UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

INTEGRATED ORTHOPEDICS, INC., 

on behalf of itself and a certified class of 

others similarly situated,

Plaintiff,

v.

UNITEDHEALTH GROUP, et al., 

Defendants.

Civil Action No.: 11-425 (ES)(JAD)

Motion Date: September 8, 2020

PLAINTIFF’S MEMORANDUM IN SUPPORT OF UNOPPOSED MOTION 

FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

D. Brian Hufford

Jason S. Cowart

ZUCKERMAN SPAEDER LLP

485 Madison Avenue, 10th Fl.

New York, NY 10022

Tel: (212) 704-9600

Fax: (212) 704-4256

Andrew N. Goldfarb

ZUCKERMAN SPAEDER LLP

1800 M Street, NW, Suite 1000

Washington, DC 20036

Tel: (202) 778-1800

Fax: (202) 822-8106

John W. Leardi, Esq.

Vincent N. Buttaci, Esq.

Paul D. Werner, Esq.

BUTTACI LEARDI & WERNER LLC

212 Carnegie Center, Suite 202

Princeton, NJ 08540

Tel: (609) 799-5150

Fax: (609) 799-5180

Anthony F. Maul 

THE MAUL FIRM, P.C.

101 Broadway, Suite 3A

Oakland, CA 94607 

Tel: (510) 496-4477

Attorneys for Plaintiff

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 1 of 29 PageID: 19851
i

TABLE OF CONTENTS

Page

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

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

A. ERISA Notice and Appeal Rights.........................................................2

B. United’s Repayment Requests ..............................................................3

C. Procedural History of This Action ........................................................5

D. Mediation and Settlement Negotiations................................................7

SUMMARY OF THE SETTLEMENT.....................................................................7

A. Main Provisions—Injunctive Relief and Release .................................7

B. Other Provisions..................................................................................10

ARGUMENT...........................................................................................................12

LEGAL STANDARD FOR PRELIMINARY APPROVAL........................12

THE PROPOSED SETTLEMENT SATISFIES THE STANDARD 

FOR PRELIMINARY APPROVAL.............................................................14

A. The Class Representative and Class Counsel Have Adequately 

Represented the Class..........................................................................15

B. The Settlement Was Negotiated at Arm’s Length. .............................16

C. The Relief Provided for the Class Is Adequate...................................17

1. The recovery for the Class is exceptional.................................18

2. Costs, risks, and delay of trial and appeal.................................18

3. Proposed award of attorneys’ fees and expenses......................19

D. The Settlement Treats Class Members Equitably Relative to 

Each Other...........................................................................................20

E. The Girsh Factors Either Support Preliminary Approval, Are 

Inapplicable, Or Are Premature for Consideration at This Stage. ......21

THE NOTICE PLAN SATISFIES RULE 23 ...............................................22

PROPOSED SCHEDULE.............................................................................24

CONCLUSION........................................................................................................25

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 2 of 29 PageID: 19852
ii

TABLE OF AUTHORITIES

Page(s)

CASES

2012 WL 135608 (D.N.J. Apr. 4, 2012)....................................................................3

2014 WL 4271970 (D.N.J. Aug. 28, 2014) ...................................................... 3, 4–5

2014 WL 7073439 (D.N.J. Dec. 15, 2014)................................................................3

292 F.R.D. 204 (D.N.J. 2013)....................................................................................3

Alves v. Main, No. 01-789,

2012 WL 6043272 (D.N.J. Dec. 4, 2012),

aff’d, 559 F. App’x 151 (3d Cir. 2014)................................................................16

Atis v. Freedom Mortg. Corp., Civil No. 15-03424 (RBK/JS),

2018 WL 5801544 (D.N.J. Nov. 6, 2018)............................................................12

Bredbenner v. Liberty Travel, Inc., No. 09-905 (MF),

2011 WL 1344745 (D.N.J. Apr. 8, 2011)...................................................... 20–21

City of Detroit v. Grinnell Corp.,

495 F.2d 448 (2d Cir. 1974).................................................................................14

Girsh v. Jepson,

521 F.2d 153 (3d Cir. 1975).................................................................... 13–14, 21

Nyby v. Convergent Outsourcing, Inc.,Civ. No. 15-886 (ES) (MAH),

2017 WL 3315264 (D.N.J. Aug. 3, 2017)............................................................14

Shapiro v. All. MMA, Inc., Civil No. 17-2583 (RBK/AMD),

2018 WL 3158812 (D.N.J. June 28, 2018) ................................................... 12, 13

Udeen v. Subaru of Am., Inc., No. 18-17334 (RBK/JS),

2019 WL 4894568 (D.N.J. Oct. 4, 2019).............................................................13

STATUTES

29 C.F.R. § 2560.503-1..................................................................................... 2–3, 8

29 U.S.C. § 1132........................................................................................................9

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 3 of 29 PageID: 19853
iii

29 U.S.C. § 1133........................................................................................................2

RULES

Fed. R. Civ. P. 23............................................................................................. passim

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 4 of 29 PageID: 19854
1

7376377.1

Plaintiff-Class Representative Integrated Orthopedics, Inc. (“Named 

Plaintiff,” “Class Representative,” or “IO”), by its undersigned counsel, submits this 

Memorandum in Support of its Unopposed Motion for Preliminary Approval of 

Settlement.

INTRODUCTION

This class action concerns the notice and appeal rights that United, as the 

ERISA claims administrator to thousands of discrete ERISA plans, gives to an outof-network (“ONET”) provider when United claims to have overpaid the provider 

and requests a refund. When the provider fails to return the requested money, United 

often offsets future payments, i.e., withholding money due the provider for treating 

other United insureds in order to recover the claimed overpayment. Under the 

practices challenged in this case, when United sent a repayment request, it did not 

give ONET providers the notice and appeal rights required under the Employee 

Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. (“ERISA”) or 

regulations promulgated thereunder, 29 C.F.R. § 2560.503-1 (the “ERISA Claims 

Regulation”). As a result, ONET providers have often lacked important information 

about United’s request for a refund and how (if at all) United’s determination could 

be challenged. This case was brought to address this problem. 

After nine years of contentious litigation and protracted settlement 

negotiations, the parties have executed a settlement (copy attached hereto as Exhibit 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 5 of 29 PageID: 19855
2

A) (the “Settlement Agreement” or “Settlement”) that accomplishes this case’s 

objectives. The Settlement will significantly increase the information available to 

ONET providers facing United repayment demands compared to the challenged 

practices. The Settlement requires United to give Class members full notice and 

appeal rights for recent Claim Redeterminations. And critically, it also establishes 

easy-to-follow mechanisms for Class member and other ONET providers to obtain 

notice and appeal rights as authorized representatives of their patients in the future.

In short, the Settlement will ensure greater transparency in health insurance 

claims processing, and level the playing field in disputes between providers and 

United. By any measure, the Settlement is fair, reasonable, and adequate.

FACTUAL BACKGROUND

A. ERISA Notice and Appeal Rights

Section 503 of ERISA, 29 U.S.C. § 1133, requires every ERISA plan to 

“provide adequate notice in writing” concerning the denial of benefits and afford “a 

full and fair review” including an appeal of that denial decision. The ERISA Claims 

Regulation, 29 C.F.R. § 2560.503-1, implements that statutory mandate by requiring 

Plan fiduciaries like United to provide written notification “of any adverse benefit 

determination” that contains specified information “in a manner calculated to be 

understood” by the recipient, including:

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 6 of 29 PageID: 19856
3

• “The specific reason or reasons for the adverse determination;”

• “Reference to the specific plan provisions on which the 

determination is based;”

• “A description of any additional material or information 

necessary” to perfect the claim; 

• “A description of the plan’s review procedures and the time 

limits applicable to such procedures,” including notification that 

the claimant has a right to bring a civil action under ERISA to 

challenge the decision; and

• Making available, free of charge, copies of any “internal rule, 

guideline, protocol, or similar criterion [that] was relied upon in 

making the adverse determination.”

29 C.F.R. § 2560-503.1(g)(1)(i)-(v). These due process requirements that 

apply whenever an ERISA fiduciary denies all or part of a reimbursement claim are 

referred to herein as “ERISA notice and appeal rights.”

B. United’s Repayment Requests

United’s policies and practices concerning its overpayment determinations 

and repayment requests are described in various opinions the Court has issued in this 

case. See, e.g., 2012 WL 135608 (D.N.J. Apr. 4, 2012); 292 F.R.D. 204 (D.N.J. 

2013); 2014 WL 4271970 (D.N.J. Aug. 28, 2014); and 2014 WL 7073439 (D.N.J. 

Dec. 15, 2014). In short, United insures and/or administers healthcare plans that are 

subject to ERISA (a “Plan” or “United Plan”). When a claim for benefits is submitted 

by an ONET provider on behalf of her patient, United adjudicates the claim and, if 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 7 of 29 PageID: 19857
4

it determines that benefits are owed, causes the plan it is administering to pay such 

benefits to the ONET provider. 

Later, United sometimes decides that its prior adjudication of the claim was 

inaccurate and that it overpaid the provider (an “Overpayment Determination”). In 

such cases, United sends the ONET provider a written repayment request (a 

“Repayment Request”). The Repayment Request identifies the date of the alleged 

overpayment, requests a refund, and threatens to recover the alleged overpayment 

through an involuntary offset of a future payment if the provider does not send 

United the requested amount by a certain date. Decl. of Andrew N. Goldfarb in Supp. 

of Pl.’s Mot. for Prelim. Approval ¶ 3 (“Goldfarb Decl.”). Evidence adduced by 

Plaintiff shows that, as of 2015, United was annually sending approximately 1.6 

million Repayment Requests; and, in 2011 alone, United collected more than $180 

million in resulting involuntary offsets, including about $31 million against out-ofnetwork providers. Goldfarb Decl. ¶ 4.

Plaintiff’s central allegation in this case was that United was required to—but 

did not—comply with the ERISA Claims Regulation in the context of Repayment 

Requests. Among other things, Plaintiff alleged, and the Court found, that United’s 

requests failed to reference the specific reasons or plan provisions on which the 

overpayment determination was based, did not describe “additional material or 

information necessary” to perfect the claim, and did not inform providers who are 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 8 of 29 PageID: 19858
5

assignees or authorized representatives for their patients that they have the right to 

an ERISA appeal, or that, after exhaustion of their appeals, such providers can bring 

a civil action to challenge the overpayment determination. E.g., 2014 WL 4271970

at *19–20. United has denied that ERISA § 503 or the ERISA Claims Regulation 

applies to its Repayment Requests on the ground that only Plan beneficiaries (i.e., 

patients) are entitled to such rights.

C. Procedural History of This Action 

After extensive pre-litigation investigation and review of documents, a group 

of plaintiffs commenced this lawsuit on January 24, 2011. (ECF 1.) The operative 

compliant in this case (the Second Amended Complaint, or “SAC”) was filed on 

April 15, 2013, and one of the named plaintiffs was Tri3. (ECF 206.) The SAC 

alleged, inter alia, that United failed to comply with ERISA § 503 and the ERISA 

Claims Regulation by failing to make required disclosures in connection with 

Repayment Requests and failing to provide “full and fair review” of United’s 

overpayment determinations. Id. 

After extensive discovery, negotiated stipulations by the parties and orders by 

this Court, and multiple rounds of class certification briefing, on August 28, 2014, 

this Court granted plaintiffs’ motion to certify an ONET Repayment Demand Class, 

which was defined to be providers with unresolved Repayment Requests. 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 9 of 29 PageID: 19859
6

See ECF 308 at 44 n.25; ECF 295 (describing class definition).1 The certification 

was subject to submission of additional evidence that Tri3 had a claim that fit within 

the definition of the Class. (ECF 308.)

On December 2, 2014, this Court entered an order granting the unopposed 

motion filed by plaintiffs to substitute IO in place of Tri3 as Named Plaintiff and 

Class Representative. (ECF 319.) On December 15, 2014, the Court entered an order 

vacating the August 28, 2014 class certification order and unconditionally certifying 

the Class under Rule 23(b)(1) and (b)(2), with IO as Class Representative. (ECF 

321.)

Extensive discovery was taken by both sides, during both the class 

certification and merits phases of this action. Collectively, the parties produced and 

reviewed over 11,600 documents consisting of approximately 162,000 pages. 

Goldfarb Decl. ¶ 5. The parties also took 27 separate depositions. Id.

On August 31, 2015, the parties filed cross-motions for summary judgment, 

and United filed a motion to decertify the Class. (ECF 348, 353, 355.) 

1 In certifying the Class, the Court recognized that membership in the Class 

would change as Repayment Requests were resolved, and the Court described how 

to account for that change as the litigation progressed. (ECF 308 at 46–47.) Pursuant 

to the Court’s solution, the Settlement Agreement fixes the Class as those with 

unresolved Repayment Requests as of the date of the Settlement Agreement. Agmt. 

§ I.e. As it did when it was appointed Class Representative in 2014, Named Plaintiff 

IO has such an unresolved Repayment Request. Goldfarb Decl. ¶ 11.

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 10 of 29 PageID: 19860
7

D. Mediation and Settlement Negotiations

At the same time the parties were actively litigating their dispute (2011–

2015), they were also actively discussing the possibility that the case could be 

settled. Over the years, they considered and rejected a variety of settlement 

approaches. 

In light of these considerations, on June 14, 2016, this Court stayed the action, 

terminated the August 31, 2015 motions (subject to reinstatement), and referred this 

case to mediation. This Court designated The Honorable Garrett E. Brown, Jr. of 

JAMS as mediator. (ECF 395.) In November 2018, in response to United’s request 

to extend the stay, the Court again referred the case to mediation before Judge 

Brown. (ECF 413.) On July 26, 2020, the parties executed the Settlement 

Agreement.

Plaintiff now seeks preliminary approval of the Settlement of this class action. 

SUMMARY OF THE SETTLEMENT

A. Main Provisions—Injunctive Relief and Release

The Settlement has two main features. 

First, it provides significant relief to members of the Class. For Class members 

who have a recent Claim Redetermination, the Settlement provides them with critical 

rights that will enable them to challenge the alleged overpayment that underlay the 

Repayment Request. Agmt. § II.c. United will provide Class members with a notice: 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 11 of 29 PageID: 19861
8

(i) stating that, with respect to recent Claim Redeterminations,2 United will treat 

them as Authorized Representatives3 of the relevant plan beneficiaries; (ii) providing

details about the Repayment Request and the bases for the Claim Redetermination; 

(iii) informing them that they may appeal the Claim Redetermination within 180 

days, that United will decide such an the appeal within 540 days, and that the Class 

member may then file an action under ERISA after exhaustion of the appeals; and 

(iv) stating that the Class member may request copies of additional information 

relevant to the Claim Redetermination. Id. § II.c(i). If a Class member files such an 

appeal United shall be subject to the requirements of the ERISA Claims Regulation,

and United will not recover the alleged overpayment as long as the appeal is pending, 

giving the provider important protection. Id. §§ II.c(ii), II.d. In short, Class members 

2 The parties agreed to use one year as the “lookback” period to identify recent 

Claim Redeterminations because that is the period of time when (a) in part due to 

United’s policy of adhering to state law time limits on its ability to recoup 

overpayments, Class Members are at the greatest risk of having the alleged 

overpayment recovered by United, via offset, collection, or otherwise; and 

(b) United has the maximum ability to provide the specified appeal rights. The 

twelve-month period is “approximate” only to reflect that United’s internal systems 

cannot show the exact date on which a reprocessed EOB was issued to a provider 

from its overpayment data system; United has agreed to determine the universe of 

eligible providers as closely as can be determined through reasonable effort. 

Goldfarb Decl. ¶ 9. 

3 The ERISA Claims Regulation specifies that claimants may appoint an 

“authorized representative” to act “on behalf of such claimant in pursuing a benefit 

claim or appeal of an adverse benefit determination.” 29 C.F.R. § 2560.503-1(b)(4). 

The term “Authorized Representative” as defined in the Settlement agreement 

reflects and includes that provision.

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 12 of 29 PageID: 19862
9

with a Recent Claim Redetermination will receive exactly the rights reflected in the 

ERISA Claims Regulation so that they have access to the critical information they 

need to meaningfully challenge the Repayment Request. 

The Settlement also provides Class members (and all ONET providers, not 

just Class members with a recent Claim Redetermination) with critical go-forward 

relief. It creates a mechanism by which United will recognize and accept an ONET 

provider as the authorized representative for his or her patients for all UNET system 

claims to the full extent consistent with the patient’s Authorized Representative 

Form. Pursuant to an Authorized Representative Form, the provider might gain 

rights to act on a patient’s behalf with respect to all benefit determinations covered 

by the scope of the authorization, the rights available to the patient under the ERISA 

Claims Regulation, the right to pursue appeals of benefit determinations and to 

obtain related records, and to file claims on a patient’s behalf for such medical or 

other healthcare service benefits, insurance, or healthcare benefit plan 

reimbursement, and the right to pursue any other applicable remedies for the patient, 

including under 29 U.S.C. § 1132. Id. §§ I.a, II.g; Ex. 5 to Settlement Agmt. To 

facilitate this relief, United has created a template Authorized Representative form 

that it will make available to providers through its website, and that it will accept to 

grant authorized representative status to the provider. Agmt. § II.g. The parties have 

also agreed that, as to Plans administered by United as of the Effective Date of the 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 13 of 29 PageID: 19863
10

Settlement, if the provider utilizes an “assignment of benefits” form with language 

that includes particular language (which is identified in Exhibit 6 to the Settlement 

Agreement), United will treat the provider as an authorized representative, 

regardless of the document’s effectiveness as an assignment of benefits. Id. 

Second, in exchange for this relief, the Settlement provides United with a 

reasonable release of claims by the Class. Id. § I.t. (definition of Released Class 

Claims); id. § III.h. The Class will release any claims seeking injunctive or 

declaratory relief for United’s alleged failure to afford notice and appeal rights set 

forth in the ERISA Claims Regulation with respect to any Overpayment 

Determination identified in United’s UNET system. Importantly, excluded from the 

release are claims for denial for benefits, claims brought under ERISA after 

administrative appeal of a Claim Redetermination, and claims that challenge 

United’s policy and practice of offsetting payments for new and unrelated claims as 

a means to recover an alleged overpayment. Id. § I.t.

B. Other Provisions

Notice and objection procedures. If the Court preliminarily approves the 

Settlement, United will provide individual mailed notice to Class members, based 

on contact information in United’s records. Id. § III.c.; Ex. 1. The Short Form Notice 

will summarize the substantive provisions of the Settlement, explain that Class 

members may object to the settlement, and direct Class members to the settlement 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 14 of 29 PageID: 19864
11

website for more information. Ex. 1. The Settlement Website will contain more 

detailed information (i.e., the Long Form Notice) about the Settlement, the objection 

procedures, and time deadlines, as well as key case documents and contact 

information for the parties’ counsel and Settlement Administrator. Agmt. §§ III.c–

d.; Ex. 2 (Long Form Notice).4

Payment of a portion of Class Counsel’s fees and expenses. The Settlement 

provides for payment by United of $4,210,000 to Class Counsel, subject to Court 

approval. Agmt. § II.h. This is only about 52% of the fees and expenses incurred on 

behalf of Plaintiff and the Class. 

Incentive award for Named Plaintiff. The Settlement also provides for an 

incentive award to the Named Plaintiff of $40,000 in recognition of its services as 

the Class Representative. Id. § II.i. The Named Plaintiff participated actively in this 

long-running litigation, including having three different personnel prepare and sit 

for lengthy depositions. It kept abreast of developments in the case, and oversaw 

Class Counsel’s efforts, in order to promote and protect the Class’s interests. 

Dismissal of severed claims. The Settlement provides for the dismissal of 

other claims that were severed from this case. Id. § II.j.

4 The Court certified the Class under Rule 23(b)(1) and (b)(2) and did not 

provide an opt-out right. 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 15 of 29 PageID: 19865
12

ARGUMENT

LEGAL STANDARD FOR PRELIMINARY APPROVAL

Review of a proposed class action settlement is a two-step process: (1) 

preliminary approval and (2) a subsequent fairness hearing. Atis v. Freedom Mortg.

Corp., Civil No. 15-03424 (RBK/JS), 2018 WL 5801544, at *2 (D.N.J. Nov. 6, 

2018). At the first stage, the Court makes a preliminary evaluation of whether it is 

likely to find the proposed settlement fair, reasonable, and adequate. Id. If it 

preliminarily approves the proposed settlement, the Court directs that notice be 

provided to the class, to afford class members an opportunity to be heard on or object 

to the settlement. Id.; Fed. R. Civ. P. 23(c)(2), (e)(1), (e)(5). At the second stage, 

after class members are notified of the settlement, the Court holds a formal fairness 

hearing where the Court, after consideration of any objections from Class members, 

decides if the settlement merits final approval as “fair, reasonable, and adequate.” 

See Shapiro v. All. MMA, Inc., Civil No. 17-2583 (RBK/AMD), 2018 WL 3158812, 

at *3 (D.N.J. June 28, 2018); Fed. R. Civ. P. 23(e)(2). 

Under Rule 23, the Court should order that notice be given to the Class if 

Plaintiff shows that the Court will likely be able to approve the proposed Settlement 

as “fair, reasonable, and adequate” under the factors set out in Rule 23(e)(2). Fed. 

R. Civ. P. 23(e)(1)(B)(i). The Rule 23(e)(2) factors are whether:

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 16 of 29 PageID: 19866
13

(A) the class representatives and class counsel have 

adequately represented the class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking 

into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of 

distributing relief to the class, including the 

method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s 

fees, including timing of payment; and

(iv) any agreement required to be identified under 

Rule 23(e)(3); and

(D) the proposal treats class members equitably relative 

to each other.

As preliminary approval is not binding, it is granted unless a proposed settlement is 

“obviously deficient.” Udeen v. Subaru of Am., Inc., No. 18-17334 (RBK/JS), 2019 

WL 4894568, at *2 (D.N.J. Oct. 4, 2019) (internal citations omitted); Shapiro, 2018 

WL 3158812, at *2.

The identification of factors governing approval of a class settlement in 

Rule 23 is not intended to displace factors that the Circuits have used to assess 

settlements, but rather “to focus the court and the lawyers on the core concerns of 

procedure and substance that should guide the decision whether to approve the 

proposal.” Fed. R. Civ. P. 23, advisory committee’s note to 2018 amendment 

(Subdivision (e)(2)). Consistent with the Rule 23(e)(2) factors, the Third Circuit 

requires a court to evaluate whether a settlement is fair, reasonable, and adequate by 

applying the following factors:

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 17 of 29 PageID: 19867
14

(1) the complexity, expense and likely duration of the 

litigation; (2) the reaction of the class to the settlement; (3) 

the stage of the proceedings and the amount of discovery 

completed; (4) the risks of establishing liability; (5) the 

risks of establishing damages; (6) the risks of maintaining 

the class action through the trial; (7) the ability of the 

defendants to withstand a greater judgment; (8) the range 

of reasonableness of the settlement fund in light of the best 

possible recovery; [and] (9) the range of reasonableness of 

the settlement fund to a possible recovery in light of all the 

attendant risks of litigation.

Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975) (quoting with approval City of 

Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)); Nyby v. Convergent 

Outsourcing, Inc., Civ. No. 15-886 (ES) (MAH), 2017 WL 3315264, at *7 (D.N.J. 

Aug. 3, 2017).

Plaintiff will first review the Rule 23(e)(2) factors, then address any of the

non-duplicative Girsh factors. 

THE PROPOSED SETTLEMENT SATISFIES THE STANDARD FOR 

PRELIMINARY APPROVAL.

The Settlement easily satisfies the factors set out in Rule 23(e)(2). The Court 

is more than likely to conclude that it is fair, reasonable, and adequate. As a result,

the Court should preliminarily approve the Settlement and order that notice be given 

to the Class. 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 18 of 29 PageID: 19868
15

A. The Class Representative and Class Counsel Have Adequately 

Represented the Class.

The Court is likely to find that both the Class Representative and Class 

Counsel have adequately represented the Class, contributing substantially to the 

favorable outcome reflected in the Settlement. 

Class Representative. In its December 2014 decision certifying the Class, the 

Court found that IO fit within the class definition and that the Class met all of the 

Rule 23 requirements for certification, including the “adequacy of representation” 

requirement of Rule 23(a). (ECF 320 at 12.) Soon thereafter, the parties undertook 

an extensive and intensive period of discovery in 2015. Three IO personnel sat for 

lengthy depositions—one IO executive gave two depositions—and IO followed case 

developments throughout the case. See Goldfarb Decl. ¶ 8. In short, nothing has 

changed since the Court’s conclusion that IO is an appropriate Class Representative: 

IO continues to fit within the Class definition, id ¶ 11, and has responsibly performed 

its Class Representative duties since its appointment. This requirement is easily 

satisfied. 

Class Counsel. In the original class certification decision, the Court found that 

counsel for the Class—Zuckerman Spaeder LLP, Buttaci Leardi & Werner, PLLC, 

and The Maul Firm, P.C.—had “advocated vigorously and admirably” in favor of 

the Class. ECF 308 at 42 n.22. As with IO, nothing has changed since then. After 

securing certification of the Class, Class Counsel continued its advocacy for the 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 19 of 29 PageID: 19869
16

Class. Class Counsel conducted extensive fact and expert discovery concerning the 

merits of the case, uncovering evidence that supported the motion for partial 

summary judgment that Plaintiffs filed in August 2015. Goldfarb Decl. ¶ 9. The 

focused efforts and expertise of Plaintiff’s counsel put Plaintiff in a strong position 

to prevail on summary judgment or at trial. It also positioned Plaintiff well for the 

negotiations that culminated in this Settlement. 

B. The Settlement Was Negotiated at Arm’s Length.

The case was filed in 2011. The parties litigated aggressively for five and a 

half years until June 2016, when the Court stayed the case and ordered the parties to 

mediate under the supervision of JAMS’s Judge Brown. During the mediation and 

the arm’s-length negotiations that followed, both sides had information produced in 

discovery or for purposes of settlement that enabled them to evaluate the strengths 

and weaknesses of their respective cases. The parties were meaningfully aided in 

their negotiations by Judge Brown. See Alves v. Main, No. 01-789, 2012 WL 

6043272, at *22 (D.N.J. Dec. 4, 2012), aff’d, 559 F. App’x 151 (3d Cir. 2014) (“The 

participation of an independent mediator in settlement negotiations virtually 

[e]nsures that the negotiations were conducted at arm’s length and without collusion 

between the parties.”) (citations omitted).

Plaintiff was well informed during this process. Plaintiff engaged in 

aggressive fact discovery in the months after class certification, deposing over 20 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 20 of 29 PageID: 19870
17

people and gathering significant documentary evidence, all of which informed its 

decision to move for partial summary judgment. In short, Plaintiff went into the 

mediation and settlement negotiations armed with years of evidence to support its 

claims, and drew on that evidence during the settlement process. 

Goldfarb Decl. ¶ 10. Plaintiff agreed to the Settlement only after it had secured the 

meaningful injunctive relief for the Class that prompted the suit originally.

C. The Relief Provided for the Class Is Adequate.

The Court is likely to find that the relief obtained for the Class easily satisfies 

the “adequacy” standard in Rule 23(e)(2), taking into account: the costs, risks, and 

delay of trial and appeal; the effectiveness of any proposed method of distributing 

relief to the class, including the method of processing class-member claims; the 

terms of any proposed award of attorney’s fees, including timing of payment; and 

the equal treatment of all Class members. Fed. R. Civ. P. 23(e)(2)(C). 

As noted above, Plaintiff brought this case with a single objective: obtaining 

basic due process rights for providers who were subject to Repayment Requests. 

That objective has been achieved. Previously, when United issued a Repayment 

Request to a provider, based on United’s conclusion that it had previously overpaid 

the provider for previous services, the provider lacked access to the information 

necessary to contest the repayment—including the terms of the Plan at issue or 

precise reason for the Repayment Request. According to United, such information 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 21 of 29 PageID: 19871
18

was only owed to the provider’s patient. This created a problem, however, because 

Repayment Request are generally sent to providers, not patients. As a result, 

providers were deprived of basic information necessary to understand and 

meaningfully respond to the request. The Settlement remedies that problem. 

1. The recovery for the Class is exceptional. 

The Settlement provides the relief that Plaintiff sought through the litigation. 

It not only gives Class members who are the subject of unresolved Overpayment 

Determinations an immediate set of procedures and rights to allow them to 

meaningfully challenge United’s recent Claim Redeterminations, it establishes a 

mechanism by which, going forward, United will recognize ONET providers as the 

“authorized representatives” of their patients and afford them ERISA rights. 

2. Costs, risks, and delay of trial and appeal.

This case has gone on long enough. After nine years, Plaintiff has secured via 

settlement essentially all of the relief it sought at summary judgment or would have 

requested after a trial. 

Although Plaintiff believes it would have had a strong chance of prevailing at 

summary judgment, trial, and on any subsequent appeals, the Class would face both 

procedural and substantive obstacles to obtaining a final judgement. First, Plaintiff 

would have to defeat United’s summary judgment motion. Second, it is likely that 

United would seek to narrow or de-certify the Class, including by challenging 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 22 of 29 PageID: 19872
19

providers’ standing to pursue ERISA remedies for their patients, given (i) the 

variation in assignment-of-benefits agreements upon which the providers depend to 

assert their claims, and (ii) anti-assignment provisions in United health plans. 

Assuming a decision for Plaintiff on liability, the parties would then litigate the 

precise contours of the procedural remedy. Plaintiff would also have to defeat 

United’s likely post-trial appeals, which would include attempts to decertify the 

Class and to reverse any judgment or remedy ordered by the Court. Thus, Plaintiff 

estimates that, even if successful, it would take more than two years to obtain a final 

judgment. Only thereafter would United begin affording Class members basic notice 

and appeal rights. 

Against this backdrop, the Settlement is more than adequate. Settlement 

eliminates the risk that the litigation could end unsuccessfully, with no relief for the 

Class. At the same time, the scope of the release is fair to both parties. In 

consideration for the substantial benefits to Class members, the Settlement allows

United to eliminate legal risks arising from or relating to its refusal to grant ERISA 

rights to providers in the context of Repayment Requests. 

3. Proposed award of attorneys’ fees and expenses.

The Court is also likely to find Plaintiff’s request that Class Counsel receive 

an award of $4.21 million for fees and expenses to be fair, reasonable, and adequate. 

United will pay this money to Class Counsel, and it will not diminish any relief to 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 23 of 29 PageID: 19873
20

the Class or disadvantage Class members in any way. Indeed, the requested award 

is only about 52% of the total fees and costs incurred by Plaintiff’s counsel. Given 

the relief that Class Counsel has achieved for the Class, and the investment of time 

and resources by Class Counsel with substantial risk of non-recovery, the Court is 

highly likely to find that Counsel’s request to receive only about half of its lodestar 

plus expenses is eminently reasonable.

Under the proposed schedule, Plaintiff will file, in advance of the deadline for 

objections, a detailed motion supporting the request to award Class Counsel the 

attorneys’ fees and expenses. Class members will be able to evaluate the fee and 

expense request when deciding whether to object to the Settlement.

D. The Settlement Treats Class Members Equitably Relative to Each 

Other. 

The Settlement Agreement does not improperly grant preferential treatment 

to the named Plaintiff or segments of the Class. All Class members will receive the 

same relief. 

For the reasons discussed supra, IO has earned the proposed incentive award 

to reflect its important contribution to the successful resolution of this case. As part 

of the motion for attorneys’ fees and expenses, Plaintiff will support the 

reasonableness of the proposed incentive award. See, e.g., Bredbenner v. Liberty 

Travel, Inc., No. 09-905 (MF), 2011 WL 1344745, at *22 (D.N.J. Apr. 8, 2011)

(recognizing that incentive awards “compensate named plaintiffs for the services 

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 24 of 29 PageID: 19874
21

they provided and the risks they incurred during the course of class action litigation,”

and “reward the public service of contributing to the enforcement of mandatory 

laws.”) (citations omitted).

E. The Girsh Factors Either Support Preliminary Approval, Are 

Inapplicable, Or Are Premature for Consideration at This Stage. 

As quoted supra, the Girsh factors are:

(1) the complexity, expense and likely duration of the 

litigation; (2) the reaction of the class to the settlement; (3) 

the stage of the proceedings and the amount of discovery 

completed; (4) the risks of establishing liability; (5) the 

risks of establishing damages; (6) the risks of maintaining 

the class action through the trial; (7) the ability of the 

defendants to withstand a greater judgment; (8) the range 

of reasonableness of the settlement fund in light of the best 

possible recovery; [and] (9) the range of reasonableness of 

the settlement fund to a possible recovery in light of all the 

attendant risks of litigation.

521 F.2d at 157. The foregoing discussion addresses most of the Girsh factors, 

including the first, third, fourth, and eighth factors. As the Class is receiving 

significant and valuable procedural rights in the Settlement—and neither sought nor 

obtained money—several of the factors (seventh, fifth, and ninth) have limited 

applicability. In its motion for final approval, Plaintiff will address the second factor, 

the reaction of the Class to the Settlement. 

The Court therefore should find, as a preliminary matter, that it is likely to 

approve the proposed Settlement as fair, adequate, and reasonable.

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 25 of 29 PageID: 19875
22

THE NOTICE PLAN SATISFIES RULE 23

Rule 23(e)(1)(B) requires that the Court direct that notice be given to class 

members who would be bound by the Settlement “in a reasonable manner.” For 

classes certified under Rule 23(b)(1) or (b)(2), notice must be “appropriate.” 

Fed. R. Civ. P. 23(c)(2)(A). Here, the Settlement provides for two types of notice to 

the Class: 

1. Short Form Notice (Exhibit 1): The Settlement Administrator5

will send the Short Form Notice directly to the persons on the Class List via first 

class mail. The Short Form Notice summarizes the nature of the action and the right 

to object to the Settlement, and the time deadline for doing so; contains contact 

information for Class counsel; and directs Class members to a Settlement website

for more detailed information. 

2. Settlement Website with Long Form Notice (Exhibit 2): Pursuant 

to Rule 23(c)(2)(B), the Settlement website will provide the Long Form Notice, 

which contains a detailed description of (a) the nature of the action; (b) the definition 

of the class certified; (c) the class claims, issues, or defenses; (d) the main terms of 

the Settlement; (e) how a Class member may enter an appearance through an attorney 

5 Plaintiff requests that the Court appoint A.B. Data, Ltd. as the Settlement 

Administrator. A.B. Data has extensive experience executing notice plans and 

administering class action settlements effectively and efficiently. See 

www.abdataclassaction.com; Goldfarb Decl. ¶ 12.

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 26 of 29 PageID: 19876
23

if the member so desires; (f) the time and manner for objecting to the Settlement; (g) 

information about the fairness hearing; and (g) the binding effect of a class judgment 

on members under Rule 23(c)(3). The Long Form Notice conforms to the form 

recommended by the Federal Judiciary Center 

(see, e.g., https://www.fjc.gov/content/301253/illustrative-forms-class-actionnotices-introduction).

The proposed notice is the best notice practicable because the Short Form 

Notice will provide direct notice to Class members of this action and the proposed 

Settlement, using United’s records to identify the names and addresses of Class 

members.

6 The Long Form Notice and the other information available on the 

Settlement website will provide all the information required to be disseminated by 

Rule 23(c)(2)(B), as well as the Stipulation and Settlement and other valuable 

information and relevant Court pleadings. As a result of the proposed notice 

procedure, Plaintiffs believe that most (if not all) Class members will receive direct 

notice of the proposed Settlement. The proposed notice procedure is the best—and 

only reasonable—procedure under the circumstances.

6

 For Class members on the Class List whose mailed Notice is returned as 

undeliverable, the Settlement Administrator will use its best efforts to locate updated 

addresses and send the Notice to such Class members at their new addresses.

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 27 of 29 PageID: 19877
24

PROPOSED SCHEDULE

Plaintiff proposes the following schedule for the period leading up to the 

fairness hearing at which the Court will consider whether to grant final approval to 

the proposed Settlement. 

DATE EVENT

Day 1 Order entered granting preliminary approval

Day 30 Last day to provide Class notice

Day 50 Plaintiff files request for attorneys’ fees and expenses 

and incentive award for Class Representative

Day 70 Last day for Class members to object to Settlement

Day 90 Last day for Plaintiff to file a motion for final 

approval of the Settlement and to respond to 

objections

Day 105 or 

after

Fairness hearing

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 28 of 29 PageID: 19878
25

CONCLUSION

For the foregoing reasons, the Court should: (i) grant preliminary approval to 

the proposed Settlement Agreement; (ii) approve the proposed schedule concerning 

notice and objection deadlines; (iii) appoint AB Data, Ltd. as the Settlement 

Administrator; and (iv) set a hearing for final approval of the Settlement. A proposed 

order is attached as Exhibit A to the Settlement Agreement. 

Respectfully submitted,

Dated: August 5, 2020

D. Brian Hufford

Jason S. Cowart

ZUCKERMAN SPAEDER LLP

485 Madison Avenue, 10th Fl.

New York, NY 10022

Tel: (212) 704-9600

Fax: (212) 704-4256

Andrew N. Goldfarb

ZUCKERMAN SPAEDER LLP

1800 M Street, NW, Suite 1000

Washington, DC 20036

Tel: (202) 778-1800

Fax: (202) 822-8106

/s/ John W. Leardi 

John W. Leardi, Esq.

Vincent N. Buttaci, Esq.

Paul D. Werner, Esq.

BUTTACI LEARDI & WERNER LLC

212 Carnegie Center, Suite 202

Princeton, NJ 08540

Tel: (609) 799-5150

Fax: (609) 799-5180

Anthony F. Maul 

THE MAUL FIRM, P.C.

101 Broadway, Suite 3A

Oakland, CA 94607 

Tel: (510) 496-4477

Attorneys for Plaintiff

Case 2:11-cv-00425-ES-CLW Document 421-1 Filed 08/05/20 Page 29 of 29 PageID: 19879