United States District Court, N.D. Illinois, Eastern Division
ELIZABETH A. CRAFT; JANE DOE, a minor, by her next friend and parent, ELIZABETH A. CRAFT; BRYAN L. PAUTSCH; MARY DOE, a minor, by her next friend and parent, BRYAN L. PAUTSCH; on their own behalf and on behalf of all others similarly situated, Plaintiffs,
HEALTH CARE SERVICE CORPORATION, Defendant.
P. Moylan Martin S. Himeles, Jr. Daniel P. Moylan ZUCKERMAN
SPAEDER LLP D. Brian Hufford Jason S. Cowart ZUCKERMAN
SPAEDER LLP Caroline E. Reynolds ZUCKERMAN SPAEDER LLP Meiram
Bendat PSYCH-APPEAL, INC. George F. Galland, Jr. David
Baltmanis MINER, BARNHILL & GALLAND, P.C. Counsel for
Plaintiffs and Provisionally Certified Settlement Class
P. Kavanaugh Helen E. Witt, P.C. Brian P. Kavanaugh Devon M.
Largio KIRKLAND & ELLIS LLP Catie Ventura KIRKLAND &
ELLIS LLP Counsel for Defendant
JOINT MOTION TO MODIFY SETTLEMENT CLASS DEFINITION
EXPEDITED RELIEF REQUESTED
Virginia Kendall, Judge
their respective counsel, Plaintiffs Elizabeth A. Craft, Jane
Doe, Bryan L. Pautsch and Mary Doe
(“Plaintiffs”), on behalf of themselves and the
putative Settlement Class, and Defendant Health Care Service
Corporation, a Mutual Legal Reserve Company
(“HCSC”) (collectively, the
“Parties”), respectfully submit this joint motion
to modify the Settlement Class definition contained in the
attached Final Order and Judgment Approving Settlement and
Dismissing Action with Prejudice.
support of their joint request, the Parties state as follows:
September 20, 2017, the Court entered an Order (ECF No. 153)
preliminarily certifying the Settlement Class and approving
the Settlement Agreement (ECF No. 148-01).
Settlement Agreement contains a procedure for one or more
individuals to be added to the Settlement Class if, at any
time before entry of the Final Approval Order, the Parties
confirm that such individuals otherwise met the Settlement
Class definition but were not included in the Request Data
produced by HCSC. See ECF No. 148-01, at 17-18
Shortly before the Fairness Hearing on January 22, 2018,
Class Counsel was contacted by an individual who did not
appear in the Request Data, who believed that he and his
daughter met the Settlement Class definition. After reviewing
documentation submitted by that individual and researching
the issue, the Parties' respective counsel verified that
the individual and his daughter meet the Settlement Class
definition, see ECF No. 153 ¶ 5, and added them
to the Settlement Class pursuant to the approved procedure in
¶ 19 of the Settlement Agreement.
the Fairness Hearing on January 22, 2018, counsel advised the
Court of this development based on then-available
information, and undertook to research the issue further in
order to determine whether to recommend additional actions to
the Court. Based upon these representations, the Court
continued Plaintiffs' Motion for Final Order and Judgment
Approving Settlement and Dismissing Action with Prejudice
until February 26, 2018. ECF No. 166.
Parties, having now completed their review, jointly propose a
modification to the Settlement Class definition. In
particular, the Parties recommend modifying the Settlement
Class definition to encompass only those individuals
identified in the updated Request Data. Due to the sensitive
nature of that data, the Parties propose submitting a final
list of Settlement Class members, excluding opt outs, to the
Court under seal promptly following entry of the modified
Final Approval Order, attached at Exhibit A1.
proposed modification to the Settlement Class definition
ensures that persons who were not identified as potential
Settlement Class Members in the updated Request Data will not
be deemed to have released any claims through this
proposed modification does not affect the rights of any
existing Settlement Class Members, who stand in the same
position as when they received the Notice. Therefore, the
Court may modify the class definition under its authority in
Fed.R.Civ.P. 23(c) without affecting class members'
rights, implicating due process considerations, and/or
requiring a supplemental notice. See generally Fed.
R. Civ. P. 23(c)(1)(C) (“An order that grants or denies
class certification may be altered or amended before final
judgment.”); Fed.R.Civ.P. 23(c) 2003 Advisory Committee
Notes (discussing the court's ability to alter or amend
the class definition); Carpenter v. Boeing Co., 456
F.3d 1183, 1187 (10th Cir. 2006)(“The district court
can modify or amend its class-certification determination at
any time before final judgment in response to changing
circumstances in the case.”) (citing Fed.R.Civ.P.
23(c)(1)(C)); In re Initial Public Offering Sec.
Litig., No. 21 MC 92 (SAS), 2011 WL 2732563 at *3
(S.D.N.Y. July 8, 2011) (holding that “the revised
class definition satisfied Rule 23 certification
requirements” for purposes of a class settlement).
January 5, 2018, Plaintiffs filed a Proposed Final Order
together with their final approval papers. ECF No. 163-3. A
revision to the Proposed Final Order is attached in redline
and clean versions that incorporate the recommended
modification to the Settlement Class definition. See
Exhibit A1 (clean) & A2 (redline) at ¶ 10.
Parties jointly request that this Court enter the Final Order
and Judgment in the form attached as Exhibit A1. The Parties
will be prepared to file under seal a list of all
Settlement Class ...