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REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Martin J. Bishop (admitted pro hac vice) 

Email: mbishop@reedsmith.com 

Rebecca R. Hanson (admitted pro hac vice) 

Email: rhanson@reedsmith.com 

REED SMITH LLP

10 South Wacker Drive 

Chicago, IL 60606-7507 

Telephone: +1 312 207 1000 

Facsimile: +1 312 207 6400 

Raymond A. Cardozo (SBN 173263) 

Karen A. Braje (SBN 193900) 

Email: kbraje@reedsmith.com 

REED SMITH LLP

101 Second Street 

Suite 1800 

San Francisco, CA 94105-3659 

Telephone: +1 415 543 8700 

Facsimile: +1 415 391 8269 

Attorneys for Defendants UnitedHealth Group 

Inc., UnitedHealthcare, Inc., UnitedHealthcare 

Insurance Company, UnitedHealthCare 

Services, Inc. and UMR, Inc. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

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.; UNITED 

HEALTHCARE INSURANCE COMPANY; 

UNITEDHEALTHCARE SERVICES, INC.; and 

UMR, INC., 

Defendants. 

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

DEFENDANTS’ RESPONSE IN 

OPPOSITION TO PLAINTIFFS’ MOTION 

FOR CLASS CERTIFICATION 

Hearing Date: April 25, 2019 

Time: 10:00 AM 

Place: Courtroom 4 

Honorable Vince Chhabria 

Case 3:17-cv-00183-VC Document 163 Filed 03/21/19 Page 1 of 32
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 - i -

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

TABLE OF CONTENTS 

Page 

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

II. BACKGROUND ...................................................................................................................... 4 

A. Lactation and Related Care Present a Range of Issues That Vary Based on 

Individual Circumstances. ............................................................................................. 4 

B. ACA Gives Health Plans Discretion to Implement the Lactation Benefit. ................... 4 

C. Defendants Have Established A Network of Providers of Lactation Services as 

Well as Billing Guidance for Those Providers. ............................................................ 5 

D. Defendants’ Members Have Accessed and Obtained Coverage for In-Network 

Lactation Services Across Markets and Over Time. .................................................... 8 

E. When Claims Are Not Fully Paid, Defendants’ Remark Codes Initiate A 

Dialogue With the Member and Provider, Leading to Various Outcomes. .................. 8 

F. The Named Plaintiffs Sought Lactation Services From Out-of-Network 

Providers, But Their Individual Experiences Varied Substantially. ............................. 9 

G. Plaintiffs Sue for Damages Based on Cost-Shares for Out-of-Network 

Services. ...................................................................................................................... 11 

H. The Court’s Summary Judgment Ruling Reaches Different Outcomes Based 

on Each Plaintiff’s Facts. ............................................................................................ 11 

I. Plaintiffs’ Motion Seeks Certification of Expanded Classes Under 23(b)(1) 

and (b)(2) Without Identifying a Common Injury. ..................................................... 12 

III. ARGUMENT .......................................................................................................................... 13 

A. Plaintiffs Face a Significant Burden Under Rule 23. .................................................. 13 

B. Plaintiffs Cannot Satisfy the Prerequisites of Rule 23(a). .......................................... 14 

1. Plaintiffs’ Three Classes Lack Commonality. ................................................ 14 

a. The ACA and Lactation Services Classes. ......................................... 14 

(1) Plaintiffs Have Failed To Establish Common Policies 

or Practices or Common Injuries. ........................................... 14 

(2) Defendants’ Purportedly “Narrow” Coverage 

Compounds the Individualized Inquiries. ............................... 18 

b. The Claims Review Class. .................................................................. 21 

2. The Named Plaintiffs are Not Typical or Adequate Class 

Representatives. .............................................................................................. 22 

C. Plaintiffs Cannot Satisfy the Prerequisites of Rule 23(b). .......................................... 23 

1. Bishop, Hoy, Endicott, and Carroll Lack Standing to Certify the ACA 

and Lactation Services Classes Under Rule 23(b)(1) and (2). ........................ 24 

2. Plaintiffs’ Classes do not Meet the Requirements of Rule 23(b)(1) ............... 24 

3. Plaintiffs’ Classes do not Meet the Requirements of Rule 23(b)(2). .............. 25 

IV. CONCLUSION ....................................................................................................................... 25 

 

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

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Am. Express Co. v. Italian Colors Rest., 

570 U.S. 228 (2013) .......................................................................................................................13 

Amchem Products, Inc. v. Windsor, 

521 U.S. 591 (1997) .................................................................................................................23, 26 

Booton v. Lockheed Med. Benefit Plan, 

110 F.3d 1461 (9th Cir. 1997) .......................................................................................................22 

Cholakyan v. Mercedes Benz, USA, LLC, 

281 F.R.D. 534 (C.D. Cal. 2012) .............................................................................................25, 26 

Coleman v. Am. Int’l Grp., Inc. Group Benefit Plan, 

87 F. Supp. 3d 1250 (N.D. Cal. 2015) ...........................................................................................22 

Comcast Corp. v. Behrend, 

569 U.S. 27 (2013) ...................................................................................................................13, 25 

Davis v. AT&T Corp., 

No. 15CV2342-DMS (DHB), 2017 WL 1155350 (S.D. Cal. Mar. 28, 2017) ...............................20 

Dennis F. v. Aetna Life Ins., 

No. 12-cv-02819, 2013 WL 5377144 (N.D. Cal. Sept. 25, 2013) .................................................21 

Des Roches v. California Physicians’ Serv., 

320 F.R.D. 486 (N.D. Cal. 2017) ...................................................................................................21 

Doiron v. Conseco Health Ins. Co., 

279 F. App’x 313 (5th Cir. 2008) ..................................................................................................19 

DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 

469 F. App’x 762 (11th Cir. 2012) ................................................................................................22 

Ellis v. Costco Wholesale Corp., 

657 F.3d 970 (9th Cir. 2011) .............................................................................................16, 23, 25 

Gordon v. New W. Health Servs., 

No. CV 15-24-GF-BMM, 2017 WL 365484 (D. Mont. Jan. 25, 2017) ........................................24 

Graddy v. BlueCross BlueShield of Tenn., Inc., 

No. 4:09-cv-84, 2010 WL 670081 (E.D. Tenn. Feb. 19, 2010) .....................................................21 

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

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Hodgers-Durgin v. de la Vina, 

199 F.3d 1037 (9th Cir. 1999) .......................................................................................................24 

Jamie S. v. Milwaukee Pub. Sch., 

668 F.3d 481 (7th Cir. 2012) .........................................................................................................25 

Jimenez v. Domino’s Pizza, Inc., 

238 F.R.D. 241 (C.D. Cal. 2006) ...................................................................................................25 

Kandel v. Brother Int’l Corp., 

264 F.R.D. 630 (C.D. Cal. 2010) ...................................................................................................23 

Kennedy v. Connecticut Gen. Life Ins. Co., 

924 F.2d 698 (7th Cir. 1991) .........................................................................................................18 

Mazza v. Am. Honda Motor Co., Inc., 

666 F.3d 581 (9th Cir. 2012) .........................................................................................................14 

Oshana v. Coca-Cola Co., 

472 F.3d 506 (7th Cir. 2006) .........................................................................................................17 

Palmer v. Unum Life Ins. Co. of Am., 

No. C04-2735 MJJ, 2005 WL 1562800 (N.D. Cal. June 24, 2005) ..............................................22 

Phillips v. Ford Motor Co., 

No. 14-cv-2989, 2016 WL 7428810 (N.D. Cal. Dec. 22, 2016) ....................................................14 

Phillips v. Sheriff of Cook County, 

828 F.3d 541 (7th Cir. 2016) .........................................................................................................16 

Sanchez v. Capital Contractors, Inc., 

No. 14-cv-2622, 2017 WL 2462055 (N.D. Cal. June 7, 2017) ................................................23, 24 

Schilling v. Kenton Cnty., Ky., 

No. 10-143-DLB, 2011 WL 293759 (E.D. Ky. Jan. 27, 2011)......................................................16 

Thomasson v. GC Servs. Ltd. P’Ship, 

539 F. App’x 809 (9th Cir. 2013) ..................................................................................................16 

Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338 (2011) ............................................................................................................... passim

Wit v. United Behavioral Health, 

317 F.R.D. 106 (N.D. Cal. 2016) ...................................................................................................21 

York et al. v. Wellmark, 

Case No. 4:16-cv-00627 (S.D. Iowa).............................................................................................15 

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

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Zinser v. Accufix Research Inst., Inc., 

253 F.3d 1180 (9th Cir. 2001) .................................................................................................14, 25 

Statutes 

28 U.S.C. § 2072(b) .............................................................................................................................26 

42 U.S.C. § 300gg-13(a)(4) ...............................................................................................................4, 5 

42 U.S.C. § 18022(c)(3)(A)(i) ...............................................................................................................4 

Cal. Health & Safety Code § 1367.27....................................................................................................6 

Rules 

Fed. R. Civ. P. 23(a) ......................................................................................................................13, 15 

Fed. R. Civ. P. 23(b) ................................................................................................................13, 24, 25 

Regulations 

29 C.F.R. § 2520.102-3 ..........................................................................................................................6 

29 C.F.R. § 2590.715-2713(a)(2).........................................................................................................19 

29 C.F.R. § 2590.715-2713(a)(3)(i) .......................................................................................................5 

29 C.F.R. § 2590.715-2713(a)(3)(ii) ......................................................................................................5 

29 C.F.R. § 2590.715-2713(a)(4).....................................................................................................5, 19 

10 CCR § 2240.1....................................................................................................................................6 

Cal. Code Regs. tit. 10, § 2240.6 ...........................................................................................................6 

28 Pa. Code § 9.679(d) ..........................................................................................................................6 

28 Pa. Code § 9.679(e) ...........................................................................................................................6 

28 Pa. Code § 9.681 ...............................................................................................................................6 

28 Tex. Admin. Code § 11.1607 ............................................................................................................6 

Other Authorities 

HRSA, Women’s Preventive Services Guidelines, https://www.hrsa.gov/womensguidelines/index.html .......................................................................................................................4 

HRSA, Women’s Preventive Services Guidelines, https://www.hrsa.gov/womensguidelines-2016/index.html .............................................................................................................4 

Case 3:17-cv-00183-VC Document 163 Filed 03/21/19 Page 5 of 32
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28 Case No. 3:17-cv-00183-VC - v - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Mental Health Parity Implementation, https://www.dol.gov/agencies/ebsa/laws-andregulations/laws/affordable-care-act/for-employers-and-advisers/acaimplementation-faqs ........................................................................................................................5 

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 - 1 - 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

I. INTRODUCTION 

Plaintiffs’ motion for class certification asks this Court to certify national, multiyear classes 

of present and former UnitedHealth members who allegedly were denied access to comprehensive 

lactation services and harmed as a result. No such classes can be certified consistent with Rule 23. 

Each Plaintiff presents individualized claims with unique factual and legal underpinnings. 

Each Plaintiff sought lactation services, but each one’s particular needs and preferences varied 

substantially, as did each one’s approaches to seeking care and coverage for that care. Some 

Plaintiffs searched for network providers; others never looked. Some contacted Defendants’ 

customer service line; others had no interactions with Defendants. Some received an array of 

services in-network before seeking out-of-network care; others went directly out-of-network. At 

least one contested the Defendant’s coverage decision; others took no action prior to filing suit. 

These steps and others—and how they unfolded for each Plaintiff—are all critical to the adjudication 

of each putative class member’s claims. 

In its summary judgment ruling, this Court reached different outcomes based on each 

Plaintiff’s facts regarding their respective decisions to seek lactation services from an out-of-network 

provider. The ruling shows how individual issues permeate the putative classes, as that approach 

would need to be replicated for each putative class member. No Plaintiff’s proof is common to any 

other Plaintiff’s proof, let alone to the proof of the putative classes. Plaintiffs have not met and 

cannot meet their burden to satisfy Rule 23’s requirements, so no class can properly be certified. 

Ignoring this, Plaintiffs attempt to homogenize these disparate claims and urge the Court to 

focus solely on what they contend are improperly “narrow” policies and practices by Defendants, 

with no assessment of the impact of those policies and practices on any particular class member in 

terms of liability, remedies, and available defenses. In contrast to their operative Second Amended 

Complaint, Plaintiffs avoid references to the monetary recovery they seek and refrain from moving 

for certification under 23(b)(3), which requires that common questions “predominate.” 

These tactics, however, cannot mask the individualized nature of the issues to be determined. 

The Supreme Court has made clear that a plaintiff cannot meet her Rule 23 burden merely by 

identifying common questions that a defendant’s conduct raises. Rather, the plaintiff must assert a 

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28 Case No. 3:17-cv-00183-VC - 2 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

common injury among class members, such that the class action device facilitates common answers 

through common proof. Plaintiffs have not satisfied that burden here. 

Such is the case, for example, with Plaintiffs’ contention that Defendants adopted practices 

of listing few lactation specialists on their website and directing members back to their network 

physicians. In fact, claims data and other evidence show that, over time and across markets, the 

majority of women who submitted claims for lactation services using authorized billing codes 

received the services in-network from various provider types and obtained coverage for those 

services without cost-sharing. Further, some members were able to obtain in-network coverage for 

out-of-network services through Defendants’ “gap exception” or appeals processes. In other words, 

members were aware of and able to obtain lactation services without cost-shares. Thus, no 

assumption can be made that any given cost-share incurred by a member for out-of-network care 

resulted from misconduct by Defendants. Instead, individual inquiries would be required to 

determine, among other things: 

 If a provider was available within a “reasonable” distance; 

 If the member applied for a gap exception or submitted an appeal; 

 If the member looked for a network provider or spoke to customer service; 

 If the member received services from a network provider; 

 If the member chose an out-of-network provider for personal reasons; 

 If the provider collected any amounts due from the member. 

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. Rather, to 

resolve any member’s claim, the Court would first be required to legislate what the alleged “full 

complement” of lactation services entails—including state or regional variations. What constitutes a 

“reasonable distance” under local network adequacy rules? How long must visits be to satisfy 

Plaintiffs’ standards? What particular counseling methods must providers employ? Next, assuming 

such determinations were feasible on a class-wide basis (they are not), the Court would then need to 

adjudicate whether the alleged unavailability of the determined level of services in Defendants’ 

network injured each class member. None of these questions are susceptible to class-wide resolution. 

Plaintiffs only compound the individualized nature of the issues at stake by expanding the 

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

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

putative classes to include members whose circumstances require different proof. For example, 

Plaintiffs seek to include members who received lactation services in-network. But by definition, 

such members were not injured by a lack of network providers, thus rendering them subject to 

unique defenses. Plaintiffs also seek to sweep in thousands of potential members whose claims were 

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

were provided and could reflect a different type of service. In fact, for the vast majority of the codes 

Plaintiffs seek to include in the putative classes, the Court would need to review individual medical 

records (which Defendants typically do not have) to determine if lactation services were even 

provided. Finally, Plaintiffs have revised their putative class definition to include members who 

purportedly received lactation services but never submitted claims. Even if such members could 

somehow be identified—and they cannot be—their claims would present numerous unique issues 

and defenses, including why no claim was submitted. In any event, adding these varying cohorts 

with no scrutiny of their individual circumstances would expand substantive rights and 

fundamentally alter the scope of the benefits at issue, in violation of the Rules Enabling Act. 

Plaintiffs’ singular focus on Defendants’ conduct, as opposed to proof of whether that 

conduct gave rise to a common injury, similarly undermines the Claims Review Class. Even 

assuming that the denial codes at issue were confusing in the abstract, individual assessments of each 

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

appeal was filed—would be required to determine whether the alleged procedural violation 

prevented a “meaningful dialogue” under ERISA. Moreover, to the extent Plaintiffs contend they are 

entitled to a substantive remedy (i.e., additional coverage for lactation services), all of the 

individualized issues that swamp the lactation classes would come into play. 

Plaintiffs seek to fundamentally redefine the scope of the lactation benefit through litigation 

and the prosecution of overly broad classes. This is not a permissible use of the class action device. 

Because Plaintiffs’ claims cannot be resolved on a class-wide basis with common proof, Plaintiffs’ 

motion for class certification should be denied. 

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28 Case No. 3:17-cv-00183-VC - 4 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

II. BACKGROUND 

A. Lactation and Related Care Present a Range of Issues That Vary Based on 

Individual Circumstances. 

Lactation is the process of milk production and secretion by women in connection with 

childbirth. (Mar. 21, 2019 Abraham J. Souza Decl., Ex. A (Feb. 13, 2019 Hanley Dep.), at 78:8-9.) 

Socioeconomic, workplace, cultural, and other factors play a role in individual breastfeeding 

decisions, including whether a woman chooses to breastfeed, the level and type of care sought, and 

the extent to which breastfeeding is maintained. (Souza Decl., Ex. B (Feb. 11, 2019 Morton Dep.), at 

233:19-235:14, 279:10-19.) 

Some women do not need or want lactation assistance and are able to breastfeed their 

children without lactation care, such as mothers who have prior breastfeeding experience. (Id. at 

227:15-18, 230:4-12.) Others benefit from lactation assistance, but the specific services that facilitate 

successful breastfeeding for each individual “vary tremendously” based on a “myriad of issues.” (Id. 

at 232:1-15.) Some women need only high-level educational information and support, while others 

are at higher risk of premature cessation of breastfeeding and may benefit from other levels and 

types of services. (Id. at 231:16-21.) A woman’s choice of provider for breastfeeding services may 

be affected by language barriers, personal preference, comfort level with a particular provider, or 

other circumstances. (Id. at 232:1-15.) 

B. ACA Gives Health Plans Discretion to Implement the Lactation Benefit. 

The Patient Protection and Affordable Care Act of 2010 (“ACA”) requires health plans to 

cover without cost-sharing certain preventive services for women as specified in guidelines 

supported by the Health Resources and Services Administration (“HRSA”). 42 U.S.C. § 300gg13(a)(4). ACA defines “cost-sharing” to include “deductibles, coinsurance, [and] copayments.” 42 

U.S.C. § 18022(c)(3)(A)(i). HRSA’s Guidelines identify “breastfeeding support, supplies, and 

counseling” as one of the ACA-mandated preventive services for women, which HRSA describes as 

“[c]omprehensive lactation support and counseling, by a trained provider during pregnancy and/or in 

the postpartum period.” HRSA Guidelines, https://www.hrsa.gov/womens-guidelines/index.html. 

Plaintiffs suggest that ACA clearly delineates how health plans should implement the 

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28 Case No. 3:17-cv-00183-VC - 5 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

lactation benefit, including what quantum of service satisfies the term “comprehensive.” In reality, 

ACA and HRSA do not elaborate on what constitutes “[c]omprehensive lactation support and 

counseling” or specify the level of instruction that qualifies a provider to offer lactation services.1

See generally 42 U.S.C. § 300gg-13(a)(4); HRSA Guidelines. Similarly, lactation services need not 

be provided by a specific provider type, such as a lactation consultant, and instead can be rendered 

by any “provider type acting within the scope of his or her license or certification (for example, a 

registered nurse).”2 Health plans have discretion to “rely on ... established reasonable medical 

management techniques to determine the frequency, method, treatment, or setting for coverage,” 

including adopting procedure and diagnosis codes that pay at no cost-share. 29 C.F.R. § 2590.715-

2713(a)(4); see also Pls.’ Ex. 18 (D’Apuzzo Am. Expert Report), ¶ 14. 

ACA’s implementing regulations also allow health plans to deny coverage for, or impose 

cost-shares on, lactation counseling services rendered by out-of-network providers, so long as those 

health plans have providers in their networks who offer the services. 29 C.F.R. § 2590.715-

2713(a)(3)(i)-(ii). When a health plan does not have in its network a provider who can offer lactation 

services, the regulations require the health plan to cover out-of-network services without cost 

sharing. 29 C.F.R. § 2590.715-2713(a)(3)(ii). 

C. Defendants Have Established A Network of Providers of Lactation Services as 

Well as Billing Guidance for Those Providers. 

Defendants provide coverage without cost-shares for lactation services when rendered by an 

in-network provider. (Pls.’ Ex. 12 (Oct. 1, 2018 Preventive Care Services Coverage Determination 

Guideline (“CDG”)), at UHC_196573.)3 In fact, Defendants have thousands of in-network providers 

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

 

1

 HRSA removed the term “trained provider” from its guidance on December 20, 2016. See 

https://www.hrsa.gov/womens-guidelines-2016/index.html. 

2

 FAQs About Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation, at 

Q.3, https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-andadvisers/aca-implementation-faqs; see also Dkt. 161 at 8 n.13 (acknowledging that “some pediatricians or 

OB/GYNs may provide CLS”). 

3

 “Pls.’ Ex.” as used herein refers to the Declaration of Kimberly Donaldson-Smith filed in this matter at Dkt. 

161-1 and the associated exhibits filed at Dkt. 161-2. 

 

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28 Case No. 3:17-cv-00183-VC - 6 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

of these providers. (Mar. 20, 2019 dos Santos Decl., Ex. A (Dec. 11, 2018 Expert Report of Joao dos 

Santos), ¶ 31.) 

The number and location of network providers vis-à-vis Defendants’ members varies by 

geographic region and depends, in part, on federal and state-specific network adequacy laws, which 

identify the number of providers with whom health plans must contract to maintain sufficient 

networks.4 Similarly, federal and state-law rules differ with respect to member notification 

requirements, such as provider directories, and the particular requirements may vary by plan type.5 

Women receive and 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. (Mar. 20, 2019 Lee 

Decl., Ex. A (Lee Expert Report), at 8; see also Souza Decl., Ex. A (Hanley Dep.), at 102:25-

103:13.) And, to facilitate in-network care, Defendants direct members to network providers, 

including through Defendants’ provider directory, which is available online and in print. (Mar. 18, 

2019 Dietz Decl., ¶¶ 4-21.) Further, customer service representatives encourage members to work 

with their primary care providers to obtain the services they need. (Pls.’ Ex. 27, Member Services 

Breast Pump Benefit SOP, at UHC_003920.) If in-network providers are unavailable within a certain 

distance of members’ zip codes, depending on their plan, members may be eligible to receive the innetwork level of benefits for out-of-network services—including ACA-mandated services—through 

Defendants’ “gap exception” process. (Mar. 20, 2019 Cappiello Decl., ¶¶ 4, 17, 24, 26.) Members 

may also appeal claim denials. (Mar. 19, 2019 Seay Decl., ¶ 8.) 

In accordance with ACA’s grant of discretion, Defendants identify in publicly available 

policies and procedures the medical codes providers should select when billing preventive care. 

 

4 See, e.g., 10 CCR § 2240.1 (listing California’s requirements for “adequacy and accessibility of provider 

services”); 28 Tex. Admin. Code § 11.1607 (similar for Texas for HMOs). Such laws may distinguish 

between different geographic regions within states, requiring, for example, a higher concentration of 

providers in urban, as opposed to rural, areas. See, e.g., 28 Pa. Code § 9.679(d)-(e) (identifying different 

adequacy requirements for counties designated as metropolitan statistical areas and other counties). 

5 See, e.g., Cal. Code Regs. tit. 10, § 2240.6 (identifying provider directory requirements for network 

providers); Cal. Health & Safety Code § 1367.27 (similar); 28 Pa. Code § 9.681 (similar); 29 C.F.R. 

§ 2520.102-3 (listing requirements applicable to summary plan descriptions for ERISA plans). 

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A limited liability partnership formed in the State of Delaware

(Pls.’ Ex. 12, (CDG), at UHC_196610.) These medical codes are the language used between 

providers and insurance/managed care companies to indicate the services rendered for 

reimbursement purposes. (Pls.’ Ex. 18 (D’Apuzzo Am. Expert Report), ¶¶ 11, 17.) With respect to 

CPT and HCPCS procedure level codes, which describe the overall procedure performed by the 

provider, no industry standard has emerged regarding which codes denote lactation services. (Id. 

¶¶ 14, 15.) Providers must follow a payor’s guidance regarding coding to communicate the service 

they have rendered if they want to be reimbursed accordingly. (Id. ¶¶ 22-23.) It is the industry 

expectation that a provider will bill services using the most-specific coding possible, which in this 

case means that providers should select diagnoses codes that use the term “lactation” in their 

description. (Id. ¶ 25, 31) Nevertheless, the structure of Defendant’s guidelines for coding preventive 

services, including lactation counseling and support, allows providers to bill wide-ranging 

services—including treatment of conditions—because certain CPT and HCPCS procedure codes 

will process in Defendants’ systems as preventive services regardless of the diagnosis code used. 

(Pls.’ Ex. 10 (Defs.’ Second Am. Objections & Resps. to First Set of Interrogs.), No. 2.) However, 

because these procedure codes could apply to a myriad of preventive services, and numerous 

diagnosis codes with which they could be paired say nothing on their face about lactation, 

determining which claims involve lactation services would require individualized inquiries, 

including examination of medical records. (See Pls.’ Ex. 12 (CDG), at UHC_196610; Pls.’ Ex. 18 

(D’Apuzzo Am. Expert Report), ¶ 36.) 

If a provider deviates from Defendants’ coding guidance, it becomes even more difficult to 

determine whether the service involved related to lactation. (Pls.’ Ex. 18 (D’Apuzzo Am. Expert 

Report) ¶ 31.) With respect to diagnosis codes, for example, while some codes specify lactation, and 

others might relate to lactation, “the only way to determine whether visits ... involved breastfeeding 

issues would be to perform a patient-by-patient review of medical records.” (Id.) Defendants do not 

typically request or collect medical records for lactation services, as the claims are usually autoadjudicated. (Mar. 19, 2019 Seay Decl., ¶ 4.) 

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D. Defendants’ Members Have Accessed and Obtained Coverage for In-Network 

Lactation Services Across Markets and Over Time. 

Contrary to Plaintiffs’ allegations regarding a systemic unavailability of lactation services, 

Defendants’ claims data confirms that tens of thousands of members found and received lactation 

services in-network during the class period. (Mar. 20, 2019 dos Santos Decl., Ex. A (Dec. 11, 2018 

Expert Report of Joao dos Santos), ¶ 19(a).) In fact, the majority of women who submitted claims 

using Defendants’ coding guidance between 2012 and mid-2018 received the services in-network 

from various provider types and obtained coverage without cost-shares, both over time and across 

markets. (Id.) Approximately 73% of adjudicated lactation claims during this time period involved 

services by network providers, with approximately 83% of those claims being covered without costshares. (Id. ¶¶ 19(a), 32-33.) OB/GYNS, pediatricians, and lactation specialists were responsible for 

63% of total claims. (Id. ¶ 31.) Additional members likely received lactation services through global 

billing and post-partum wellness visits, which do not appear in Defendants’ claims data in a manner 

that can be identified as lactation services. (Id. at 16 n.17; see also Souza Decl., Ex. A (Hanley 

Dep.), at 172:24-173:14; Pls.’ Ex. 18 (D’Apuzzo Am. Expert Report), ¶ 27.) Further, some members 

unable to locate a network provider obtained gap exceptions, and others have successfully appealed 

claim denials. (Cappiello Decl., ¶¶ 17, 24, 26; Mar. 19, 2019 Seay Decl., ¶ 7.) 

E. When Claims Are Not Fully Paid, Defendants’ Remark Codes Initiate A 

Dialogue With the Member and Provider, Leading to Various Outcomes. 

Consistent with industry custom and practice, Defendants use remark codes to provide 

information to members about how their claims are processed. (Pls.’ Ex. 33 (Thompson Decl.), ¶ 5.) 

Defendants include remark codes in the Explanation of Benefits (“EOB”) documents sent to 

members after processing their claims. (Id. ¶ 6.) The remark codes provide information to members 

in accordance with industry-standard language. (Id. ¶¶ 7, 14.) The remark codes are designed to 

initiate a dialogue between the member, the member’s provider, and Defendants. (Id.; see also Pls.’ 

Ex. 18 (D’Apuzzo Am. Expert Report), ¶ 42; Miller Decl., Ex. A (Miller Expert Report), at 2, 5, 9.) 

Thus, after receiving an EOB, members may consult their providers, benefit booklets, or customer 

service for additional information, and some members have had the denial decision adjusted. (Pls.’ 

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Ex. 33 (Thompson Decl.), ¶ 9; Dec. 11, 2018 Debbie Savercool Decl., ¶¶ 11-12.) The claim 

outcomes in each of these instances, and the financial impact to the member, if any, are diverse and 

individualized. (Savercool Decl., ¶ 11.) 

F. The Named Plaintiffs Sought Lactation Services From Out-of-Network 

Providers, But Their Individual Experiences Varied Substantially. 

Plaintiffs here were members or beneficiaries of employer-sponsored health benefit plans 

administered by one of the Defendants during the relevant time period. (Dkt. 104-4 at 4.) Only 

Barber is a current plan member. (Mar. 20, 2019 Seay Decl., ¶ 8.) Each of these Plaintiffs received 

lactation services from out-of-network providers. (Dkt. 104-4 at 8-17.) The similarities stop there. 

Condry sought services from an out-of-network lactation consultant after her network 

provider diagnosed her daughter with poor weight gain. (Id. at 9.) She did not attempt to locate other 

in-network providers or to determine her lactation consultant’s network status, yet sought to be 

reimbursed for an out-of-network visit. (Id.) UnitedHealthcare Insurance Company denied her claim, 

explaining in the EOB “[t]his is not a reimbursable service” and “[t]here may be a more appropriate 

CPT or HCPCS code.” (Id.) Condry understood the out-of-network lactation consultant had provided 

the codes on the bill but did not ask her for “more appropriate” codes. (Id.) She did not appeal her 

denied claim or file claims for the services she received on two other occasions. (Id. at 9-10.) 

Barber was seen by lactation consultants at the in-network hospital where she gave birth. (Id. 

at 15.) Without attempting to locate in-network care, she saw an out-of-network provider who was 

referred to her by her doula. (Id.) Barber sought reimbursement, which UnitedHealthcare Insurance

Company denied, explaining “[y]our plan does not cover this non-medical service or personal item.” 

(Id.) Barber disagreed but understood what the denial was communicating to her. (Id.) She submitted 

an untimely appeal detailing her understanding of the denial reason she was given. (Id.) 

Endicott received lactation services prior to discharge from her in-network hospital. (Id. at 

10.) Aware that in-network services were available, Endicott nevertheless located an out-of-network 

lactation consultant on the Internet and received services to treat oversupply and feeding difficulties. 

(Id.) After Endicott submitted a claim for reimbursement, UnitedHealthCare Services, Inc. asked her 

out-of-network lactation consultant to submit corrected claims with valid diagnosis codes, which the 

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provider never did. (Id. at 11.) Consequently, UnitedHealthCare Services, Inc. denied Endicott’s 

claim, and although Endicott contends she appealed, neither Endicott nor Defendants have any 

record of such an appeal. (Id.) 

Carroll also received lactation counseling at her in-network hospital after giving birth to her 

daughter and continued to receive lactation services from the hospital-based lactation consultants 

following discharge. (Id.) Nevertheless, Carroll received services from out-of-network providers to 

address her daughter’s slow weight gain and other breastfeeding issues, such as sore nipples. (Id. at 

12.) When UMR, Inc. denied her claims, Carroll did not appeal. (Id. at 13.) 

Bishop received in-network services from a lactation consultant during her hospital stay but 

decided to seek additional services out-of-network to treat her decreased milk supply and cracked 

nipples, among other things. (Id. at 13.) Bishop claims that she tried unsuccessfully to find an innetwork provider on Defendants’ website. (Id. at 14.) Bishop also claims that she spoke to customer 

service and was told that there were no in-network lactation providers. (Id.) Bishop attempted to 

obtain a gap exception but failed to submit her request in advance. (Id.) After Bishop submitted a 

claim for reimbursement, UnitedHealthcare Insurance Company denied her claim, explaining that 

“[t]his is not a reimbursable service” and “[t]here may be a more appropriate CPT or HCPCS code.” 

(Id.) Bishop understood that her out-of-network provider selected the codes but did not ask the 

provider if there were alternative codes. (Id. at 14-15.) Bishop claims she submitted an appeal, but 

neither she nor UnitedHealthcare Insurance Company have any record of such an appeal. (Id. at 15.) 

Lastly, Hoy received in-network lactation services in the hospital after giving birth, and she 

sought additional services out-of-network after her pediatrician expressed concern about her son’s 

weight. (Id. at 15-16.) Hoy did not ask her in-network providers for a network referral but claims 

that she attempted to locate a provider on Defendants’ website and was unable to do so. (Id. at 15.) 

Hoy failed to submit a claim for reimbursement for several months, instead choosing to participate in 

calls with customer service and submit letters to Defendants, the latter of which she erroneously 

characterized as “appeals.” (Id. at 16.) Ultimately, UnitedHealthCare Services, Inc. denied Hoy’s 

claim, explaining that “[t]his is not a reimbursable service” and that “[t]here may be a more 

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appropriate CPT or HCPCS code.” (Id. at 16-17.) Hoy also understood that her provider supplied the 

codes at issue but never followed up regarding coding alternatives. (Id. at 17.) Hoy submitted an 

appeal but did not address the coding issues identified in her EOB. (Id.) 

G. Plaintiffs Sue for Damages Based on Cost-Shares for Out-of-Network Services. 

Plaintiffs filed this action on January 13, 2017. (Dkt. 1.) They allege that Defendants violated 

ACA when they failed “to provide ... in-network lactation service providers within a reasonable 

distance of the plan participants and/or beneficiaries,” causing Plaintiffs to pay for out-of-network 

services. (Dkt. 78 (“Second Am. Compl.”) ¶ 212.) Plaintiffs also allege that Defendants utilized “a 

system when administering claims from ERISA plan participants and beneficiaries that fails to 

provide timely and substantive responses to requests for out-of-network benefits and/or appeals to 

denials of [such] requests.” (Id. ¶ 207.) Plaintiffs seek damages and other relief. (Id. at pp. 74-75.) 

Plaintiffs plead three classes, two of which pertain to the lactation claims (the ACA and 

Lactation Services Classes) and one of which pertains to the claims processing allegations (the 

Claims Review Class). (Id. ¶ 184.) Plaintiffs allege that the classes are certifiable under Federal Rule 

of Civil Procedure 23(b)(2) and (b)(3), with no mention of 23(b)(1). (Id.) 

H. The Court’s Summary Judgment Ruling Reaches Different Outcomes Based on 

Each Plaintiff’s Facts. 

The parties filed cross-motions for summary judgment. On June 27, 2018, the Court issued 

an opinion and order granting those motions in part and denying them in part. (Dkt. 146 (“Summ. J. 

Order”).) With respect to Plaintiffs’ ACA claims, the Court analyzed the circumstances of each 

named Plaintiff, engaging in an individualized fact-specific examination of: (i) whether each named 

Plaintiff attempted to locate in-network providers of the service prior to seeking services out-ofnetwork; (ii) whether “nearby” providers who could render the service to each named Plaintiff were 

available; and (iii) whether customer service informed (or misinformed) each named Plaintiff about 

the availability of the benefit or network providers. (Id. at 3-5.) Based on this analysis, the Court 

granted summary judgment in Hoy’s and Bishop’s favor; granted summary judgment in Defendants’ 

favor with respect to Barber and Condry; and denied summary judgment to both sides with respect to 

Endicott and Carroll. (Id.) As to Endicott, the Court identified a fact dispute regarding her 

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communications with a customer service representative, and regarding Carroll, the Court focused on 

a dispute regarding a network provider’s enrollment requirements. (Id.) 

With respect to Defendants’ alleged claims processing deficiencies, the Court granted 

summary judgment in favor of the Plaintiffs whose plans were governed by ERISA (i.e., all 

Plaintiffs but Carroll). (Id. at 5-6.) As to remedies, the Court stated that, “[t]o the extent ... equitable 

remedies may be shaped by the extent to which the defendants breached their statutory obligations, 

the plaintiffs can continue to litigate other claimed violations of section 1133.” (Id. at 7.) 

I. Plaintiffs’ Motion Seeks Certification of Expanded Classes Under 23(b)(1) and 

(b)(2) Without Identifying a Common Injury. 

On February 20, 2019, Plaintiffs moved for class certification, seeking certification of three 

classes (collectively, the “Classes”), all of which vary from the class definitions alleged in the 

Second Amended Complaint. (Compare Second Am. Compl. ¶ 184 with Dkt. 161 (“Pls.’ Mot.”) at 

13-14.) Most notably, in addition to encompassing claims for in-network services, Plaintiffs 

modified the text of the lactation classes, apparently to facilitate their argument that the class 

includes members who supposedly received lactation services but never submitted claims. (See Pls.’ 

Mot. at 14.) While the class definitions in the Second Amended Complaint refer to participants as to 

whom Defendants “fail and refuse to provide payment or reimbursement” or who “did not receive 

full coverage and/or reimbursement,” the certification motion refers more broadly to participants 

“who received . . . Comprehensive Lactation Services, for which Defendants did not provide 

coverage and/or imposed cost-sharing.” (Id. (emphasis added).) 

 Plaintiffs’ motion urges the Court to focus solely on what Plaintiffs contend are unlawful 

policies and practices used by Defendants. (See id. at 1.) For example, with respect to the lactation 

classes, Plaintiffs allege that Defendants adopted a practice of listing few lactation specialists on 

their website and utilized customer service policies that directed members back to their primary care 

providers, rather than identifying for members providers of lactation services. (Id. at 1-2.) Plaintiffs 

also contend that Defendants’ construction of the ACA benefit is unduly narrow because it 

reimburses a limited set of billing codes without cost-shares and assumes that all OB/GYNs and 

pediatricians render the services. (Id. at 2.) Plaintiffs then attempt to contrast Defendants’ 

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supposedly “narrow” benefit with overly broad classes, by sweeping in members who received 

lactation services in-network, possibly received an entirely different service, or did not even submit 

claims. (Id. at 15 n.21.) While Plaintiffs only seek certification of the Classes under Rule 23(b)(1) 

and (2), they acknowledge that they still seek damages by asserting that they are entitled to have 

Defendants “reprocess [their lactation] claims under a corrected standard.” (Id. at 25.) 

III. ARGUMENT 

A. Plaintiffs Face a Significant Burden Under Rule 23. 

Federal Rule of Civil Procedure 23 requires a court to deny a motion for class certification 

unless the plaintiff can satisfy all of the requirements of Rule 23(a)—numerosity, commonality, 

typicality, and adequacy—and at least one of the requirements of Rule 23(b). Fed. R. Civ. P. 23(a)-

(b). The Supreme Court has made clear that class treatment is “an exception to the usual rule that 

litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. 

Behrend, 569 U.S. 27, 33 (2013). Rule 23 requires a plaintiff to “affirmatively demonstrate [her] 

compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Supreme 

Court has held that Rule 23 “imposes stringent requirements for certification that in practice exclude 

most claims.” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 234 (2013). Consequently, a 

plaintiff must satisfy Rule 23 with “evidentiary proof.” Comcast, 569 U.S. at 33. A court must deny 

certification if it finds, after a “rigorous analysis,” that the plaintiff has not met her burden under 

Rule 23. Id. 

These standards are not relaxed when, as here, a plaintiff seeks certification under Rule 

23(b)(1) or (2), rather than (b)(3). Indeed, the Supreme Court has directed courts to carefully 

scrutinize classes in this context to ensure that the plaintiff proves “that there are in fact sufficiently 

numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350 (bolded emphasis 

added). Thinly veiled efforts to use Rule 23(b)(1) or (2) to obtain monetary relief while avoiding the 

strictures and notice requirements of Rule 23(b)(3)—which protect the due process rights of the 

absent class members and the defendant—should be discouraged. Id. at 360, 363; see also Zinser v. 

Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th Cir. 2001) (certification under Rule (b)(1) is 

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“not appropriate in an action for damages”); Phillips v. Ford Motor Co., No. 14-cv-2989, 2016 WL 

7428810, at *25 (N.D. Cal. Dec. 22, 2016) (same for (b)(2)). 

B. Plaintiffs Cannot Satisfy the Prerequisites of Rule 23(a). 

1. Plaintiffs’ Three Classes Lack Commonality. 

Plaintiffs fail to satisfy the commonality requirement of Rule 23(a)(2) with respect to any of 

the Classes. Rule 23(a)(2) requires a plaintiff to do more than raise common questions, such as 

whether a defendant’s alleged conduct is unlawful. Dukes, 564 U.S. at 349. “What matters to class 

certification ... is ... the capacity of a classwide proceeding to generate common answers apt to 

drive the resolution of the litigation.” Id. at 350 (bolded emphasis added). “Dissimilarities within 

the proposed class are what have the potential to impede the generation of common answers.” Id. If a 

plaintiff cannot identify a common contention that will generate a common answer that resolves an 

element within the class’ common claim, commonality is not satisfied, and class certification should 

be denied. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012). 

a. The ACA and Lactation Services Classes. 

Plaintiffs do not—and cannot—satisfy commonality as to the ACA and Lactation Services 

Classes because Defendants’ alleged liability to each absent class member cannot be determined 

with common proof. Dukes, 564 U.S. at 350. As established in this Court’s summary judgment 

order, determining whether Defendants violated ACA in any given circumstance would require a 

granular, fact-bound analysis. (Summ. J. Order at 3-5; see also Souza Decl., Ex. C (Feb. 28, 2019 

Order, York et al v. Wellmark, Case No. 4:16-cv-00627 (S.D. Iowa)) (conducting similarly 

individualized analysis of lactation benefit and granting summary judgment).) This analysis would 

need to be repeated for each absent class member. 

(1) Plaintiffs Have Failed To Establish Common Policies or Practices 

or Common Injuries. 

Plaintiffs assert that the question common to putative class members is whether Defendants’ 

“plans, policies, and procedures complied with the ACA with respect to providing coverage for CLS 

as a preventive benefit.” (Pls.’ Mot. at 16.) This does not show commonality under Rule 23(a)(2). 

As a threshold matter, Plaintiffs ask the Court to determine the contours of the benefit—a 

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complex analysis that would vary by geography and over time. Plaintiffs contend that Defendants’ 

policies and practices violated ACA because they deprived members of access to “in-network 

lactation service providers within a reasonable distance of” their homes. (Second Am. Compl. ¶ 212 

(emphasis added)). Even assuming ACA incorporates this “reasonable distance” requirement, this 

issue cannot be determined across the putative classes on a uniform basis. The precise number and 

location of Defendants’ in-network lactation providers varies by geographic region, depending on 

federal and state-specific network adequacy laws. See supra at 5-6 & n.3. Consequently, determining 

the “reasonable distance” applicable to each class member’s claim would require a case-by-case 

assessment of not only state and federal laws, but often, of the laws applicable to different 

geographic regions within single states. Id. Similarly, various federal and state-law rules regulate the 

manner in which health plans notify members of the providers within their networks, such as 

requirements pertaining to health plans’ provider directories. Id. at 6 & n.4. Thus, identifying the 

standard for determining whether Defendants made members sufficiently “aware” of in-network 

providers would require an examination of a panoply of laws—and the analysis would vary 

depending on the class member, plan type, and geographic region at issue. Id. 

After navigating the patchwork of network adequacy requirements, the Court would then be 

required to determine the various standards of care applicable to myriad situations presented by 

absent class members. How much time should providers devote to various questions and conditions? 

What practices, methods, or treatments should be applied? What spectrum of services constitutes a 

“full complement” under ACA? A class action is not a proper forum for resolution of these complex 

and multifaceted questions. See Dukes, 564 U.S. at 350.6

 

Even if resolution of these threshold determinations regarding the parameters of the benefit 

were feasible on a class-wide basis, additional inquiries would be required to determine whether 

Defendants’ alleged policies and practices injured a given class member by causing her to go out-of-

 

6 See also Phillips v. Sheriff of Cook County, 828 F.3d 541, 554-555 (7th Cir. 2016) (commonality not 

satisfied because the court would need to inquire into each class member’s medical needs and the subjective 

quality of the treatment); Schilling v. Kenton Cnty., Ky., No. 10-143-DLB, 2011 WL 293759, at *10 (E.D. Ky. 

Jan. 27, 2011) (commonality lacking for similar reasons pertaining to the inherently individualized nature of 

medical care). 

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network and incur a cost share. See id.; Thomasson v. GC Servs. Ltd. P’Ship, 539 F. App’x 809, 810 

(9th Cir. 2013) (commonality requires “significant proof that the entire class suffered a common 

injury”); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (similar). 

Contrary to Plaintiffs’ suggestion of de minimis coverage, the majority of women who 

submitted claims for lactation services using Defendants’ coding guidance between 2012 and 2018 

received the services in-network from various provider types and obtained coverage without costshares—both over time and across markets.7

 (Mar. 20, 2019 dos Santos Decl., Ex. A (Dec. 11, 2018 

Expert Report of Joao dos Santos), ¶ 19(a).) Moreover, additional members likely received the 

service during delivery and post-partum wellness visits or received free in-network services through 

hospital-based programs, like Plaintiff Carroll. (Id. ¶¶ 45-49 & n.17; Souza Decl., Ex. D (Mar. 15, 

2019 Marshall-Crim Dep.), at 27:18-36:21 (testifying regarding the inpatient and outpatient services 

available at Hartford Hospital); Ex. E (Mar. 15, 2019 Hall Dep.), at 23:10-25:13, 84:24-85:2 

(testifying regarding similar services offered at Poudre Valley Hospital and stating that such services 

are free to patients).)8

 And other members have obtained full coverage for out-of-network care 

through the gap exception and appeals processes. See supra at 8. Thus, despite Defendants’ alleged 

policies and practices, members were plainly aware of and able to obtain in-network lactation 

services without cost-shares.9 Accordingly, the Court cannot assume that Defendants’ alleged 

conduct was “systemic” or that every cost-share imposed on out-of-network claims resulted from 

that conduct. Rather, individualized inquiries would be required to determine why each class 

member went out-of-network and why the claim was denied or cost-sharing was imposed. 

For example, after determining the “reasonable distance” and notice requirements under the 

 

7

 Notably, Plaintiffs cite the same claims data to establish numerosity, thus acknowledging the breadth and 

reliability of this information. (Pls.’ Mot. at 15.) 

 

8 The corporate representative for Poudre Valley Hospital has not waived signature, and, therefore, the 

transcript is subject to change. 

9

 This is unsurprising since lactation specialists classified internally with specialty code 380 (which Plaintiffs 

emphasize) are not the only lactation specialists in Defendants’ networks, let alone the only providers of 

lactation services. (Mar. 19, 2019 Regina Vasquez Decl., ¶¶ 8-10.) Plaintiffs even concede that “some 

pediatricians or OB/GYNs” render lactation services. (Pls.’ Mot. at 8 n.13.) Indeed, the lactation specialists 

from whom Carroll and Endicott received care were not specialty 380 providers. 

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applicable network adequacy rules, the Court would need to examine Defendants’ provider network 

during the relevant time, whether a network provider was “nearby,” and what efforts the member 

made to look for the service, including any communications with Defendants. (See Summ. J. Order 

at 3-5). The Court would then need to assess the nature and scope of the services offered by any such 

providers during that timeframe to determine whether the services constitute “comprehensive” 

lactation counseling within ACA’s meaning. It would also need to analyze whether the member 

chose an out-of-network provider for personal or subjective reasons. (See Condry and Barber, who 

made no effort to find a network provider, (Summ J. Order at 4), and Carroll and Endicott, both of 

whom sought out-of-network services based on personal dissatisfaction with the quality of lactation 

care, (id. at 5).)10 And if no network providers were available, the member’s efforts to obtain a gap 

exception or appeal a cost-share or claim denial would need to be assessed. See supra at 8, 16. 

Furthermore, the Court would need to determine whether any given class member actually 

paid a cost-share or other amount and thereby suffered a compensable injury. See Oshana v. CocaCola Co., 472 F.3d 506, 514 (7th Cir. 2006) (“[c]ountless members” of the putative class “could not 

show any damage”). This analysis would be member-specific, given that Defendants are unable to 

track claims payment or collection information for out-of-network providers.11 (Pls.’ Ex. 40 (Seay 

Decl.), ¶¶ 6-8; Pls.’ Ex. 42 ( Vasquez Decl.), ¶¶ 6-9; Miller Decl., Ex. A (Miller Expert Report), at 

11-12.) And, the Court would need to analyze any available defenses, including whether a claim was 

denied for reasons unrelated to the lactation benefit, such as late submission of the claim or the 

member’s lapse of coverage under their plan generally, or whether the member’s plan was 

grandfathered and, therefore, permitted the imposition of cost-shares. (Pls.’ Ex. 33 (Thompson 

 

10 See also supra at 16 (discussing services available at Poudre Valley Hospital and Hartford Hospital); Mar. 

19, 2019 Regina Vasquez Decl., ¶¶ 4, 6-7 (establishing that both facilities are in-network for purposes of 

Carroll’s and Endicott’s plans).) 

 

11 Plaintiffs’ assertion that this argument assumes “rampant insurance fraud by providers” is unfounded. (Pls.’ 

Mot. at 20.) As Plaintiffs’ concede, the Administrative Guide upon which they rely applies only to network 

providers. (See id.) Plaintiffs do not provide any mechanism for determining whether out-of-network 

providers collected unpaid amounts from members on a class-wide basis, and there is no such process. It is 

also well know that waiver of coinsurance is a regrettable but common practice. See, e.g., Kennedy v. 

Connecticut Gen. Life Ins. Co., 924 F.2d 698, 699 (7th Cir. 1991). 

 

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Decl.) ¶¶ 18-26; Mar. 19, 2019 Klos Decl., ¶¶ 4-32; Mar. 20, 2019 Klos Decl., ¶¶ 4-7; Mar. 12, 2019 

Thompson Decl., ¶¶ 4-46.) 

Plaintiffs cannot circumvent the need for individual inquiries with anecdotal opinions that 

“most” pediatricians and OBGYNs are not properly trained, by focusing on a self-serving limited 

subset of Defendants’ providers, or by belatedly expanding their putative classes to create the 

appearance of an unmet “demand” for the service (see concurrently filed Daubert motions). Nor do 

Plaintiffs’ out-of-context quotations from Defendants’ internal emails purportedly discussing the 

alleged policies and practices suffice as proof of any common impact across the putative classes. To 

be sure, Plaintiffs appear to acknowledge that resolution of the class claims would require 

Defendants to “seek and receive information from a member,” but blithely dismiss this as “a 

normal part of [Defendants’] business.”12 (Pls.’ Mot. at 20.) That is not proof of commonality. No 

common answers can be derived from this complex matrix of factual and legal questions. 

(2) Defendants’ Purportedly “Narrow” Coverage Compounds the 

Individualized Inquiries. 

Plaintiffs’ efforts to portray Defendants’ coverage for the benefit as “narrow” only increases 

the number of individualized issues by expanding the ACA and Lactation Services Classes beyond 

the core allegations and proof specific to the named Plaintiffs. For instance, even though all of the 

named Plaintiffs’ claims focus on Defendants’ coverage for out-of-network lactation services, the 

ACA and Lactation Services Classes now purport to include members who submitted in-network 

claims. (See, e.g., id. at 14.) By definition, however, members who submitted in-network claims 

could not have been injured by a lack of in-network providers. Thus, the claims of these class 

members would require vastly different proof to prosecute and would be subject to unique defenses, 

e.g., that a specific claim was denied for reasons completely unrelated to the lactation benefit. See 

Doiron v. Conseco Health Ins. Co., 279 F. App’x 313, 316 (5th Cir. 2008) (classes attempted to 

sweep in “policyholders who had claims denied for reasons other than” those at issue); Pls.’ Ex. 33 

 

12 Plaintiffs also claim that their expert Mark Labovitz established that individual inquiries are unnecessary 

due to Defendants’ auto adjudication capabilities. (Pls.’ Mot. at 20.) But Mr. Labovitz has since admitted that 

he is not offering an opinion on whether auto-adjudication could be applied to resolve the claims in this 

case. (Souza Decl., Ex. F (Labovitz Dep.), at 229:5-11, 18-20.) 

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(Thompson Decl.), ¶¶ 18-19 (discussing claim denials based on procedural errors). 

A similarly individualized analysis applies to class members who submitted claims with 

billing codes that are not necessarily related to lactation. (Pls.’ Mot. at 15 n.21.) For those codes, the 

Court would need to examine the circumstances of each class member’s treatment, including the 

underlying medical records, to determine, in the first instance, whether the class member received 

lactation services or some other type of care, or whether the “primary purpose” of an office visit was 

lactation care.13 See 29 C.F.R. § 2590.715-2713(a)(2) (coverage for office visits required only if the 

“primary purpose” of the office visit is the delivery of the preventive service). And, Defendants 

would be entitled to present the individualized defense that, in accordance with their discretion to 

define the scope of the ACA benefit, they appropriately excluded the billing code(s) at issue from 

eligibility for cost-share-free coverage. 29 C.F.R. § 2590.715-2713(a)(4) (discussing health plans’ 

discretion). Resolving Plaintiffs’ claims on a class-wide basis would require the Court to determine 

the scope of the benefit and whether each and every code billed by an absent class member falls 

within its parameters. This type of expansive and individualized undertaking is not the purpose of 

the class device. See Dukes, 564 U.S. at 352 (classes litigated “millions of ... decisions at once”). 

Plaintiffs’ final argument that the ACA and Lactation Services Classes encompass members 

who did not submit claims at all raises additional and substantial questions and underscores the

overreaching nature of their class certification effort. (Pls.’ Mot. at 15.) As an initial matter, 

throughout this litigation, Plaintiffs have focused on cost-shares and claim denials, and their eleventh 

hour revision of their class definition to include this amorphous cohort should not be permitted. See 

Davis v. AT&T Corp., No. 15CV2342-DMS (DHB), 2017 WL 1155350, at *2 (S.D. Cal. Mar. 28, 

2017) (class was “an entirely different class” than that alleged in the Complaint). Moreover, 

Plaintiffs’ only “proof” regarding this new set of claims comes from the flawed rebuttal report of 

 

13 Plaintiffs’ position regarding the unduly “narrow” nature of the billing codes identified by Defendants is 

misleading. Defendants’ policies delineate certain procedure codes that providers may utilize in billing 

lactation and other services that do not require any particular diagnosis code pairing. (Pls.’ Ex. 10 (Defs.’ 

Second Am. Objections to First Set of Interrogs.), No. 2.) This means that codes associated with diagnostic 

care (i.e., care for an ongoing medical condition) can be, and have been, billed with such procedure codes and 

processed with no cost-share. (Id.) This allows for members to receive coverage at no cost-share for a myriad 

of issues, including, but not limited to, a full-range of lactation issues. 

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DEFENDANTS’ RESPONSE IN OPPOSITION TO 

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REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Mark Labovitz. (Pls. Ex. 36 (Labovitz Expert Report).) Labovitz conjures a “Representative 

Population” of members—which he claims to have estimated from data on live births in the general 

population—who “may have sought” 1.1 million “visits” for lactation services. (Id. ¶ 12.) But 

Labovitz admitted that his model had never been used to estimate a demand for healthcare services; 

that it was based on multiple layers of assumptions (as opposed to data) regarding Defendants’ 

network, membership, and services; that he performed “no analysis” of the “Representative 

Population”; and that he had no idea what portion of his “Representative Population” consisted of 

members who received and paid for lactation services out-of-network and were therefore harmed. 

(Souza Decl., Ex. F ( Mar. 8, 2019 Labovitz Dep.), at 112:24-113:7, 166:24-167:17, 176:23-177:11, 

188:11-190:16, 210:18-212:7, 278:14-282:8; see also Daubert motion; Mar. 20, 2019 dos Santos 

Decl., Ex. C (Mar. 20, 2019 Rebuttal Report of Joao dos Santos), at 5-6.) 

In any event, Plaintiffs offer no suggestion for identifying this group (Defendants have no 

way of tracking such information), and data on live births is not a proxy for women who received 

lactation services out-of-network but failed to submit claims due to purportedly illegal practices by 

Defendants. (Souza Decl., Ex. F (Labovitz Dep.), at 177:3-8, 186:24-190:16 (recognizing that “live 

birth” model is based on numerous assumptions and that there are women within that cohort who did 

not seek lactation services).) Nor can this issue be dismissed as a problem of “administrative 

feasibility.” Even if this “Population” could reliably be located, the Court would need to conduct 

further individualized inquiries to determine why each member refrained from submitting a claim 

and whether any unique defenses may apply. Indeed, the claims data demonstrates that women do 

submit claims for out-of-network services, precluding the Court from assuming that claims were not 

submitted due to Defendants’ alleged conduct. Plaintiffs’ motion offers no answers to how these 

questions could possibly be resolved through common proof consistent with Rule 23. They cannot. 

Far from mere “administrative feasibility” problems, the individualized issues detailed above 

go to the heart of this Court’s commonality inquiry: namely, whether Plaintiffs have identified not 

just common questions, but the feasibility of providing common answers through classwide proof. 

Dukes, 564 U.S. at 350. Nor do Plaintiffs’ cited cases warrant a different outcome. Those cases 

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involved challenges to discrete provisions in guidelines or plan terms that applied to every claim. 

See, e.g., Des Roches v. California Physicians’ Serv., 320 F.R.D. 486, 497-504 (N.D. Cal. 2017) 

(challenge to medical necessity guidelines); Wit v. United Behavioral Health, 317 F.R.D. 106, 127-

29 (N.D. Cal. 2016) (challenge to coverage guidelines). By contrast, here, Plaintiffs assert violations 

and purported misconduct involving multiple Defendants, plans, and levels of services, across all 

states (many of which have their own network adequacy requirements), and over a broad time 

period. For example, putative class members’ claims will process differently depending on (1) the 

medical codes their provider selects, (2) the provider type the class member seeks services from, and 

(3) whether the claim is submitted in accordance with applicable policies and procedures. (See Pls.’ 

Ex. 13, Nonphysician Health Care Professionals Billing Evaluation and Management Codes Policy.) 

Further, even if Defendants’ policies and practices could be deemed “common,” determining the 

impact of these policies and procedures on every absent class member in terms of liability, remedies, 

and available defenses is fraught with individualized issues that preclude certification of a putative 

class. See, e.g., Dennis F. v. Aetna Life Ins., No. 12-cv-02819, 2013 WL 5377144, at *4 (N.D. Cal. 

Sept. 25, 2013) (defendants’ liability to class did not turn on the challenged policy alone); Graddy v. 

BlueCross BlueShield of Tenn., Inc., No. 4:09-cv-84, 2010 WL 670081, at *9 (E.D. Tenn. Feb. 19, 

2010) (uniform policies did “not eliminate the need for an individualized assessment as to the 

ultimate propriety of the benefits decisions”); DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 F. 

App’x 762, 764-65 (11th Cir. 2012) (similar). Plaintiffs have not satisfied commonality. 

b. The Claims Review Class. 

Plaintiffs similarly fail to identify a common question capable of class-wide resolution as to 

the Claims Review Class. According to Plaintiffs, the common contention is whether each remark 

code at issue was objectively understandable and, therefore, complied with ERISA. (Pls. Mot. at 16.) 

But as Plaintiffs acknowledge, the appropriate inquiry under ERISA’s full and fair review provisions 

is whether Defendants engaged in a “meaningful dialogue” with each class member, giving “the 

members of the Class a reasonable opportunity for a full and fair review of the denials.” (Pls.’ Mot. 

at 16); see also Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). 

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28 Case No. 3:17-cv-00183-VC - 22 - 

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REED SMITH LLP 

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Such a determination cannot be made on a class-wide basis because it entails an examination 

of each class member’s circumstances, including the extent of any additional communications 

between the member and Defendants and the outcomes of such communications. See Coleman v. 

Am. Int’l Grp., Inc. Group Benefit Plan, 87 F. Supp. 3d 1250, 1260-62 (N.D. Cal. 2015) 

(deficiencies in denial letter were mitigated by subsequent communications); Palmer v. Unum Life 

Ins. Co. of Am., No. C04-2735 MJJ, 2005 WL 1562800, at *4-5 (N.D. Cal. June 24, 2005) 

(examining entire appeals process in analyzing meaningful dialogue). Remark codes are designed to 

initiate a dialogue between the member, the provider, and Defendants, and to provide enough 

information for the member to understand the benefits determination and capitalize on other 

available resources. See supra at 8. The evidence shows this process works as designed. Defendants’ 

records of customer service calls indicate members routinely communicate with Defendants after 

receiving claim denials, including denials involving the remark codes identified in the Claims 

Review Class definition. (Savercool Decl., ¶ 11.) The experiences of each named Plaintiff show that 

members understand the basis for claim denials, often due to additional communications with 

Defendants or their providers. See supra at 9-11. Even Plaintiffs’ expert, Dr. Lauren Hanley, admits 

she has participated in this “meaningful dialogue” process with at least one patient. (Souza Decl., 

Ex. A (Hanley Dep.), at 115:9 – 116:19.) 

Thus, at the class certification phase, the Court cannot assume that any given remark code 

violated ERISA as to each and every absent class member, including those whose claims decisions 

were amended. Instead, the Court would need to examine the circumstances of each class member. 

Furthermore, to the extent Plaintiffs seek a re-adjudication of their claims denials under a new 

standard, all of the individualized issues that pertain to the ACA and Lactation Services Classes 

would come to the fore, including the circumstances surrounding why the particular member went 

out-of-network. Plaintiffs have not established commonality. 

2. The Named Plaintiffs are Not Typical or Adequate Class Representatives. 

“The test of typicality ‘is whether [class] members have the same or similar injury, whether 

the action is based on conduct which is not unique to the named plaintiffs, and whether other class 

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members have been injured by the same course of conduct.’” Ellis, 657 F. 3d at 984 (typicality not 

satisfied if the “representative is preoccupied with defenses unique to it”). “The adequacy-ofrepresentation requirement ‘tend[s] to merge’ with the commonality and typicality criteria.’” See, 

e.g., Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997); see also Kandel v. Brother 

Int'l Corp., 264 F.R.D. 630, 634 (C.D. Cal. 2010) (typicality and adequacy overlap). 

For many of the same reasons Plaintiffs fail to establish commonality, they also fall short of 

satisfying typicality and adequacy. With respect to the ACA and Lactation Services Classes, the 

varying outcomes reached for the various class representatives on summary judgment, standing 

alone, render Plaintiffs’ adequacy and typicality arguments nonstarters. Beyond that fundamental 

problem, Plaintiffs’ individual claims are focused on Defendants’ coverage for out-of-network 

lactation services, yet their class definitions purport to encompass members who submitted innetwork claims, as well as members who did not submit claims at all. The claims of these class 

members would entail different proof and would be subject to unique defenses. Further, Bishop, 

Hoy, Endicott, and Carroll are no longer plan members and, thus, are subject to the unique defense 

of lack of Article III standing, given that they purport to seek declaratory and injunctive relief. 

Sanchez v. Capital Contractors, Inc., No. 14-cv-2622, 2017 WL 2462055, at *2 (N.D. Cal. June 7, 

2017) (denying certification for this reason). Carroll’s and Endicott’s receipt of in-network lactation 

services further renders them inadequate (and atypical) representatives of class members who 

purportedly could not locate in-network care. 

With respect to the Claims Review Class, the member-specific analysis of whether a 

“meaningful dialogue” occurred means that the named Plaintiffs are neither typical for purposes of 

Rule 23(a)(3) nor adequate for purposes of Rule 23(a)(4). Indeed, some members contacted 

Defendants after receiving remark codes—including Barber, who appealed her denial—and directly 

addressed the denial reason given. (Savercool Decl., ¶ 11; Dkt. 104-4 at 15; see also Miller Decl., 

Ex. A (Miller Expert Report), at 9-11.) Typicality and adequacy are lacking. 

C. Plaintiffs Cannot Satisfy the Prerequisites of Rule 23(b). 

Plaintiffs seek certification under Rule 23(b)(1) and (b)(2), arguing they are only “seeking 

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declaratory and injunctive relief.” (Id. at 23.) Plaintiffs’ certification arguments are unavailing. 

1. Bishop, Hoy, Endicott, and Carroll Lack Standing to Certify the ACA 

and Lactation Services Classes Under Rule 23(b)(1) and (2). 

The ACA and Lactation Services Classes cannot be certified under Rule 23(b)(1) or (2) 

because Bishop, Hoy, Endicott, and Carroll lack Article III standing to obtain declaratory and 

injunctive relief. A plaintiff “must have standing to seek the declaratory and/or injunctive relief 

sought on behalf of the class.” Sanchez, 2017 WL 2462055, at *2. To make this showing, the named 

plaintiff must demonstrate that she is “realistically threatened by a repetition of the violation.” Id. A 

named plaintiff cannot cure a lack of standing by piggybacking on the standing of putative class 

members, since prior to class certification, the jurisdiction of the district court depends upon the 

standing of the named plaintiff. Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999). 

Here, Bishop, Hoy, Endicott, and Carroll are not current plan members. (Mar. 20, 2019 Seay 

Decl., ¶¶ 3-7.) They cannot establish a significant likelihood of sustaining an injury in the future for 

purposes of the declaratory and injunctive relief they seek. See id.; Sanchez, 2017 WL 2462055, at 

*2 (denying class certification for this reason under Rule 23(b)(2)); Gordon v. New W. Health Servs., 

No. CV 15-24-GF-BMM, 2017 WL 365484, at **3-4 (D. Mont. Jan. 25, 2017) (similar). The Court 

should not certify the ACA and Lactation Services Classes under (b)(1) and (2). 

2. Plaintiffs’ Classes do not Meet the Requirements of Rule 23(b)(1). 

Certification should further be denied because Plaintiffs fail to satisfy the requirements of 

Rule 23(b)(1)(A) or (B). Plaintiffs’ belated invocation of Rule 23(b)(1) does not change the fact that 

they still seek significant monetary recovery. (See Pls.’ Mot. at 25; see also Souza Decl. Ex. G (Mar. 

18, 2019 Pls.’ Am. Omnibus Objections & Resps. to Second Set of Interrogs.), No. 2 (discussing 

individualized monetary relief sought).) Plaintiffs should not be able to avoid scrutiny of 

individualized issues relating to injury and remedies simply by re-labeling their class. Comcast, 569 

U.S. at 34; Zinser, 253 F.3d at 1193-94 (rejecting certification of class under (b)(1)(A) that 

“primarily seeks money damages”). In any event, “[a] Rule 23(b)(1)(A) certification requires more 

... than a risk that separate judgments would oblige the opposing party to pay damages to some class 

members but not to others or to pay them different amounts.” Zinser, 253 F.3d at 1193. At best, 

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28 Case No. 3:17-cv-00183-VC - 25 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Plaintiffs’ liability theories suggest that Defendants may be liable to some class members but not 

others depending on the specific circumstances at issue. See Jimenez v. Domino’s Pizza, Inc., 238 

F.R.D. 241, 250 (C.D. Cal. 2006) (denying certification under (b)(1)(A) on this basis). 

Certification of the Classes is also improper under Rule 23(b)(1)(B). Certification under that 

Rule is typically reserved for limited fund cases where a “plaintiff must demonstrate that the case 

involves a fund with a definitely ascertained limit, all of which would be distributed to satisfy all 

those with liquidated claims.” Zinser, 253 F.3d at 1197. Those circumstances are not present here. 

Plaintiffs have not alleged, let alone proven, that the “assets potentially available to claimants are so 

limited that separate actions inescapably will alter the rights of other claimants.” Id.

3. Plaintiffs’ Classes do not Meet the Requirements of Rule 23(b)(2). 

Plaintiffs also seek class certification under Rule 23(b)(2), but that Rule is not satisfied when, 

as here, declaratory or injunctive relief “would merely initiate a process through which highly 

individualized determinations of liability and remedy are made,” particularly determinations 

pertaining to individualized damages awards. See Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 

499 (7th Cir. 2012); see also Dukes, 564 U.S. at 360-61; Ellis, 657 F.3d at 987; Cholakyan v. 

Mercedes Benz, USA, LLC, 281 F.R.D. 534, 560 (C.D. Cal. 2012). Even a systemic reform of 

Defendants’ policies and practices would not establish liability or resolve remedial issues class-wide, 

and Plaintiffs are impermissibly seeking individualized monetary relief. 

IV. CONCLUSION 

The individualized nature of Plaintiffs’ claims renders them unsuitable for class treatment, 

and their overly broad classes are inconsistent with Article III and the Rules Enabling Act, which 

instructs that procedural rules “‘shall not abridge, enlarge or modify any substantive right.”’ 

Amchem, 521 U.S. at 613 (quoting 28 U.S.C. § 2072(b)). Plaintiffs’ motion for class certification 

should be denied. 

DATED: March 21, 2019 Reed Smith LLP 

By: /s/ Rebecca R. Hanson 

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28 Case No. 3:17-cv-00183-VC - 26 - 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 

REED SMITH LLP 

A limited liability partnership formed in the State of Delaware

Karen A. Braje (SBN 193900) 

Martin J. Bishop (admitted pro hac vice) 

Rebecca R. Hanson (admitted pro hac vice) 

Dianna C. Wyrick (admitted pro hac vice) 

Thomas C. Hardy (admitted pro hac vice) 

Abraham J. Souza (admitted pro hac vice) 

Attorneys for Defendants UnitedHealth Group Inc., 

UnitedHealthcare, Inc., UnitedHealthcare 

Insurance Company, United 

HealthCare Services, Inc., and UMR, Inc. 

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