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PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

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TYCKO & ZAVAREEI LLP

KRISTEN LAW SAGAFI, California Bar No. 222249

ksagafi@tzlegal.com

483 Ninth Street, Suite 200

Oakland, CA 94607

Telephone: (510) 254-6808

Facsimile: (202) 973-0950

Counsel for Plaintiffs

Additional counsel for Plaintiffs on signature page

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

RACHEL CONDRY, JANCE HOY, CHRISTINE 

ENDICOTT, LAURA BISHOP, FELICITY 

BARBER, and RACHEL CARROLL on behalf of 

themselves and all others similarly situated,

 Plaintiffs,

v.

UnitedHealth Group Inc.; UnitedHealthcare, Inc.; 

UnitedHealthcare Insurance Company; 

UnitedHealthcare Services, Inc.; and UMR, Inc.,

 Defendants.

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

PLAINTIFFS’ REPLY IN FURTHER 

SUPPORT OF THEIR MOTION FOR 

CLASS CERTIFICATION 

Date: April 25, 2019

Time: 10:00 am

Place: Courtroom 4

Honorable Vince G. Chhabria 

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TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................................................1

II. UHC’S POLICIES FOR CLS COVERAGE, NOT

“INDIVIDUALIZED ISSUES,” WERE UNIFORM

AND DRIVEN BY FINANCIAL INTERESTS ........................................................................2

III. UHC DID NOT DEMONSTRATE MEANINGFUL ACCESS ................................................6

IV. UHC “INDIVIDUALIZED ISSUES” ARGUMENTS

ARE UNPERSUASIVE..............................................................................................................9

V. EACH PLAINTIFF HAS ARTICLE III STANDING .............................................................13

VI. PLAINTIFFS’ ACA AND LACTATION SERVICES CLASSES

ARE NOT EXPANDED AND ASSERT A COMMON INJURY...........................................14

VII. CONCLUSION.........................................................................................................................15

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TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Hain Celestial Group, Inc.,

2014 U.S. Dist. LEXIS 162038, 2014 WL 6483216 (N.D. Cal. Nov. 18, 2014) .............................15

In re Conseco Life Ins. Co. LifeTrend Ins. Sales & Mktg. Litig.,

270 F.R.D. 521 (N.D. Cal. 2010)......................................................................................................12

Des Roches v. Cal. Physicians’ Serv.,

320 F.R.D. 486 (N.D. Cal. 2017)................................................................................................11, 12

Erickson v. Courtney,

702 Fed.Appx. 585 (9th Cir. 2017).....................................................................................................9

Farar v. Bayer AG,

No. 14-cv-04601-WHO, 2017 U.S. Dist. LEXIS 193729 (N.D. Cal. Nov. 15, 2017) .....................14

Gessele v. Jack in the Box, Inc.,

No. 3:10-CV-960-ST, 2012 U.S. Dist. LEXIS 120377 (D. Or. Aug. 24, 2012).................................1

Hill v. UnitedhealthCare Ins. Co.,

2017 U.S. Dist. LEXIS 218139 (C.D. Cal. Mar. 21, 2017)..............................................................10

Johnson v. Hartford Cas. Ins. Co.,

No. 15-cv-04138-WHO, 2017 U.S. Dist. LEXIS 77482 (N.D. Cal. May 22, 2017)..................13, 14

Josephat v. St. Croix Alumina, LLC,

2000 U.S. Dist. LEXIS 13102 (D.V.I. Aug. 7, 2000).......................................................................11

Phillips v. Sheriff of Cook County,

828 F.3d 541 (7th Cir. 2016) ............................................................................................................11

Rikos v. Procter & Gamble Co.,

799 F.3d 497 (6th Cir. 2015), cert. denied, 136 S. Ct. 1493, 194 L. Ed. 2d 597 (2016)..................11

Sanchez v. Capital Contractors, Inc.,

No. 14-cv-02622-MMC, 2017 U.S. Dist. LEXIS 87585 (N.D. Cal. June 7, 2017)..........................14

Sandoval v. Cnty of Sonoma,

2015 U.S. Dist. LEXIS 55571, 2015 WL 1926269 (N.D. Cal. Apr. 27, 2015)................................15

Schilling v. Kenton Cnty., Ky.,

No. 10-143-DLB, 2011 WL 293759 (E.D. Ky. Jan. 27, 2011).........................................................11

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Stafford v. Carter,

2018 U.S. Dist. LEXIS 34266 (S.D. Ind. Mar. 2, 2018)...................................................................10

Steinley v. Health Net,

No. CV 18-5458 PSG, 2018 U.S. Dist. LEXIS 223853 (C.D. Cal. Dec. 4, 2018)...........................14

Trujillo, et al. v. UnitedHealth Group, Inc., et al.,

CV 17-2547, 2019 U.S. Dist. LEXIS 21927 (C.D. Cal. Feb. 4 2019)(Appeal filed, 02/20/2019)...10

Whitney v. Khan,

2019 U.S. Dist. LEXIS 38288 (N.D. Ill. Mar. 11, 2019)..................................................................11

Wit v. United Behavioral Health ̧

Case No. 14-cv-02346-JCS (USDC ND Cal.)..........................................................................4, 5, 12

STATUTES 

ERISA...........................................................................................................................................6, 10, 15

OTHER AUTHORITIES

29 CFR 2590.715-2713(a)(3)....................................................................................................................9

Rule 23....................................................................................................................................................11

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Plaintiffs, Rachel Condry, Jance Hoy, Christine Endicott, Laura Bishop, Felicity Barber, and 

Rachel Carroll (collectively, “Plaintiffs”), hereby submit their Reply In Further Support of

Plaintiffs’ Notice of Motion and Motion for Class Certification and the Memorandum of Points and 

Authorities in Support (ECF No. 161, “Pltfs. Memo” or “Plaintiffs’ Motion” or “Motion”); and in 

Reply to Defendants’ Response in Opposition to Plaintiffs’ Motion for Class Certification (ECF No. 

163, “Defs. Resp.” or “UHC’s Opposition” or “Opposition”). In support of Plaintiffs’ Motion, 

Plaintiffs filed the Declaration of Kimberly Donaldson-Smith (ECF No. 162-1, the “Pltfs. Decl.”). 

Filed concurrently herewith is the Supplemental Declaration of Kimberly Donaldson-Smith in 

Support of Plaintiffs’ Motion (the “Pltfs. Suppl. Decl.”), with exhibits thereto.

I. INTRODUCTION

Reading UHC’s Opposition, one would believe that this is a lawsuit against providers for 

rendering subpar medical services to a proposed class of patients. (See, e.g., Defs. Resp. at 2:18-

19, “While Plaintiffs may disagree with the quality and scope of the services rendered in certain 

instances, the fact remains that no common injury exists across the putative classes.”). It is part of 

UHC’s Opposition, as well as its Daubert motions directed to Plaintiffs’ experts, seek to conjure 

up speculative and irrelevant arguments about “individualized inquiries” and try to revive its 

already-rejected arguments.

By affirmatively seeking summary judgment as to the Plaintiffs, UHC made a calculated 

assessment about its significant risk with respect to class certification. 1In the wake of the 

foundational holdings provided in the Court’s Summary Judgment Order (Dkt. 146, “SJ Order”),

and the facts that have now proven out in discovery, class certification must be granted. UHC’s

insureds, across the board (all plans, company-wide, nationwide), were subject to its policies, which

did not give any member meaningful access to CLS coverage, including meaningful access to 

UHC-identified lactation providers. In response, UHC deploys boilerplate typicality and 

 

1

See Pltfs. Memo at fn. 1; see Gessele v. Jack in the Box, Inc., No. 3:10-CV-960-ST, 2012 U.S. 

Dist. LEXIS 120377, at *7 (D. Or. Aug. 24, 2012) (“by filing a motion for summary judgment prior 

to class certification, the defendant accepts the potential unfairness of one-way intervention”).

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commonality assertions and disregards the evidence and the SJ Order. The compelling facts and 

precedent, however, impel certification of the Classes. 

II. UHC’S POLICIES FOR CLS COVERAGE, NOT “INDIVIDUALIZED ISSUES,”

WERE UNIFORM AND DRIVEN BY FINANCIAL INTERESTS

As detailed in Plaintiffs’ Motion (see, e.g., Section II.C), discovery has established that

insureds were subject to UHC’s ACA-deficient policies governing CLS coverage. 2 UHC’s 

Opposition does not refute the substance of Plaintiffs’ arguments about its CLS policies, which 

UHC acknowledges have not changed throughout the Class Period. (See, Pltfs. Memo at 6-7). 

First, UHC determined that it would not establish a network of identified lactation 

providers.3 UHC’s Opposition, which is reminiscent of both of its motion to dismiss and its 

summary judgment filings, and notwithstanding the Court’s SJ Order, repeats UHC’s stance that: 

“Defendants have thousands of in-network providers of lactation services, with OB/GYNs, 

pediatricians, and lactation specialists making up the majority of these providers” (Defs. Resp at 

5:18-6:2). Similarly, UHC states that “women are exposed to lactation services from various 

provider types—including OB/GYNs, pediatricians, and lactations specialists—throughout their 

pregnancy, during the hospitalization associated with delivery, and during expected postpartum 

visits.” (Defs. Resp. at 6:8-11.)

4 UHC did not affirmatively build a network of identified-lactation 

consultants, or even provide the identities of any network providers who were in fact providing 

CLS (other than the 380-designated providers, discussed infra at Section III). 

Second, UHC admits that its Preventive Care Services Coverage Determination Guideline 

 

2

 See, e.g., the CDG applies to all members of the ACA and Lactation Services Classes. Pltfs. 

Decl., Ex. 11, Declaration of Janice Huckaby, UHC Regional Chief Medical Officer, ¶ 6.

3 UHC’s policy was that it did not “need to develop a specific, broad strategy for contracting with 

lactation specialists since [it has] pediatricians and OB’s [sic] that already provide this service.” 

(Pltfs Decl., Ex. 23, UHC_110054-56); see also Plaintiffs’ Motion at pgs. 8-9, and Section II.D.

4 UHC relies on Dr. Henry Lee, who UHC also proffered during the summary judgment 

proceedings (Defs. Resp. at 6:11). Plaintiffs are filing a Motion to Limit Consideration of the 

Expert Report of Dr. Henry Lee. As stated in that motion, among other reasons, Dr. Lee’s opinion 

should be afforded no weight because having in-network certain provider-types does not equate to 

relevant proof or evidence that UHC’s pediatricians and OBGYNs were, in fact, providing CLS and 

that UHC made members aware of the identity of the actual providers (not the “provider types.”)

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(“CDG”) is the policy that “defined the scope of the [CLS] benefit” for UHC insureds. (See, 

Plaintiffs Motion at 6-7, citing to UHC’s Resp. to Rog. 1.) The CDG identifies certain procedure 

codes (and a diagnosis code for certain of those procedure codes) as the only codes eligible for 

coverage without cost-shares when billed as described in the CDG and in accordance with 

Defendants’ policies and procedures. Notably, UHC’s Response reveals the improperly narrow 

construct and inadequacy of the CDG as it applies to CLS.5 Likewise, UHC confirmed in discovery 

that the CDG impermissibly incorporated the preventive versus diagnostic care construct for CLS 

and services billed outside the CDG were processed as non-preventive. (Id. at 7, citing to Resp. to 

Rog. 2 (“If such services are billed using codes in a manner not set out in the CDG, they will be 

processed as non-preventive care.” (Emphasis added)). UHC has offered such policies in its 

defense and as proof of its purported compliance with the ACA. The policies are squarely at issue

and the resolution of such issues is no different within or among the Classes. See, Defs. Resp. at 7.

Third, in UHC’s own words, its policy is, and has been, that “preventive services....will be 

eligible for coverage without cost-shares provided that such services are provided by a network

provider...” Pltfs. Decl. at Ex. 10, UHC Resp. to Rog. 3 (emphasis added). UHC did not cover 

out-of-network CLS providers because of its policy that its existing network pediatricians and 

obstetricians provided CLS, of course notwithstanding that they were not actually identifiable or 

identified by UHC as CLS network providers to insureds. That is the policy the Classes challenge.

Why would UHC implement blatantly narrow and non-compliant Policies? Financial

interests. A UHC email dated 1/27/2012 concerning the ACA women’s preventive benefits stated 

 

5 UHC states that: “Plaintiffs also seek to sweep in thousands of potential members whose claims 

were billed by providers under medical codes that do not on their face indicate that lactation 

services were provided and could reflect a different type of service.” (Defs. Resp. at 3:4-6; 19.) 

First, the rendering of CLS services may be indicated by the use of numerous codes that, on their 

face, indicate lactation-related issues (which are not listed in the CDG, Pltfs Decl. Ex. 12 at pg 39)

and codes relating to breast issues including when combined with other codes that may indicate a 

CLS visit. See, Dr. Hanley’s Amended Report (Pltfs. Decl., Ex. 34) and, see also, fns. 2 and 3 in the 

Amended Report of UHC’s expert, Ms. D’Apuzzo (Pltfs. Decl., Ex. 18). At bottom, there is not one 

code for CLS, there are many and they need to be accounted for. Second, the only reason that such 

a condition would exist, with the need to sweep in claims of thousands of potential class members, 

is that UHC’s CDG provided for narrower coverage than is consistent with required practice.

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that “we must identify key areas of opportunity to minimize the financial risks associated with these 

new guidelines.” See Pltfs. Decl., Ex. 26, UHC_011837. To “minimize” the financial risk, UHC 

assumed $0 incremental costs/financial impact specifically for breastfeeding support counseling 

services (Pltfs. Suppl. Decl. Exhibit 1). 

At $0 financial impact, UHC coverage could only consist of coverage included as part of 

delivery during the hospital stay and wellness visits with pediatricians and obstetricians. UHC could 

not meet its $0 financial impact assumption if it contracted with lactation specialists and lactation 

specialist groups, and then identified to its members those lactation consultants as well as coverage 

guidelines that were ACA compliant for CLS coverage. UHC’s objective was for CLS coverage to 

cost UHC nothing; that would have been impossible if UHC had implemented policies that gave 

members access to and utilization of CLS preventive coverage. 

Plaintiffs’ theory is not novel or untested, and it is a circumstance that UHC may be familiar 

with: Coverage policies and guidelines, including specifically CDGs, that are tainted by an insurer’s 

financial interest are fundamentally flawed and non-ERISA and state law compliant, and expose an 

insurer to liability to a class of insureds. On March 5, 2019, Chief Magistrate Judge Spero in Wit v. 

United Behavioral Health ̧ Case No. 14-cv-02346-JCS, (USDC ND Cal.), a behavioral health 

benefits class action against United Behavioral Health (“UHB”) which manages behavioral health 

services for UHC members, issued Findings of Fact and Conclusions of Law [Wit FOF, Dkt. No. 

418, Excerpts at Exhibit 2 to Pltfs. Supp. Decl].6 In Wit, the plaintiffs asserted that they were 

improperly denied benefits for the treatment of mental health and substance use disorders because 

UHB Guidelines, namely its Coverage Determination Guidelines and Level of Care Guidelines, did 

not comply with the plan terms and/or state law. (Wit FOF, Exhibit 2 at pg. 1). In discussing UBH’s 

development of its Guidelines, Judge Spero addressed that “the process UBH uses to develop its 

Guidelines...is fundamentally flawed because it is tainted by UBH’s financial interests.” Id. at pgs. 

 

6 Because of its length, Plaintiffs attach excerpts of the FOFs reflecting the pages cited herein 

(Exhibit 2, Pltfs. Suppl. Decl.). The FOFs in their entirety are on the Wit docket, Case 3:14-cv02346, USDC ND. Cal., Dkt. 418, or can be provided by Plaintiffs upon request. 

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90-94, ¶¶ 174 – 185. Judge Spero found that such flaw arose from UBH’s consideration of the 

general economic impact of increasing or decreasing coverage, and its setting coverage policies 

under such construct where UBH placed representatives of its Finance and Affordability 

Departments in key roles in the Guidelines development and approval process. Id. at 90-94, ¶¶ 174 

– 185. The Wit FOFs state that “financial incentives ...infected the Guideline development 

process” (id. at ¶ 180), and that the “Guidelines were riddled with requirements that provided for 

narrower coverage than is consistent with generally accepted standards of care gives rise to a 

strong inference that UBH’s financial interests interfered with the Guideline development 

process.” (Id. ¶ 183, emphasis added). 

In sum, UHC’s CLS coverage policies – which UHC admits have not changed throughout 

the Class Period to the present (see Pltfs. Decl., Ex. 10, UHC Resp. to Rogs. 1-4)) – are grounded in 

UHC’s: 1) narrow construct of CLS (including its unsupported preventive/diagnostic care 

construct); 2) baseless position that all pediatricians and obstetricians provide CLS; and, 3) stance 

that CLS is simply part of delivery and post-partum wellness visits sufficiently covered by 

physicians who provide post-partum wellness visits and hospital delivery. Supra; see also, Defs. 

Resp. at 8:2-16; 16:8-11.

7 The resolution of whether UHC’s CLS-related policies and procedures 

constitute ACA-mandated coverage for CLS presents questions common to the members of the 

Lactation Services Class and ACA Class.

Similarly impactful to UHC’s financial interest is its use of the four Remark Codes for CLS

(similarly impactful because the four Remark Codes are issued for denied claims). Although UHC 

tacitly acknowledges the import of the SJ Order (“[e]ven assuming that the denial codes at issue 

were confusing in the abstract...”, Defs. Resp. at 3) with respect to the Remark Codes, UHC then 

 

7

See Defs. Resp. at 8:11-15 and 16:8-14 stating that “Additional members likely received lactation 

services through global billing and post-partum wellness visits....” (emphasis added). Contrary to 

Defendants’ vague and unsubstantiated assertions that “additional members likely received [] free 

in-network services through hospital-based programs” (Defs Resp. at 16:8-12), the outpatient oneon-one lactation services at Hartford Hospital are not free. See Souza Decl., Ex. D (Mar. 15, 2019 

Marshall-Crim Dep.), at 98:2-99:8 (There is a fee for “an outpatient one-to-one visit” the fee ranges 

“depend[ing] on what services are rendered.”)

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deems the Remark Codes only “confusing in the abstract” requiring “individual assessments of each 

member’s circumstances—including whether additional contact with Defendants occurred or an 

appeal was filed—to determine whether the alleged procedural violation prevented a “meaningful 

dialogue.” Id. See also, Plaintiffs Motions to Limit with respect to Ms. D’Apuzzo and Mr. Miller. 

There is no “in the abstract” – the Remark Codes were used on EOBs for CLS, and, as the Court 

held, each was confusing in the context of the CLS EOB. UHC’s position, if adopted, would 

eviscerate the fundamental purpose of the ERISA procedural requirement, which aims to remove 

such subjective determinations offered by UHC. UHC must reprocess the CLS claims without any 

of the offending Remark Codes.

III. UHC DID NOT DEMONSTRATE MEANINGFUL ACCESS 

Plaintiffs established that UHC’s failure to provide meaningful access to network CLS

providers is determinable on a national class-wide basis. After the issuance of, and guided by, the

Court’s SJ Order, Plaintiffs adduced evidence through discovery that only network providers with

the 380 Lactation Specialist code are identifiable (i) by UHC as providing CLS and (ii) are

identified to insureds as such by UHC. Nationwide UHC has only 122 unique current “380” 

network providers and 22 unique terminated “380” providers (since 2012). In addition, for 20 

states, UHC’s data reflected that it had no “380” network providers identified during the Class 

Period. See, Plaintiffs’ Motion at pg. 9-12. On its own, the de minimus providers identified by 

UHC as 380 network providers is conclusive of the systemic lack of UHC-identified network 

lactation providers. Likewise, UHC’s call center was telling members to contact their network 

providers and not making insureds aware of the identity of any network provider that in fact 

provided CLS.8

Faced with the undisputed facts, UHC claims that Plaintiffs are required to prove a negative 

– that each of the thousands of OB/GYNs and pediatricians in UHC’s network are NOT providing 

 

8

See, Ex. 19, UHC_007982, June 19, 2014 email stating: “How does the Call Center advise 

members calling in for lactation consulting providers?” reveals that UHC’s policy was to have the 

“Call Center” “advise[] member[s] to contact their in-network OB/GYN/Pediatrician as only 

INN [in network] benefits are covered.”). See also, fns. 11-12, infra.

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lactation services. 9 On this issue, UHC’s Opposition directs the Court and Plaintiffs to “see

concurrently filed Daubert motions”. See Defs. Resp. at 18:6. On April 4, 2019, Plaintiffs filed

oppositions to UHC’s Daubert motions directed to Plaintiffs’ four experts: Mr. McGlone [ECF No.

181], Dr. Hanley [ECF No. 184], Dr. Morton [ECF No. 182], and Dr. Labovitz [ECF No. 183]. 

UHC has never refuted Plaintiffs’ demonstration about the 380-identified providers by

offering any relevant information. For example, UHC has failed to provide the name of each

provider in their network who, in fact, provides CLS. Nor has it explained how it identified those

providers to the members of the Classes throughout the Class Period. Instead, because UHC cannot

do that, UHC ignores the 380 designation, and cursorily argued that proof of its insureds getting

access to coverage can be gleaned from its claims data. See Defs. Resp. at 8:1-17, citing to and

relying on Mr. dos Santos, one of UHC’s proffered experts. That analysis, however, is (i)

irrelevant, because it (again) skirts the relevant inquiry of whether the network CLS providers were

identified as such to insureds by UHC; and (ii) is flawed in its conclusion about UHC’s breadth of

network by failing to consider the claims data relative to claims expected, which is an appropriate,

necessary comparison or assessment, if one is to render an opinion about breadth of a network in

the manner that UHC has offered. See Plaintiffs’ Memo at pg. 15; see also, Plaintiffs’ Motion to 

Limit Testimony and Opinions of Mr. dos Santos, filed concurrently herewith; and, Plaintiffs’ 

Opposition to UHC’s Daubert directed to Dr. Labovitz [ECF No. 183].

The relevant facts are simple and not in dispute. UHC only used a specialty code “380” to 

designate lactation specialists and lactation specialist groups.10 UHC admitted that “[t]he on-line 

directory pulls [ ] information from the National Data Base where contracted providers’ 

demographic information, including specialty, is stored”, and therefore, only the network 

providers “identified by the specialty code ‘380’...have been electronically searchable as 

 

9

See Defs. Resp. at 5:21-6:2 (“Defendants have thousands of in-network providers of lactation 

services, with OB/GYNs, pediatricians and lactation specialists making up the majority of those 

providers.”) This mantra is no more persuasive or supported now than it was at summary judgment.

10 See Pltfs. Decl. Ex. 10, UHC Resp. to Rog. 6 (In response to Plaintiffs’ request for the identity of 

every lactation specialist and lactation specialist group in UHC’s network during the Class Period, 

UHC responded, “Such providers are identifiable in Defendants’ systems by the specialty ‘380’”). 

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“Lactation Specialists” in Defendants’ provider directory since March 2014.” Pltfs. Decl., Ex. 10,

UHC Resp. to Rog. 7 (emphasis added). Prior to March 2014, 380-providers did not display online. Id. UHC also admitted, when asked how members are directed to network CLS providers (id., 

UHC Resp. to Rogs. 7, 9) that: “members are encouraged to seek the ACA-mandated service from 

network providers, including in their plan documents, and are specifically directed to ask their 

network provider about the ACA-mandated service.”11 (Emphasis added). Moreover, when asked 

what actions UHC took to provide UHC insureds with the ability to identify in-network 

“providers of lactation and breastfeeding services, support and counseling” (so, the question 

was not limited by the terms “lactation specialist” or “lactation specialist group” or “380”), UHC 

referred back to Rogs. 7 and 9, which, according to UHC, “reflect the manner in which Defendants 

identify in-network providers for their members and insureds.” Id., UHC Resp. to Rog. 12.

12

 

In addition to UHC’s own admissions, Plaintiffs had their expert, Daniel McGlone, do a 

data analysis and geospatial mapping of the “380” Providers, since, again, those are the only 

lactation providers who are identified by UHC both internally and to UHC’s members. See, Expert 

Report of Plaintiffs’ Expert Daniel McGlone (Pltfs. Decl. Ex. 29) and the maps attached thereto 

(id., Ex. 29-A). UHC’s arguments with respect to Mr. McGlone’s analysis are telling: UHC does 

not contend that there are 380-identified providers other than the 144 unique providers discussed in 

McGlone’s work. Instead, Defendants suggest that the data McGlone uses is insufficient by not 

capturing all the thousands of (faceless, nameless) lactation-services providers allegedly in UHC’s 

network. (See, UHC’s Daubert Motion re: McGlone, ECF No. 179 at 6 (“[E]vidence . . . 

demonstrates that thousands of women did receive lactation services from pediatricians, OBGYNs, 

 

11 UHC cited to the SOP for Member Services Breast Pump Benefit (Pltfs Decl. Ex. 27) which 

states on UHC_003918-3919 that “[i]f a member asks [a]bout lactation counseling and support [] 

[l]et the member know the following: ...Educate the member so he or she can discuss specific 

services with his or her doctor....The member's doctor may offer these services, or have 

relationships with other practitioners in his or her area to provide this care.”

12 Similarly, when asked to identify the “Documents relating to the ‘availability of providers of 

lactation counseling services in Defendants’ networks”, UHC referred “Plaintiffs to their responses 

to Interrogatories Nos. 6, 7 and 9, which refer to the “380” lactation specialists and “SOPs”. (Id., 

Resp. to Rog. 13).

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and others who are not self-described lactation specialists . . . .”).); Defs. Resp. at 6. 

That is sophistry. But, more to the point, such sophistry is precisely the gamesmanship that 

UHC has wrongly thrust on its members for over 6 years. It must stop.

IV. UHC’S “INDIVIDUALIZED ISSUES” ARGUMENTS ARE UNPERSUASIVE 13

UHC admits that each member of the Classes sought lactation services (Defs. Resp. at 1:6). 

Defendants even reference the concept of “threshold determinations regarding the parameters of the 

benefit...on a class-wide basis.” (Id. at 15:22-23). But, as is their wont, Defendants attempt to

conjure up “individualized claims with unique factual and legal underpinnings.” (Defs. Resp. at 

1:5). The “individualized issues” are a primary basis for UHC’s arguments with respect to 

commonality and typicality. See Defs. Resp. at 9, 14-23, and 25. UHC’s arguments, however, are 

contrary to the facts and case law, as well as the Court’s SJ Order when viewed based on the record 

and evidence of Defendants’ conduct and policies, see supra, and Plaintiffs’ Motion.

An initial fundamental point, that should dispense with UHC’s speculations about impact on 

insureds and “individualized issues,” is that without a UHC-identified network of lactation 

providers, UHC had to (i) cover, without cost-sharing, all CLS claims (irrespective of network 

status) under the ACA and (ii) have policies consistent with that construct.

14

 Absent that, UHC 

insureds were subjected to coverage under an ACA-deficient policy. Plaintiffs seek, therefore, the

processing of CLS claims under a corrected policy that reflects the proper scope of CLS and 

coverage for CLS without cost-sharing. See, Plaintiffs’ Motion at fn. 6 citing the CDG’s 

acknowledgment that ACA preventive care services may include coverage for out-of-network 

 

13Plaintiffs submitted legal authority and evidence in support of numerosity and the adequacy of 

proposed Class Counsel. See Pltfs. Memo at III.C.3-4. UHC does not contest either, and therefore 

waives any contrary argument. Erickson v. Courtney, 702 Fed.Appx. 585, 588 (9th Cir. 2017).

14 The ACA sought to remove the financial barrier that could otherwise lead an individual to not 

obtain preventive services, see, 29 CFR 2590.715-2713(a)(3) (titled “Coverage of preventive health 

services”), under which insurers were relieved of their financial responsibility to insureds (that is, 

insurers could impose cost-sharing) only if the insurer “has a network of providers to provide 

[CLS].” The 10/23/2015 FAQ Part XXIX, Q2 (Pltfs. Decl. at Ex. 6) confirms that imposing costsharing on insureds is “premised on enrollees being able to access the required preventive 

services from in-network providers.” (Emphasis added).

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providers with no member cost-sharing (i.e., covered at 100% of Allowed Amounts without 

deductible, coinsurance or copayment). 

UHC’s “individualize issues” have been rejected by courts in ruling on class certification 

motions. In Trujillo, et al. v. UnitedHealth Group, Inc., et al., CV 17-2547, 2019 U.S. Dist. LEXIS 

21927 (C.D. Cal. Feb. 4 2019)(Appeal filed, 02/20/2019), insureds alleged that “United has failed 

to ensure that benefit claim determinations are made in accordance with governing plan documents, 

failed to establish reasonable claims procedures, and failed to provide adequate notice of adverse 

benefit determinations in violation of [ERISA]”. Id. at *2. In Trujillo, the prosthetic coverage at 

issue is “based on an individualized assessment of the member’s functional needs”, and the 

coverage criteria is set out in UHC’s CDG specific to prosthetics. Id. at *3. Further, in opposition to 

the Trujillo plaintiffs’ revised proposed class definition, the defendants raised, as UHC does here, 

among other things, that: (1) coverage involved, for prosthetic devices, “a series of billing codes” 

and that a prosthetic limb will typically have ten to twenty different L-codes; and, (2) “providers 

sometimes ignore that guidance and use the miscellaneous codes.....” (Id. at *4-5).

ERISA requires that, where appropriate, plan provisions must be “applied 

consistently with respect to similarly situated claimants.” 29 C.F.R. § 2560.503-

1(b)(5). Accordingly, if this Court were to find that the terms of United plans and 

ERISA claim processing and notice rules required United to act in a certain fashion, 

and another court found that those same terms and rules required United to act in a 

different fashion, United would face an “incompatible standard of conduct.” To 

avoid such a result, the class should be certified pursuant to Rule 23(b)(1)(A).

Trullio, at *21-22; see also Hill v. UnitedhealthCare Ins. Co., 2017 U.S. Dist. LEXIS 218139, at 

*25-27 (C.D. Cal. Mar. 21, 2017) (finding individual inquiry into each patient’s circumstances to 

determine whether lumbar procedure should be covered under patient’s insurance was unnecessary

where “the main issue of the case... challenges Defendant’s policy on its face, not Defendant’s 

individualized coverage decisions”)(emphasis added).

15

 

15 Stafford v. Carter, 2018 U.S. Dist. LEXIS 34266, at *13-17 (S.D. Ind. Mar. 2, 2018) (rejecting 

defendants’ arguments that “whether a particular individual is receiving a standard of care treatment 

for their medical conditions is an individualized inquiry” and instead finding that common 

questions arise out of defendants’ standard of care, whether plaintiffs had been denied certain 

treatments, and whether such denial caused injury). 

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Even if a review of medical records or gathering information from patients and providers, 

including objective data such as diagnoses codes were required to reprocess claims, as UHC 

contends, it does not defeat class certification. See, e.g. Josephat v. St. Croix Alumina, LLC, 2000 

U.S. Dist. LEXIS 13102, at *39 (D.V.I. Aug. 7, 2000) (recognizing “the existence 

of individual issues such as the medical histories of each potential class member,” but finding 

that the individual issues did not “predominate over the common issues such as Defendants’

liability”); Whitney v. Khan, 2019 U.S. Dist. LEXIS 38288, at *17 (N.D. Ill. Mar. 11, 2019)

(finding class certification appropriate where potential class members could be identified based on 

objective data in medical records); see also Rikos v. Procter & Gamble Co., 799 F.3d 497, 525-26 

(6th Cir. 2015) (finding class ascertainable where it “can be discerned with reasonable accuracy 

using Defendants' electronic records..., though the process may require additional, even substantial, 

review of files”) (emphasis omitted), cert. denied, 136 S. Ct. 1493, 194 L. Ed. 2d 597 (2016).16

Des Roches v. Cal. Physicians’ Serv., 320 F.R.D. 486 (N.D. Cal. 2017) is also instructive. In

Des Roches, plaintiffs alleged that defendants made use of “guidelines” which violated the terms of 

plaintiffs’ health care plans, in that the guidelines were far more restrictive than generally accepted 

standards of care in determining medical necessity for mental health and substance abuse

treatments. Id. at 491. The court rejected defendants’ argument that “determining whether each 

class member’s claim would have been granted under the proper Guidelines ‘would require a highly 

fact-intensive inquiry of individual claims—which precludes class certification under Rule 23’” id.

at 497, instead finding that, “even if the Guidelines were not dispositive in every case, this does not 

 

16 The cases cited by UHC are inapposite (Defs. Resp. at 15, fn 6). In Phillips v. Sheriff of Cook 

County, 828 F.3d 541, 554-555 (7th Cir. 2016), an action involving detainees claiming deliberate 

indifference on the part of the jail with regard to dental care, decertification because defendant 

implemented policies that aligned with national standards resulting in there “no longer [being] a 

single identifiable remedy that could help all class members.” Phillips, 828 F.3d at 548-9. In 

Schilling v. Kenton Cnty., Ky., No. 10-143-DLB, 2011 WL 293759, at *10 (E.D. Ky. Jan. 27, 2011), 

a § 1983 action alleging due process and Eighth Amendment violations on behalf of inmates denied 

medical care, the court determined it would need to determine whether the inmates “were deprived 

of constitutionally adequate medical care or subjected to physical and mental abuse in violation of 

their constitutional rights.” Id. at *19.

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change the fact that, assuming Plaintiffs’ allegations are true, Defendants applied an incorrect 

standard in evaluating every class member’s claims.” Id. at 500 (emphasis added). Small 

variations are “not material to the theories upon which Plaintiffs’ claims [were] based.” Id. Rather, 

the “harm alleged []—the promulgation and application of defective guidelines to the putative class 

members—is common to all of the [] class members.” Id. (internal quotation omitted).17

Also instructive is Wit. In Wit, the class was certified, notwithstanding that at trial (i) the 

parties would need to address and resolve whether the UBH Guidelines adhere to generally 

accepted standards of care when there is no “single source of generally accepted standards of care” 

(Wit FOF, Pltfs Suppl. Decl. Exhibit 2 at 27 ¶ 57); (ii) conduct “extensive testimony on the 

generally accepted standards of care that apply to patient placement in the context of behavioral 

health treatment” would be given (id. at 33 ¶ 70, emphasis added); and address “that in every 

version of the Guidelines in the class period, and at every level of care that is at issue in this case, 

there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring 

the effective treatment of members’ underlying conditions” (id. at 42 ¶ 82).

The foregoing cases also render other of UHC’s “individualized issues” irrelevant. UHC 

points to Plaintiffs’ (and presumably class members’) varying contact with UHC, in terms of 

customer service calls, and, invokes (but misconstrues) the Court’s summary judgment ruling. 

(Defs. Resp. at 1:14-19).18 As discussed supra and in Plaintiffs’ Motion, the evidentiary record 

 

17 Defendants make only a passing reference to key cases as cases that “involved challenges to 

discrete provisions in guidelines or plan terms that applied to every claim.” Defs. Resp. at 20:27-

21:4 (emphasis in original), citing Des Roches and Wit. As explained, the cases did not involve any 

more discrete provisions than are involved here, and in fact involved documents and issues 

analogous to the policies here. Des Roches, 320 F.R.D. at 497-504 (rejecting various commonality

arguments advanced by health plan because of common questions created by the health plan’s 

development and use of claims guidelines); Wit, 317 F.R.D. at127-129 (common issues were found 

as to whether UBH’s CDG met generally accepted standards and whether it breached its fiduciary 

duty by using improper standards to assist in coverage determination). See, e.g, In re Conseco Life 

Ins. Co. LifeTrend Ins. Sales & Mktg. Litig., 270 F.R.D. 521, 529-30 (N.D. Cal. 2010) 

(commonality satisfied as common question was interpretation of the standard written policy).

18 Even if UHC were correct (which it is not), UHC would still need to demonstrate that the 380 –

identified in-network UNH providers located in a geographically proximate location constituted an 

adequate network justifying their imposition of denying claims and cost-sharing for claims in that 

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demonstrates that any such contact is not relevant due to UHC’s failure to identify CLS network 

providers to insureds (other than the de minimus number of 380 Providers), and its Policies,

including its “SOP”, that results in UHC conveying misinformation to insureds about what UHC is 

actually required to cover for CLS under the ACA. See, e.g, fns. 11-12, supra.

Finally, UHC’s repeated proposition about the availability of a gap exception (see, e.g.,

Defs. Resp. generally at 2, 8:14-17, 16) is a false narrative. First, UHC’s process for getting a gap

exception (see Huckaby Decl., Dkt. 119-1, Ex. M at ¶6) is wholly inadequate as it is devoid of any

specific timeframes in which UHC is required to conduct its network investigation and issue a

response, if any. Second, whether a member sought a gap exception, received one or had one 

rejected is irrelevant. What is relevant is if the member had cost sharing imposed or was not 

provided coverage by UHC for a CLS claim. Third, The ACA did not say that insurers were to 

provide a “gap exception” as coverage for Women’s Preventive Services. None of UHC’s 

“individualized issues” give rise to a basis for which the Classes should not be certified.

V. EACH PLAINTIFF HAS ARTICLE III STANDING

Defendants’ arguments concerning Article III standing (Defs. Resp. at 24:3-16) overlook 

that the Court granted summary judgment to Plaintiffs Condry, Hoy, Endicott, Bishop, Barber, and 

Carroll with respect to their claims asserted under Count I, the Claims Review Class claims, and to 

Plaintiffs Hoy and Bishop with respect to their claims asserted under Count II, the Lactation 

Services Class claims. Plaintiffs have already been adjudicated to have suffered an injury-in-fact. 

In addition, like millions of UHC insureds nationwide each Plaintiff may, by their own 

choosing or through a decision made by her employer (or a partner’s/spouse’s employer), again 

become insured by UHC. Moreover, accepting Defendants’ reasoning that any Plaintiff (even if she 

is not a current plan member) lacks standing to seek declaratory and injunctive relief “create[s] a 

difficult situation for insureds” and undermines the purpose of insurance. Johnson v. Hartford Cas.

 

area. If UHC could make such showing, despite the de minimus number in an area, it would not, 

however, result in a carve-out of those insureds from the class. Rather, for example, pointed 

inquiries would be made to those limited number of insureds about whether they sought any 

information from UHC about the 380-network providers prior to receiving out-of-network CLS.

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Ins. Co., No. 15-cv-04138-WHO, 2017 U.S. Dist. LEXIS 77482, at *31-32 (N.D. Cal. May 22,

2017) (holding that plaintiff had standing for injunctive relief because if again insured by Hartford, 

plaintiff “should be able to have confidence that Hartford will obey the law in the future if he shows 

that it is violating it now”). In Johnson, the Court rejected Hartford’s argument that Johnson (who 

was not a policy holder), was not “realistically” threatened by future harm, because he would (i) 

need to purchase insurance from Hartford again, but also (ii) be so unlucky as to suffer another loss. 

Id. Furthermore, it would not be easily discernable, “absent substantial investigation,” as to whether 

Defendants are complying with the law until the same circumstances arise again. Johnson, 2017

U.S. Dist. LEXIS 77482, at *30. The court in Farar v. Bayer AG, No. 14-cv-04601-WHO, 2017 

U.S. Dist. LEXIS 193729, at *21-22 (N.D. Cal. Nov. 15, 2017), cited Johnson, supra, for the 

proposition that “[A]ny consumer of Hartford’s insurance products would not be able to easily 

discern whether it was complying with the law... As a result, Johnson has adequately demonstrated 

the prospect of future, repeated harm” and held that the plaintiffs had Article III standing.

Defendants cite to Sanchez v. Capital Contractors, Inc., No. 14-cv-02622-MMC, 2017 U.S. 

Dist. LEXIS 87585, at *7 (N.D. Cal. June 7, 2017). However, Johnson is directly on-point, and 

Plaintiffs are unlike the former employees in Sanchez who did not express any likelihood of 

returning to work or being injured in the future by the employer’s practices. Id. Here, UHC insures

millions nationwide and any Plaintiff may, by their own choosing or through a decision made by 

her employer (or a partner’s/spouse’s employer), again become insured by UHC. 

Therefore, Plaintiffs have a reasonable prospect of future, repeated harm that satisfies the 

standing requirements for injunctive relief.19 

VI. PLAINTIFFS’ ACA AND LACTATION SERVICES CLASSES ARE NOT 

EXPANDED AND ASSERT A COMMON INJURY

UHC contends that Plaintiffs expanded their class definitions. In their SAC, Plaintiffs’

 

19 If the Court were to find that Plaintiffs lack Article III standing to obtain declaratory and 

injunctive relief, Plaintiffs respectfully request that the Court grant Plaintiffs leave to amend to add 

plaintiffs who are currently insured by Defendants with respect to the declaratory and injunctive 

relief. See Steinley v. Health Net, No. CV 18-5458 PSG, 2018 U.S. Dist. LEXIS 223853, at *17-18 

(C.D. Cal. Dec. 4, 2018).

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ACA Class included “[a]ll persons who...are or were participants in or beneficiaries of [ ] health

plan[s]...administered by Defendants [ ], who did not receive full coverage and/or reimbursement

for [CLS].” (ECF No. 78, at 60.) Similarly, Plaintiffs’ Lactation Services Class included “[a]ll

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

administered by Defendants [ ] for which Defendants fail and refuse to provide payment or

reimbursement for [CLS] without cost to such participants and beneficiaries.” (Id.) See also,

Plaintiffs’ Opp. to UHC’s Daubert motion directed to Dr. Labovitz [ECF No. 183]. The definitions

expressly include all persons—not limited by in- or out-of-network, claims submitted or not

submitted—who were not covered for CLS as a no-cost preventive services. The adjustment in

wording of the class definitions—which did not differ in any material respect from the two

corresponding SAC class definitions—is an “unremarkable feature of class actions.” 20 

Furthermore, for the reasons set forth herein and in Plaintiffs’ Motion, the resolution of whether 

UHC’s CLS-related policies and procedures constitute ACA-mandated coverage for CLS presents 

questions common to the members of both the Lactation Services Class and ACA Class. Relatedly, 

with respect to the members of the ACA and Lactation Services Classes who did not submit claims,

UHC also argues (Defs. Resp. at 20:12-15) that “Plaintiffs offer no suggestion” for identifying this

group...and data on live births is not a proxy.” There are, of course, several objective and

appropriate ways to identify the members of the class, including, for example, by using UHC’s

claims data for breast pump claims submitted during the Class Period-- breast pumps are directly

correlated with insureds who initiate breastfeeding.

VII. CONCLUSION

For the reasons set forth herein and in Plaintiffs Motion, Plaintiffs respectfully request that 

the Court grant their Motion for Class Certification.

 

20

 See Brown v. Hain Celestial Group, Inc., 2014 U.S. Dist. LEXIS 162038, 2014 WL 6483216, at

*17 (N.D. Cal. Nov. 18, 2014) (“Courts, including those in the Ninth Circuit regularly allow class

definitions to be adjusted over the course of a lawsuit.”). Sandoval v. Cnty of Sonoma, 2015 U.S.

Dist. LEXIS 55571, 2015 WL 1926269, at *4 (N.D. Cal. Apr. 27, 2015) (allowing plaintiffs to seek

class certification of a narrowed putative class without needing to amend the complaint).

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Dated: April 5, 2019 CHIMICLES SCHWARTZ KRINER 

& DONALDSON-SMITH LLP

By: /s/ Kimberly Donaldson-Smith

Nicholas E. Chimicles (admitted pro hac vice)

Kimberly Donaldson-Smith (admitted pro hac vice)

Stephanie E. Saunders (admitted pro hac vice)

361 W. Lancaster Avenue

Haverford, PA 19041

Phone: (610) 642-8500

Fax: (610) 649-3633

NEC@Chimicles.com

KMD@Chimicles.com

SES@Chimicles.com

James E. Miller (admitted pro hac vice)

Laurie Rubinow (to seek admission pro hac vice)

SHEPHERD, FINKELMAN, MILLER AND SHAH, LLP

65 Main Street 

Chester, CT 06412 

Phone: (860) 526-1100 

Fax: (866) 300-7367 

jmiller@sfmslaw.com 

lrubinow@sfmslaw.com

Proposed Co-Lead Class Counsel and Counsel for Plaintiffs 

Marc A. Goldich (admitted pro hac vice)

Noah Axler (admitted pro hac vice)

AXLER GOLDICH LLC

1520 Locust Street

Suite 301

Philadelphia, PA 19102

Phone: (267) 534-7400

Fax: (267) 534-7407

mgoldich@axgolaw.com

naxler@axgolaw.com

Proposed Class Counsel and Counsel for Plaintiffs 

KRISTEN LAW SAGAFI, California Bar No. 222249

TYCKO & ZAVAREEI LLP

483 Ninth Street, Suite 200

Oakland, CA 94607

Phone: (510) 254-6808

Fax: (202) 973-0950

ksagafi@tzlegal.com

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Jonathan W. Cuneo (to seek admission pro hac vice)

Pamela B. Gilbert (to seek admission pro hac vice)

Monica E. Miller (to seek admission pro hac vice)

Katherine Van Dyck (to seek admission pro hac vice)

CUNEO GILBERT & LADUCA, LLP

4725 Wisconsin Ave. NW, Suite 200

Washington, DC 20016

Phone: (202) 789-3960

Fax: (202) 789-1813

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on April 5, 2019, I served the foregoing PLAINTIFFS’ REPLY IN 

FURTHER SUPPORT OF THEIR MOTIN FOR CLASS CERTIFICATION on the following 

counsel of record via email:

Martin J. Bishop

Rebecca R. Hanson

Thomas C. Hardy

Abraham J. Souza

Reed Smith LLP

10 S. Wacker Drive, 40th Floor

Chicago, IL 60606

mbishop@reedsmith.com

rhanson@reedsmith.com

thardy@reedsmith.com

asouza@reedsmith.com

Karen A. Braje

Reed Smith LLP

101 Second Street, Suite 1800

San Francisco, CA 94105

kbraje@reedsmith.com

Dianna C. Wyrick

Reed Smith LLP

Reed Smith Centre

225 Fifth Avenue

Pittsburgh, PA 15222

dwyrick@reedsmith.com

Janet H. Kwuon

Reed Smith LLP

355 S. Grand Ave., Suite 2900

Los Angeles, CA 90071

jkwuon@reedsmith.com

Attorneys for Defendants

/s/ Kimberly M. Donalson-Smith

Kimberly M. Donaldson-Smith

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