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1346074.8 

PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Kelly M. Dermody (State Bar No. 171716)

kdermody@lchb.com 

Michelle A. Lamy (State Bar No. 308174) 

mlamy@lchb.com 

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 

275 Battery Street, 29th Floor 

San Francisco, CA 94111-3339 

Telephone: 415.956.1000 

Facsimile: 415.956.1008 

Rachel Geman (pro hac vice) 

rgeman@lchb.com 

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 

250 Hudson Street, 8th Floor 

New York, NY 10013-1413 

Telephone: 212.355.9500 

Facsimile: 212.355.9592 

Allen Carney (pro hac vice) 

acarney@cbplaw.com 

David Slade (pro hac vice) 

dslade@cbplaw.com 

CARNEY BATES & PULLIAM, PLLC 

519 W. 7th Street 

Little Rock, AR 72201 

Telephone: 501.312.8500 

Facsimile: 501.312.8505 

Attorneys for Plaintiffs and the Proposed Class

Michael J. Flannery (State Bar No. 

196266) 

mflannery@cuneolaw.com 

CUNEO GILBERT LADUCA, LLP 

7733 Forsyth Boulevard, Suite 1675 

St. Louis, MO 63105 

Telephone: 314.226.1015 

Facsimile: 202.789.1813 

Matthew Prewitt (State Bar No. 

291593) 

mprewitt@cuneolaw.com 

CUNEO GILBERT LADUCA, LLP 

16 Court Street, Suite 1012 

Brooklyn, NY 11241 

Telephone: 202.789.3960 

Facsimile: 202.789.1813 

Jay Angoff (pro hac vice) 

jay.angoff@findjustice.com 

MEHRI & SKALET 

1250 Connecticut Avenue, NW 

Suite 300 

Washington, D.C. 20036 

Telephone: 202.822.5100 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND DIVISION 

MOHAMMED AZAD and DANIELLE 

BUCKLEY, on behalf of themselves and 

all others similarly situated, 

Plaintiffs, 

v. 

TOKIO MARINE HCC – MEDICAL 

INSURANCE SERVICES GROUP, 

HEALTH INSURANCE INNOVATIONS, 

INC., HCC LIFE INSURANCE 

COMPANY, and CONSUMER 

BENEFITS OF AMERICA, 

Defendants. 

Case No. 4:17-cv-618-PJH 

PLAINTIFFS’ MEMORANDUM OF 

POINTS AND AUTHORITIES IN 

OPPOSITION TO HCC LIFE INSURANCE 

COMPANY AND HCC MEDICAL 

INSURANCE SERVICES, LLC’S MOTION 

TO DISMISS 

Date: June 14, 2017 

Time: 9:00 a.m. 

Place: Courtroom 3 

Complaint Filed: February 7, 2017 

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1346074.8 -i- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

ISSUES TO BE DECIDED ............................................................................................................. 1

INTRODUCTION ........................................................................................................................... 1

FACTUAL BACKGROUND .......................................................................................................... 2

A. Defendants’ Sale and Administration of Short-Term Medical 

Insurance Policies .................................................................................................... 2

B. Defendants’ Common Alleged Practices Cause Common Injuries ......................... 3

C. Plaintiffs’ Experiences and the Underlying Litigation............................................. 5

D. Procedural History ................................................................................................... 6

LEGAL STANDARDS .................................................................................................................... 6

A. Rule 12(b)(6) ............................................................................................................ 6

B. Rule 9(b) .................................................................................................................. 6

C. Incorporation by Reference ...................................................................................... 7

ARGUMENT ................................................................................................................................... 8

A. Plaintiffs’ UCL Claim Should Not Be Dismissed ................................................... 8

1. Plaintiffs Have Stated a Claim Under the “Unlawful” Prong 

of the UCL ................................................................................................. 11

2. Plaintiffs Have Stated a Claim Under the “Unfair” Prong of 

the UCL ...................................................................................................... 13

3. Plaintiffs Have Stated a Claim Under the “Fraudulent” 

Prong of the UCL ....................................................................................... 15

B. Plaintiffs’ FAL Claim Should Not Be Dismissed .................................................. 17

C. Plaintiffs’ Claim for Breach of Contract Should Not Be Dismissed ..................... 18

D. Plaintiffs’ Claim for Breach of the Implied Duty of Good Faith and 

Fair Dealing Should Not Be Dismissed ................................................................. 20

E. Plaintiffs’ Claim for Unjust Enrichment Should Not Be Dismissed ..................... 22

F. Plaintiffs Should Be Permitted to Amend the Complaint if the Court 

Identifies Any Pleading Infirmities ........................................................................ 23

CONCLUSION .............................................................................................................................. 23

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1346074.8 -ii- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Cases

Aho v. AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609 (S.D. Cal. 2011)................................................................................................ 14 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................................................... 6 

Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014).................................................................................................... 22 

Branch v. Tunnell, 14 F.3d 449 (9th Cir.1994)........................................................................................................... 8 

Casey v. Metro. Life Ins. Co., 688 F. Supp. 2d 1086 (E.D. Cal. 2010) ...................................................................................... 22

Cheviot Vista Homeowners Ass’n v. State Farm Fire & Cas. Co., 143 Cal. App. 4th 1486 (2006) .................................................................................................. 20 

Cohen v. Penn Mut. Life Ins. Co., 48 Cal. 2d 720 (Cal. 1957) ......................................................................................................... 12 

Comerica Bank v. McDonald, 2006 WL 3365599 (N.D. Cal. Nov. 17, 2006) ............................................................................. 7 

Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal. 3d 197 (Cal. 1983) ......................................................................................................... 11 

Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997)........................................................................................................ 7 

Davenport v. Seattle Bank, 2015 WL 6150926 (C.D. Cal. Oct. 15, 2015) .............................................................................. 7 

Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152 (9th Cir. 2012).......................................................................................... 7, 17, 18 

Day v. AT & T Corp., 63 Cal. App. 4th 325 (1998) ...................................................................................................... 18 

Egan v. Mut. of Omaha Ins. Co., 24 Cal. 3d 809 (1979) ................................................................................................................ 20 

Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951 (1997) ............................................................................................................... 16 

Ferrington v. McAfee, Inc., No. 10-1455, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010) ....................................................... 14 

Ford v. Hotwire, Inc., No. 07-CV-1312 H(NLS), 2008 WL 5874305 (S.D. Cal. Feb. 25, 2008) ................................. 17 

Frezza v. Google Inc., No. 5:12-cv-00237-RMW, 2013 WL 1736788 (N.D. Cal. Apr. 22, 2013) ............................... 14 

Frommoethelydo v. Fire Ins. Exch., 42 Cal. 3d 208 (1986) ................................................................................................................ 20 

Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997)........................................................................................................ 6 

Hailey v. California Physicians’ Serv., 158 Cal. App. 4th 452 (Cal. App. 2007) .................................................................................... 13 

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TABLE OF AUTHORITIES 

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1346074.8 -iii- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

In re Apple & AT&T iPad Unlimited Data Plan Litig., 802 F. Supp. 2d 1070 (N.D. Cal. 2011) ..................................................................................... 23 

In re Bank of Amer. Credit Protection Mktg. & Sales Practices Litig., No. MD-11-2269 TEH, 2012 WL 1123863 (N.D. Cal. Apr. 3, 2012) ...................................... 21 

In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 1098 (N.D. Cal., May 11, 2007) ...................................................................... 14 

In re First Alliance Mortg. Co., 471 F.3d 977 (9th Cir. 2006)........................................................................................................ 8 

In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970 (9th Cir. 1999)........................................................................................................ 7 

In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145 (2010) .................................................................................................... 14 

In re Tobacco II Cases, 46 Cal. 4th 298 (2010) ......................................................................................................... 14, 16 

Kaar v. Wells Fargo Bank, N.A., No. C 16-01290 WHA, 2016 WL 3068396 (N.D. Cal. June 1, 2016) ....................................... 19 

Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003) .................................................................................................... 18 

Love v. Fire Ins. Exch., 221 Cal. App. 3d 1136 (1990).................................................................................................... 20 

McDonald v. Coldwell Banker, 543 F.3d 498 (9th Cir. 2008).................................................................................................. 7, 14 

Medrazo v. Honda of N. Hollywood, 205 Cal. App. 4th 1 (2012) ........................................................................................................ 14 

Misha Consulting Grp., Inc. v. Core Educ. & Consulting Solutions, Inc., No. C-13-04262-RMW, 2013 WL 6073362 (N.D. Cal. Nov. 15, 2013) ................................... 19 

Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009)........................................................................................................ 6 

Mony Life Ins. Co. v. Marzocchi, 857 F. Supp. 2d 993 (E.D. Cal. 2012) ........................................................................................ 21 

Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009)...................................................................................................... 23 

Olivera v. Am. Home Mortgage Servicing, Inc., 689 F. Supp. 2d 1218 (N.D. Cal. 2010) ..................................................................................... 14 

People ex rel. Bill Lockyer v. Fremont Life Ins. Co., 104 Cal. App. 4th 508 (Cal. App. 2d Dist. 2002) ...................................................................... 15 

Peterson v. Cellco P’ship, 164 Cal. App. 4th 1583 (2008) .................................................................................................. 23 

Rubio v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010)................................................................................................ 9, 15 

Samet v. Procter & Gamble Co., No. 5:12-CV-01891 PSG, 2013 WL 3124647 (N.D. Cal. June 18, 2013) ................................. 23 

Schlagal v. Learning Tree Int’l, No. CV 98–6384 ABC (EX), 1998 WL 1144581 (C.D. Cal. Dec. 23, 1998) ............................. 7 

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1346074.8 -iv- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Shroyer v. New Cingular Wireless Servs., Inc., 606 F.3d 658 (9th Cir. 2010)........................................................................................................ 6 

Sierzega v. Country Preferred Ins. Co., 650 F. App’x 388 (9th Cir. 2016) .............................................................................................. 22 

Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167 (9th Cir. 2009)...................................................................................................... 6 

Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007)........................................................................................................ 7 

Ticconi v. Blue Shield of Cal. Life & Health Ins. Co., 160 Cal. App. 4th 528 (Cal. Ct. App. 2008) .............................................................................. 13 

United States for Use and Benefit of HCI Sys., Inc. v. Agbayani Construction Co., No. 14-cv-02503-MEJ, 2014 WL 4979336 (N.D. Cal. Oct. 6, 2014) ......................................... 7 

Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 (9th Cir. 2002)........................................................................................................ 8 

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003)...................................................................................................... 6 

Walling v. Beverly Enters., 476 F.2d 393 (9th Cir. 1973)........................................................................................................ 7 

Williams v. Gerber Prods. Co., 552 F.3d at 938 (9th Cir. 2008) .................................................................................................. 18 

Wilson v. Hewlett–Packard Co., 668 F.3d 1136 (9th Cir. 2012)................................................................................................ 8, 22 

Statutes

Cal. Bus. & Prof. Code § 17200, et seq. ...................................................................................... 6, 8 

Cal. Bus. & Prof. Code § 17500, et seq. .................................................................................... 6, 18 

Cal. Ins. Code § 10123 ................................................................................................................... 12 

Cal. Ins. Code § 10123.13 .................................................................................................. 12, 18, 19 

Cal. Ins. Code § 10123.13(a) ................................................................................................... 12, 13 

Cal. Ins. Code § 10123.13(c) ................................................................................................... 12, 19 

Cal. Ins. Code § 10384 ................................................................................................................... 13 

Cal. Ins. Code § 332 ....................................................................................................................... 11 

Cal. Ins. Code § 790.03 .................................................................................................................. 21 

Rules

Fed. R. Civ. P. 12(b)(6) ................................................................................................................ 6, 8 

Fed. R. Civ. P. 15(a)(2) .................................................................................................................. 23 

Fed. R. Civ. P. 8 ............................................................................................................................. 22 

Fed. R. Civ. P. 8(d) ........................................................................................................................ 22 

Fed. R. Civ. P. 9(b) ...................................................................................................................... 6, 7 

Treatises

4 Witkin, Cal. Proc. (4th ed. 1997) ................................................................................................ 18 

Stern, § 5.166, BUS & PROF. C. § 17200 PRACTICE (The Rutter Group 2012) ....................... 15 

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1346074.8 -vPLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Other Authorities

Thomas C. Cady and Georgia Lee Gates, Post Claim Underwriting, 102 W. Va. L. Rev. 

809, 813 (2000) .......................................................................................................................... 13 

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1346074.8 -1- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

MEMORANDUM OF POINTS AND AUTHORITIES 

 ISSUES TO BE DECIDED 

1. Have Plaintiffs pleaded plausible facts relating to Defendants’ obstructive and 

unlawful claims processing practices (such as post-claims underwriting), bad-faith denials of 

coverage, and deceptive marketing? 

2. Are the facts pleaded, when accepted as true and drawing inferences in Plaintiffs’ 

favor, sufficient to support Plaintiffs’ claims under the Unfair Competition Law (“UCL”), False 

Advertising Law (“FAL”), contract law, and the common law? 

 INTRODUCTION 

Defendants1 collaborated to develop, market, sell, and administer Short-Term Medical 

(“STM”) insurance policies that do not provide the coverage they purport to provide, miring 

Plaintiffs and Class members in a nightmare of obstruction, delay, and denial at the moment 

insurance matters: when Plaintiffs are facing large, even catastrophic, medical bills. 

The STMs at issue here are not Affordable Care Act (“ACA”) compliant ones, in which 

pre-existing conditions must be covered—and Plaintiffs nowhere claim otherwise. However, as 

Plaintiffs allege, Defendants engage in distinct fraudulent and bad faith conduct by misusing and 

misapplying the pre-existing conditions limitations (and engaging in related misconduct) to deny 

claims that should be paid via improper delay and unlawful post-claims underwriting. The 

common alleged scheme, pled with specificity, thus consists of both fraudulent marketing and 

improper claims practices. 

In support of its motion to dismiss, HCC misrepresents Plaintiffs’ allegations. HCC 

argues that Plaintiffs’ claims fail because the pre-existing conditions exclusion was disclosed 

prior to their purchases. HCC demonstrates precisely nothing by stating—and repeating—the 

undisputed fact that it represents to the public that it does not pay for pre-existing conditions 

under some circumstances. What HCC omits is that it systematically denies claims that are 

 

1

 Defendants on this motion are HCC Life Insurance Company and HCC Medical Insurance 

Services LLC (“HCC”). Health Insurance Innovations, Inc. (“HII”) and Consumer Benefits of 

America (“CBA”) are also Defendants in this action, and are included within the term 

“Defendants” where no specific Defendant is indicated. 

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1346074.8 -2- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

unrelated to pre-existing conditions, engages in improper and unlawful underwriting to try to find 

pre-existing conditions that may or may not exist, and otherwise engages in fraud and breach of 

contract by its common (and centrally-directed) course of conduct in its claims denial scheme and 

its sale of insurance that is practically worthless. 

HCC also argues that no reasonable consumer could have been misled as to the preexisting conditions exclusion. This argument is belied not only by Plaintiffs’ well-pleaded 

allegations, but also by the numerous other consumers who have come forward to express 

precisely what HCC suggests, as an improper fact-based argument, to be impossible. Finally, 

HCC argues that Plaintiffs do not allege they were discouraged or obstructed during the claims 

handling process. This statement is incorrect in light of Plaintiffs’ fulsome allegations that they 

were both subjected to months of HCC’s unconscionable claims-handling practices, despite 

complying in good faith with HCC’s increasingly unreasonable (and impossible to fulfill) medical 

records requests. 

When considered as actually pled, Plaintiffs’ allegations clearly support their claims of 

unfair competitive practices, deceptive advertising, breach of contract, bad faith, and unjust 

enrichment. HCC’s motion to dismiss should be denied in its entirety. 

 FACTUAL BACKGROUND 

As a threshold matter, HCC’s Motion radically misstates the allegations of Plaintiffs’ 

Complaint and even injects extrinsic evidence that is self-serving and incomplete. Briefly, 

Plaintiffs’ allegations are as follows: 

A. Defendants’ Sale and Administration of Short-Term Medical Insurance 

Policies 

Defendants HCC, HII, and CBA collectively market and administer STMs to California 

consumers. Complaint (Dkt. No. 1) (“Compl.) ¶¶ 17-18, 22, 22 n.5, 23, 51-53, 55, 57. 

Defendants HCC and HII have jointly developed—and market and provide—their STM in 45 

states, including California. Id. ¶¶ 17, 22, 22 n.5, 23, 51-53, 55. Defendant CBA colludes with 

HCC and HII by acting as the group administrator for the STMs, thereby allowing HCC and HII 

to avoid more stringent regulatory requirements governing individually-issued health insurance 

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1346074.8 -3- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

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CASE NO. 4:17-CV-618 

policies. Id. ¶¶ 18, 57. 

B. Defendants’ Common Alleged Practices Cause Common Injuries 

In conjunction with Defendants HII and CBA, HCC’s claim processing procedures for 

their STMs—and the requirements placed upon the insureds—are purposely engineered and 

uniformly applied to cause the delay and denial of the claims of policyholders. Id. ¶¶ 3, 54, 56, 

58-73. Upon submitting claims, insureds are required to provide virtually every identifiable 

medical record in the last five years of their history, regardless of whether such record relates to 

the claim at issue, and notwithstanding that this requirement is not disclosed in advance. Id. ¶¶ 3, 

26-27, 33-37, 39-73. This requirement, common to all Class members, gives Defendants three 

common avenues for denying valid claims, effectively and improperly guaranteeing that Class 

members’ often large bills go unpaid. 

The first step in the strategy is to comb through all records provided by the insured in an 

effort to characterize the claim at issue as a “pre-existing condition.” Id. ¶¶ 3, 26-27, 33-37, 39-

57, 63-73. Defendants uniformly omit any appropriate explanation of the scope of this exclusion 

from their public-facing marketing materials. Id. ¶¶ 3, 39-57, 63-73. However, once a claim is 

submitted, the term is interpreted so broadly and incorrectly, and in such bad faith, as to 

encompass virtually any medical condition, regardless of when—or even whether—it was 

diagnosed or treated. Id. If the insured’s presented claim can be linked to anything in the 

insured’s past, from any point in time, the claim is denied. Id. 

Second, when there is no plausible way to link an insured’s claim to a prior medical 

condition, Defendants again demand to search through all available records—regardless of their 

relation to the claim—seeking evidence of a condition that would have rendered the claimant 

ineligible for coverage under the STM, thereby allowing Defendants to void the policy and not 

pay the claim. Id. ¶¶ 3, 26-27, 33-37, 56-73. This practice is also uniform to all Class members. 

Id. 

Third, Defendants’ policy and practice is to premise refusals to pay on common and 

incorrect assertions that there is insufficient information to process claims. Id. ¶¶ 3, 26-27, 33-37, 

54, 58-73. This allows Defendants to sidestep paying proper claims because it would be 

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1346074.8 -4- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

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CASE NO. 4:17-CV-618 

impossible for the insured to provide the level of detail purportedly needed. Id. 

In light of the above, common conduct, Defendants have also engaged in uniform material 

omissions and misrepresentations to Class members. Namely, they have marketed health 

insurance policies that, because of the unconscionable claims-handling processes described 

above, improperly and unlawfully exclude material numbers of claims, making the insurance 

nearly worthless. Id. ¶¶ 3, 39-57, 104-14. Through various declarations, HCC has introduced 

copious pages of website screen shots and welcome kits. See, generally, Dkt. Nos. 50-52. 

However, none of these documents, nor any documents referenced in Plaintiffs’ Complaint, alert 

an insured or a prospective insured to the virtually limitless exclusions (or the burdensome record 

requests) applied by Defendants in their claims-handling practices. Id.; see also Compl. ¶¶ 3, 39-

72; 104-14. Such omissions constitute false advertising. Id. ¶¶ 104-14. 

Defendants’ internal policies and procedures, public-facing representations, and customer 

service scripts reveal that the above-described practices are uniform to the Class. A 

whistleblower contractor in HCC’s customer service department confirmed that these policies and 

procedures are designed to frustrate Class members’ attempts to appeal a claim’s denial or to 

provide the information purportedly sought by Defendants, and further confirmed that Defendants 

have created a rigid script for dealing with insureds, from which their employees cannot deviate. 

Id. ¶¶ 58-72. As the whistleblower states: “[T]he name of the game is runaround . . . . It really 

felt like everything was designed to be so cumbersome that the customer would either get 

frustrated and give up or they could stall long enough to not have to pay out on the claim. . . . 

The whole idea here is that we’re a legal buffer between HCC and [the insured] as was made 

crystal clear in training when they said outright that we’d be thrown under the bus if we ever 

deviated from the script.” Id. ¶ 67. 

As discussed in Plaintiffs’ Opposition to Defendants’ Motion to Stay (Dkt. No 66), 

Defendants minimize and misconstrue the Complaint, asserting that ‘Plaintiffs say X is nondisclosed but it is disclosed.’ This misses the point. Defendants engage in a common and 

fraudulent scheme whereby they take Class members’ premium payments, only to subject those 

insureds to a claims process that is designed to uniformly and unconscionably deny the payment 

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1346074.8 -5- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

of valid claims. Plaintiffs’ well-pleaded claims of complex fraud are cognizable under statutory 

and common law. Compl. ¶¶ 90-146. 

C. Plaintiffs’ Experiences and the Underlying Litigation

Plaintiffs Azad and Buckley were each insured under Defendants’ STMs. Id. ¶¶ 19-38. 

Each Plaintiff purchased their STM policies in the belief that such policies would cover 

unexpected medical conditions. Id. Each Plaintiff did suffer an unexpected and major health 

incident and, in reliance upon the language of the policies, properly submitted claims. Id. Upon 

submitting claims to Defendants, however, each Plaintiff was asked for an ever-increasing 

number of medical records. Id. Specifically, as pled in the Complaint and supported with explicit 

references to Defendants’ records, Plaintiffs’ were not merely required to provide medical records 

relevant to their claims; rather, they were required to provide all medical records, provider notes, 

and labs for the five years preceding their claims. Id. ¶¶ 26, 33; see also Declaration of John 

Padgett in Support of HCC Life Insurance Company and HCC Medical Insurance Services, 

LLC’s Motion to Dismiss and Their Alternative Motion to Strike Class Allegations (“Padgett 

Decl.”) at Exs. 16-19. 

After months of complying with Defendants’ requests for more information, both Azad 

and Buckley were again told that their claims could not be processed. Compl. ¶¶ 26-28, 33-38; 

Padgett Decl. at Exs. 16-19. Plaintiff Azad’s bills totaled roughly $12,000, and Plaintiff 

Buckley’s roughly $3,500. Motion to Stay (Dkt. No 63) at n.4. Plaintiffs each made continual 

efforts to provide sufficient information to Defendants, and were continually asked for more. 

Compl. ¶¶ 26-38. Discouraged and convinced that Defendants were not acting in good faith, 

Plaintiffs gave up and realized they would have to pay their medical bills directly. Id. 

Thus, like all Class members, Plaintiffs were: (1) misled into purchasing insurance 

policies that they believed would cover unforeseen medical events; (2) subjected to Defendants’ 

unconscionable claims-handling practices, despite complying in good faith with Defendants’ 

increasingly-unreasonable (and impossible to fulfill) requests; and (3) ultimately had their claims 

files closed by Defendants, in bad faith, which left Plaintiffs (like all Class members) on their 

own to resolve their unpaid, substantial medical bills. 

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1346074.8 -6- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

D. Procedural History 

Plaintiffs filed their Complaint on February 7, 2017, alleging five claims for relief: 

(1) violations of Cal. Bus. & Prof. Code § 17200, et seq.; (2) violations of Cal. Bus. & Prof. Code 

§ 17500, et seq.; (3) breach of contract; (4) breach of the implied covenant of good faith and fair 

dealing; and (5) unjust enrichment. Defendant HCC then filed the instant Motion to Dismiss. 

Dkt. No. 48 (“Mot.”).2

 LEGAL STANDARDS 

A. Rule 12(b)(6) 

Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks “a 

cognizable legal theory” or “sufficient facts to support a cognizable legal theory.” Shroyer v.

New Cingular Wireless Servs., Inc., 606 F.3d 658, 664 (9th Cir. 2010). The issue is not whether 

the non-moving party will ultimately prevail but whether it is entitled to offer evidence to support 

the claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). Moreover, 

the Court must draw “all reasonable inferences from the complaint in [plaintiffs’] favor,” 

Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009), and “must accept as true 

all of the factual allegations contained in a complaint” and “construe them in the light most 

favorable to the plaintiffs.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Siracusano v. Matrixx 

Initiatives, Inc., 585 F.3d 1167, 1177 (9th Cir. 2009). 

B. Rule 9(b) 

Plaintiffs’ claims under the deceptive prong of the UCL and FAL must satisfy Rule 9(b).3 

The Ninth Circuit has long construed Rule 9(b) to require only that “‘allegations of fraud are 

specific enough to give defendants notice of the particular misconduct which is alleged to 

constitute the fraud charged so that they can defend against the charge and not just deny that they 

 

2

 Each Defendant filed separate Motions to Dismiss (Dkt. Nos. 48, 58, 60) and, in the case of 

HCC and HII, Motions to Strike (Dkt. Nos. 49, 60), as well as a Motion to Stay (Dkt. No. 63). 

3

 Plaintiffs’ other claims—namely, the common-law claims and the claims under other prongs of 

the UCL—need not satisfy Rule 9(b). Under Ninth Circuit law, “where fraud is not an essential 

element of a claim, only allegations (‘averments’) of fraudulent conduct must satisfy the 

heightened pleading requirements. Allegations of non-fraudulent conduct need satisfy only the 

ordinary notice pleading standards of Rule 8(a).” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 

1105 (9th Cir. 2003). 

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1346074.8 -7- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

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CASE NO. 4:17-CV-618 

have done anything wrong.’” United States for Use and Benefit of HCI Sys., Inc. v. Agbayani 

Construction Co., No. 14-cv-02503-MEJ, 2014 WL 4979336, at *3 (N.D. Cal. Oct. 6, 2014) 

(quoting Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)). 

Thus, while Rule 9(b) imposes a heightened standard, it does not require a plaintiff to 

allege each and every detail about the alleged conduct. Cooper v. Pickett, 137 F.3d 616, 627 (9th 

Cir. 1997) (“[W]e cannot make Rule 9(b) carry more weight than it was meant to bear.”); Walling 

v. Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973); see also Schlagal v. Learning Tree Int’l, 

No. CV 98–6384 ABC (EX), 1998 WL 1144581, at *8 (C.D. Cal. Dec. 23, 1998) (“The Court 

must strike a careful balance between insistence on compliance with demanding pleading 

standards and ensuring that valid grievances survive.”); Davenport v. Seattle Bank, 2015 WL 

6150926, at *4 (C.D. Cal. Oct. 15, 2015) ( “[Rule 9(b)] must be read in harmony with Fed. R. 

Civ. P. 8’s requirement of a ‘short and plain’ statement of the claim.”). 

Moreover, “the requirement of specificity is relaxed when the allegations indicate that a 

defendant must necessarily possess full information concerning the facts of the controversy or 

when the facts lie more in the knowledge of the opposite party.” Comerica Bank v. McDonald, 

2006 WL 3365599, at *2 (N.D. Cal. Nov. 17, 2006) (citations omitted). 

Plaintiffs’ fraud-based allegations readily satisfy the requirements of Rule 9(b). 

C. Incorporation by Reference 

Defendants contend, further, that the Court should apply the “incorporation by reference” 

doctrine in this case, and consider voluminous additional materials as part of the Complaint. 

Citing among other cases Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159-60 (9th Cir. 

2012), Defendants urge that the Court consider (i) representations in documents on the websites 

of HCC or its affiliates, (ii) Plaintiffs’ applications and Certificates, and (iii) telephonic or written 

communications between Plaintiffs and HCC’s agents. 

The incorporation by reference doctrine is inapposite here. In this Circuit, courts enjoy 

discretion to consider documents “whose contents are alleged in a complaint and whose 

authenticity no party questions, but which are not physically attached to the [plaintiff’s] 

pleading.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (quoting 

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1346074.8 -8- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)) (alteration in original). In such cases, it is 

possible to “look beyond the pleadings without converting the Rule 12(b)(6) motion into one for 

summary judgment.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 

2002). But in this case, no such possibility exists. The documents that Defendants seek to 

incorporate are incapable of accurately resolving Plaintiffs’ claims without the benefit of further 

discovery. 

Defendants apparently wish to alert the Court that the documents they seek to incorporate 

disclose that HCC does not cover pre-existing conditions. See Def. Decl’s. of Khan, Garvuso, 

and Padgett, Dkt. Nos. 50-52. But these documents, and the disclosures therein, come nowhere 

near resolving Plaintiffs’ allegations, and indeed, add nothing to the Complaint, which already 

transparently observes that the pre-existing condition exclusion was disclosed. See Compl. ¶ 47. 

Plaintiffs’ claims concern what Defendants omit and misrepresent about their policies and 

practices. Defendants’ disclosures do not encompass, and in fact belie, Defendants’ routine 

practice of deceptively obstructing, discouraging, delaying, and denying claims, regardless of 

whether any pre-existing condition was implicated. See id. ¶¶ 40-47, 49, 54, 62. Plaintiffs 

therefore submit that detailed consideration of Defendants’ documents is premature at the motion 

to dismiss stage, for various reasons, including that proper discovery will reveal the documents to 

be incomplete and misleading. 

 ARGUMENT 

A. Plaintiffs’ UCL Claim Should Not Be Dismissed 

The UCL defines unfair competition as “any unlawful, unfair or fraudulent business act or 

practice . . . .” Cal. Bus. & Prof. Code § 17200. The statute’s “coverage is sweeping.” Wilson v. 

Hewlett–Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). As a threshold matter, HCC attempts 

to conflate the three UCL prongs, and argue that because Plaintiffs have failed to allege fraud 

they have also failed on the unlawful and unfair prongs. Mot. at 19, 21. This premise finds no 

support in the law, for “[e]ach of these three adjectives captures a separate and distinct theory of 

liability.” Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (internal quotation 

marks omitted). Plaintiffs have adequately stated claims under each of the UCL’s unlawful, 

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1346074.8 -9- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

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CASE NO. 4:17-CV-618 

unfair, and fraudulent prongs. 

In attempting to defend against Plaintiffs’ UCL allegations, HCC relies primarily on the 

argument that “the preexisting conditions exclusion was repeatedly disclosed” to policyholders. 

See Mot. at 2, 4, 5, 6. This contention misses the point. 

While HCC disclosed to prospective purchasers that it had a limited, 6-month preexisting 

condition exclusion clause,4 in practice it systematically excluded coverage for any preexisting 

condition during the last five years. Compl. ¶¶ 26, 28, 33, 34, 38, 41, 49, 56, 73. Specifically, 

Plaintiffs allege in their Complaint that “HCC’s promotional materials and application form . . . 

lead a customer to believe that its [pre-existing conditions] carveouts are much more cabined than 

they actually are,” that, in fact, the carve-out “is applied with absurd results,” and that Defendants 

“enforce (and misuse) a much broader list of exclusions.” Id. ¶¶ 41, 49. 

Further, “neither the plan brochures nor application forms explain the scope of the 

policies’ exclusion for pre-existing conditions” in practice. Id. ¶ 54. Plaintiffs also provide 

concrete allegations regarding how the pre-existing conditions carve-out works in practice: 

“[W]hen Plaintiffs needed medical treatment, they called Defendants’ customer service 

representatives to ensure they were covered for the treatment in question, and were told they were 

covered. Thereafter, Defendants proceeded to deny them the coverage to which Plaintiffs were 

entitled.” Id. ¶ 56. For example, one individual was denied coverage after a major heart attack 

“due to a doctor’s note about 4 years ago stating that [he had] a degenerative disc in [his] lower 

back.” Id. ¶ 73(b). 

 

4

 HCC argues that it “clearly excluded coverage for preexisting conditions treated or diagnosed 

within the prior six months.” Mot. at 6. HCC’s exhibits highlight this same 6-month period and 

make no mention of the far longer period applied in practice. See Padgett Decl. at 38 (“Charges 

resulting directly or indirectly from a condition for which a Covered Person received medical 

treatment, diagnosis, care or advice within the six (6) month period immediately preceding such 

person’s Effective Date are excluded for the first six (6) months of coverage hereunder”); id. at 91 

(same); id. at 134 (same). 

To the extent HCC relies on Plaintiff Azad’s verbal consent to a broader preexisting conditions 

exclusion as explained to Plaintiff Azad by HCC agent Montgomery, Mot. at 7, Agent 

Montgomery’s verbal explanation is contradicted by the very written policy documents HCC 

points to in its brief. See generally Padgett Decl.. Further, Agent Montgomery states that “this 

limitation may vary by state” and gives no explanation whether it applies in Plaintiff Azad’s case. 

Id. at 9. 

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1346074.8 -10- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

In addition, HCC states that it discloses that policyholders must submit a “proof of loss 

form” in order for their claims to be paid,5 and that claims will be paid within 30 working days of 

receipt of the proof of loss. See Padgett Decl. at 45, 86, 141 (“Time of Payment of Claim: 

Benefits for loss covered by the policy will be paid as soon as we receive proper written proof of 

such loss, but no later than 30 working days after We receive Proof of Loss.”). However, in 

practice, HCC requires policyholders to submit not only this proof of loss form, but also five or 

more years of medical records unrelated to the particular medical issue at hand in order to get 

their claims paid. Compl. ¶¶ 26-28, 33-38, 73; Padgett Decl. at 155. This medical records 

requirement is improper, given that the average patient would not have possession of such 

records, nor would they be able to remember each and every medical provider and facility visited 

over such a long time period, and especially not at a vulnerable moment when the patient is 

recovering from the distress of a recent hospitalization. Id. ¶¶ 25, 33; see also id. ¶ 73(a) (“I tried 

very hard to have HCC pay for our bills . . . [w]ith a husband who almost die and care for, I ran 

out of energy.”). 

Further, due to HCC’s intentionally obstructionist and evasive customer service, 

policyholders like the Plaintiffs find themselves in a nightmarish loop in which they can neither 

satisfy HCC’s previously-undisclosed, burdensome request to provide the requested medical 

records, nor obtain answers from HCC as to how they can otherwise get their claims paid. Id. 

¶¶ 27, 34-36, 58-72. For example, Plaintiff Azad received no indication when purchasing his 

insurance that HCC would require him to provide extensive medical records in order to get his 

claims paid. Id. ¶¶ 19-24; Dkt. 50 at 7-21. Only after he had purchased HCC insurance and 

submitted a claim did HCC seek “all medical records, provider notes, and labs” for the prior six 

years. Compl. ¶ 26; Padgett Decl. at 155. Though Plaintiff Azad sought to comply with the 

request, and attempted to contact HCC over the course of seven months, Compl. ¶ 27, HCC 

5

 The disclosures do not come close to even hinting, much less clearly communicating, that 

“proof of loss” would in practice entail a requirement to submit at least five years of medical 

records. See Dkt. No. 52 at 45, 98, 141 (“When the Company receives notice of claim, forms for 

filing proof of loss will be sent to the claimant. If claim forms are not supplied within 15 days, a 

claimant can give proof as follows: (1) in writing; (2) setting forth the nature and extent of the 

loss; and (3) Within the time stated in the Proof of Loss provision. Written proof of loss must be 

given to the Company within 90 days after the loss begins.”) 

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1346074.8 -11- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

refused to pay any of his claims, id. ¶ 28. Similarly, HCC requested “medical records for the past 

five years” from Plaintiff Buckley after her hospitalization. Id. ¶ 33. HCC told Buckley that 

HCC would contact her doctor to obtain the bills, and Buckley did contact the doctor to confirm 

her willingness to provide the necessary records. Id. ¶¶ 33-34. Yet HCC continued to stonewall 

Plaintiff Buckley and left her with unpaid medical bills. Id. ¶¶ 35-38. 

Plaintiffs also allege that a former HCC employee exposed this practice, writing that HCC 

customer service representatives “had no way to contact HCC directly, or to interact with them 

(I’m guessing by design),” and that “everything was designed to be so cumbersome that the 

customer would either get frustrated and give up or they could stall long enough to not have to 

pay out on the claim.” Id. ¶¶ 63, 67. 

Defendants do not rebut any of these allegations (and cannot do so on a motion to 

dismiss), and these are the exact kind of practices the UCL was designed to combat. See

Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 209 (Cal. 

1983) (noting that the UCL is written to codify “the right of the public to protection from fraud 

and deceit”). As set forth below, these allegations provide a more than substantial basis to plead 

claims under all three prongs of the UCL. 

1. Plaintiffs Have Stated a Claim Under the “Unlawful” Prong of the 

UCL 

Plaintiffs have stated a claim under the UCL’s “unlawful” prong. First, Plaintiffs allege 

that HCC acted “unlawfully” based on the company’s violation of § 332 of the California 

Insurance Code, which requires each party to an insurance contract to communicate “in good 

faith, all facts within his knowledge which are or which he believes to be material to the 

contract. . .” Cal. Ins. Code § 332. The Complaint explains that Defendants violated § 332, and 

therefore the UCL, by failing to communicate in good faith (1) that their policies did not include 

claims for conditions that were diagnosed or treated within five years of the effective date of 

coverage, (2) that Plaintiffs would be required to provide years of medical records in addition to a 

proof of loss form to get their claims paid out, (3) that it would be impracticable to fulfill HCC’s 

requests to provide such medical records, and (4) that HCC does not have a fair claims process or 

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1346074.8 -12- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

functional customer service. Compl. ¶¶ 26-28, 33-38, 58-73. All of these are material terms 

within HCC’s knowledge and none were communicated to HCC policyholders. See Cohen v. 

Penn Mut. Life Ins. Co., 48 Cal. 2d 720, 727 (Cal. 1957) (noting that a party’s disclosures on 

insurance form “pictured a risk entirely different from that in fact involved”). 

Importantly, California Insurance Code § 10123.13(c), which HCC offers as a defense on 

the merits, in fact confirms the allegations and makes clear that HCC has violated the law in 

multiple ways. First, § 10123 requires an insurer to reimburse claims “no later than 30 working 

days after the receipt of the claim,” § 10123.13(a), and HCC has not done so. Second, § 10123 

provides that if an insurer wishes to officially contest the claim, it must: 

(1) notify the claimant “in writing, that the claim is contested or 

denied, within 30 working days after receipt of the claim by the 

insurer”; and 

(2) “identify the portion of the claim that is contested or denied and 

the specific reasons” including “the factual and legal basis”; and 

(3) “provide a copy of the notice to each insured . . . and to the 

insured’s health care provider that provided the services at issue”; 

and 

(4) “advise . . . the insured that [he or she] may seek review by the 

department of a claim that the insurer contested or denied, and the 

notice shall include the address, Internet Web site address, and 

telephone number of the unit within the department that performs 

this review function.” 

Cal Ins. Code § 10123.13(a). HCC has complied with none of those statutory mandates. The 

Complaint alleges that HCC: (1) did not state that it was “contesting” Plaintiff Azad’s claim, 

Compl. ¶ 26; see also Padgett Decl. at 155; (2) did not contact Plaintiff Buckley at all regarding 

any such contest, Compl. ¶ 33; (3) did not notify Buckley’s provider in writing, id. ¶¶ 34-35; and 

(4) rather than advising customers of their rights, threw multiple customer-service hurdles in 

Plaintiffs’ path. Id. ¶¶ 27, 33, 34. 

Perhaps even more significant, HCC’s requiring Plaintiffs to submit five years of medical 

records only after it had determined they were eligible for a policy, after it had accepted and 

invested their premium payments, and after Plaintiffs had submitted a claim, is a textbook 

example of post-claims underwriting, which Cal. Ins. Code § 10384 prohibits. That section 

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1346074.8 -13- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

defines such unlawful underwriting as 

the rescinding, canceling, or limiting of a policy or certificate due to 

the insurer’s failure to complete medical underwriting and resolve 

all reasonable questions arising from written information submitted 

on or with an application before issuing the policy or certificate. 

The principle underlying the prohibition on post-claims underwriting is that “[a]n insurer 

has an obligation to its insureds to do its underwriting at the time a policy application is made, not 

after a claim is filed.” Hailey v. California Physicians’ Serv., 158 Cal. App. 4th 452, 465 (Cal. 

App. 2007). As the Hailey court explained, “it is patently unfair for a claimant to obtain a policy, 

pay his premiums and operate under the assumption that he is insured against a specified risk, 

only to learn after he submits a claim that he is not insured, and, therefore, cannot obtain any 

other policy to cover the loss.” Id. (internal citation omitted). See also Ticconi v. Blue Shield of 

Cal. Life & Health Ins. Co., 160 Cal. App. 4th 528, 534, 541-42 (Cal. Ct. App. 2008) (holding 

insurer’s rescission of short-term health insurance policy violated § 10384, which “explicitly 

makes postclaims underwriting unlawful and thus provides a basis for an injunction under the 

UCL”); Thomas C. Cady and Georgia Lee Gates, Post Claim Underwriting, 102 W. Va. L. Rev. 

809, 813 (2000) (characterizing post-claims underwriting as “a complete inversion of the 

established sequence of underwriting”). Notably, HCC does not deny that it engaged in postclaims underwriting; to the contrary, it seeks to justify it. See Mot. at 20 (attempting to defend 

denying claims on the grounds that the policyholder had a medical condition “during the 

preceding five years that would have rendered him or her ineligible to obtain the policy”). 

In short, HCC’s bad faith conduct in violation of Ins. Code § 332, its failure to comply 

with the consumer protection requirements of Ins. Code § 10123.13(a), and its post-claims 

underwriting in violation of Ins. Code § 10384 provide ample support for Plaintiffs’ claim under 

the “unlawful” prong of the UCL. These facts also show why HCC’s representations about its 

services are misleading, and why its omissions are material. 

2. Plaintiffs Have Stated a Claim Under the “Unfair” Prong of the UCL 

Plaintiffs similarly state a claim under the “unfair” prong of the UCL. An “unfair” 

business practice under the UCL is “one that either offends an established public policy or is 

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1346074.8 -14- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” 

McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008) (internal citations and 

quotations omitted). 

Plaintiffs here sufficiently plead “unfair” conduct by Defendants under both the 

“balancing” test (which compares the gravity of the plaintiff’s harm to the utility of the 

defendant’s conduct) and “tethering” test (which examines whether the alleged misconduct is 

tethered to a legislatively declared policy) that are both applied by California courts. Ferrington 

v. McAfee, Inc., No. 10-1455, 2010 WL 3910169, at *13 (N.D. Cal. Oct. 5, 2010); see also id. at 

*12 (describing the two tests and explaining that California courts are divided on which applies); 

Compl. ¶¶ 95, 98-99. 

Despite HCC’s assertions to the contrary, Mot. at 17, Plaintiffs need not prove reliance on 

misrepresentations in order to state a claim under the “unlawful” or “unfair” prongs of the UCL. 

In re Tobacco II Cases, 46 Cal. 4th 298, 325 n.17 (2010) (explaining that “[t]here are doubtless 

many types of unfair business practices in which the concept of reliance . . . has no application”); 

Frezza v. Google Inc., No. 5:12-cv-00237-RMW, 2013 WL 1736788, at *6 n.3 (N.D. Cal. Apr. 

22, 2013) (“[N]o reliance is required to prove violations of the UCL based on ‘unlawful’ or 

‘unfair’ conduct.”).6

Plaintiffs’ allegations of HCC’s marketing, detailed above, demonstrate it to be unethical, 

 

6

 See also Medrazo v. Honda of N. Hollywood, 205 Cal. App. 4th 1, 12 (2012) (stating that there 

is no actual reliance requirement in UCL actions that are not based upon a fraud theory and 

holding that plaintiff had established standing under the “unlawful” prong of the UCL despite no 

evidence of actual reliance); In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 154-55, 

159 (2010) (explaining that “where the UCL claim is based upon the unlawful prong of the UCL” 

there is “no issue regarding reliance”); Olivera v. Am. Home Mortgage Servicing, Inc., 689 F. 

Supp. 2d 1218, 1224 (N.D. Cal. 2010) (“For claims based on the ‘unfair’ or ‘unlawful’ prong of 

the UCL claim, courts have held that the plaintiff need not allege reliance on misrepresentations, 

and may allege ‘causation more generally.’”); In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 

1098, 1105-06 (N.D. Cal., May 11, 2007) (reasoning in the section entitled “Plaintiffs Need Not 

Allege Reliance” that reliance is not required “where, as here, plaintiffs allege that they were 

harmed by other types of misconduct actionable under the UCL the Court finds no basis for 

requiring reliance on misrepresentations”); Aho v. AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609, 

623 (S.D. Cal. 2011) (“The claim . . . that Defendant has engaged in unlawful conduct under the 

UCL, does not require reliance.”); Stern, § 5.166, BUS & PROF. C. § 17200 PRACTICE (The 

Rutter Group 2012) (“There are a number of theories that have been litigated and rejected as 

defenses to claims alleging ‘unlawful’ business practices . . . . That no one was actually deceived 

by the practice is not a defense to a section 17200 ‘unlawful’ business practice claim.”). 

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1346074.8 -15- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

immoral, and unscrupulous. Compl. ¶¶ 26-28, 33-38, 58-73. See also, e.g., Rubio v. Capital One 

Bank, 613 F.3d 1195, 1204-05 (9th Cir. 2010) (reversing dismissal of UCL claim where 

defendant misleadingly disclosed the terms of its contracts with consumers). 

HCC’s intentional communications to policyholders that treatments are covered (and 

material omission about its exclusions and practices), and subsequent refusal to actually cover 

those treatments after the costs have been incurred, is unethical. Compl. ¶ 56. Further, HCC’s 

intentionally evasive and deceptive customer service methods, including scripts designed to 

discourage policyholders from seeking payment, id. ¶ 62, and a system that by design prevents 

customer service representatives from being able to communicate with HCC to solve customers’ 

problems or directly address their queries, id. ¶¶ 63-67, is nothing if not “immoral, unethical, 

oppressive, [and] unscrupulous.” All of these practices are substantially injurious to 

policyholders, including Plaintiffs. Not only do they cause a drain on time and energy by forcing 

policyholders to seek answers within a Kafkaesque bureaucracy, they also cause policyholders to 

pay thousands of dollars out of pocket for medical expenses HCC led them to believe would be 

covered. Id. ¶¶ 28, 38, 73. Plaintiffs have thus sufficiently alleged that Defendants’ conduct is 

unfair as well as unlawful. 

3. Plaintiffs Have Stated a Claim Under the “Fraudulent” Prong of the 

UCL 

Plaintiffs’ Complaint also describes several ways in which HCC has engaged in fraudulent 

conduct. Under the “fraudulent” prong of the UCL, “the test is whether the public is likely to be 

deceived . . . a [] violation can be shown even if no one was actually deceived, relied upon the 

fraudulent practice, or sustained any damage.” People ex rel. Bill Lockyer v. Fremont Life Ins. 

Co., 104 Cal. App. 4th 508, 516-17 (Cal. App. 2d Dist. 2002). Further, reliance can be presumed, 

or at least inferred, if the misrepresentation or omission was material, i.e., “if a reasonable man 

would attach importance to its existence or nonexistence in determining his choice of action in the 

transaction in question.” In re Tobacco II Cases, 46 Cal. 4th at 326. Whether or not a 

misrepresentation or omission is material and, thus, whether or not the presumption of reliance 

attaches “is generally a question of fact unless the ‘fact misrepresented is so obviously 

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CASE NO. 4:17-CV-618 

unimportant that the jury could not reasonably find that a reasonable man would have been 

influenced by it.’” Id. at 327 (quoting Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 

976-77 (1997)). Notably, in In re Tobacco II, the California Supreme Court held that when 

reliance is required under the UCL, it need not be tied to any specific misrepresentation. A 

plaintiff must show that the defendant’s deceptions were “an immediate cause of the plaintiff’s 

injury-producing conduct,” id. at 326, but the deception need not need be “the sole or even the 

predominant or decisive factor influencing [the plaintiff’s] conduct,” id. 

Here, Plaintiffs allege that HCC made a number of statements and/or material omissions 

likely to deceive the public. HCC failed to mention: (1) the breadth of its five-plus-year preexisting conditions carveout; (2) its requirement that medical records for at least five years be 

submitted prior to claim coverage; and (3) its complete lack of any effective customer service. 

There is little question that HCC’s misrepresentations and omissions were material to Plaintiffs’ 

relationship with HCC and that reasonable policyholders would want to know about such items 

prior to purchasing HCC insurance. 

Notwithstanding HCC’s attempts to characterize Plaintiffs Buckley and Azad as having 

unreasonably misunderstood HCC’s communications, Mot. at 11, the Complaint’s allegations 

show that Plaintiffs’ claims are the norm. HCC’s former customer-service representative 

admitted that HCC customer service could not help policyholders and “it was obvious that the 

name of the game was runaround.” Compl. ¶¶ 63, 67. Additionally, an HCC policyholder wrote 

that he “deep[ly] regrets” choosing HCC insurance, because while he “was led to believe that this 

coverage was good short term insurance,” HCC later denied his claim under its five-year 

preexisting condition exclusion practice. Id. ¶ 73(b). This consumer’s advice, based on his 

experience with HCC’s bait-and-switch, is clear: “DO NOT EVEN CONSIDER THIS 

INSURANCE.” Id.; see also id. ¶ 73(c) (“I would NEVER, EVER suggest that anyone purchase 

insurance from HCC.”). Reasonable consumers are likely to be—and in fact have been—

deceived by the alleged misrepresentations and omissions of HCC. 

HCC’s reliance on Davis v. HSBC and Ford v. Hotwire is misplaced. In both cases, the 

defendant company disclosed exactly what it was doing, and disclosed it prominently. In Davis, 

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CASE NO. 4:17-CV-618 

for example, Best Buy disclosed the annual fee challenged by the Plaintiff in “boldface font at 

least twice as large as the other text on the page.” Davis, 691 F.3d at 1158. And in Ford, in 

which plaintiff challenged Hotwire’s failure to disclose that hotels could impose additional fees as 

one of its Terms, Hotwire both disclosed that hotels could do so and stated in its Terms of Use 

that “[i]f you do not agree with any part of these Terms and Conditions, YOU MUST NOT USE 

THIS SITE.” Ford v. Hotwire, Inc., No. 07-CV-1312 H(NLS), 2008 WL 5874305, at *9, *1-2 

(S.D. Cal. Feb. 25, 2008) (emphasis in original). 

Here, in contrast, HCC both failed to disclose the conduct Plaintiffs complain of and 

sought to obscure even the inadequate disclosures it did make. Specifically, HCC failed to 

disclose either its five-year pre-existing conditions carve-out or its burdensome medical record 

requirement for claim coverage, as well as its wholly ineffective customer service. Moreover, 

even the inadequate disclosures it did make were in diminutive, intentionally obscured print. See

Padgett Decl. at 65 (indicating in small, light grey print in lower right hand corner that “[t]he 

description in these pages is for informational purposes only,” “[a]ctual coverage will vary based 

[sic] the terms and conditions of the policy issued,” and “[b]enefits, provisions, limitations and 

exclusions may vary by state”). 

In short, the contrast between Defendants’ conduct in this case and that of Best Buy and 

Hotwire in Davis and Ford further compels the conclusion that Defendants’ conduct here is 

fraudulent within the meaning of the UCL. 

B. Plaintiffs’ FAL Claim Should Not Be Dismissed 

For the reasons stated above, Plaintiffs have adequately alleged a claim under the FAL, 

and it should not be dismissed. For example, Plaintiffs were led to believe that if they did not 

have certain specified pre-existing conditions, or if their claims did not relate to any pre-existing 

conditions, their claims would be processed and paid in good faith. See Compl. ¶¶ 40-47. In fact, 

as properly and plainly alleged—in detail—in the Complaint, Defendants’ unlawful scheme 

meant that Plaintiffs were denied the coverage they needed. 

A misleading statement under Cal. Bus. & Prof. Code § 17500 is one that is likely to 

mislead a reasonable consumer. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 

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CASE NO. 4:17-CV-618 

2008); Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003). Indeed, even “[a] perfectly 

true statement couched in such a manner that it is likely to mislead or deceive the consumer, such 

as by failure to disclose other relevant information, is actionable under th[is] section[].” Day v. 

AT & T Corp., 63 Cal. App. 4th 325, 327 (1998). In assessing such claims, courts must recall that 

“whether a business practice is deceptive will usually be a question of fact not appropriate for 

decision on [a motion to dismiss].” Davis, 691 F.3d at 1161-62. Accordingly, Plaintiffs have 

satisfied their burden and the claim should not be dismissed. 

C. Plaintiffs’ Claim for Breach of Contract Should Not Be Dismissed 

The elements of a claim for breach of contract are: (1) the existence of the contract; (2) 

performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant, and (4) 

damages. 4 Witkin, Cal. Proc. (4th ed. 1997). Here, Plaintiffs have alleged all four elements 

plainly and specifically. 

Plaintiffs allege that contracts existed in the form of the STM policies that Defendants 

sold to Plaintiffs. See Compl. ¶¶ 3, 8, 9, 17, 118. Plaintiffs fulfilled their obligations by timely 

payment of premiums and diligent efforts to submit their insurance claims. See id. ¶¶ 25-28, 32-

36, 100, 118. However, despite the fact that the policies required timely, good-faith processing of 

all claims, and payment of claims not related to specified pre-existing conditions, see id. ¶¶ 120-

26, Defendants pursued a policy of routinely resisting payment without any reason to believe that 

a claim is invalid, constructing practically impossible barriers to customers’ receipt of payment, 

and otherwise refusing payment in bad faith, as multiple former agents of Defendants have 

disclosed. Id. ¶¶ 54, 58-72. These practices damaged Plaintiffs, as they have damaged the Class 

members. The breach of contract claim must not be dismissed. 

HCC argues that the claim should be dismissed for failing to allege the specific breached 

provision. Mot. at 22. HCC also cites Cal. Ins. Code § 10123.13, which purportedly allows 

Defendants to engage in their obstructive tactics. Id. Finally, HCC argues that Plaintiff Buckley 

suffered no damage. Id. at 23. These arguments fail. 

In this Circuit, courts have held that “[i]dentifying the specific provision of the contract 

allegedly breached by the defendant does not require the plaintiff to attach the contract or recite 

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MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

the contract’s terms verbatim.” Misha Consulting Grp., Inc. v. Core Educ. & Consulting 

Solutions, Inc., No. C-13-04262-RMW, 2013 WL 6073362, at *1 (N.D. Cal. Nov. 15, 2013). 

Instead, pleadings are sufficient when the “complaint identifies the specific provision of the 

contract allegedly breached by the defendants.” Id. at *2; see also id. (finding sufficient a breach 

of contract allegation where, “although the complaint could have been more specific, it sets out 

the type of services requested, the dates of performance, and the contract price.”); Kaar v. Wells 

Fargo Bank, N.A., No. C 16-01290 WHA, 2016 WL 3068396, at *2 (N.D. Cal. June 1, 2016). 

Plaintiffs here have alleged that pursuant to, at least, Part VIII of the policies, the policies 

required proper investigations, timely processing, and good faith customer service and payment, 

among other broken promises. Compl. ¶¶ 119-125. This clears the hurdle at the motion to 

dismiss stage. 

Further, HCC’s reliance on Cal. Ins. Code § 10123.13 for the proposition that they did not 

breach their contracts because they were entitled to engage in their obstructive tactic of requesting 

unnecessary and unrelated medical records is entirely misplaced. The pertinent language of that 

section reads as follows: 

[A] claim, or portion thereof, is reasonably contested when the 

insurer has not received a completed claim and all information 

necessary to determine payer liability for the claim, or has not been 

granted reasonable access to information concerning provider 

services. 

Cal. Ins. Code § 10123.13(c). This language does not, and cannot, entitle insurers to contest 

claims after receiving sufficient information to determine their liability on the claim, and cannot 

entitle insurers to request information not reasonably tailored to the claim, as part of a cynical 

bad-faith obstruction tactic. Yet Plaintiffs have alleged such behavior. 

Finally, Defendants wrongly assert that Plaintiff Buckley was undamaged by Defendants’ 

misconduct because her claims did not exceed her deductible. If a policyholder is obstructed 

from making claims, she will never reach her deductible. Recognizing this, Plaintiff Buckley 

canceled her plan after being harmed by Defendants’ scheme, in part because she had been denied 

rightful credit toward her deductible. Accordingly, she had a cognizable economic interest in her 

claim’s success, even though it did not exceed the deductible. The facts in this case, involving a 

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CASE NO. 4:17-CV-618 

medical insurance policy with a high deductible, are eminently distinguishable from the cases 

HCC cited on this point, which involved earthquake insurance. See Cheviot Vista Homeowners 

Ass’n v. State Farm Fire & Cas. Co., 143 Cal. App. 4th 1486, 1488 (2006). Because damaging 

earthquakes are rare, it was reasonable for the Cheviot court to conclude that the plaintiff could 

not show damage where the value of the claim that did not exceed the policy deductible. But 

because medical expenses are common and routine, and generally aggregated to reach a policy 

deductible, a plaintiff does not receive the full economic value of her policy when her claims 

towards the deductible are improperly obstructed or denied. At a minimum, the economic value 

of such loss is calculable as the increase in the value of the policy, over its remaining term, when 

the deductible is reduced by the amount of the claim. And losses may be even greater when 

subsequent medical services are foregone due to improper obstruction or denial of the first 

treatment. 

D. Plaintiffs’ Claim for Breach of the Implied Duty of Good Faith and Fair 

Dealing Should Not Be Dismissed 

Under California law, “a covenant of good faith and fair dealing is implied in every 

insurance contract,” and it “requires each contracting party to refrain from doing anything to 

injure the right of the other to receive the agreement’s benefits” and to “give at least as much 

consideration to the interests of the insured as it gives to its own interests.” Frommoethelydo v. 

Fire Ins. Exch., 42 Cal. 3d 208, 214 (1986); see also Love v. Fire Ins. Exch., 221 Cal. App. 3d 

1136, 1153 (1990); Egan v. Mut. of Omaha Ins. Co., 24 Cal. 3d 809, 818-19 (1979). Moreover,

“an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly 

investigating the foundation for its denial.” Egan, 24 Cal. 3d at 819; Love, 221 Cal. App. 3d at 

1148. This provision is intended as a shield for insureds against bad-faith denials—not as a 

sword for insurers who wish to construct unclearable hurdles during the claim submission phase. 

A covenant claim can thus exist alongside, or instead of, a breach of contract claim, and 

has been applied in similar consumer class action contexts. See, e.g., In re Bank of Amer. Credit 

Protection Mktg. & Sales Practices Litig., No. MD-11-2269 TEH, 2012 WL 1123863, at *5 

(N.D. Cal. Apr. 3, 2012) (holding, in case involving credit card add-on products that purported to 

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CASE NO. 4:17-CV-618 

insure against problems faced by borrowers that could render them unable to pay, “Plaintiffs’ 

contention that the enumeration of allowable fees implies that the cardholder may expect to be 

free from further charges not expressly disclosed or referenced in the agreement is not so beyond 

the realm of credibility that dismissal would be appropriate at this stage”). 

Here, HCC breached the covenant. Plaintiffs allege that HCC systematically frustrates 

expectations by erecting common and insurmountable roadblocks (including via unlawful postclaims underwriting) to paying claims, without acknowledging they are doing so and even 

denying that they will never pay. Defendants hinder insureds’ ability to perform by their claims. 

This is classic bad faith. Moreover, Cal. Ins. Code § 790.03 specifically prohibits acts of the type 

HCC routinely engages in.7

HCC correctly observes that a claim for bad faith cannot proceed where there is a genuine 

dispute as to the insured’s liability under the policy. See Mony Life Ins. Co. v. Marzocchi, 857 F. 

Supp. 2d 993, 996 (E.D. Cal. 2012). But it is not possible at the motion to dismiss stage to 

determine whether a genuine dispute exists over coverage: “A genuine dispute exists only where 

the insurer’s position is maintained in good faith and on reasonable grounds.” Casey v. Metro. 

Life Ins. Co., 688 F. Supp. 2d 1086, 1098 (E.D. Cal. 2010). Furthermore, “[a]n insurer is entitled 

to summary judgment [on a bad faith claim] based on a genuine dispute over coverage or the 

 

7

 “Unfair methods of competition and unfair and deceptive acts or practices in the business of 

insurance” include: “(1) Misrepresenting to claimants pertinent facts or insurance policy 

provisions relating to any coverages at issue. (2) Failing to acknowledge and act reasonably 

promptly upon communications with respect to claims arising under insurance policies. (3) 

Failing to adopt and implement reasonable standards for the prompt investigation and processing 

of claims arising under insurance policies. (4) Failing to affirm or deny coverage of claims within 

a reasonable time after proof of loss requirements have been completed and submitted by the 

insured. (5) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of 

claims in which liability has become reasonably clear . . . . (11) Delaying the investigation or 

payment of claims by requiring an insured, claimant, or the physician of either, to submit a 

preliminary claim report, and then requiring the subsequent submission of formal proof of loss 

forms, both of which submissions contain substantially the same information. (12) Failing to 

settle claims promptly, where liability has become apparent, under one portion of the insurance 

policy coverage in order to influence settlements under other portions of the insurance policy 

coverage. (13) Failing to provide promptly a reasonable explanation of the basis relied on in the 

insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer 

of a compromise settlement.” Cal. Ins. Code § 790.03. 

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1346074.8 -22- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

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CASE NO. 4:17-CV-618 

value of the insured’s claim only where the summary judgment record demonstrates the 

absence of triable issues as to whether the disputed position upon which the insurer denied 

the claim was reached reasonably and in good faith.” Id. (emphasis added) (citing Wilson v. 

21st Century Ins. Co., 42 Cal. 4th 713, 724 (2007)).8

Here, Plaintiffs allege that their claims were incorrectly denied or obstructed. Compl. 

¶¶ 28, 36, 38, 71, 124, 125. These allegations, combined with detailed descriptions of HCC’s bad 

faith and obstructive conduct, suffice to survive the motion to dismiss stage. Without the benefit 

of discovery as to the merits of Plaintiffs’ claims, the Court may not properly find an issue of fact 

precluding a bad-faith finding against HCC. 

E. Plaintiffs’ Claim for Unjust Enrichment Should Not Be Dismissed 

In stating that there is no claim for unjust enrichment, HCC ignores recent Ninth Circuit 

authority holding that unjust enrichment is a claim for relief in and of itself. See, e.g., Berger v. 

Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014). While Plaintiffs recognize the case law 

providing that an unjust enrichment claim should not be brought alongside a UCL claim for 

restitution when it is duplicative, they respectfully submit that this is not a basis to dismiss 

Plaintiffs’ claim, for various reasons. 

First, in light of this recent Ninth Circuit authority, those holdings dismissing unjust 

enrichment claims at the pleading stage are hard to reconcile with the entitlement of alternative 

pleading under Rule 8 of the Federal Rules of Civil Procedure. Rule 8(d) establishes that unjust 

enrichment may be pled in the alternative to contract or statutory claims, as Plaintiffs have done 

here. Compl. ¶¶ 141-46. 

Second, and relatedly, HCC challenges the UCL claim. Although HCC’s arguments lack 

merit—for the reasons set forth above—HCC cannot seriously dispute Plaintiffs’ right to 

restitution in some form. 

Third, Plaintiffs expressly seek both restitutionary and non-restitutionary disgorgement, 

8

 The case law cited by HCC on this point is therefore inapposite. In Sierzega v. Country 

Preferred Ins. Co., the 9th Circuit upheld a summary judgment dismissal of a bad faith claim 

where the District of Nevada—construing Nevada law and enjoying the benefit of a full discovery 

record—found a genuine issue of fact as to whether the insured was covered under the policy. 

650 F. App’x 388, 390 (9th Cir. 2016). That case simply provides no guidance here. 

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CASE NO. 4:17-CV-618 

making their claim non-duplicative on its face. Compl. at 30 (¶¶ C and D). And, as a substantive 

matter, Plaintiffs have alleged not only that Class members spent money they would not have had 

to spend, but that Defendants have been unjustly enriched in the form of “higher premiums and

greater revenues than they would have enjoyed had they acted lawfully.” Compl. ¶ 143. The 

type of recoupment enjoyed by all Defendants was expressly noted as not being limited to the 

nominal insurer, but included other economic gains beyond premiums. At the pleading stage, 

Plaintiffs have more than adequately alleged that all Defendants have been unjustly enriched. 

Fourth, the cases cited by HCC involve situations in which courts had already made 

findings on other allegations that precluded the survival of an unjust enrichment claim. See, e.g., 

Samet v. Procter & Gamble Co., No. 5:12-CV-01891 PSG, 2013 WL 3124647, at *10 (N.D. Cal. 

June 18, 2013); In re Apple & AT&T iPad Unlimited Data Plan Litig., 802 F. Supp. 2d 1070, 

1077 (N.D. Cal. 2011). Unjust enrichment, which is synonymous with restitution in California 

law, has its own elements—and these elements do not track Plaintiffs’ other claims: “The 

elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of 

the benefit at the expense of another.’” Peterson v. Cellco P’ship, 164 Cal. App. 4th 1583, 1593 

(2008). 

F. Plaintiffs Should Be Permitted to Amend the Complaint if the Court 

Identifies Any Pleading Infirmities 

“Dismissal without leave to amend is improper unless it is clear . . . the complaint could 

not be saved by any amendment.” Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009); 

Fed. R. Civ. P. 15(a)(2). “[R]equests for leave [to amend] should be granted with ‘extreme 

liberality.’” Moss, 572 F.3d at 972. 

Plaintiffs have articulated viable legal theories for each of the claims discussed in this 

brief, and should be afforded an opportunity to allege more facts should the Court require it. 

 CONCLUSION 

For the reasons set forth above, HCC’s motion to dismiss should be denied in its entirety. 

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1346074.8 -24- PLAINTIFFS’ OPPOSITION TO HCC LIFE INSURANCE AND HCC

MEDICAL INSURANCE SERVICE’S MOTION TO DISMISS

CASE NO. 4:17-CV-618 

Dated: May 12, 2017 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 

By: /s/ Rachel Geman 

Rachel Geman (admitted pro hac vice) 

rgeman@lchb.com 

250 Hudson Street, 8th Floor 

New York, NY 10013-1413 

(212) 355-9500 

Kelly M. Dermody (State Bar No. 171716) 

kdermody@lchb.com 

Michelle A. Lamy (State Bar No. 308174) 

mlamy@lchb.com 

275 Battery Street, 29th Floor 

San Francisco, CA 94111-3339 

(415) 956-1000 

CARNEY BATES & PULLIAM, PLLC 

Allen Carney (admitted pro hac vice) 

acarney@cbplaw.com 

David Slade (admitted pro hac vice) 

dslade@cbplaw.com 

519 W. 7th Street 

Little Rock, AR 72201 

(501) 312-8500 

CUNEO GILBERT & LADUCA, LLP 

Michael J. Flannery (State Bar No. 196266) 

mflannery@cuneolaw.com 

7733 Forsyth Boulevard, Suite 1675 

St. Louis, MO 63105 

 (314) 226-1015 

Matthew Prewitt (State Bar No. 291593) 

mprewitt@cuneolaw.com 

16 Court Street, Suite 1012 

Brooklyn, NY 11241 

(202) 789-3960 

MEHRI & SKALET 

Jay Angoff (admitted pro hac vice) 

jay.angoff@findjustice.com 

1250 Connecticut Avenue, NW, Suite 300 

Washington, D.C. 20036 

(202) 822-5100 

Attorneys for Plaintiffs and the Proposed Class 

Case 4:17-cv-00618-PJH Document 69 Filed 05/12/17 Page 30 of 30