
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4. Settlement Benefits
4.1 Credit and Identity Monitoring: Both subclasses will be eligible for one (1)
year of credit monitoring and identity restoration services. At the time of
notice of the proposed settlement, each Settlement Class Member will
receive a unique identifier which will allow them to pre-register for Credit
Monitoring and otherwise interact with the Claims Administrator. Upon
Court approval of the Settlement Agreement, pre-registered class members
will be informed by the Claims Administrator that the credit monitoring has
been activated.
4.1.1 Credit Monitoring will be supplied by ID Experts (IDX). The
product to be provided by IDX includes single bureau credit
monitoring and instant alerts of any inquiries against the credit
records, dark web monitoring, identity theft insurance up to
$1,000,000 with no deductible, and fully managed identity
recovery services.
4.2 Monetary Recovery: Members of the SSNs Included Subclass will be
eligible to make claims for monetary recovery (“Settlement Claims”) set
forth in detail below. The total payments made to SSNs Included Subclass
members shall not exceed $125,000.00, which will include all monetary
compensation to be paid to the class as part of this settlement except for the
Service Awards to be paid pursuant to Section 12 below. In the event total
claims exceed $125,000.00, each claim shall be reduced on a pro rata basis.
4.2.1 Compensation for Out-of-Pocket Losses, Lost Time, and
Extraordinary Losses: Defendant agrees to make available the
following compensation to SSNs Included Subclass Members
who submit Valid and Timely Claims and Claim Forms and
support those claims with appropriate third-party
documentation. Claims will be subject to review for
completeness and plausibility by the Claims Administrator, and
both Settlement Class Members submitting claims and Defendant
will have the opportunity to seek review by a third-party claims
referee, to be mutually agreed upon by the Settling Parties, if they
dispute the Claim Administrator's initial determination.
4.2.2 Compensation for Ordinary Losses: Defendant will provide
compensation for unreimbursed losses, up to a total of $250.00
per person, upon submission of a claim, such as the following
losses:
a. Out of pocket expenses incurred as a result of the
Data Incident, including bank fees, long distance
phone charges, cell phone charges (only if charged by
the minute), data charges (only if charged based on
9
the amount of data used), postage, or gasoline for
local travel.
b. Fees for credit reports, credit monitoring, or other
identity theft insurance product purchased following
the expiration of the credit monitoring and identify
theft insurance coverage that was offered at the time
of notification.
4.2.3 Compensation for Lost Time: Up to (4) hours of lost time, at
$15.00/hour, if at least one full hour was spent remedying fraud,
identity theft, or other alleged misuse of personal information
traceable to the Data Incident or spent on preventative and
remedial measures to protect personal information that are fairly
traceable to the Data Incident. Claims for lost time are included
within the $250.00 per person cap on ordinary losses. Claims for
lost time must be supported by an attestation setting forth the
amount of time spent dealing with the Data Incident.
4.2.4 Compensation for Extraordinary Losses: Defendant will
provide up to $2,500.00 in compensation to each Settlement
Class Member submitting a claim for proven monetary loss if:
a. The loss is an actual, documented, and unreimbursed
monetary loss of an extraordinary nature such as one
of the following categories (i) unreimbursed bank
fees; (ii) unreimbursed card reissuance fees;
(iii) unreimbursed overdraft fees; (iv) unreimbursed
charges related to unavailability of funds;
(v) unreimbursed late fees; (vi) unreimbursed overlimit fees; (vii) unreimbursed charges from banks or
credit card companies; and (viii) interest on payday
loans due to card cancellation or due to over-limit
situation incurred solely as a result of the Data
Incident.
b. The loss was more likely than not caused by the Data
Incident.
c. The loss occurred during the time period after the
Data Incident and before the Claim Deadline.
d. The loss is not already covered by one or more of the
normal reimbursement categories; and the
Settlement Class Member made reasonable efforts to
avoid, or seek reimbursement for, the loss, including
10
but not limited to exhaustion of all available credit
monitoring insurance and identity theft insurance.
e. In addition to the requirement of Section 4.2, claims
for extraordinary losses must be verified by the SSN
Included Subclass Member with a statement that his
or her claim is true and correct, to the best of his or
her knowledge and belief, and it is being made under
penalty of perjury. The SSN Included Subclass
Member must submit reasonable documentation to
show that the extraordinary losses were actually
incurred and plausibly arose from the Data Incident.
5. Disputed Claims: If any dispute is submitted to the claims referee, the
claims referee may approve the Claims Administrator’s determination by making a ruling
within fifteen (15) days. The claims referee may make any other final determination of the
dispute or request further supplementation of a claim within thirty (30) days. The claims
referee’s determination shall be based on whether the claims referee is persuaded that the
claimed amounts are reasonably supported in fact and were more likely than not caused by
the Data Incident. The claims referee shall have the power to approve a claim in full or in
part. The claims referee’s decision will be final and non-appealable. Any claimant referred
to the claims referee shall reasonably cooperate with the claims referee, including by either
providing supplemental information as requested or, alternatively, signing an authorization
allowing the claims referee to verify the claim through third-party sources, and failure to
cooperate shall be grounds for denial of the claim in full. The claims referee shall make a
final decision within thirty (30) days of receipt of all supplemental information requested.
6. Objection Procedures: Each Settlement Class Member desiring to object to
the Settlement Agreement shall submit a timely written notice of his or her objection by the
Objection Date, as defined in Section 3.13. Such notice shall state: (i) the objector’s full name
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and address; (ii) the case name and docket number, Devine v. Health Aid of Ohio, Case No.
CV-21-948117; (iii) information identifying the objector as a Settlement Class Member,
including proof that the objector is a member of the Settlement Class (e.g., copy of the
objector’s settlement notice, copy of original notice of one of the Data Incidents, or a
statement explaining why the objector believes he or she is a Settlement Class Member);
(iv) a written statement of all grounds for the objection, accompanied by any legal support
for the objection the objector believes applicable; (v) the identity of any and all counsel
representing the objector in connection with the objection; (vi) a statement whether the
objector and/or his or her counsel will appear at the Final Fairness Hearing; and (vii) the
objector’s signature or the signature of the objector’s duly authorized attorney or other duly
authorized representative (if any) representing him or her in connection with the objection.
To be timely, written notice of an objection in the appropriate form must be mailed, with a
postmark date no later than the Objection Date, to Proposed Settlement Class Counsel,
Terence Coates at MARKOVITS, STOCK & DEMARCO, LLC and Gary M. Klinger at
MASON, LIETZ & KLINGER, LLP; and counsel for Defendant, Walter A. (Scott) Lucas
at Weston Hurd, LLP and Claudia McCarron at Mullen Coughlin LLC. The objector or his
or her counsel may also file an objection with the Court through the Court’s ECF system,
with service on Proposed Settlement Class Counsel and Defendant’s Counsel made
through the ECF system. For all objections mailed to Proposed Settlement Class Counsel
and counsel for Defendant, Proposed Settlement Class Counsel will file them with the
Court with the Motion for Final Approval of the Settlement.
Any Settlement Class Member who fails to comply with the requirements for
objecting in this Section shall waive and forfeit any and all rights he or she may have to appear
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separately and/or to object to the Settlement Agreement and shall be bound by all the terms of the
Settlement Agreement and by all proceedings, orders and judgments in the Litigation. The exclusive
means for any challenge to the Settlement Agreement shall be through the provisions of this
Section of the Settlement Agreement. Without limiting the foregoing, any challenge to the
Settlement Agreement, the final order approving this Settlement Agreement, or the Judgment to
be entered upon final approval shall be pursuant to appeal under applicable Ohio Rules of Civil
Procedure and not through a collateral attack.
7. Opt-Out Procedure: Each Person wishing to opt-out of the Settlement
Class shall individually sign and timely submit written notice of such intent to the
designated Post Office box established by the Claims Administrator. The written notice
must clearly manifest a Person’s intent to opt-out of the Settlement Class. To be effective,
written notice must be postmarked no later than the Opt-Out Date, as defined in Section
3.14.
All Persons who submit valid and timely notices of their intent to opt-out of the
Settlement Class, as set forth above, referred to herein as “Opt-Outs,” shall not receive any benefits
of and/or be bound by the terms of this Settlement Agreement. All Persons falling within the
definition of the Settlement Class who do not opt-out of the Settlement Class in the manner set
forth in above shall be bound by the terms of this Settlement Agreement and Judgment entered
thereon.
Within ten (10) days after the Opt-Out Date, the Claims Administrator shall notify
Defendant’s counsel of the number and identity of the persons opting out.
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8. Settlement Administration Fees: Defendant will pay the entirety of the
Costs of Claims Administration, including the cost of notice to Settlement Class Members
as discussed in section 9 below and in accordance with the Preliminary Approval Order.
9. Settlement Administration Process: After the settlement is preliminarily
approved by the Court, the Settlement Administrator will provide notice to the Settlement
Class Members. Notice shall be provided by the Claims Administrator as follows:
9.1 Class Member Information: No later than fourteen (14) days after entry
of the Preliminary Approval Order, Defendant shall provide the Claims
Administrator with the name and email address and/or last known physical
address of each Settlement Class Member (collectively, “Class Member
Information”) that Defendant possesses.
9.2 The Class Member Information and its contents shall be used by the
Claims Administrator solely for the purpose of performing its obligations
pursuant to this Agreement and shall not be used for any other purpose
at any time. Except to administer the settlement as provided in this
Settlement Agreement, or to provide all data and information in its
possession to the Settling Parties upon request, the Claims Administrator
shall not reproduce, copy, store, or distribute in any form, electronic or
otherwise, the Class Member Information.
9.3 Settlement Website: Prior to the dissemination of the Class Notice, the
Claims Administrator shall establish a settlement website after obtaining
the Parties’ agreement to the name/URL (“Settlement Website”). The
Settlement Website shall include, in .pdf format and available for
download, the following: (i) the Long Notice; (ii) the Claim Form; (iii)
the Preliminary Approval Order; (iv) this Agreement; (v) the Class Action
Complaint filed in the Litigation; and (vi) any other materials agreed upon
by the Parties and/or required by the Court. The Settlement Website shall
provide Class Members with the ability to complete and submit the Claim
Form electronically.
9.4 Short Notice: Within thirty (30) days after the entry of the Preliminary
Approval Order (“Notice Commencement Date”) and to be substantially
completed not later than forty-five (45) days after entry of the Preliminary
Approval Order, and subject to the requirements of this Settlement
Agreement and the Preliminary Approval Order, the Claims
Administrator will provide notice to the Settlement Class Members as
follows:
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9.4.1 via email to the email addresses in Defendant’s possession;
9.4.2 should any Short Notice be determined to be undeliverable
via email (the Claims Administrator will track delivered and
undelivered emails) or, in circumstances where a working
email address is not available, via mail to the postal address
in Defendant’s possession. Before any mailing under this
paragraph occurs, the Claims Administrator shall run the
postal addresses of Settlement Class Members through the
United States Postal Service (“USPS”) National Change of
Address database to update any change of address on file
with the USPS;
9.4.3 in the event that a Short Notice is returned to the Claims
Administrator by the USPS because the address of the
recipient is no longer valid, and the envelope contains a
forwarding address, the Claims Administrator shall re-send
the Short Notice to the forwarding address within seven (7)
days of receiving the returned Short Notice;
9.4.4 in the event that subsequent to the first mailing of a Short
Notice, and at least fourteen (14) days prior to the Opt-Out
Date and Objection Date, a Short Notice is returned to the
Claims Administrator by the USPS because the address of
the recipient is no longer valid, i.e., the envelope is marked
“Return to Sender” and does not contain a new forwarding
address, the Claims Administrator shall perform a standard
skip trace, in the manner that the Claims Administrator
customarily performs skip traces, in an effort to attempt to
ascertain the current address of the particular Settlement
Class Member in question and, if such an address is
ascertained, the Claims Administrator will re-send the Short
Notice within seven (7) days of receiving such information.
This shall be the final requirement for mailing
9.5 Publishing, on or before the Notice Commencement Date, the Claim
Form, Long Notice and this Settlement Agreement on the Settlement
Website, as specified in the Preliminary Approval Order, and
maintaining and updating the website until the Claims Deadline.
9.6 The Claims Administrator will provide copies of the Long Notice and
paper Claim Form, as well as this Settlement Agreement, upon request.
9.7 Contemporaneously with seeking final Court approval of the Settlement,
Proposed Settlement Class Counsel and Defendant shall cause to be filed
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with the Court an appropriate affidavit or declaration with respect to
complying with these provisions regarding notice.
9.8 The Short Notice, Long Notice, and other applicable communications to
the Settlement Class Members may be adjusted by the Claims
Administrator in consultation and agreement with the Settling Parties as
may be reasonable and not inconsistent with such approval. The Settlement
Administration and notice process shall commence within thirty (30) days
after entry of the Preliminary Approval Order and shall be completed
within forty-five (45) days after entry of the Preliminary Approval Order.
9.9 Proposed Settlement Class Counsel and Defendant’s counsel shall
request that after notice is completed the Court hold a hearing (the “Final
Fairness Hearing”) and grant final approval of the settlement set forth
herein.
9.10 Defendant will also cause the Claims Administrator to provide (at
Defendant’s expense) notice to the relevant state and federal
governmental officials as required by the Class Action Fairness Act.
10. Release: Settlement Class Members, including Representative Plaintiffs,
and any of them, may hereafter discover facts in addition to, or different from, those that
they, and any of them, now know or believe to be true with respect to the subject matter of
the Released Claims, but nevertheless Plaintiffs expressly shall have, and each other
Settlement Class Member shall be deemed to have, and by operation of the Judgment, upon
the Effective Date, fully, finally and forever settled and released Defendant, all Released
Persons, and all Released Entities from any and all Released Claims. The Plaintiffs and
Defendant acknowledge, and Settlement Class Members shall be deemed by operation of
the Judgment to have acknowledged, that the foregoing waiver is a material element of the
Settlement Agreement of which this release is a part. Further, the Plaintiffs and Settlement
Class Members covenant and agree that they shall not hereafter seek to establish liability
against Defendant, Released Persons and/or Related Entities in whole or in part on any
Released Claim. Notwithstanding any term herein, neither Defendant nor its Related Parties
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shall have or shall be deemed to have released, relinquished or discharged any claim or
defense against any Person other than Representative Plaintiffs, each and all of the
Settlement Class Members, and Proposed Settlement Class Counsel.
11. Claims Period: The Parties agree that the period for filing claims will be
set at a date certain at no more than 90 days from the date that notice is mailed to the
Settlement Class Members.
12. Service Award to Named Plaintiffs: Defendant will agree to pay an award
to each named Plaintiff that shall be separate and apart from any other sums agreed under
Section 4 (“Service Award”). The amount of the Service Award to be paid to each of the
three named Plaintiffs is $1,500, for a total of $4,500 in Service Awards. These Service
Awards were not discussed or negotiated until all other substantive terms for the Class
Action settlement were finalized and agreed upon.
13. Attorneys’ Fees: It is agreed and understood that attorneys’ fees and
reimbursement of expenses will be paid above and beyond the class compensation outlined
above and will not impact the amount of compensation allocable to the Settlement Class
Members. The amount of attorneys’ fees and reimbursement of expenses to be paid to
Plaintiffs' counsel related to the Class Action Lawsuit will be $235,000. These Attorneys’
Fee and reimbursed expenses were not discussed or negotiated until all other substantive
terms for the Class Action settlement were finalized and agreed upon.
14. Remedial Measures/Security Enhancements: Defendant will provide
Plaintiffs with detailed information on all security enhancements undertaken since
February 19, 2021 to the date of this Settlement Agreement. Defendant will commit to a
17
security risk assessment in 2022 and 2023 and will enact reasonable and appropriate
security enhancements identified in the security risk assessment.
15. Order of Preliminary Approval and Publishing of Notice of Final Fairness
Hearing
As soon as practicable after the execution of the Settlement Agreement, Proposed Settlement
Class Counsel and counsel for Defendant shall jointly submit this Settlement Agreement to the
Court, and Proposed Settlement Class Counsel will file a motion for preliminary approval of the
settlement with the Court requesting entry of a Preliminary Approval Order in the form substantially
similar to Exhibit C in both terms and cost, requesting, inter alia:
15.1 Certification of the Settlement Class and Subclasses in Section 2;
15.2 Preliminary approval of the Settlement Agreement as set forth herein;
15.3 Appointment of Proposed Settlement Class Counsel as Settlement Class
Counsel;
15.4 Appointment of Plaintiffs as Class Representatives;
15.5 Approval of the Short Notice to be emailed or mailed to Settlement Class
Members in a form substantially similar to the one attached as Exhibit D this
Settlement Agreement;
15.6 Approval of the Long Notice to be posted on the Settlement Website in a form
substantially similar to the one attached as Exhibit B to this Settlement
Agreement, which, together with the Short Notice, shall include a fair summary
of the parties’ respective litigation positions, statements that the settlement and
notice of settlement are legitimate and that the Settlement Class Members are
entitled to benefits under the settlement, the general terms of the settlement set
forth in the Settlement Agreement, instructions for how to object to or opt-out
of the settlement, the process and instructions for making claims to the extent
contemplated herein, and the date, time and place of the Final Fairness
Hearing;
15.7 Approval of a Claim Form to be used by Settlement Class Members to make a
claim in a form substantially similar to the one attached as Exhibit A to this
Settlement Agreement; and
15.8 Appointment of the Angeion Group as the Claims Administrator.
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16. Motion for Attorneys’ Fees, Costs, and Service Awards and the Fairness
Hearing.
Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Service Awards, which will be filed
fourteen (14) days before the deadline for Settlement Class Members to object or exclude
themselves from the Settlement.
The Court will conduct the Fairness Hearing after the Claims Deadline. At the Fairness
Hearing, the Court will consider whether the Settlement, including execution of notice to the Class
and the claims administration, is fair, reasonable, and adequate. At least seven days before the
Fairness Hearing, Class Counsel will file a Motion for Final Approval.
17. Final Approval and Distribution of Settlement Funds.
Not later than 14 days after the Effective Date, Defendant will pay the $4,500.00 total
service award to the Class Representatives, the Attorneys’ Fees and Expenses, and the Settlement
Payments.
18. Conditions of Settlement, Effect of Disapproval, Cancellation or Termination
The Effective Date of the settlement shall be conditioned on the occurrence of all of the
following events:
18.1 The Court has entered the Judgment granting final approval to the
settlement as set forth herein; and
18.2 The Judgement has become Final, as defined in Section 3.9.
If all conditions specified in Sections 18.1, and 18.2 are not satisfied, the Settlement
Agreement shall be canceled and terminated subject to Section 18.4 unless Proposed Settlement
Class Counsel and Defendant’s counsel mutually agree in writing to proceed with the Settlement
Agreement.
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18.2 Within seven (7) days after the Opt-Out Date, the Claims Administrator
shall furnish to Proposed Settlement Class Counsel and to Defendant’s
counsel a complete list of all timely and valid requests for exclusion (the
“Opt-Out List”).
18.3 In the event that the Settlement Agreement or the releases set forth in
Sections 18.1 and 18.2 are not approved by the Court or the settlement set
forth in the Settlement Agreement is terminated in accordance with its
terms, (i) the Settling Parties shall be restored to their respective positions
in the Litigation and shall jointly request that all scheduled litigation
deadlines be reasonably extended by the Court so as to avoid prejudice to
any Settling Party or Settling Party’s counsel, and (ii) the terms and
provisions of the Settlement Agreement shall have no further force and
effect with respect to the Settling Parties and shall not be used in the
Litigation or in any other proceeding for any purpose, and any judgment or
order entered by the Court in accordance with the terms of the Settlement
Agreement shall be treated as vacated, nunc pro tunc. Notwithstanding any
statement in this Settlement Agreement to the contrary, no order of the
Court or modification or reversal on appeal of any order reducing the
amount of attorneys’ fees, costs, expenses, and/or service awards shall
constitute grounds for cancellation or termination of the Settlement
Agreement. Further, notwithstanding any statement in this Settlement
Agreement to the contrary, the Defendant shall be obligated to pay amounts
already billed or incurred for costs of notice to the Settlement Class, Claims
Administration, and Dispute Resolution pursuant to Sections 5 and 9 above
and shall not, at any time, seek recovery of same from any other party to the
Litigation or from counsel to any other party to the Litigation.
19. Settlement Subject to Confirmatory Discovery: Defendant agrees to provide
confirmatory discovery on establishing the appropriateness of the settlement terms as
contemplated under Fed. R. Civ. P. 23(b)(1) and any Ohio equivalent.
20. Miscellaneous Provisions
20.1 The Settling Parties (i) acknowledge that it is their intent to consummate this
Agreement; and (ii) agree to cooperate to the extent reasonably necessary to
effectuate and implement all terms and conditions of this Settlement
Agreement, and to exercise their best efforts to accomplish the terms and
conditions of this Settlement Agreement.
20.2 The Settling Parties intend this settlement to be a final and complete
resolution of all disputes between them with respect to the Litigation. The
settlement compromises claims that are contested and shall not be deemed an
admission by any Settling Party as to the merits of any claim or defense. The
20
Settling Parties each agree that the settlement was negotiated in good faith by
the Settling Parties, and reflects a settlement that was reached voluntarily after
consultation with competent legal counsel. The Settling Parties reserve their
right to rebut, in a manner that such party determines to be appropriate, any
contention made in any public forum that the Litigation was brought or
defended in bad faith or without a reasonable basis. It is agreed that no Party
shall have any liability to any other Party as it relates to the Litigation, except
as set forth herein.
20.3 Neither the Settlement Agreement, nor the settlement contained herein, nor
any act performed or document executed pursuant to or in furtherance of the
Settlement Agreement or the settlement (i) is or may be deemed to be or may
be used as an admission of, or evidence of, the validity or lack thereof of any
Released Claim, or of any wrongdoing or liability of any of the Released
Persons; or (ii) is or may be deemed to be or may be used as an admission of,
or evidence of, any fault or omission of any of the Released Persons in any
civil, criminal or administrative proceeding in any court, administrative
agency or other tribunal. Any of the Released Persons may file the Settlement
Agreement and/or the Judgment in any action that may be brought against
them or any of them in order to support a defense or counterclaim based on
principles of res judicata, collateral estoppel, release, good faith settlement,
judgment bar, or reduction or any other theory of claim preclusion or issue
preclusion or similar defense or counterclaim.
20.4 The Settlement Agreement may be amended or modified only by a written
instrument signed by or on behalf of all Settling Parties or their respective
successors-in-interest.
20.5 The exhibits to this Settlement Agreement and any exhibits thereto are a
material part of the Settlement and are incorporated and made a part of the
Agreement.
20.6 This Settlement Agreement, including all exhibits hereto, contains the entire
understanding between the Defendant and Plaintiffs regarding the payment of
the Litigation settlement and supersedes all previous negotiations,
agreements, commitments, understandings, and writings between the
Defendant and Plaintiffs in connection with the payment of the Litigation
settlement. Except as otherwise provided herein, each party shall bear its own
costs. This Settlement Agreement supersedes all previous agreements made
between the Defendant and Plaintiffs.
20.7 Proposed Settlement Class Counsel, on behalf of the Settlement Class, are
expressly authorized by Representative Plaintiffs to take all appropriate
actions required or permitted to be taken by the Settlement Class pursuant to
the Settlement Agreement to effectuate its terms, and also are expressly
authorized to enter into any modifications or amendments to the Settlement
Agreement on behalf of the Settlement Class which they deem appropriate in
21
order to carry out the spirit of this Settlement Agreement and to ensure
fairness to the Settlement Class.
20.8 Each counsel or other Person executing the Settlement Agreement on behalf
of any party hereto hereby warrants that such Person has the full authority to
do so.
20.9 The Settlement Agreement may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the
same instrument. A complete set of original executed counterparts shall be
filed with the Court.
20.10 The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the Settlement Agreement, and all parties hereto
submit to the jurisdiction of the Court for purposes of implementing and
enforcing the settlement embodied in the Settlement Agreement. The Court
shall have exclusive jurisdiction over any suit, action, proceeding or dispute
arising out of or relating to this Agreement that cannot be resolved by
negotiation and agreement by counsel for the Parties. The Court shall retain
jurisdiction with respect to the administration, consummation and
enforcement of the Agreement and shall retain jurisdiction for the purpose of
enforcing all terms of the Agreement. The Court shall also retain jurisdiction
over all questions and/or disputes related to the Notice and the Claims
Administrator. As part of its agreement to render services in connection with
this Settlement, the Claims Administrator shall consent to the jurisdiction of
the Court for this purpose.
20.11 As used herein, “he” means “he, she, or it;” “his” means “his, hers, or its,”
and “him” means “him, her, or it.”
20.12 The Settlement Agreement shall be considered to have been negotiated,
executed, and delivered, and to be wholly performed, in the State of Ohio,
and the rights and obligations of the parties to the Settlement Agreement shall
be construed and enforced in accordance with, and governed by, the internal,
substantive laws of the State of Ohio.
20.13 All dollar amounts are in United States dollars (USD).
20.14 If a Settlement Class Member opts to receive settlement benefits via mailed
check, cashing the settlement check is a condition precedent to any Settlement
Class Member’s right to receive settlement benefits. All settlement checks
shall be void ninety (90) days after issuance and shall bear the language: “This
check must be cashed within ninety (90) days, after which time it is void.” If
a check becomes void, the Settlement Class Member shall have until six
months after the Effective Date to request re-issuance. If no request for reissuance is made within this period, the Settlement Class Member will have
failed to meet a condition precedent to recovery of settlement benefits, the
22
Settlement Class Member’s right to receive monetary relief shall be
extinguished, and Defendant shall have no obligation to make payments to
the Settlement Class Member for expense reimbursement under Section 4 or
any other type of monetary relief. The same provisions shall apply to any reissued check. For any checks that are issued or re-issued for any reason more
than one hundred eighty (180) days after the Effective Date, requests for reissuance need not be honored after such checks become void.
20.15 All agreements made and orders entered during the course of the Litigation
relating to the confidentiality of information shall survive this Settlement
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the Settlement Agreement to be
executed, by their duly authorized attorneys.
Counsel for Health Aid of Ohio, Inc. Proposed Settlement Class Counsel
DATED: March 1, 2022 DATED: March 1, 2022
/s/ Walter A. (Scott) Lucas
Walter A. (Scott) Lucas
WESTON HURD, LLP
Cleveland, OH 44114
Phone: (216) 687-3244
Fax: (216) 621-8369
[email protected]
Claudia McCarron (pro hac vice forthcoming)
MULLEN COUGHLIN, LLC
426 W. Lancaster Avenue, Suite 200
Devon, PA 19333
Phone: (267) 930-4787
[email protected]
Attorneys for Defendant
/s/ Terence R. Coates
Terence R. Coates (0085579)
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Phone: (513) 651-3700
Fax: (513) 665-0219
[email protected]
Gary M. Klinger (pro hac vice)
MASON, LIETZ & KLINGER, LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (312) 283-3814
[email protected]
Joseph M. Lyon (0076050)
THE LYON FIRM, LLC
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 766-9011
[email protected]
Attorneys for Plaintiffs and the Proposed
Class
