The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 San Francisco Division
11 DJENEBA SIDIBE, et al., Case No. 12-cv-04854-LB
12 Plaintiffs, ORDER DENYING PLAINTIFFS’
REQUEST FOR SUPPLEMENTAL
13 v. CLASS NOTICE
14 SUTTER HEALTH, Re: ECF No. 1162
15 Defendant.
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17 The plaintiffs ask to issue a supplemental class notice to class members listed in four
18 California counties (Mariposa, Monterey, San Benito, and Tulare) because the counties were
19 omitted from the class notice.1 Sutter opposes the request because the four counties are not part of
20 the class definition in the operative complaint (or in the four earlier complaints). Also, Sutter
21 contends that the one-way intervention rule bars the supplemental notice after the court issued its
22 summary-judgment order.2 The court held a hearing on August 26, 2021.3 The court denies the
23 request for a supplemental notice, in part because the counties are not part of the class defined in
24 the operative complaint and in part because of the one-way intervention rule.
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26 1 Pls. Req. – ECF No. 1162 at 3. Citations refer to material in the Electronic Case File (ECF); pinpoint
citations are to the ECF-generated page numbers at the top of documents.
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2 Sutter Opp’n – ECF No. 1162 at 28 & 33.
1 STATEMENT
2 Four complaints preceded the current complaint. The first three complaints defined the class
3 members as persons or entities within specified California counties.4 The counties did not include
4 Mariposa, Monterey, San Benito, and Tulare counties. The fourth complaint (titled the Third
5 Amended Complaint) defined the class by reference to persons and entities in six relevant
6 healthcare markets (called MSAs) and then defined each MSA by reference to the counties in it.
7 For example, “A relevant geographic market is the San Francisco–Oakland–Fremont MSA. The
8 San Francisco–Oakland–Fremont MSA includes Alameda, Contra Costa, Marin, San Francisco,
9 and San Mateo counties.” The complaint did not list Mariposa, Monterey, San Benito, and Tulare
10 counties as part of any MSA.5
11 The operative complaint is the Fourth Amended Complaint. It defined the class as any
12 individual or entity in nine relevant health-insurance markets.6 The nine markets were “roughly
13 congruent with the boundaries of [nine] Geographic Rating Areas,” or RAs. The Affordable Care
14 Act required states to define geographic RAs “to be used uniformly by all health plan in pricing
15 individual and small group health insurance policies and health plans.”7 The complaint defined
16 each RA by reference to the counties in it. The complaint did not list Mariposa, Monterey, San
17 Benito, and Tulare counties as part of any RA. The relevant RAs for any amended class notice are
18 RAs 9 and 10. The complaint said this about them. “RA 9 includes Santa Cruz County.” “RA 10
19 includes Merced, San Joaquin, and Stanislaus counties.”8 The parties agree that Monterey and San
20 Benito counties are in RA 9, and Mariposa and Tulare counties are in RA 10.9
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4 Comp. – ECF No. 1 at 36 (¶ 77); First Am. Compl. – ECF No. 11 at 52 (¶ 130); Second Am. Compl.
24 – ECF No. 37 at 50 (¶ 146).
5 Third Am. Compl. – ECF No. 69 at 24–26 (¶¶ 72–77).
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6 Fourth Am. Compl. – ECF No. 204 at 26 (¶ 74) (citation omitted) & 36 (¶ 113).
26 7 Id. at 26 (¶ 74).
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8 Id. at 28 (¶¶ 84–85).
9 See, e.g., Maps – ECF No. 1162 at 40 (submitted by the plaintiffs at oral argument) & 58 (same map
1 The court certified the following class, which refers only to the nine RAs (because that is how
2 the parties framed the issue in their briefs):
3 All entities in California Rating area 1, 2, 3, 4, 5, 6, 8, 9 or 10 (the “Nine RAs”), and all
individuals that either live or work in one of the Nine RAs, that paid premiums for a fully
4 insured health insurance policy from Blue Shield, Anthem Blue Cross, Aetna, Health Net
or United Healthcare from September 28, 2008 to the present. This class definition
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includes Class Members that paid premiums for individual health insurance policies that
6 they purchased from these health plans and Class Members that paid premiums, in whole
or in part, for health insurance policies provided to them as a benefit from an employer or
7 other group purchaser located in one of the Nine RAs.10
8 The plaintiffs’ expert, Tasneem Chipty, Ph.D., submitted a class declaration and a merits
9 report that reflected this class definition and the complaint’s limitation of RA 9 to Santa Cruz
10 County and RA 10 to Merced, San Joaquin, and Stanislaus counties.11 At the hearing, the parties
11 clarified that Dr. Chipty assessed damages for the class members in the four counties totaling
12 approximately $13 million. The class notice similarly reflects the class definition and allegess that
13 class members lived or worked in specified California counties. The list of counties does not
14 include Mariposa, Monterey, San Benito, and Tulare counties.12
15 Sutter advised the plaintiffs on Monday, August 23, 2021 that the class notice did not include
16 the four counties.13 The transcript is not yet available, but Sutter explained at oral argument how it
17 identified the issue. It also said that Sutter did not have hospitals in Mariposa, Monterey, San
18 Benito, and Tulare counties, which may explain why the counties were not included in the first
19 three complaints, which defined class members solely by reference to counties. The plaintiffs’
20 counsel characterized the omission of the counties as an oversight in the last two complaints.
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10 Orders – ECF No. 714 at 5 & ECF No. 823 at 2.
26 11 Chipty Class Decl. – ECF No. 379-1 at 6 (¶ 5 & n.8); Chipty Merits Rep., Ex. 1 to Shapiro Decl. –
ECF No. 1017-5 at 8 n.4 & 13 n.24.
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12 Class Notice, Ex. B to Keough Decl. – ECF No. 856-2 at 62–70.
1 The plaintiffs propose updating the class website and sending a corrected notice to class members
2 in the four counties by email, direct mail, and publication. They can accomplish this in four or five
3 days and propose a 30-day opt-out period, thereby avoiding any impact on the trial date.14
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5 ANALYSIS
6 The counties were never part of the class definition in any version of the complaint. By class
7 certification, the class was defined by the nine geographic RAs, which in turn are defined by the
8 state. The omitted counties are part of either RA 9 or RA 10. But the complaint still defines the
9 RAs by reference to specified counties. Mariposa, Monterey, San Benito, and Tulare counties are
10 not specified counties for any RA. Persons or entities in the counties thus are not part of the class.
11 Moreover, the court did not issue the summary-judgment order until after the opt-out period to
12 avoid any issues with one-way intervention.15 The court follows that approach here.
13 The one-way intervention rule prevents class members in damages class actions from waiting
14 until the court’s summary-judgment order and then deciding whether to opt in to a favorable ruling
15 or avoid an unfavorable one. Diva Limousine Ltd. v. Uber Techns., Inc., 392 F. Supp. 3d 1074,
16 1095 (N.D. Cal. 2019) (collecting cases); Wit v. United Behav. Health, No. 15-cv–02346-JCS,
17 2020 WL 6462401, at *11 (N.D. Cal. Nov. 3, 2020). The rule applies to partial summary-
18 judgment orders, like the court’s order here. Diva, 392 F. Supp. 3d at 1095–96. Equities can factor
19 into the determination about whether to apply the rule. For example, a ruling on summary
20 judgment that the named plaintiffs’ claims lack merit disqualifies the class representatives, thus
21 resolving the issue of class certification. Thomas v. UBS AG, 706 F.3d 846, 848–50 (7th Cir.
22 2013); see De la Torre v. CashCall, Inc., No. 08-cv-03174-MEJ, 2016 WL 6892693, at *16 (N.D.
23 Cal. Nov. 23, 2016) (collecting cases).
24 The equities here do not approximate those in Thomas and CashCall. Instead, the case is more
25 like Wit. There, a subset of class members was omitted from the class lists as a result of the
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14 Id.
] method that the parties used to identify class members. The plaintiffs’ counsel learned of the issue
2 || when three class members contacted them. 2020 WL 6362401, at *4. Like the summary-judgment
3 order here, the Wit court had issued an adjudication favoring the class. /d. at *7, 11. The court
4 || applied the one-way intervention rule, denied the motion to send out a new class notice after the
5 summary-judgment order, and instead modified the class definition to exclude the omitted class
6 || members, in part because the plaintiffs did not demonstrate that they acted diligently to identify
7 || class members. /d. at *11 (noting that the result might be different if the defendant, which had a
8 || better understanding of the databases used to identify class members, failed to provide sufficient
9 || information to the plaintiffs about the flaws in the methodology).
10 The equities here do not compel a deviation from the one-way intervention rule.
1]
L CONCLUSION
E 13 The court denies the plaintiffs’ request for a supplemental notice. This disposes of ECF No. 11¢
IT IS SO ORDERED.
3 15 Dated: August 28, 2021 Ld AC
16 ee
LAUREL BEELER
17 United States Magistrate Judge
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