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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

RACHEL CONDRY, JANCE HOY, CHRISTINE 

ENDICOTT, LAURA BISHOP, FELICITY BARBER, 

RACHEL CARROLL on behalf of themselves and all 

others similarly situated, 

 Plaintiffs, 

 v. 

UnitedHealth Group Inc.; UnitedHealthcare, Inc.; 

UnitedHealthcare Insurance Company; UnitedHealthcar

Services, Inc.; and UMR, Inc., 

 

 Defendants. 

Case No.: 3:17-cv-00183-VC 

STIPULATED [PROPOSED] FINAL 

JUDGMENT AND ORDER 

Honorable Vince Chhabria 

 

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 Plaintiff, Rachel Condry (“Condry”), who was later joined by Plaintiffs, Jance Hoy (“Hoy”), 

Christine Endicott (“Endicott”), Laura Bishop (“Bishop”), Felicity Barber (“Barber”), and Rachel 

Carroll (“Carroll”) (collectively with Condry, “Plaintiffs”), first commenced this class action on 

January 13, 2017, against their respective health benefit plans and/or claims administrators, 

UnitedHealthcare Group Inc., UnitedHealthcare, Inc., UnitedHealthcare Insurance Company, United 

Healthcare Services, Inc., and UMR, Inc. (collectively, “Defendants”), alleging they violated the 

Affordable Care Act (“ACA”) when they denied coverage for, or imposed cost-shares on, Plaintiffs’ 

out-of-network claims for lactation services. In addition, Plaintiffs (except Carroll) alleged that 

Defendants failed to provide a “full and fair review” as required by ERISA claiming that the reasons 

Defendants provided to Plaintiffs (except Carroll), about how their claims processed, were not 

understandable. Based on these allegations, Plaintiffs asserted: breach of fiduciary duty claims under 

the Employee Retirement Income Security Act of 1974 (“ERISA”) for failing to provide adequate 

notice when denying their benefit claims (Counts I); breach of fiduciary and co-fiduciary duty claims 

under ERISA for failing to provide ACA-mandated lactation counseling coverage (Counts II and III); 

sex discrimination in violation of Section 1557(a) of the ACA (Count IV); and violation of the ACA’s 

preventive care provisions which were incorporated by reference in non-ERISA health benefit plans 

(Count V); and, unjust enrichment (Count VI). [Dkt. No. 78.] Defendants denied all of these 

allegations, asserting that that they cover network lactation services without cost-sharing as required 

by the ACA and provided a “meaningful dialogue” to Plaintiffs in processing their lactation claims as 

required by ERISA. [Dkt. Nos. 82 and 104.] 

 Plaintiffs and Defendants (collectively, “Parties”), by and through their counsel, stipulate as 

follows: 

WHEREAS, on June 27, 2018, the Court entered summary judgment: (1) in favor of all 

Plaintiffs on Count I (except for Carroll)1; (2) in favor of Bishop and Hoy for Count II; (3) in favor of 

Defendants for Count II with respect to Barber and Condry; and (4) in favor of Defendants for Counts 

                                                             1

 Unlike the other Plaintiffs, Carroll was a participant of a non-ERISA health benefit plan and 

therefore did not bring any claims under ERISA. 

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IV and VI. 

WHEREAS, on June 27, 2018, the Court denied summary judgment for both sides on: (1) 

Count III; (2) Endicott’s Count II claim; and (3) Carroll’s Count V claim. [Dkt. No. 146.] 

WHEREAS, on May 23, 2019, the Court denied without prejudice Plaintiffs’ Motion for Class 

Certification. [Dkt. No. 213.] Among other things, the May 23, 2019 Order held that “[i]t does not 

appear that the named plaintiffs have standing to seek prospective relief because they are no longer 

UHC plan participants.” [Id. at 4.] On December 19, 2019, the Court denied Plaintiffs’ Motion to 

Grant Request for Intervention [Dkt. No. 259], which sought to add as a named plaintiff Teresa Harris, 

a UHC insured, who asserted a claim under Count II, as set forth in the proposed amended complaint 

(id.), with respect to the denial of her lactation claim, finding generally that Plaintiffs waited too long 

to seek intervention of a new plaintiff. (Id.) 

WHEREAS, on December 23, 2019, the Court granted in part and denied in part Plaintiffs’ 

renewed motion for class certification. [Dkt. No. 262.] The Court certified a Federal Rule of Civil 

Procedure Rule 23(b)(2) class of ERISA plan participants who received the same denial letters for 

lactation claims as Condry, Hoy, Endicott, Bishop, and Barber (“Denial Letter Class”), which the 

Court had previously found violated ERISA under Count I when entering summary judgment in favor 

of Condry, Hoy, Endicott, Bishop, and Barber on that issue. The Court denied certification of a 

proposed class of members of Defendants’ health benefit plans who were denied coverage or had costshares imposed for out-of-network lactation services, which pertained to Counts II, III and V, finding 

that Plaintiffs did not meet their burden under Federal Rule of Civil Procedure 23. [Dkt. No. 262.] 

WHEREAS, with respect to the Denial Letter Class the Court ordered Defendants to send a 

follow-up letter to each member of the Denial Letter Class, “that explain[s] the basis for denial in a 

comprehensible fashion (which would, in turn, allow participants to meaningfully assess whether to 

contest the denial)”, and “that is worded so as to emphasize that if a participant believes her dispute 

with the company was mooted by activity or communications subsequent to the initial denial letter, 

she need not take further action in response to the new letter.” [Dkt. No. 262.] 

WHEREAS, both sides moved for interlocutory appeal of the Court’s class certification 

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decision, which the Ninth Circuit Court of Appeals denied on March 2, 2020. 

WHEREAS, the remaining claims are: (i) Endicott’s individual lactation counseling coverage 

claim under ERISA (Counts II and III); and, (ii) Carroll’s individual lactation counseling coverage 

claim under the ACA’s preventive care provisions which were incorporated by reference in her nonERISA health benefit plan (Count V). In the interest of efficiency and judicial economy, and solely 

to resolve the claims that are remaining in the wake of the Court’s previous fully litigated and contested 

rulings, the Parties agree to the dismissal of the foregoing remaining claims. 

WHEREAS, Plaintiffs’ (except Carroll) claim under Count III alleging that Defendants should 

be held jointly liable under ERISA is derivative of Plaintiffs’ claim under Count II, pursuant to the 

Court’s order granting in part and denying in part the parties’ cross-motions for summary judgment, 

the Parties stipulate that judgment be entered under Count III for Bishop and Hoy and against Condry 

and Barber. This stipulation does not reflect any settlement or concession relating to the issues 

litigated on the cross-motions for summary judgment but instead is only intended to resolve the claims 

asserted in Count III. 

WHEREAS, upon entry of this Stipulated [Proposed] Final Judgment and Order, Plaintiffs and 

Defendants both intend to file timely notices of appeal. 

WHEREAS, the parties, by and through respective counsel, agree to the entry of this Stipulated 

[Proposed] Final Judgment and Order, subject to reservations of right to appeal. 

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: 

1. This Court has jurisdiction over the Parties and over the subject matter in issue, and 

venue is proper in this District. 

2. In the interest of efficiency and judicial economy, Plaintiffs and Defendants agree to 

stipulate to entry of a final judgment, and the relief awarded herein is expressly conditioned on the 

Parties’ reservations of their rights of appeal as set forth below in paragraph 3. 

3. The Parties stipulate that they have expressly reserved their rights on appeal to 

challenge all rulings or orders in this case. If any aspect of a ruling or order is reversed or vacated on 

appeal, wholly or partially, this Stipulated Final Judgment and Order shall be set aside to the extent 

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inconsistent with any such decision on appeal or ruling of this Court on remand. 

4. Subject to paragraphs 2-3 above, final judgment is hereby entered in favor of the Denial 

Letter Class on Count I, finding that Defendants violated ERISA for the reasons set forth in the Court’s 

summary judgment order. [Dkt. No. 146.] The Denial Letter Class is defined as: 

All participants and beneficiaries, in one or more of the ERISA employee health benefit plans 

administered by Defendants in the United States, which provide benefits for healthcare services 

and for which claims administration duties are delegated to one or more of the Defendants, 

who received from August 1, 2012 to present, an explanation of benefits for Comprehensive 

Lactation Services rendered by an out-of-network provider, that included one or more of the 

following denial reasons (the “Remark Codes”): 

(1) Remark code KM (“This is not a reimbursable service. There may be a more 

appropriate CPT or HCPCS code that describes this service and/or the use of the 

modifier or modifier combination is inappropriate.”) 

(2) Remark code I5 (“This service code is not separately reimbursable in this setting.”) 

(3) Remark code 13 (“Your plan does not cover this non-medical service or personal 

item.”) 

(4) Remark code B5 (“Payment for services is denied. We asked the member for more 

information and didn’t receive it on time.”) 

Excluded from the Class are Defendants, their subsidiaries or affiliate companies, their legal 

representatives, assigns, successors and employees and the Court and all Court personnel 

involved in the handling of this case. 

5. Subject to paragraphs 2-3 above, Barber, Bishop, Condry, Endicott, and Hoy are hereby 

appointed as Class Representatives of the Denial Letter Class, and Chimicles Schwartz Kriner & 

Donaldson-Smith LLP and Shepherd, Finkelman, Miller & Shah, LLP are hereby appointed as CoLead Class Counsel, and Axler Goldich LLC is hereby appointed as Class Counsel of the Denial Letter 

Class. 

6. Subject to paragraphs 2-3 above, final judgment is hereby entered with respect to the 

Denial Letter Class, ordering Defendants to send a follow-up letter (“Letter”) to each member of the 

Denial Letter Class, “that explain[s] the basis for denial of the lactation claim in a comprehensible 

fashion (which would, in turn, allow participants to meaningfully assess whether to contest the 

denial),” and that is “worded so as to emphasize that if a participant believes her dispute with the 

company was mooted by activity or communications subsequent to the initial denial letter, she need 

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not take further action in response to the new letter.” [Dkt. No. 262.] However, the Parties agree to 

stay execution of the order directing Defendants to send the Letter until after the aforementioned 

appeals are fully resolved. 

7. Subject to paragraphs 2-3 above, final judgment is hereby entered in favor of Plaintiff 

Hoy on Counts II and III in the amount of $345 and $49 in prejudgment interest2

, for a total of $394, 

for the reasons set forth in the Court’s summary judgment order. [Dkt. No. 146.] However, the Parties 

agree to stay execution of payment of said amount, with no additional accrual of interest of any kind, 

until after the aforementioned appeals are fully resolved. 

8. Subject to paragraphs 2-3 above, final judgment is hereby entered in favor of Plaintiff 

Bishop on Counts II and III in the amount of $130 and $19.38 in prejudgment interest, for a total of 

$149.38, for the reasons set forth in the Court’s summary judgment order. [Dkt. No. 146.] However, 

the Parties agree to stay execution of payment of said amount, with no additional accrual of interest of 

any kind, until after the aforementioned appeals are fully resolved. 

9. Subject to paragraphs 2-3 above, final judgment is hereby entered against Barber and 

Condry on Counts II and III, for the reasons set forth in the Court’s summary judgment order. [Dkt. 

No. 146.] 

10. Subject to paragraphs 2-3 above, final judgment is hereby entered against the Plaintiffs 

on Count IV, for the reasons set forth in the Court’s summary judgment order. [Dkt. No. 146.] 

11. Subject to paragraphs 2-3 above, Counts II and III are dismissed with prejudice as to 

Endicott as the result of a partial settlement, which settled only the portion of Endicott’s individual 

claims that was not decided by previous order of this Court, but which did not settle her class claims 

and the portions of her claims that this Court previously decided and which remain contested and 

subject to further appeals. 

                                                             2

 The Parties stipulate and agree to Pre-judgment interest at the rate of 3% per annum, 

calculated from the date of when Defendants first notified the plaintiff that it would not cover the 

lactation claim to the date of the entry of this Judgment, and, therefore, stipulate and agree to the prejudgment interest calculations, depending on the date judgment is entered for Hoy and Bishop, set 

forth in Appendix A. 

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12. Subject to paragraphs 2-3 above, Count V is dismissed with prejudice as to Carroll as 

the result of a partial settlement, which settled only the portion of Carroll’s claim that was not decided 

by previous order of this Court, but which did not settle her class claims and the portions of her claims 

that this Court previously decided and which remain contested and subject to further appeals. 

13. Except with respect to Endicott’s and Carroll’s individual claims that are the subject of 

the partial settlements, the Parties reserve the right under this Stipulated Final Judgment and Order to 

move for an award of reasonable attorneys’ fees and/or costs, including pursuant to 29 U.S.C. § 

1132(g), and each Party reserves the right to object to the others’ motion. The Parties agree to wait 

until appellate issues are resolved before briefing such issues. 

14. This Court shall retain continuing jurisdiction over the Parties to this Stipulated Final 

Judgment and Order and over the subject matter of this action for the purposes of interpreting and 

enforcing the terms of this Stipulated Final Judgment and Order, subject to the Parties’ right of appeal 

as set forth in paragraphs 2-3 above. 

DATED: September 4, 2020 REED SMITH LLP 

By: /s/Rebecca R. Hanson 

Martin J. Bishop (pro hac vice) 

Rebecca R. Hanson (pro hac vice) 

kbraje@reedsmith.com 

mbishop@reedsmith.com 

rhanson@reedsmith.com 

Telephone: (415) 543-8700 

Facsimile: (415) 391-8269 

Attorneys for Defendants UnitedHealth Group 

Inc., UnitedHealthcare, Inc., UnitedHealthcare 

Insurance Company, and United 

Healthcare Services, Inc. 

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CHIMICLES SCHWARTZ KRINER & 

DONALDSON-SMITH LLP 

By: /s/ Kimberly M. Donaldson-Smith 

Nicholas E. Chimicles (pro hac vice) 

Kimberly M. Donaldson-Smith (pro hac vice) 

Stephanie E. Saunders (pro hac vice) 

361 W. Lancaster Avenue 

Haverford, PA 19041 

Telephone: (610) 642-8500 

Facsimile: (610) 649-3633 

nickchimicles@chimicles.com 

kds@chimicles.com 

ses@chimicles.com 

Annick Marie Persinger 

Sabita J. Soneji 

TYCKO & ZAVAREEI LLP 

The Tower Building 

1970 Broadway, Suite 1070 

Oakland, CA 94612 

Telephone: (510) 254-6808 

Facsimile: (202) 973-0950 

apersinger@tzlegal.com 

ssoneji@tzlegal.com 

Marc A. Goldich (admitted pro hac vice) 

Noah Axler (admitted pro hac vice) 

AXLER GOLDICH LLC 

1520 Locust Street 

Suite 301 

Philadelphia, PA 19102 

Telephone: (267) 534-7400 

Facsimile: (267) 534-7407 

mgoldich@axgolaw.com 

naxler@axgolaw.com 

James E. Miller (CA Bar No. 262553) 

Laurie Rubinow 

SHEPHERD, FINKELMAN, MILLER & 

SHAH, LLP 

65 Main Street 

Chester, CT 06412 

Telephone: (860) 526-1100 

Facsimile: (866) 300-7367 

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