case 3:13-cv-00981-jah-jma document 35-3 filed 10/21/14 ......case 3:13-cv-00981-jah-jma document...

Case 3:13-cv-00981-JAH-JMA Document 35-3 Filed 10/21/14 Page 2 of 15

PLAINTIFF’S EXHIBIT APostcard Notice/Claim Form

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of

Rafael David Sherman, Individually and On Behalf of All Others Similarly Situated

v.Kaiser Foundation Health Plan, Inc. a/k/a Kaiser Permanente

3:13-cv-00981-JAH-JMA

Hyde & Swigart, San Diego, California (619) 233-7770


LEGAL NOTICE

If you are a former Kaiser Foundation Health Plan

member who received a call on your cell phone from or on

behalf of Kaiser that was made using an automatic telephone dialing system or an artificial or prerecorded voice, between April 24, 2009 and [Month 00,

2000], you could get a cash payment from a class action

settlement. A federal court authorized this notice.This is not a solicitation from a lawyer.

File your Claim on or before XXXX, XX, 201X at www.XXXXXX.com or

1- XXX-XXX- XXXX.

Carefully separate this Claim Form post card at the perforation

B a r c o d e C l a i m # : X X X - C l a i m I D F i r s t 1 L a s t 1

You may be eligible for a cash payment from this class action settlement. To complete this Claim Form, provide your name, current address and the cell phone number called between April 24, 2009 and Month 00, 0000 by the automatic telephone dialing system, sign and date the form and mail it by XXXX XX, 201X. Name (Required): (first) ______________________________ (last) ______________________________

Addresss (Required): (Street) ______________________________________________________________

(City) _________________________________ (ST) __________ (zip) _____________________________

Cellular Number (Required): ( _ _ _ ) - _ _ _ - _ _ _ _

Signature: Date:

Mail this Claim Form on or before XXXX XX, 201X.

First-Class Mail

US PostagePaid

Permit #__

Sherman v. Kaiser Foundation Health PlanClaims AdministratorP.O. Box XXXXXXXXXXXXXXX, XX XXXXXX

*XXXClaimID* XXXCRD01

XXX

BarcodePostal Service: Please do not mark barcode

Claim #: XXX- ClaimID - MailRecFirst1 Last1co Addr1 Addr2City, St ZipCountry


A Settlement has been reached by Plaintiff Rafael David Sherman (“Plaintiff”) and Defendant Kaiser Foundation Health Plan, Inc. (”Kaiser”) in a class action lawsuit claiming Kaiser violated the Telephone Consumer Protection Act (“TCPA”) by calling, or allowing other companies to call on its behalf, former Kaiser members on their cell phones using an automated telephone dialing system (“Autodialer”) or an artificial or prerecorded voice between April 24, 2009 and Month 00, 0000 (the “Class Period”) without their prior express consent. The court did not decide in favor of Plaintiff or Kaiser. Kaiser denies any violation. However, to settle the case, Kaiser will provide a Settlement Fund of $5,350,000.

Kaiser’s records indicate that you are included in the Settlement as a Class Member because it may have called you on your cell phone using an Autodialer or with an artificial or prerecorded voice during the Class Period and encouraged you to re-apply for Kaiser coverage or return at the next opportunity. People receiving this Notice are entitled to make a claim for a cash payment from this Settlement. To receive a payment you must complete and mail the attached Claim Form by XXXX, XX, 201X. Claims may also be submitted online at www.XXXXXX.com, by calling 800-xxx-xxx, or downloaded from www.XXXXXX.com, printed and mailed to the Claims Administrator. If the Court approves the Settlement, people who submit a valid Claim Form will be paid an equal distribution from the Settlement Fund—after the costs of litigation, notice, claims administration, attorneys’ fees and incentive award for the Class Representative are deducted—depending on the number of Claims submitted. Payment amounts will vary based on the total number of valid Claim Forms received. The Settlement is believed to involve approximately 864,412 Class Members. Potential damages under the TCPA are $500 for each negligent violation and up to $1,500 for each willful violation, plus injunctive relief. Based on historical claims rates, Class Counsel estimates that Class Members who submit valid Claim Forms may receive between $25 and $125.

If you do not want to be legally bound by the Settlement or to receive a payment from it, you must exclude yourself from it by XXXX, XX, 201X. Unless you exclude yourself, you will not be able to sue Kaiser and related entities for any claim made in this lawsuit or released by the Settlement Agreement. If you stay in the Settlement (i.e., don’t exclude yourself), you may object to it or you may ask for permission for you or your own lawyer to appear and speak at the hearing—at your own cost—but you do not have to. Objections and requests to appear are due by XXXX XX, 201X. More information is in the detailed notice and Settlement Agreement available at www.XXXXXX.com.The court will hold a Fairness Hearing on XXXX, XX, 201X, at X:XX a.m. at the U.S. District Court, Southern District of California, 333 West Broadway, San Diego, CA 92101, in Courtroom 13B to decide whether to approve: (1) the Settlement, (2) an award of attorneys’ fees of up to 25% of the $5,350,000 Settlement Fund, and costs of up to $25,000 incurred by Class Counsel, and (3) a $1,500 incentive payment to the Plaintiff and Class Representative Rafael David Sherman.

KFS

Sherman v. Kaiser Foundation Health PlanClaims Administrator

P.O. Box XXXXXXXXXXXXX, XX XXXXX-XXXX

First-ClassPostage

Required


PLAINTIFF’S EXHIBIT BQ&A Notice

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of



3:13-cv-00981-JAH-JMA



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA

Rafael David Sherman, individually and on behalf of all others similarly situated, v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente, Case No. 13-cv-00981-JAH-JMA.

A court authorized this notice. This is not a solicitation from a lawyer.

TO: All former Kaiser members within the United States who received one or more calls made with an automatic telephone dialing system or an artificial or prerecorded voice on their cellular telephones from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2008 through Month 00, 0000

The purpose of this Notice is: (a) to advise you of a proposed settlement (the "Settlement") of the civil action entitled Rafael David Sherman, individually and on behalf of all others similarly situated, v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente, Case No. 13-cv-00981-JAH-JMA (the “Action”) between Plaintiff Rafael David Sherman (“Plaintiff”) and Defendant Kaiser Foundation Health Plan (“Kaiser”); (b) to summarize your rights under the Settlement, including the possibility that you may receive a Settlement check; (c) to inform you of a court hearing to consider the final approval of the Settlement (the "Fairness Hearing” or “Final Approval Hearing"); (d) to advise you how to make a claim for a portion of the Settlement Fund; and (e) to advise as to how you can obtain additional information.

In the Action, Plaintiff alleges that Kaiser violated a provision of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227(b)(1)(A)(iii), by calling persons on their cellular phones with an automatic telephone dialing system or with an artificial or prerecorded voice without prior express consent (the "Calls").

Kaiser will fund a Settlement Fund of $5,350,000 to settle the claims alleged in this Action.

Settlement Class: Those persons in the Settlement Class are defined in the Settlement Agreement as:

All former Kaiser members within the United States who received one or more calls made with an automatic telephone dialing system or an artificial or pre-recorded voice on their cellular telephones from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2009 through the date of entry of a Preliminary Approval Order (hereinafter the “Class” or “Class Members”).

Excluded from the Settlement Class are Defendants, their parent companies, affiliates or subsidiaries, or any employees thereof, and any entities in which any of such companies has a controlling interest, the Judge or Magistrate Judge to whom the Action is assigned and any member of those Judges' staffs and immediate families, as well as all persons who validly request exclusion from the Settlement Class.

Kaiser’s records indicate that Calls were made to cell phone numbers associated with former Kaiser members. You have received a postcard notice of this Settlement because you may have received a Call from Kaiser. However, receiving the postcard notice of this Settlement does not necessarily mean you will have a claim for payment under the Settlement, but it does mean that you are a Class Member. Only those Class Members whose cell phone numbers were actually called are entitled to receive a monetary payment. If you submit a claim and identify your cell phone number, the Claims Administrator will confirm whether your cell phone number matches Kaiser's records as receiving a Call, and whether you are entitled to monetary compensation in this Action as a result.

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Under the Settlement, and subject to final Court approval, Kaiser will establish a Settlement Fund in the amount of $5,350,000 to pay the claims of Class Members, any reasonable attorneys’ fees and costs approved and awarded by the Court, any incentive award to Plaintiff approved and awarded by the Court, and the costs of claims administration. Subject to final Court approval, each Class Member who received a Call, and who submits a Valid Claim Form, will be paid from the Settlement Fund on a pro rata or equal basis. The Class may include as many as 864,412 persons. Based on historical claims rates, Class Counsel estimates that the payment to Class Members will be between $25.00 and $125. The actual payment amount will depend on: (1) the total number of Valid Claims received; and (2) the amount of Settlement Funds available after deducting the costs of settlement administration, any attorneys’ fees and costs awarded by the Court, and any incentive award to the Plaintiff approved by the Court.

Subject to Court approval, Class Counsel will request that Plaintiff receive an incentive award, not to exceed $1,500, in recognition of his efforts in litigating this case.

Also subject to Court approval, the Parties have agreed that Class Counsel in this Action may apply to the Court to be awarded attorneys' fees in an amount equal to 25% (twenty-five percent) of the $5,350,000 Settlement Fund . Kaiser will not oppose any such attorneys' fees request so long as it does not exceed that amount. Class Counsel shall also seek to be reimbursed from the Settlement Fund their costs of litigation incurred in the Action, not to exceed $25,000, and to pay the costs of Notice and Claims Administration from the Settlement Fund.

As detailed below, to make a claim for monetary payment, you can either (1) call [toll free number]; 2) go online to www._________.com; or 3) send a written claim by mail to the third party Claims Administrator, KCC, LLC, at the address shown below. Even if you received this Notice, to receive a monetary payment, you must be the person associated with the cell phone which was called by Kaiser. To make a claim, you must provide the number of the cell phone that you believe may have been called by Kaiser to the Claims Administrator. If Kaiser's records indicate your cell phone number was called, you may file a claim for monetary compensation. If you file a claim, you will be required to provide a current address for receiving settlement proceeds.

Upon final approval of the Settlement, the Action will be dismissed with prejudice and the individual Plaintiff and Class Members who do not request exclusion from the Class will be deemed to release and forever discharge Kaiser, their predecessors and successors, parent companies, subsidiaries, and all affiliated companies from any and all claims arising from the facts alleged in the Action that they have and/or could have asserted.

Your legal rights are affected whether you act or do not act. Read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:Do Nothing Stay in the lawsuit. Receive no payment.File a Claim Make a claim by _______, 20__, either online, by mail, or over the phone and

receive payment if you are an eligible Class Member and the Settlement is finally approved.

Go to a Hearing Ask to speak in Court about the fairness of the Settlement.Object Write to the Court and explain why you do not like the Settlement.Exclude Yourself Get no payment. This is the only option that allows you to ever be part of another

lawsuit involving the claims in this Action against Defendant.

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These rights and options – and the deadlines to exercise them – are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement.

WHAT THIS NOTICE CONTAINS

.............................................................................SUMMARY OF LAWSUIT AND SETTLEMENT 1

BASIC INFORMATION...................................................................................1. Why did I get a postcard with a Notice? 4

........................................................................................................2. What is this lawsuit about? 4...............................................................................................................3. What is a class action? 4

..................................................................................4. Why is there a Settlement and what is it? 4................................................................................5. Am I eligible to be part of the Settlement? 4

THE SETTLEMENT BENEFITS – WHAT YOU GET...........................................................................................6. What does the Settlement provide? 5

HOW YOU GET THE MONETARY PAYMENT .........................................................................................7. How can I get a monetary payment? 5

................................................................................................8. When would I get my payment? 6...................9. What am I giving up by getting my monetary payment and staying in the Class? 6

EXCLUDING YOURSELF FROM THE SETTLEMENT........................................................................................10. How do I get out of the Settlement? 6

............................11. If I do not exclude myself, can I sue Defendants for the same thing later? 7............................................................12. If I exclude myself, can I get the monetary payment? 7

THE LAWYERS REPRESENTING YOU..............................................................................................13. Do I have a lawyer in this case? 7

..........14. How will the lawyer be paid and what other costs are there to be paid and by whom? 7

OBJECTING TO THE SETTLEMENT ........................................15. Do the Class Representatives get paid anything for their services? 7

.............................................................16. If I want to object to the Settlement, how do I do so? 8...................................17. What's the difference between "objecting" and "excluding” yourself? 8

THE COURT'S FAIRNESS HEARING....18. When and where will the Court decide whether to give final approval to the Settlement? 8

...........................................................................................19. Do I have to come to the hearing? 8...............................................20. What if I want my own lawyer to attend the fairness hearing? 8

IF YOU DO NOTHING........................................................................................21. What happens if I do nothing at all? 9

GET MORE INFORMATION..........................................................................22. Are there more details about the Settlement? 9

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BASIC INFORMATION1. Why did I get a postcard notice?

You received a postcard notice because Kaiser's records indicate you may have received a Call on your cell phone from Kaiser between April 24, 2008 and Month 00, 0000 (the "Class Period") encouraging you to re-apply for Kaiser coverage or to return at the next opportunity. You may be entitled to a cash payment under the Settlement of this Action if you received a Call from Kaiser. If you believe you may have received a Call by Kaiser during the Class Period, you may contact the Claims Administrator to confirm whether your cell number was called. If Kaiser's records show your cell phone number was called during the Class Period, you may make a claim. If your cell number was not called during the Class Period, you are not eligible to make a claim.

The Court has given a preliminary approval to this proposed Settlement and ordered that the postcard notice be sent to persons whose names appear in Kaiser's records as a former member who received a Call on their cell phone with an automatic telephone dialing system or an artificial or prerecorded voice during the Class Period. The Court also ordered that this Notice to be placed on the Settlement website and published in a newspaper with nationwide circulation. As a Class Member, you have a right to know about a proposed Settlement of a class action lawsuit, and about all your options, before the Court decides whether to give final approval to the settlement. If the Court approves it, payments under the terms of the Settlement will be made.

This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

2. What is this lawsuit about?Plaintiff alleges that Kaiser violated the TCPA by calling persons on their cell phone numbers

either with an automatic telephone dialing system or an artificial or prerecorded voice, or both, without the prior express consent of those persons. Plaintiff seeks statutory damages of up to $500 for each call negligently made and up to $1,500 for each call made intentionally. Kaiser denies the allegations made in the lawsuit and further denies any violation of law or liability in the case.

3. What is a class action?In a class action, one or more people called "Class Representatives" (in this case, Plaintiff Rafael

David Sherman), sue on behalf of people who have similar claims. All these people are a "Class" or, in other words, "Class Members." One court resolves the issues for all Class Members, except for those who ask to be excluded from the Class. U.S. District Court Judge John A. Houston is the judge assigned to this lawsuit. He will decide whether this Settlement should be approved.

4. Why is there a Settlement and what is it?The case has been litigated, but there has been no trial, and the Court has not decided in favor of

Plaintiff or Kaiser, or whether the case should proceed as a class action. Instead, both sides have voluntarily agreed to a settlement before any trial, which provides for several benefits: Kaiser will establish a Settlement Fund of $5,350,000. The Settlement Fund will be used to pay the claims of Class Members, as well as the costs of Notice and claims administration, any award of attorneys' fees and costs of litigation incurred by Class Counsel approved by the Court, and any incentive award to Plaintiff approved by the Court. Each Class Member who received a Call, and who submits a Valid Claim Form, will be paid from the Settlement Fund on a pro rata or equal basis. Based on historical claims rates, Class Counsel estimates that the payment to Class Members will be between $25 and $125. The actual payment amount will depend on: (1) the total number of Valid Claims received; and (2) the amount of Settlement Funds available after deducting the costs of settlement administration, any attorneys’ fees and costs awarded by the Court, and any incentive award to the Plaintiff approved by the Court. Upon taking all matters into consideration, Plaintiff, as the Class Representative, and his attorneys think the Settlement is in the best interests of all Class Members.

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5. Am I eligible to be part of the Settlement?If you received the postcard notice by mail you are part of the Settlement Class as defined below.

However, that does not guarantee you are entitled to a monetary payment. Your cell phone number must have been called by Kaiser for you to qualify for the monetary payment.

Potential claimants for monetary payments may submit a claim and provide their cell phone numbers on the Claim Form, or prior to submitting a Claim Form, may check with the Claims Administrator to determine whether their cell phone number actually was called by Kaiser. Not every person who received Notice of Settlement is entitled to a payment from the Settlement. Only those persons whose cell phone numbers actually were called by Kaiser may receive a payment under the Settlement.

The Parties agreed and the Judge confirmed that the following persons should be included in the Settlement Class:

All former Kaiser members within the United States who received one or more automated calls or pre-recorded voice messages on their cellular telephones from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2008 through [the date of entry of a Preliminary Approval Order.]

Excluded from the Settlement Class are Defendants, their parent companies, affiliates or subsidiaries, or any employees thereof, and any entities in which any of such companies has a controlling interest, the Judge or Magistrate Judge to whom the Action is assigned and any member of those Judges' staffs and immediate families, as well as all persons who validly request exclusion from the Settlement Class.

THE SETTLEMENT BENEFITS – WHAT YOU GET

6. What does the Settlement provide?

The Settlement Agreement requires that Kaiser provide a Settlement Fund as follows:

Kaiser shall pay a maximum total amount of $5,350,000 to establish a Settlement Fund. The Settlement Fund will be used to pay Class Members who submit Valid Claims, as well as the costs of Notice and claims administration, any award of attorneys' fees and costs of litigation approved by the Court, and any incentive award to Plaintiff approved by the Court. Each Class Member who received a Call, and who submits a Valid Claim Form, will be paid from the Settlement Fund on a pro rata or equal basis. Based on historical claims rates, Class Counsel estimates that the payment to Class Members will be between $25.00 and $125. The actual payment amount will depend on: (1) the total number of Valid Claims received; and (2) the amount of Settlement Funds available after deducting the costs of settlement administration, any attorneys’ fees and costs awarded by the Court, and any incentive award to the Representative Plaintiff approved by the Court.

7. How can I get a monetary payment? To receive payment you must submit a timely claim. If you received a Call from Kaiser, you may

be entitled to a cash payment under the Settlement of this Action. You may submit a Claim Form in the following ways:

(1) Complete the Claim Form that you received in the mail, or downloaded from the settlement website at www.__________.com, and mail it to:

[Kaiser TCPA Settlement]

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KCC, LLC[Address]

(2) Call the Claims Administrator, KCC, LLC, at its toll-free number, 1-888-________, between the hours of 7:00 a.m. and 5:00 p.m. (Pacific Time). You can provide your cellular telephone number and the Claims Administrator will check it against the list of cellular telephone numbers called by Kaiser. If your cellular telephone number is on the list, you can submit a claim for payment at that time

(3) Submit a Claim Form online at the website www._________.com

In order to submit a valid Claim Formfor payment, you need to provide the following information: (1) your name; (2) the claim number on the postcard notice sent to you informing you about the Settlement (if received); (3) the cellular telephone number at which you received a Call from Kaiser; and (4) your current address for mailing the Settlement payment, if different from the postcard notice address. You may also provide a current telephone number if you wish to do so, in order to allow the Claims Administrator to contact you if there are any questions or problems.

The deadline to submit a claim is _______, 201_. All calls or online claims must be made on or before close of business on that date. If you submit your claim by mail, your claim must be postmarked on or before that date.

8. When would I get my payment? The Court will hold a "Final Approval" or "Fairness Hearing" on _____________________,

201_, to decide whether to grant final approval of the Settlement. If the Court grants final approval of the Settlement, and there is no appeal of the approval ruling, the ruling will become final by law in thirty days from the date of the ruling. The Claims Administrator will attempt to pay all claims within 30 days of the date the ruling becomes final, but there may be some delay beyond that date. If there are any appeals of the Court's approval of the Settlement, the approval order does not take effect until those appeals are resolved. It is always uncertain whether and when appeals would be resolved, and payment under this Settlement cannot be made until the approval order is final.

9. What am I giving up to get my monetary payment and staying in the Class?As an eligible Class Member, unless you exclude yourself, you are a member of the Class. That

means that you cannot sue, or be part of any other lawsuit against Kaiser that arises out of or relate in any way to the facts alleged in this Action, including the fact that Kaiser called you on your cellular telephone number using an automatic telephone dialing system and/or artificial or prerecorded voice. Individual calls that violate the TCPA could be worth up to $500 for negligent violation and $1,500 for willful violations. It also means that all of the Court's orders will apply to you and legally bind you. By staying in the Settlement Class, you agree to release claims, known and unknown, arising from the facts alleged in the Action. The full text of the Release of Claims sections of the Settlement Agreement are set forth in the Appendix at the end of this Notice.

You are releasing those "Released Claims" against the "Released Parties" which means Kaiser, and each of its past, present, and future directors, officers, employees, partners, principals, agents, underwriters, insurers, co-insurers, clients, re-insurers, shareholders, attorneys, and any related or affiliated company, including any parent, subsidiary, predecessor, or successor company, and all assigns, licensees, divisions, clients, joint ventures, and any entities directly or indirectly involved in the Lawsuit.

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EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want to participate in this Settlement, or you want to keep the right to sue or continue to sue Kaiser on your own, then you must take steps to get out of the Settlement. This is called "excluding yourself" from or "opting out" of the Class.

10. How do I get out of the Settlement?To exclude yourself from the Settlement, you must send a letter by mail saying that you want to

be excluded from the Settlement Sherman, et. al., v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente. Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later than _______, 201_ to the Claims Administrator at the following address:

[Kaiser TCPA Settlement]KCC, LLC[Address]

You cannot exclude yourself by telephone or email. If you ask to be excluded, you will not get any Settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this Action.

11. If I do not exclude myself, can I sue the Defendant for the same thing later?No. Unless you exclude yourself from the Settlement, you give up any right to sue Kaiser for the

claims that this Settlement resolves. If you have a pending lawsuit against either or both of these entities, and you are not certain if that lawsuit is about any of the issues in this case, speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is ________, 201_.

12. If I exclude myself, can I get the monetary payment? No. If you exclude yourself from the Settlement, you cannot get the monetary payment.

THE LAWYERS REPRESENTING YOU

13. Do I have a lawyer in this case?Yes. Joshua B. Swigart, of Hyde & Swigart, of San Diego, California; and Abbas Kazerounian of

The Kazerouni Law Group, APC, of Costa Mesa, California, have been approved by the Court to represent you and other Class Members. These lawyers are called Class Counsel.

14. How will the lawyers be paid and what other costs are there to be paid and by whom?You will not be charged individually for these lawyers, as they will ask the Court to award their

attorneys' fees and costs of litigation from the Settlement Fund obtained for the Class. Kaiser agrees to not object to any request of attorneys' fees by Class Counsel so long as it is less than or equal to $1,337,500, which is 25% (twenty-five percent) of the $5,350,000 Settlement Fund. Class Counsel intends to request the Court award an amount less than or equal to $1,337,500, for attorneys' fees at the Final Approval Hearing. Class Counsel also will ask that the Court award their costs of suit incurred in the Action, in an amount not to exceed $25,000. The Court has to approve any request for attorneys' fees and costs in this Action. If you want to be personally represented by your own lawyer, you may hire one at your expense.

Class Counsel will also seek Court approval and reimbursement from the Settlement Fund of the costs of giving Notice and providing claims administration in this case. Those costs are estimated to be approximately $495,374 but could be more or less than that amount after notice is provided and after the administration of the claims.

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INCENTIVE PAYMENTS PAID TO THE CLASS REPRESENTATIVES

15. Does the Class Representative get paid anything for her services? In recognition of the efforts of the Class Representative in litigating this case, Class Counsel will

seek to pay Rafael David Sherman an incentive payment not to exceed $1,500.00. The funds for this incentive payment will be paid from the Settlement Fund. This incentive payment is subject to Court approval.

OBJECTING TO THE SETTLEMENT

16. If I want to object to the Settlement, how do I do so? As a Class Member, you can object to the Settlement if you do not like all or any part of it. You

can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to the Sherman, et. al., v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente Settlement, and include the Case No. 13-cv-00981-JAH-JMA. Be sure to include your name, address, telephone number, your signature, and the reasons you object to the Settlement.

Mail the objection to the following addresses no later than ______, 201_.

Clerk of the CourtU.S. District CourtSouthern District of California940 Front StreetSan Diego, CA 92101

Joshua B. Swigart, Esq.Hyde & Swigart2221 Camino Del Rio S., Ste. 101San Diego, CA 92108

Abraham Colman, Esq.Felicia Yu, Esq.Reed Smith, LLP355 S. Grand Ave., Ste. 2900Los Angeles, CA 90071

You may also ask the Court for permission to speak at the fairness hearing. To do so, you must send a letter saying that it is your "Notice of Intention to Appear” in Sherman, et. al., v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente, and include the Case No. 13-cv-00981-JAH-JMA. Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than ________, 201 and be sent to the Court, Class Counsel and Defendant's counsel at the above addresses.

You cannot object or speak at the hearing if you "excluded yourself" from the Class.

17. What's the difference between "objecting" and "excluding yourself?"Objecting is simply telling the Court that you do not like something about the Settlement. You

can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

THE COURT'S FAIRNESS HEARING

The Court will hold a hearing to decide whether to give final approval to the Settlement. This hearing is called a Fairness Hearing or Final Approval Hearing. You may attend and you may speak, but you don't have to. 18. When and where will the Court decide whether to give final approval to the Settlement?

The Court will hold a Fairness Hearing at ____________ _.m. on __________, 20__ at the U.S. District Court, Southern District of California, 333 West Broadway, Courtroom 13B, San Diego, California 92101 before the Honorable John A. Houston. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. If anyone has asked to speak at the hearing, Judge Houston will listen to him or her at that time. Afterward,

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the Court will decide whether to approve the Settlement as fair and reasonable, to give final approval to the amount of attorneys' fees and costs to be paid from the Settlement Fund that Class Counsel seek for their representation of the Class, to approve the costs of notice and claims administration to be paid from the Settlement Fund, and to approve the incentive payment from the Settlement Fund to be provided to the Class Representative for bringing and litigating this action. We do not know how long these decisions will take.

19. Do I have to come to the hearing?No. Class Counsel will answer questions Judge Houston may have that are directed to the Class.

But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it.

20. What if I want my own lawyer to attend the Fairness Hearing?At your own expense, you may have your own lawyer appear for you at the Fairness Hearing if

you like. If you hire your own lawyer, that lawyer must send a Notice of Intention to Appear as detailed above in Section 16, postmarked no later than __________, 201 . The Notice of Intention to Appear must be sent to the Clerk of the Court, Class Counsel and Defendant's counsel at the addresses above.

IF YOU DO NOTHING

21. What happens if I do nothing at all?If you do nothing, you will be part of the Class, and you will receive the benefits detailed above.

You will be eligible to receive a monetary payment if you submit a claim that is approved by the Claims Administrator.

You will also be precluded from being part of any other lawsuit against Kaiser relating to the released claims in this case. It also means that all of the Court's orders will apply to you and legally bind you.

GET MORE INFORMATION

22. Are there more details about the Settlement?This Notice summarizes the proposed Settlement. Further details are described in the Settlement

Agreement contained in the Court file (which is a public record). Many of the court papers, including the Settlement Agreement, are also posted on the Settlement website www.________.com. You also can get a copy of the Settlement Agreement or review any other part of the papers relating to the lawsuit by examining the records of this case, Sherman, et. al., v. Kaiser Foundation Health Plan, Inc., a.k.a. Kaiser Permanente, Case No. 13-cv-00981-JAH-JMA., at the Clerk's office at the U.S. District Court, Southern District of California, 333 West Broadway, Ste. 420, San Diego, California 92101. The Clerk's office has the ability to make copies of any such public documents for you. Also, all filed documents in the case, including the Settlement documents, are available for viewing online through the Court's PACER document review system.

PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE

Dated: ___________

By Order of the United States District Court for the Southern District of California

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APPENDIX

Sherman and each Class Member, (other than those persons who have timely and

properly filed an Exclusion Request), on behalf of themselves and their agents, administrators,

servants, employees, representatives, assigns, heirs, executors, trustees, joint venturers, partners,

successors, predecessors and attorneys, and each of them (collectively the “Releasing Persons”),

hereby jointly and severally release and discharge Kaiser and all of its former, present and future

direct and indirect parents, affiliates, subsidiaries, successors and predecessors and all of their

respective former, present and future officers, directors, shareholders, employees, servants,

agents, attorneys, representatives, independent contractors and vendors (collectively the

“Released Parties”) from any and all actions, causes of action, obligations, costs, expenses,

damages, losses, claims, liabilities, and demands, of whatever character, known or unknown, to

the date hereof, arising out of, relating to, or in connection with, the Calls, the Action, the SAC,

and the administration of this settlement.

Each party acknowledges that it/he/she may hereafter discover facts different from, or in

addition to, those which it/he/she now claims or believes to be true with respect to the claims

released herein, and agrees that this Settlement Agreement shall remain effective in all respects

notwithstanding the discovery of such different, additional or unknown facts. The Parties hereby

expressly waive any rights it/he/she may have under California Civil code Section 1542 or any

other similar statute of any other state.

In entering into this Settlement Agreement, each party assumes the risk of any

misrepresentation, concealment or mistake. If any party should discover subsequent to Final

Judgment that any fact relied upon by it/him/her in entering into this Settlement Agreement was

untrue, or that any fact was concealed from it/him/her, or that its/his/her understanding of the

facts or of the law was incorrect, such party shall not be entitled to any relief in connection

therewith, including without limitation, any alleged right or claim to set aside or rescind this

Settlement Agreement. This Settlement Agreement is intended to be, and is final and binding

between the Parties hereto, regardless of any claims of misrepresentation, promise made without

the intention to perform, concealment of fact, mistake of fact or law, or any other circumstance

whatsoever.

! 10


PLAINTIFF’S EXHIBIT CPublication Notice

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of



3:13-cv-00981-JAH-JMA



LEGAL NOTICE

If you received a call on your cellular telephone from Kaiser Foundation Health Plan using an automatic telephone dialing system and/or an artificial or

prerecorded voice without your consent, your rights may be affected by a class action settlement.

SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTIONUNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA

Rafael David Sherman, individually and on behalf of all others similarly situated v. Kaiser Foundation Health Plan, Inc., et al.,

Civil Action Case No. 3:13-cv-00981-JAH-JMA A Settlement has been reached in a class action lawsuit alleging that Kaiser Foundation Health Plan (“Kaiser”) violated the Telephone Consumer Protection Act (“TCPA”) by calling the cellular telephone numbers of former Kaiser members using an automatic telephone dialing system and/or an artificial or prerecorded voice between April 24, 2008 and [Month 00, 0000], without the consent of the persons called (“Calls”). Kaiser denies the allegations made in the lawsuit and further denies any violation of law or liability in the case. The case has been litigated, but there has been no trial, and the Court has not decided in favor of Plaintiff or Kaiser, or whether the case should proceed as a class action. The Court has authorized this Notice and will have a hearing to consider whether to approve this Settlement. If the Settlement is approved by the Court, Kaiser will pay $5,350,000 to establish a Settlement Fund to pay: (1) the Class; (2) the costs of settlement administration; (3) any attorneys’ fees and costs awarded by the Court to Class Counsel; and (4) any incentive award to Plaintiff David Sherman for serving as the Class representative, as approved by the Court. The “Class” is defined as all former Kaiser members within the United States who received one or more calls made with an automatic telephone dialing system or an artificial or pre-recorded voice on their cellular telephones from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2009 through[Month 00, 0000]. The Class may include as many as 864,412 persons.

Subject to final Court approval, each Class Member who received a Call, and who submits a Valid Claim Form, will be paid from the Settlement Fund on a pro rata or equal basis. Based on historical claims rates, Class Counsel estimates that the payment to each Class Member will be between $25.00 and $125. The actual payment amount will depend on: (1) the total number of Valid Claims received; and (2) the Settlement Fund available after deducting the costs of settlement administration, any attorneys’ fees and costs awarded by the Court, and any incentive award to the Plaintiff approved by the Court. To receive a payment, you must complete and mail a Claim Form by [Month 00, 0000]. Claims may also be submitted online at www.XXXXXX.com, by calling 800-xxx-xxx, or downloaded from www.XXXXXX.com, printed and mailed to the Claims Administrator. Claims and correspondence can also be sent by mail to the Settlement Administrator at Kaiser Settlement, c/o KCC Class Action Services, 75 Rowland Way, Suite 250, Novato, CA 94945. Claim Forms are due by [Month 00, 0000].If you do not want to be a part of the Settlement, you must exclude yourself (opt-out) by either: (1) mailing your request for exclusion to the Settlement Administrator, postmarked no later than [Month 00, 0000], or (2) submitting an

opt-out request online at www.XXXXXX.com by [Month 00, 0000]. Unless you exclude yourself, you will be bound by any final judgment in the Action, including the release of Kaiser and related parties from any claims arising out of or related to this Settlement. For your convenience, an exclusion request form is provided on the Settlement Website.If you want to object to the Settlement, you must file an objection with: (1) U.S. District Court, Southern District of California, 333 West Broadway, Suite 1310, San Diego, CA 92101; (2) Class Counsel: Abbas Kazerounian, Esq., Kazerouni Law Group, APC, 245 Fischer Avenue, Unit DI, Costa Mesa, CA 92929, and Joshua B. Swigart, Esq., Hyde & Swigart, 2221 Camino Del Rio South, Ste. 101, San Diego, CA 92108; and (4) Defendant’s Counsel: Abraham Colman, Esq. and Felicia Yu, Esq. of Reed Smith, LLP, 355 S. Grand Ave., Ste. 2900, Los Angeles, CA 90071, postmarked no later than [Month 00, 0000].


If you prefer and at your own expense, you may have your own lawyer appear in Court for you. If you hire your own lawyer, that lawyer must send a Notice of Intention to Appear postmarked no later than [Month 00, 0000] to all four addresses above.The Court has scheduled a fairness hearing for [Month 00, 0000], at [__:__ _.m.], in Courtroom 13B of the U.S. District Court, Southern District of California, 333 West Broadway, San Diego, CA 92101, to decide whether to approve: (1) the Settlement; (2) Class Counsel’s request for fees of up to 25% of the $5,350,000 Settlement Fund; and (3) a $1,500 incentive award to Plaintiff . Upon Final Approval, the Action will be dismissed with prejudice and the Class Members who do not request exclusion will be deemed to release Kaiser and related entities as detailed in the Settlement Agreement (available at www.______________________.com).

See www.____________________________.com for more information.


PLAINTIFF’S EXHIBIT D[Proposed] Order Granting Preliminary Approval of Class

Action Settlement

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of



3:13-cv-00981-JAH-JMA




______________________________________________________________________________________________________ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT - 1 of 7 - CASE NO.: 13-cv-00981-JAH-JMA

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RAFAEL DAVID SHERMAN, Individually And On Behalf Of All Others Similarly Situated,

Plaintiff,

v.

KAISER FOUNDATION HEALTH PLAN, INC., a/k/a KAISER PERMANENTE,

Defendant.

Case No.: 13-cv-00981-JAH-JMA

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Judge: Hon. John A. Houston


Plaintiff Rafael David Sherman (“Mr. Sherman” or “Plaintiff”) filed a Motion

for Preliminary Approval of Class Action Settlement and Certification of Settlement

Class (hereinafter referred to as the “Preliminary Approval Motion”) in the above-

captioned action (the “Lawsuit”). The Preliminary Approval Motion was unopposed

by defendant Kaiser Foundation Health Plan, Inc. (“Kaiser” or “Defendant”).

The Court has read and considered the Settlement Agreement (the

“Agreement”), the Preliminary Approval Motion, and the record in this case.

NOW, THEREFORE IT IS HEREBY ORDERED:

I. JURISDICTION: The Court has jurisdiction over the subject matter of the

Lawsuit and over all settling parties hereto. All capitalized terms used herein

have the meanings defined herein and/or in the Agreement.

II. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT: The Court

preliminarily finds that the Settlement of the Lawsuit, on the terms and

conditions set forth in the Agreement and the exhibits thereto, is in all

respects fundamentally fair, reasonable, adequate and in the best interests of

the Class Members, taking into consideration the benefits to Class Members;

the strength and weaknesses of Plaintiff’s case; the complexity, expense and

probable duration of further litigation; and the risk and delay inherent in

possible appeals. The Court finds that notice of the Settlement should be

given to the approximately 864,412 persons in the Class and a full hearing

should be held on approval of the Settlement.

III. CAFA NOTICE: In compliance with the Class Action Fairness Act of 2005,

Pub. L. No. 109-2, 119 Stat. 4, Kaiser Permanente is ordered to serve written

notice of the proposed Settlement on the U.S. attorney general and the

attorney general of each state, unless written notice has already been served

by Kaiser Permanente.


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IV. CLASS MEMBERS: Pursuant to Fed. R. Civ. P. 23(b)(3), the Lawsuit is

hereby preliminarily certified, for settlement purposes only, as a class action

on behalf of the following class members:

1. The Class or Class Members consists of:

All former Kaiser members within the United States who received one or more calls made with an automatic telephone dialing system or an artificial or pre-recorded voice on their cellular telephones from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2009 [THROUGH THE DATE OF ENTRY OF A PRELIMINARY APPROVAL ORDER].

V. CLASS REPRESENTATIVE AND CLASS COUNSEL APPOINTMENT:

For purposes of preliminary approval, the Court appoints Plaintiff Rafael D.

Sherman as the Class Representative, and Joshua B. Swigart of Hyde &

Swigart and Abbas Kazerounian of the Kazerouni Law Group, APC as Class

Counsel.

VI. NOTICE AND CLAIMS PROCESS: The Court approves the form and

method of notice set forth in the Agreement. Within ten (10) days of this

Preliminary Approval Order, Kaiser Permanente shall provide the list of

Class Members (“Class List”) who can be identified from its records to the

Claims Administrator, KCC Class Action Administrators (“KCC”), and Class

Counsel. KCC shall mail a postcard-type notice (“Mail Notice”) to each

known Settlement Class Member at their last known address as provided by

Kaiser Permanente. The addresses shall be updated with the National Change

of Address database prior to mailing. The Mail Notices shall be mailed no

later than thirty (30) days after issuance of this Preliminary Approval Order.

Any Mail Notices that are returned as non-deliverable with a forwarding

address shall promptly be re-mailed by the Claims Administrator to such

forwarding address. The Mail Notice and the publication notice (“Publication


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Notice”) shall reference a website established for this Settlement, and that

website (“Settlement Website”) shall contain the full details of the Settlement

and permit the filing of claims on the website. The Mail Notice and

Publication Notice shall also contain the Claims Administrator’s toll free

telephone number so that the Class Members can inquire about the

Settlement and also make a claim over the telephone. At least ten (10) days

prior to the Final Approval Hearing, the Claims Administrator shall file a

declaration of compliance with the notice procedures set forth in the

Agreement. The Court finds that the form and method of notice set forth in

the Agreement satisfies the requirements of Fed. R. Civ. P. 23(c)(2)(B) and

due process, and constitutes the best practicable procedure under the

circumstances.

VII. SETTLEMENT AND CLAIMS PROCESS: The Court preliminarily

approves the $5,350,000.00 settlement benefits (“Settlement Fund”) as fair,

reasonable and adequate for members of the Class. The Court preliminarily

approves the process set forth in the Agreement for reviewing, approving and

paying claims from the Settlement Fund on a pro rata basis, after deducting

notice and claims administration costs, attorneys’ fees, litigation costs, and

any incentive payment (“Settlement Costs”).

VIII. CLASS CERTIFICATION: The Court preliminarily finds that the Lawsuit

satisfies the applicable prerequisites for class action treatment under Fed. R.

Civ. P. 23, for purposes of settlement only.

IX. EXCLUSIONS: Any Class Member who desires to be excluded from the

class must send a written request for exclusion to the Claims Administrator,

with a postmark date on or before the Opt-Out and Objection Deadline,

which shall be one hundred and thirty (130) days from the date of entry of

this Order. The Claims Administrator’s address shall be provided in the

notice mailed to the Class Members and also shall be posted on the website.

The Claims Administrator shall provide a list of those persons requesting ______________________________________________________________________________________________________

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT - 4 of 7 - CASE NO.: 13-cv-00981-JAH-JMA

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exclusion to Class Counsel and to Defendant’s counsel after the deadline for

exclusions passes, but no later than ten (10) days prior to the Final Approval

Hearing. A copy of that list will be filed with the Motion for Final Approval

of the Class Action Settlement.

X. To be effective, a written request for exclusion must contain the name and

number of this case, Class Member’s full name and address and be signed by

the Class Member. The request must also state generally that the person

wishes to be excluded from the Settlement.

XI. Any Class Member who submits a valid and timely request for exclusion

shall not be a member of the settlement Class, and shall not be bound by the

Agreement or Settlement.

XII. If 1,000 or more Class Members opt-out of the Settlement Agreement by

timely submitting an Exclusion Request, then Kaiser, in its sole discretion,

shall have the right to terminate the Settlement.

XIII. OBJECTIONS: Any Settlement Class Member who intends to object to the

fairness of the Settlement must submit a written objection with the Court, at

United States District Court, Southern District of California, 333 West

Broadway, Suite 1380, San Diego, CA 92101, postmarked on or before the

Objection Deadline, which is one hundred and thirty (130) days from the date

of entry of this Order. Further, any such Class Member must, within the

same time period, provide a copy of the written objection to Class Counsel

and defense Counsel, whose addresses shall be set forth in the website’s

notice advising the Class Members about objections.

XIV. To be considered, written objection must be signed by the Class Member and

state: the name and case number of this Lawsuit, Class Member’s name,

address, cellular telephone number/s and all arguments, citations and

evidence supporting the objection, a statement of whether the objecting Class

Member intends to appear at the hearing for final approval of the class action

settlement, and whether the objecting Class Member intends to appear at the ______________________________________________________________________________________________________

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT - 5 of 7 - CASE NO.: 13-cv-00981-JAH-JMA

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hearing with or without counsel. Further, the Class Member must attach to

the written objection any documents supporting the objection.

XV. Any Class Member who does not file a valid and timely objection to the

Settlement shall be barred from seeking review of the Settlement by appeal

or otherwise.

XVI. FINAL APPROVAL HEARING: The Court shall conduct a hearing

(hereinafter the “Final Approval Hearing”) on ________________, 201_, at

____ , at 333 West Broadway, Courtroom 13B, San Diego, CA 92101. The

Final Approval Hearing may be rescheduled or continued by the Court. At

the hearing, the Court will consider the following issues:

A. Whether this Lawsuit satisfies the applicable prerequisites for class

action treatment for settlement purposes under Fed. R. Civ. P 23;

B. Whether the proposed settlement is fundamentally fair, reasonable,

adequate, and in the best interest of the Class Members and should be

approved by the Court;

C. Whether the Final Judgment and Order of Dismissal With Prejudice, as

provided under the Agreement, should be entered, dismissing the

Lawsuit with prejudice and releasing the Released Claims against the

Released Persons; and

D. Such other issues as the Court deems appropriate.

XVII. Attendance at the Final Approval Hearing is not necessary. Class Members

need not appear at the hearing or take any other action to indicate their

approval of the proposed class action settlement. However, Class Members

wishing to be heard are required to indicate in their written objection whether

they intend to appear at the Final Approval Hearing.

XVIII.If the Agreement is not finally approved for any reason, then this order shall

be vacated, the Agreement shall have no force and effect, and the Parties’

rights and defenses shall be restored, without prejudice, to their respective


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positions as if the Agreement had never been executed and this order never

entered.

XIX. The Court retains continuing and exclusive jurisdiction over the action to

consider all further matters arising out of or connected with the settlement,

including the administration and enforcement of the Agreement.

IT IS SO ORDERED.

Dated: _________ _______________________________ HON. JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE


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PLAINTIFF’S EXHIBIT E[Proposed] Final Judgment and Order of Dismissal With

Prejudice

––––––––––––––––––––––––––––––––––––––––––––––––––––

In The Case Of



3:13-cv-00981-JAH-JMA




______________________________________________________________________________________________________ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 1 of 6 - CASE NO.: 13-cv-00981-JAH-JMA

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RAFAEL DAVID SHERMAN, Individually And On Behalf Of All Others Similarly Situated,

Plaintiff,

v.

KAISER FOUNDATION HEALTH PLAN, INC., a/k/a KAISER PERMANENTE,

Defendant.

Case No.: 13-cv-00981-JAH-JMA

[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE

Judge: Hon. John A. Houston


On___________, 2014, Plaintiff Rafael David Sherman (“Mr. Sherman” or

“Plaintiff”) and defendant Kaiser Foundation Health Plan, Inc., (“Kaiser” or

“Defendant”, herein jointly referred to as the “Parties”) entered in to a Class Action

Settlement Agreement (hereinafter referred to as the “Agreement”), which is subject

to review under Fed. R. Civ. P. 23. Plaintiff filed a Motion for Preliminary

Approval of Class Action Settlement and Certification of Settlement Class

(hereinafter referred to as the “Preliminary Approval Motion”) in the above-

captioned action (the “Lawsuit” or “Action”).

On October ___, 2014, Plaintiff filed the Agreement, along with the

Plaintiff’s Preliminary Approval Motion. The Preliminary Approval Motion was

unopposed by Defendant Kaiser Permanente.

On ________________, 2014, upon consideration of the Agreement,

Preliminary Approval Motion, and the record, the Court entered an Order of

Preliminary Approval of Class Action Settlement (hereinafter referred to as the

“Preliminary Approval Order”).

On _____________, 2014, the Plaintiff filed his Motion for Final Approval

of Class Action Settlement (hereinafter referred to as the “Final Approval Motion”).

Pursuant to their Final Approval Motion, Plaintiff requests final certification of the

settlement class under Fed. R. Civ. P. 23(b)(3) and final approval of the proposed

class action Settlement.

On _____________, 2014, a Final Approval Hearing was held pursuant to

Fed. R. Civ. P. 23 to determine whether the Lawsuit satisfies the applicable

prerequisites for class action treatment and whether the proposed settlement is

fundamentally fair, reasonable, adequate, and in the best interests of the Class

Members and should be approved by the Court.

The Court has read and considered the Agreement, Final Approval Motion

and the record. All capitalized terms used herein have the meanings defined herein

and/or in the Agreement.

NOW, THEREFORE, IT IS HEREBY ORDERED:______________________________________________________________________________________________________

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 2 of 6 - CASE NO.: 13-cv-00981-JAH-JMA

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I. JURISDICTION: The Court has jurisdiction over the subject matter of the

Lawsuit and over all settling parties hereto.

II. SETTLEMENT CLASS MEMBERS: Pursuant to Fed. R. Civ. P. 23(b)(3),

the Lawsuit is hereby finally certified, for settlement purposes only, as a class

action on behalf of the following class members:

1. The Class or Settlement Class Members consists of:

All former Kaiser members within the United States who received one or more calls made with an automatic telephone dialing system or an artificial or pre-recorded voice on their cellular telephones from from Kaiser or its agents and/or employees encouraging them to re-apply for Kaiser coverage or to return at the next opportunity from April 24, 2009 [THROUGH THE DATE OF ENTRY OF A PRELIMINARY APPROVAL ORDER].

III. CLASS REPRESENTATIVE AND CLASS COUNSEL APPOINTMENT:

Pursuant to Fed. R. Civ. P. 23, Plaintiff Rafael David Sherman is the Class

Representative, and Joshua B. Swigart of Hyde & Swigart and Abbas

Kazerounian of the Kazerouni Law Group, APC are certified as “Class

Counsel.”

IV. NOTICE AND CLAIMS PROCESS: Pursuant to the Court’s Preliminary

Approval Order, the Claims Administrator, KCC, has complied with the

approved notice process as confirmed in its declaration filed with the Court.

The form and method for notifying the Class Members of the Settlement and

its terms and conditions was in conformity with this Court’s Preliminary

Approval Order and satisfied the requirements of Fed. R. Civ. P. 23(c)(2)(B)

and due process, and constituted the best notice practicable under the

circumstances. The Court finds that the notice process was designed to advise

the Class Members of their rights. Further, the Court finds that Settlement

Fund is approved, and the claim process set forth in the Agreement was


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followed and that the process was the best practicable procedure under the

circumstances.

V. FINAL CLASS CERTIFICATION: The Court finds that the Lawsuit satisfies

the applicable prerequisites for class action treatment under Fed. R. Civ. P. 23,

for settlement purposes under Fed. R. Civ. P. 23(b)(3). The Court finds that

the Settlement of the Lawsuit, on the terms and conditions set forth in the

Agreement, is in all respects fundamentally fair, reasonable, adequate, and in

the best interests of the Class Members, especially in light of the benefits to

the Class Members, the strength of the Plaintiff’s case, the complexity,

expense and probable duration of further litigation, the risk and delay inherent

in possible appeals, and the risk of collecting any judgment obtained on

behalf of the class.

VI. SETTLEMENT TERMS: The Agreement, which has been filed with the

Court and shall be deemed incorporated herein, and the proposed Settlement

are finally approved and shall be consummated in accordance with the terms

and provisions thereof, except as amended by any order issued by this Court.

The material terms of the Agreement include, but are not limited to, the

following:

1. The Claims Administrator, KCC, shall pay each of the _____________

Class Members that made a timely and valid claim, who did not exclude

themselves from the Settlement, the sum of $_________;

2. The Claims Administrator shall pay from the Settlement Fund the total

sum of $1,500 to the Plaintiff Rafael David Sherman, sent via Class

Counsel, as an incentive payment for bringing and participating in this

Lawsuit;

3. The Claims Administrator shall be paid from the Settlement Fund the sum

of $_______________ for its costs and fees incurred for the cost of notice

and claims administration and any amounts advanced by Defendant for


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those purposes shall be credited and refunded to them from the Settlement

Fund; and

4. The Claims Administrator shall pay from the Settlement Fund to Class

Counsel the sum of $_____________ as attorneys’ fees and the sum of

$____________ as costs incurred in litigating this Lawsuit, in the manner

specified in the Agreement.

VII. EXCLUSIONS AND OBJECTIONS: A total of ____ exclusions were

received. Those persons requesting exclusion are named on Exhibit A to this

Order. The Court hereby excludes these individuals from the Class and

Settlement.

VIII. The Class Members were given an opportunity to object to the settlement.

Only _____ Settlement Class Members filed objections. After consideration

of each of the objections, the Court hereby overrules such objections.

IX. This Order is binding on all Class Members, except those individuals named

on Exhibit A, who validly and timely excluded themselves from the Class.

X. RELEASE OF CLAIMS AND DISMISSAL OF LAWSUIT: The Class

Representative (Mr. Sherman), Class Members, and their successors and

assigns are permanently barred and enjoined from instituting or prosecuting,

either individually or as a class, or in any other capacity, any of the Released

Claims against any of the Released Persons, as set forth in the Agreement.

Pursuant to the Release contained in the Agreement, the Released Claims are

compromised, discharged, and dismissed with prejudice by virtue of these

proceedings and this order.

XI. The Lawsuit is hereby dismissed with prejudice in all respects.

XII. This order is not, and shall not be construed as, an admission by Defendant of

any liability or wrongdoing in this or in any other proceeding.

XIII. Without affecting the finality of this Final Judgment and Order of Dismissal

with Prejudice, the Court hereby retains continuing and exclusive jurisdiction

over the Parties and all matters relating to the Action and/or Agreement, ______________________________________________________________________________________________________

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 5 of 6 - CASE NO.: 13-cv-00981-JAH-JMA

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including the administration, interpretation, construction, effectuation,

enforcement, and consummation of the settlement and this order.

IT IS SO ORDERED.

Dated: _________ _______________________________ HON. JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE


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case 3:13-cv-00981-jah-jma document 35-3 filed 10/21/14 ......case 3:13-cv-00981-jah-jma document...

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