IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN ...chalawsuit.com/crittenden settlement...

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

JONESBORO DIVISION

YOLANDA GOODMAN on behalf of

herself and all similarly situated persons,

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Case No. 3:14-cv-00229-DPM-jtk

(Hon. Judge D.P. Marshall, Jr.)

v.

PLAINTIFF, )

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CRITTENDEN HOSPITAL

ASSOCIATION, INC ., EUGENE K.

CASHMAN, et al.

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DEFENDANTS.

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CLASS ACTION SETTLEMENT AGREEMENT

This Class Action Settlement Agreement (“Agreement”) is made this 2nd

day of

December, 2016 between Plaintiff Yolanda Goodman (hereinafter “Plaintiff”), on behalf of

herself and members of the certified class as defined herein, and the following defendants:

Eugene K. Cashman, III.; Jamie R. Carter, Jr.; David G. Baytos; David Raines, Jr; W. Brad

McCormick; Jason W. Collard; Herschel F. Owens; Andrew Luttrell; Keith M. Ingram; Randall

Catt; William Johnson; Lannie L. Lancaster; Julio P. Ruiz; Sherry L. London; Ness S. Sechrest;

Randy R. Sullivan; Leven Williams; Cigna Health and Life Insurance Company; and Crittenden

Hospital Association (hereinafter collectively referred to as the “Defendants”).

This Agreement is entered into to effect a full and final settlement and dismissal with

prejudice of all claims asserted against Defendants in the certified class action lawsuit captioned


Yolanda Goodman, on behalf of herself and all similarly situated persons, Plaintiff, vs. Eugene

K. Cashman, III, et al., Defendants, No. 14-cv-00229-DPM (hereinafter referred to as the

“Goodman Action”) currently pending in the United States District Court for the Eastern District

of Arkansas on the terms set forth herein below, subject to approval by the Court.

I. Definitions

1. The term “Parties” means collectively plaintiff Goodman, the certified Class, and

all the Defendants.

2. The term “Goodman Action” means the litigation described immediately above

captioned Yolanda Goodman, on behalf of herself and all similarly situated persons, Plaintiff, vs.

Eugene K. Cashman, III, et al., Defendants, No. 14-cv-00229-DPM.

3. The term “Agreement” means this Class Action Settlement Agreement, including

all attachments and exhibits. The term shall include any amendments to this document or to the

attachments and exhibits, as long as such amendments are in writing, agreed to by Plaintiff and

Defendants and conform to the requirements of this Agreement.

4. The term “CHA” means Crittenden Hospital Association.

5. The term “CHLIC” means Cigna Health and Life Insurance Company.

6. The term “Plan” means the Crittenden Regional Hospital Health Plan.

7. The term “Medical Providers” means the medical professionals, healthcare

facilities, and ancillary services providers that provided any healthcare service or supplies to a

person covered by the Plan from January 1, 2012 to September 12, 2014.

8. The term “Class” or “Class Members” means the class that was certified by the

Court, as described herein in Section II, ¶ 3 of this Agreement.

9. The term “Class Counsel” means the attorneys identified in Section II, ¶ 4 of this

Agreement.


10. The term “Class Period” means the period of time covered by the class definition,

January 1, 2012 to September 12, 2014.

11. The term “Plan Members” mean the participants and beneficiaries under the Plan

during the period January 1, 2012 to September 12, 2014.

12. The term “Settlement Fund” refers to the fund established to compensate Class

Members as described herein in Section IV, ¶1 of this Agreement.

13. The term “Settlement Administrator” means CMM Settlement Solutions, LLC of

Bartlett, Tennessee.

14. The term “Claim Deadline Date” or “Claim Deadline” means the date set by the

Court by which all Claim Forms must be delivered to the Settlement Administrator as set forth in

Section IV, B., ¶4of this Agreement.

15. The term “Claim Form” means the form provided to the Class identified in

Section IV, B., ¶ 6 of this Agreement; a copy of the proposed Claim Form is attached hereto as

Exhibit A.

16. The term “Class Notice” means any of the forms of direct mail, website or

publication notice of the Settlement provided to Class Members. The publication and mail

versions of the Class Notice are attached as Exhibits B and C to this Agreement.

17. The term “Class Notice Date” means the last publication date of the Class Notice

as set forth in Section V, D., ¶ 7 of this Agreement.

18. The term “Court” means the United States District Court for the Eastern District

of Arkansas.

19. The term “Effective Date” means the date on which all conditions of Section VIII,

¶4 of this Agreement have been met.


20. The term “Final Approval Hearing” means the hearing set by the Court where,

among other things, the Court, in its discretion, will provide an opportunity for any Class

Member who wishes to object to the fairness, reasonableness or adequacy of the Settlement,

provided that the Class Member complies with the requirements for objecting to the Settlement

as set forth in Sections V, E., ¶17 of this Agreement. The date of the Final Approval Hearing

will be set by the Court and communicated to Class Members by the Class Notice.

21. The term “Final Order” or “Final Approval Order” means the order or orders of

the Court giving final approval of the terms of the Settlement as fair, reasonable, and adequate

and in the best interests of the Class in the Goodman Action. The proposed Final Approval Order

is attached as Exhibit E.

22. The term “Preliminary Approval Order” means the order or orders of the Court

approving the terms and conditions of this Agreement and the Settlement for purposes of

providing Class Notice as defined herein above. The proposed Preliminary Approval Order is

attached as Exhibit D.

23. The term “Qualified Class Member” means each Class Member who, through

compliance with the requirements for a Claim Form, establishes and provides his or her name,

current address, phone number and verification documentation as described herein in Section 23

of this Agreement to the Settlement Administrator.

24. The term “Release” means the release of claims set forth in Section VI, ¶ 6 of this

Agreement.

II. Factual & Procedural Background

1. On February 9, 2015, Plaintiff Goodman filed a First Amended Class Action

Complaint (D.E. 53) on behalf of herself and all similarly situated persons who were participants


in the Plan, which was sponsored by CHA,. Plaintiff’s complaint alleged that she sought to

recover losses sustained by the Plan. Plaintiff alleged that CHA, and the Officers and Directors

of CHA, and CHLIC acted as fiduciaries to the Plan were responsible for a number of fiduciary

breaches that resulted in alleged damages to the Plan.

2. CHA and the Officers and Directors and CHLIC denied that any of them acted as

plan fiduciaries and further denied that any of them breached any duty owed to the Plan or

otherwise violated ERISA.

3. By Order dated December 10, 2015, the Honorable Judge D.P. Marshall Jr.,

granted Goodman’s motion for class certification and certified the following class under Fed. R.

Civ. P. 23(b)(1)(A) and (B):

From 1 January 2012 to 12 September 2014, Plaintiff and all similarly situated

participants and beneficiaries who were included in the Plan, and excluding the

defendants, their affiliates and families, and the judge in this case and his staff.

(Order Granting Motion for Class Certification, D.E, 103 at p. 12).

4. In the same Order, under Rule 23(g)(1)(A), the Court appointed as class counsel:

William Burns, Frank Watson III, Tim Edwards, Denny Sumpter, and Vince Chaddick (“Class

Counsel”).

III. Factual Recitals Acknowledged by the Parties Supporting Settlement

1. Goodman is the named plaintiff in the Action,1 which is a certified class action

pending in the United States District Court for the Eastern District of Arkansas and captioned

1 When litigation concerning the Plan was first initiated, persons other than Goodman were

named as plaintiffs. On September 12, 2014, Deloris and Roger Sumpter filed the first lawsuit

involving the Plan; that action was filed in the Circuit Court of Crittenden County, Arkansas. On

September 24, 2014, another plan member, Rhonda Goodfellow, filed a Plan-related lawsuit in

the U.S. District Court for the Eastern District of Arkansas. That action was assigned case

number 3:14-cv-00226-DPM/JTR. After the Sumpter action was removed to federal court, it was

assigned the current case number (3:14-cv-0229-DPM) and reassigned with the Goodfellow

action. Thereafter, Yolanda Goodman was substituted as the plaintiff and the Sumpters and

Goodfellow were dropped from the caption.


Yolanda Goodman, on behalf of herself and all similarly situated persons, Plaintiff, vs. Eugene

K. Cashman, III, et al., Defendants, No. 14-cv-00229-DPM. Goodman’s first amended

complaint (D.E. 53) alleges various claims arising from the alleged failure of CHA to fully fund

the Plan, which was the self-insured benefit plan that CHA established in 2008 to provide

healthcare coverage to its employees and their dependents.

2. The individuals who are named as Defendants in the Action served as the officers

and/or directors of CHA. CHA, in turn, was a regional, non-profit hospital that sponsored the

Plan and was designated as the Plan’s administrator.

3. Effective January 1, 2014, CHLIC became the third-party administrator of the

Plan under an administrative services only (“ASO”) agreement that it entered into with CHA. In

2012 and 2013, the third-party administrator of the Plan was Simplifi Health Benefit

Management, LLC (“Simplifi”). Simplifi ceased doing business and is no longer a going concern

, has been defaulted and is not a party to, but is a third-party beneficiary of, this Agreement.

4. Goodman’s first amended complaint (D.E. 53) asserts claims against CHA, its

officers and directors, and CHLIC, arising from CHA’s alleged failure to provide sufficient

funding for the Plan to pay benefits on claims for services and supplies that Medical Providers

provided to Plan members. Goodman also asserted claims against Methodist Le Bonheur

Healthcare (“Methodist”), however, those claims were dismissed by the Court on November 12,

2015 (D.E. 101). The complaint contains counts arising under the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”), Arkansas common law, and the

Worker Adjustment and Retraining Notification Act (the “WARN Act”).

5. Goodman’s WARN Act claim is asserted solely against CHA.. Goodman’s

WARN Act claim was dismissed by the Court without prejudice on February 9, 2016. (D.E.


111). Goodman voluntarily dismissed her Arkansas common law claims on March 11, 2016.

(D.E. 118).

6. Goodman alleges that Defendants breached their fiduciary duties and violated

various provisions of ERISA and the Plan because they allegedly failed to fund the Plan, they

allegedly misrepresented the financial status of the Plan to the Plan members, they allegedly

failed to disclose material facts about the Plan, and they allegedly misused or diverted Plan

assets.

7. Defendants deny all of Goodman’s allegations of liability, fault, wrongdoing, and

fiduciary breaches.

8. The Directors all served on CHA’s board as volunteers. None of them were paid

and none received any financial benefit from their service. The Directors and Officers allege

that they acted at all times in the best interests of CHA throughout their respective tenures.

9. The Directors and Officers assert that no Plan assets were ever misused or

diverted, or used for any purpose other than to provide benefits under the Plan. In every year

CHA sponsored the Plan, it paid claims well in excess of the premiums paid by employees. In

2012, participating employees paid a total of $718,593 in premiums. That same year, CHA paid

over $1.7 million in medical claims, $143,479 in pharmacy claims, and provided over $1 million

in medical services to participants. In 2013, participating employees paid a total of $628,625 in

premiums. That same year, CHA paid $1.99 million in medical claims, $222,863 in pharmacy

claims, and provided over $1.3 million in medical services to participants. In 2014, in the

months leading up to CHA’s bankruptcy filing, participating employees paid $285,123 in

premiums. CHA paid $567,569 in medical claims and $183,391 in pharmacy claims. No

employee premiums were ever diverted or applied toward other expenses of the Hospital, and


CHA continued to make corporate contributions toward claims all the way up to its bankruptcy

filing.

10. The Directors and Officers also assert that none of them ever misrepresented the

financial condition of CHA or the impact it was having on CHA’s ability to promptly fund

provider claims submitted to the Plan. When employees or providers inquired about the status of

outstanding medical claims, CHA’s agents were transparent about where CHA stood in paying

claims and the anticipated date by which a particular claim would likely be paid.

11. The Directors and Officers additionally assert that, despite the substantial

financial challenges CHA was facing, they believed the approval of the sales tax in 2014, in

conjunction with other initiatives in the works including physician recruiting efforts, would shore

up the Hospital’s cash flow issues and put it on a solid footing going forward to address expenses

including outstanding medical claims. However, the two fires at the Hospital in 2014, which

shut down operations for extended periods reducing cash flow to zero, ultimately pushed CHA

into a bankruptcy it was otherwise on tract to avoid. It was those very unfortunate and

unforeseen circumstances, and not the improper handling of any Plan assets, that resulted in the

closure of the Hospital with medical claims outstanding.

12. Plaintiff disputes the Directors and Officers claims in paragraphs 10 and 11 and

contends that employees and Plan participants were not properly informed about the status of the

Plan nor CHA’s inability to promptly fund provider claims submitted to the Plan.

13. During 2012 and 2013 (the first two years of the Class Period), the Plan was

administered by Simplifi. As noted in paragraph 3, supra, Simplifi ceased all operations prior to

this litigation, and no records are available from Simplifi. CHA continued to pay medical claims

administered by Simplifi up to CHA’s bankruptcy. With respect to in-network Medical


Providers for the Plan during 2012 and 2013, Simplifi entered into a Managed Care Alliance

Agreement with the HealthChoice (a physicians health organization) which the parties

understand barred Health Choice’s member Medical Providers from billing the Plan member

any amount for their services beyond patient cost shares such as deductibles and coinsurance.

The statute of limitations in Arkansas for collecting debts for medical services is two years from

the date of service, see A.C.A. § 16-56-106, meaning that provider claims (for nonparticipating

providers) subject to Arkansas law for services provided while Simplifi was the Plan’s third

party administrator are now time-barred. While the available financial records are sparse, the

parties believe that based on the foregoing, and the lack of any real collection efforts for medical

claims from 2012 and 2013, the exposure to the Class for medical claims from 2012 and 2013 is

de minimis and is more than addressed by the substantial cushion provided in the Settlement

Fund (as defined herein) above and beyond the out of pocket exposure calculated for the claims

administered by CHLIC.

14. CHLIC received a total of 5,243 claims for healthcare services that were rendered

in 2014 for persons covered by the Plan. During 2014, approximately $5,409,661.29 in billed

charges (i.e., non-discounted charges) were submitted by Medical Providers who, pursuant to

provider agreements with CHLIC, are barred from billing the Plan member any amount for their

services (beyond patient cost shares such as deductibles and coinsurance), even where the Plan

has not paid and/or has declared bankruptcy (hereinafter referred to as the “Immune from

Collection Group”).

15. During the Class Period, approximately $342,692.85 in billed charges were

submitted by Medical Providers that have provider contracts with CHLIC or its affiliates that do

allow these specific Medical Providers to bill patients when they have not received payment


because a plan sponsor failed to provide funding for a self-funded (i.e., non-insured) health plan,

if the Medical Provider meets certain notice requirements. In this situation, the Medical Provider

is limited to billing for the discounted amount the Medical Provider agreed to accept in its

participating provider agreement with the CHLIC affiliate. The claims for these billed charges

will be referred to as the “Limited Balance Bill Group” claims. CHLIC estimates that had the

Plan been fully funded, the Plan would have been responsible for benefit payments of

approximately $102,541.85 on the Limited Balance Bill Group claims.

16. In addition, approximately $221,941.66 in billed charges were submitted by out-

of-network Medical Providers (i.e., those Medical Providers that have no provider contract with

CHLIC or its affiliates and have no obligation under an agreement with CHLIC to discount their

charges or otherwise refrain from collecting their charges from these specific Plan

participants)(hereinafter the “Out-of-Network Group.”) With respect to the Out-of-Network

Group, CHLIC has no provider contracts with these Medical Providers and, thus, these Medical

Providers are not required by any agreement with CHLIC to accept any discounts to their billed

charges. However, the Plan document states that the Plan will pay 50% of the “maximum

reimbursable charge” on out-of-network claims. Under this Agreement, 50% of the maximum

reimbursable charge will be estimated as the billed charge discounted by 35%, divided by

two. In other words, the Plan is only obligated to pay 50% of the charge after a 35% discount is

applied (though the out-of-network Medical Provider is not prohibited from collecting the full

gross charge from the patient if it desires to do so). Of the $221,941.66 in billed charges on out-

of-network claims, $34,007.45 has been waived in writing by Medical Providers, thus leaving

“net” billed charges of $187,934.11. When the formula described above is applied to this


amount, the Plan would have paid an estimated $61,078.59 on the Out-of-Network Group

claims.

17. In summary, the Parties acknowledge and agree that, during the Class Period,

beyond the claims administered in 2012 and 2013 by Simplifi, the exposure to which the parties

believe is relatively minimal, the Plan was obligated to pay an estimated total of $163,620.44

($102,541.85 plus $61,078.59) on behalf of Class Members on Out-of-Network Group claims

and the Limited Balance Bill Group claims.

18. Beginning on June 16, 2016 at the offices of Glankler Brown in Memphis,

Tennessee, the parties mediated the case with mediator and former ERISA lawyer, Allen Blair,

Esq. The matter was not resolved that day but the Parties continued protracted negotiations with

the assistance of the mediator from June 16, 2016, until a settlement agreement in principle was

reached on July 21, 2016.

19. Defendants deny all of Goodman’s allegations of liability, fault, wrongdoing, and

fiduciary breaches as alleged in the Goodman Action and vigorously contest the claims against

them. Defendants reserve and do not waive any of their defenses to the claims asserted by

plaintiff Goodman. However, Defendants wish to enter into the Settlement Agreement to resolve

this dispute and to provide certainty and avoid the expense and distraction of protracted and

expensive litigation.

20. This Agreement and the settlement are conditional upon the receipt of both

preliminary and final approval by the United States District Court for the Eastern District of

Arkansas (the “Court”).


IV. General Terms of Settlement

In consideration for the promises and mutual covenants set forth herein, and subject to

the final approval by the Court and entry of a final judgment, the Parties agree as follows:

A. Payment by Defendants.

1. Settlement Fund Available to the Class. Subject to Court approval and

determination, the Defendants agree to create and fund, subject to the allocation agreed to by and

between each of them, a $1,115,000 total settlement fund (“Total Settlement Amount”) to settle

all claims that were or that could have been asserted in this action. This amount will be used as

follows:

a. Settlement Fund for Class Members. A settlement fund of $500,000.00

will be created to compensate the Class Members (“Settlement Fund”) for any out-of-

pocket expenses they paid that should have been covered and paid by the Plan, and to

effectively put each Class Member back into the position he/she would have been in had

the Plan properly paid all medical claims pursuant to the Plan terms. The Settlement

Fund shall be distributed to Class Members as outlined in the Claims Procedure at

Section IV, B., ¶¶4-7 in this Agreement.

b. Attorney Fee and Expense Award. Class Counsel will petition the Court

for approval of an initial award for their reasonable attorneys’ fees, costs, and expenses

incurred in prosecuting the action and administering the Settlement and this Agreement,

in an amount up to but not exceeding Six Hundred and Fifty Thousand Dollars

($650,000.00) (“Attorney Fee and Expense Award”). Class Counsel shall apply to the

Court for approval for the proposed Attorney Fee and Expense Award and shall also

apply for Court approval of an incentive award to Plaintiff in an amount up to but not

exceeding Five Thousand Dollars ($5,000.00) (the “Incentive Award”). The Incentive


Award shall be paid from the Settlement Fund. Class Counsel must file their petition for

the Attorney Fee and Expense Award with the Court 14 days before the Claim Deadline.

c. Additional Fee Award. In addition to the Attorney Fee and Expense

Award, Class Counsel will also petition the Court for an award (“Additional Fee Award”)

for fees and costs actually incurred (up to a maximum of $100,000). This Additional Fee

Award will be paid out of the Settlement Fund if and only if Class Members’ claims do

not exhaust the Settlement Fund, as described in greater detail in Section IV.B. 6 below.

d. Delivery and Holding of Funds. On the Effective Date, Defendants or

persons acting on their behalf will: (i) deliver to the Settlement Administrator, by means

of one or more checks or wire transfers, $500,000, minus the amount of the Incentive

Award to plaintiff, to establish the Settlement Fund; and (ii) deliver to the person, or

transfer to the bank account, specified in the Final Approval Order, by means or one or

more checks or wire transfers, funds equal to the Attorneys’ Fees and Expense Award

and funds equal to the Incentive Award to the plaintiff. If the Additional Fee Award is

due to Class Counsel under § IV.A.1(c) and § IV.B. 6, the Settlement Administrator will

remit the amount of such Additional Fee Award to the person specified by Class Counsel,

as provided for below in Section IV.B.6.b.

e. Aggregate Liability of Defendants. The Parties agree that Defendants’

aggregate liability under the Settlement Agreement shall be capped at $1,150,000. In no

event will Defendants have any obligation to contribute more than this amount or to

provide any further information to Plaintiff or the Settlement Administrator after the

Effective Date. This Agreement creates no contractual or other legal right against any of

Defendants arising from any dispute regarding a claim submitted to the Settlement

Administrator pursuant to the Claims Procedure described herein, and the Class Members

agree to hold Defendants harmless regarding same.


2. No Minimum Fee Award. The Parties expressly agree that the terms of this

Agreement are not conditioned upon any minimum attorneys’ fees award or minimum incentive

award to the Plaintiff being approved by the Court. If the Court denies, in whole or in part, Class

Counsel’s fee and cost application and/or the Incentive Awards, the remainder of the terms of

this Agreement and of the Settlement shall remain in effect and any amounts not awarded as

attorneys fees and expenses, up to $1,150,000, shall be placed into the Settlement Fund for

distribution to the Class Members in accordance with this Agreement. Class Counsel intend to

seek Court approval for a total award of attorneys’ fees and expenses in an amount not to exceed

Six Hundred and Fifty Thousand Dollars ($650,000.00). This amount will cover both the fees

and costs associated with prosecuting the Action and the future fees and costs associated with

administering the proposed class settlement agreement. The Parties agree that Defendants’

aggregate liability under the Settlement Agreement shall be capped at $1,150,000.

3. Payment of Attorney Fee Award and Incentive Awards. The Attorney Fee and

Expense Award to Class Counsel and Incentive Award to Plaintiff shall be paid by Defendants

by wire to Class Counsel in the manner specified in § IV.A.1.b above. Upon preliminary

approval of the Settlement, the Attorney Fee Award will be pre-funded under § V.C.9 below

with an advance payment to Class Counsel of $50,000, which amount will be used to pay

administration expenses and will be a credit against any Attorney Fee and Expense Award.

B. Claims Procedure

4. Submission of Claim. In order to participate in the Settlement Fund, Class

Members must submit claims to the Settlement Administrator following preliminary approval

and class notice by using the Claim Form attached hereto as Exhibit A. In order to be eligible

for a payment from the Settlement Fund, a Class Member must submit a completed Claim Form


to the Settlement Administrator by U.S. Mail, with a postmark date on or before the Claim

Deadline, which is defined as the date 60 days after the first mailing of the Class Notice. The

Settlement Administrator will make an initial determination as to whether a Class Member is

eligible for a payment from the Settlement Fund for a particular claim or particular claims. To

obtain a payout from the Settlement Fund, a Class member must submit timely a claim form

supported with proof of the total billed charge and the amount he or she paid each Medical

Provider for each date of service within the Class definition. Claims to compensation under this

fund will be submitted to and decided by the Settlement Administrator. Payments to Class

Members will be made by check from a trust account set up by and maintained by the Settlement

Administrator. If after distribution of Class notice, a Class Member pays billed charges on a

Medical Provider’s claim that is time-barred under the applicable statute of limitations, or the

Class Member pays billed charges that are subject to a contractual billing limitation or a waiver

by the Medical Provider, the claim based on that payment will not be eligible for compensation

under the Settlement Fund.

5. Claims Payment Calculation. Eligible Class members will receive from the

Settlement Fund an amount equal to (a) the amount paid by a Class member to a Medical

Provider for covered services rendered between January 1, 2012 and September 12, 2014, (b)

minus the Class member’s estimated patient responsibility under the Plan (for coinsurance and

deductibles) to that Medical Provider for that date of service. For dates of service on or after

January 1, 2014, estimated patient responsibility will be determined with the following formula:

(a) if the service was rendered by a Medical Provider within CHLIC’s network, the billed charge

will be discounted by 35%, and the patient’s estimated responsibility will be 20% of the

discounted amount; (b) if the service was rendered by an out-of-network Medical Provider, the


billed charge will be discounted by 35%, and the patient’s estimated responsibility will be 50%

of the discounted amount. For dates of service between January 1, 2012 and December 31, 2013,

estimated patient responsibility will be 30% of the billed charge.

6. Distributions from Settlement Fund and Priority of Claim Payments. Payments

from the Settlement Fund shall be paid as follows:

a. Class Members shall receive payments in the following priority: (1) first,

reimbursement for any judgments taken against Class Members related to unpaid medical

expenses incurred during the Class Period; (2) second, reimbursement for any amounts

actually paid by the Class Members (up to the amount the Plan would have paid for the

particular claim, as estimated under the formula in ¶5); (3) third, payment of medical

expenses for Class Members during the Class Period for which the Class Member has

received or is receiving any collection or dunning letters (up to the amount the Plan

would have paid on the particular claim, again as estimated under the formula in ¶5).

Thirty days after the Effective Date, the Settlement Administrator will mail payments to

the Class Members who returned timely and valid Claim Forms. The payments will be by

checks that void 60 days after issuance.

b. If 30 days after the Effective Date, payments mailed by the Settlement

Administrator to Class Members under ¶6(a) have not exhausted the Settlement Fund, the

remainder shall be paid as follows:

i. If the payments under ¶6(a) are less than or equal to $400,000, the

difference between $400,000 and the payments under ¶6(a) will be refunded to

the Class Members on a pro rata basis as a refund of their contributions to the

Plan.


ii. If the payments under ¶6(a) are less than or equal to $400,000,

Class Counsel shall be entitled, subject to Court approval, to an additional award

of $100,000 as their Additional Fee Award under ¶1(c) of this Section IV.

iii. If the payments under ¶6(a) exceed $400,000 but are less than

$500,000, the difference between the payments under ¶6(a) and $500,000 will be

will be distributed to Class Counsel as their Additional Fee Award under ¶1(c) of

this Section IV, subject to Court approval.

7. Dispute Resolution. The parties agree to meet and confer in good faith in regard

to any dispute relating to the Settlement. Any dispute which cannot be resolved shall be

submitted to the United States Magistrate judge assigned to this Action (“Referee”) for his or her

recommendation as to a resolution. Any party may seek de novo review of the Referee’s

recommendation by way of a motion filed in this Goodman Action.

V. Preliminary Court Approval of Settlement

A. Motion for Preliminary Approval

1. Content of Order. As soon as reasonably possible after the execution of this

Agreement, the Parties shall file a Joint Motion with the Court seeking an order preliminarily

approving the Settlement, that is not materially different from Exhibit D hereto, which:

(a) preliminarily approves the Settlement in this Agreement as sufficiently

fair, reasonable, and adequate to provide Class Notice to the Class;

(b) appoints CMM Settlement Solutions, LLC (“CMM”) as Settlement

Administrator in accordance with the provisions of Sections IV and V of this Agreement;

(c) approves the forms of Class Notice, the content of which is not materially

different from Exhibits B and C hereto;


(d) directs that Class Notice be mailed and published as described in this

Section V;

(e) determines that the Class Notice and the notice methodology implemented

pursuant to this Agreement (i) constitute the best practicable notice, (ii) are reasonably

calculated, under the circumstances, to apprise Class Members of the pendency of the

Goodman Action, their rights to remain in the Class, to make a claim, and to object to the

proposed Settlement, (iii) are reasonable and constitute due, adequate, and sufficient

notice to all persons entitled to receive notice, and (iv) meet all applicable requirements

of Due Process;

(f) requires the Settlement Administrator to file proof of dissemination of

Class Notice at or before the Final Approval Hearing;

(g) approves the Claim Form, the content of which is not materially different

from Exhibit A hereto and sets a date after which Claim Forms shall be deemed untimely

(as provided in Section V, ¶12, 13 & 14 below);

(h) preliminarily enjoins all Class Members from: (i) filing, commencing,

prosecuting, intervening in, or participating as a plaintiff, claimant, or class member in

any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any

jurisdiction based on, relating to, or arising out of the claims and causes of action, or the

facts and circumstances alleged in the Goodman Action and/or relating to the Released

Claims (as defined in Section VI, C. ¶6); (ii) filing, commencing, or prosecuting a lawsuit

or administrative, regulatory, arbitration, or other proceeding as a class action on behalf

of any Class Members (including by seeking to amend a pending complaint to include

class allegations or seeking class certification in a pending action), based on, relating to,


or arising out of the claims and causes of action, or the facts and circumstances relating

thereto, asserted or that could have been asserted in the Goodman Action and/or the

Released Claims;

(i) rules that every Class Member be bound by all proceedings, orders, and

judgments in the Goodman Action;

(j) requires each Class Member who wishes to object to the fairness,

reasonableness, or adequacy of this Agreement or the proposed Settlement, or to the

Attorney Fee Award or the Incentive Award, to provide to the Settlement Administrator

(who shall forward it to Class Counsel and counsel for Defendants) and to file with the

Court no later than sixty (60) days after the first mailing of the Class Notice, a statement

of the objection, as well as the specific legal and factual reasons, if any, for each

objection, including any support the Class Member wishes to bring to the Court’s

attention and all evidence the Class Member wishes to introduce in support of his or her

objection, or be forever barred from raising an objection;

(k) requires each Class Member who files and serves a written objection and

who intends to make an appearance at the Final Approval Hearing, either in person or

through personal counsel hired at the Class Member’s expense, to provide to the

Settlement Administrator (who shall forward it to Class Counsel and counsel for

Defendants) and to file with the Court no later than twenty-one (21) days before the Final

Approval Hearing, or as the Court otherwise may direct, a notice of intention to appear;

(l) directs the Settlement Administrator to rent a post office box in the name

of the Settlement Administrator to be used for receiving objections, notices of intention to

appear, and any other settlement-related communications, and providing that only the


Settlement Administrator, Class Counsel, Defendants’ counsel, and their designated

agents shall have access to this post office box, except as otherwise expressly provided in

this Agreement;

(m) directs the Settlement Administrator to promptly furnish Class Counsel

and Defendants’ counsel, with copies of any and all objections, notices of intention to

appear, or other communications that come into its possession (except as expressly

provided in this Agreement);

(n) schedules a hearing on final approval of the Settlement and this

Agreement (the “Final Approval Hearing”) to consider the fairness, reasonableness, and

adequacy of the proposed settlement and whether it should be finally approved by the

Court;

(o) contains any additional provisions, as agreed by the Parties that might be

necessary to implement the terms of this Agreement and the proposed settlement; and

(p) requires the Settlement Administrator to provide notice of the Settlement,

the Final Approval Hearing, and the preliminary approval order (containing the final

approval hearing date) to the appropriate state and federal authorities in compliance the

Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. Here, the appropriate state and

federal authorities are the United States Attorney General and the Attorneys General of

the States of Arkansas, Tennessee, and Mississippi.

B. Claim Administrator Duties

2. Settlement Administrator. Class Counsel proposes the appointment of CMM

Settlement Solutions, LLC (“CMM”) as Settlement Administrator to perform the services

described herein.


3. Settlement Administrator Duties. The Settlement Administrator shall assist with

various administrative tasks, including, without limitation, (i) publication and/or mailing or

arranging for the publication and/or mailing of the Class Notice and creation and maintenance of

a website as further described herein containing all pertinent class action settlement forms and

information; (ii) handling returned mail not delivered and making any additional mailings

required under Section 8; (iii) responding, as necessary, to inquiries from Class Members and

potential Class Members or directing them to Class Counsel; (iv) providing to Class Counsel and

counsel for Defendants within five (5) business days of receipt copies of all objections and/or

notices of intention to appear, (v) preparing a list of all persons who submitted objections to the

settlement and submitting an affidavit attesting to the accuracy of that list; and (vii) providing

Defendants’ counsel and Class Counsel within seven (7) business days after the Claim Deadline

Date, as described in Section 24 herein, copies of all Claim Forms returned by Class Members.

Class Counsel will supply the Settlement Administrator with all information and data reasonably

available and necessary to implement its responsibilities under this Agreement. Defendants have

provided to Class Counsel, in discovery or otherwise, the available information and data

regarding medical claims.

4. Settlement Website. The Settlement Administrator shall create and maintain a

website that will include information for the Settlement, this Agreement, Class Notice, and the

Claim Form. The website and its contents may be amended during the course of the Settlement

as appropriate and agreed to by Class Counsel and counsel for Defendants or as ordered by the

Court.

C. Class Notice


5. Form of Class Notice. The Parties agree that the Class Notice shall be in the form

attached as Exhibits B and C hereto. The Parties agree that they may change the form or

contents of the Class Notice to conform to any requirements of the Court.

6. Publication and Mailing of Class Notice. Within thirty (30) days of entry of the

Order granting Preliminary Approval, the Settlement Administrator shall mail by first class mail

to each Class Member a copy of the Class Notice (Exhibit B hereto) and the Claim Form

(Exhibit A hereto). Prior to such mailing, the Settlement Administrator shall update the

addresses through use of the National Change of Address database. The Settlement

Administrator shall promptly re-mail any notices returned by the Postal Service with forwarding

addresses that are obtained by the Settlement Administrator. Once the Settlement Administrator

has re-mailed a notice to a forwarded address, there shall be no further obligation to re-mail

notices. The Settlement Administrator shall also publish Class Notice on three (3) consecutive

weekdays in the appropriate section of the Crittenden County Times newspaper; the published

version of the notice shall occupy at least ¼ of a page in such publications. The date of the last

publication shall be deemed the “Class Notice Date” as that term is used herein

7. Class Notice Dates Govern. Unless the Court directs otherwise, the dates set forth

in the Class Notice shall govern the rights of the Class Members. However, these dates may be

changed by the Court without additional Notice to Class Members. If any changes are made by

the Court, the Settlement Administrator shall take all necessary steps to promptly modify the

settlement website identified in Section 9 below to reflect such changes and to communicate

such changes to any inquiring Class Member.

8. CAFA Notice. Within ten (10) days of the filing of the motion for entry of the

Preliminary Approval Order, the Settlement Administrator shall mail a notice of the Settlement


to the Attorney General of the United States and to the Attorneys General of the States of

Arkansas, Tennessee, and Mississippi, as required by and in accordance with the Class Action

Fairness Act, including each of the required items identified in 28 U.S.C. § 1715(b). To the

extent the Settlement Administrator determines that a Class Member is a resident of a state other

than the foregoing states, notice shall be given to the Attorney General of each and every state in

which a Class Member resides.

9. Payment of Settlement Administration Costs. The costs related to settlement

administration, including the Class Notice, the settlement website, and all costs of the Settlement

Administrator shall be taken from total settlement amount described above in Section IV.A.1.

However, Defendants shall pre-fund, upon the Court's preliminary approval of this Class Action

Settlement, $50,000.00 to cover a portion of these projected expenses. In the event that this

Settlement is not finally approved for any reason, neither Plaintiff, Class Counsel, nor any Class

Member has any liability or obligation to reimburse Defendants for the settlement administration

or Class Notice cost or expenses incurred to date. However, any of pre-funded monies

remaining unused shall be returned to Defendants. This $50,000.00 advance payment will be a

credit against and reduce the amount of the Attorney Fee and Expense Award under Section

IV.A.1(b).

D. Claim Forms

10. Claim Form. The Claim Form shall not be materially different from Exhibit A

attached hereto.

11. Contents of Claim Form. Each Class Member shall be required to complete said

Claim Form and return it to the Settlement Administrator and postmark the Claim Form by the

Claims Deadline to eligible to receive a payment from the Settlement Fund. The Claim Form


shall require, and each person submitting a Claim Form shall provide, the following information:

name, email address, current mailing address, phone number, and verification that Class Member

incurred medical expenses during the Class Period. Verification of expense can be accomplished

by providing: (a) a receipt or any other form of written verification of a medical expense or (b)

Failure of a Class Member to be able to provide acceptable verification that the Class Member

actually incurred a medical expense during the Class Period shall prevent that Class Member

from being able to obtain benefits under this Settlement.

12. Claim Deadline. To be eligible to receive a benefit as defined in Sections IV.A

and B of this Agreement, a Class Member must (a) truthfully, accurately, and completely fill out

the Claim Form; (b) include copies of the verification documentation required on the Claim

Form; (c) mail and postmark the Claim Form, with postage prepaid, to the Settlement

Administrator postmarked as having been mailed no later than 60 days after the first mailing of

the class notice by the Settlement Administrator

13. Failure to Meet Requirements of Claim Form. The failure by a Class Member to

provide the Settlement Administrator with his or her Claim Form and the accompanying

verification documentation required herein or to cure any deficiencies pursuant to Section___

will result in the Class Member forfeiting the right to receive benefits under this Settlement.

14. Class Member’s Right to Cure Deficiencies. In the event that a Claim Form or

the supporting verification documentation fails to meet the requirements of this Agreement, the

Settlement Administrator shall call the Class Member who submitted the Claim Form, or email

or mail a notice to the Class Member, indicating the deficiency and providing the Class Member

an opportunity to cure the deficiency within twenty (20) days.

E. Class Member Options


15. Mandatory Nature of the Class. The Court has certified the Class under

Federal Rule 23(b)(1). Therefore, the Class Members may not opt out of the Class or pursue their

own individual claims in separate proceedings. This Agreement, if granted final approval by the

Court, will be binding on and enforceable against all Class members. Class Members, do,

however, have the right to object to the Agreement in accordance with the procedures under this

Agreement.

16. Agreement Not to Object. The Class Counsel agree that they shall not seek to

object to any term of the Settlement.

17. Class Objections. The Class Members shall have 60 days from the first mailing

of the Class Notice to object to the fairness, reasonableness, or adequacy of this Agreement or of

the proposed Settlement or to the Attorney Fee Award or Incentive Award. Any such objection

must be mailed to the Settlement Administrator (who shall forward it to Class Counsel and

counsel for Defendant) and filed with the Court no later than 60 days after the first mailing of the

Class Notice. The objection must include a statement of the objection or objections, as well as

the specific legal and factual reasons, if any, for each objection, including any support the Class

Member wishes to bring to the Court’s attention and all evidence the Class Member wishes to

introduce in support of his or her objection. Any Class Member who does not timely submit an

objection in accordance with this Agreement, the Class Notice, and as ordered by the Court, shall

be treated as having consented to the Settlement and agreeing to the terms of this Agreement.

Any objection that does not comply with this Section, the Class Notice, or as ordered by the

Court shall not be considered by the Court and shall be deemed waived.

VI. Final Court Approval of Settlement

A. Final Approval and Judgment


1. Final Order. If the Court preliminarily approves the Settlement and enters the

Preliminary Approval Order, Plaintiff and Class Counsel shall request the Court to enter the

Final Order, not materially different from that attached hereto as Exhibit E that, among other

things:

(a) adopts and incorporates this Agreement, the terms defined herein, and all

exhibits hereto;

(b) authorizes the Parties, without further approval from the Court, to agree to

and to adopt such amendments, modifications, and expansions of this Agreement and all

Exhibits hereto as long as they (i) are consistent in all material respects with the Final

Order attached hereto as Exhibit E and (ii) do not reduce the rights of Class Members

under this Agreement or in the Final Order;

(c) finds that the Court has jurisdiction over the Class Members and that the

Court has subject matter jurisdiction to approve this Agreement and all Exhibits hereto;

(d) confirms the definition of the Class for purposes of this Settlement and the

Final Order;

(e) finds that the Class Notice and the notice methodology implemented

pursuant to this Agreement (i) constitute the best practicable notice; (ii) constitute notice

that is reasonably calculated, under the circumstances, to apprise Class Members of the

pendency of the Lawsuit, their right to object to or to exclude themselves from the

Settlement and to appear at the Final Approval Hearing, and their right to seek monetary

and other relief; (iii) are reasonable and constitute due, adequate, and sufficient notice to

all persons entitled to receive notice; and (iv) meet all applicable requirements of Due

Process;


(f) finds that full opportunity has been afforded to all Class Members to file

objections to the Settlement, and to participate in the Final Approval Hearing, and that all

Class Members and other persons validly requesting to be heard have been heard;

(g) gives final approval to the Settlement and this Agreement as being fair,

reasonable, and adequate as to, and in the best interests of, each of the Plaintiffs and

Class Members, and is consistent and in compliance with all requirements of Due Process

and further directs the Parties and their counsel to implement and consummate this

Agreement in accordance with its terms and provisions;

(h) directs that the Settlement Administrator issue payments to Class

Members and Class Counsel in accordance with this Agreement and the Final Approval

Order;

(i) directs that Defendants shall issue payment to the Settlement

Administrator for the Settlement Fund within 5 days after the Effective Date under

Section VIII.4;

(j) adjudges that the Plaintiff and the Class Members have conclusively

compromised, settled, discharged, dismissed, and released any and all Released Claims

against Defendants, and incorporates the Release into the Final Approval Order;

(k) enters final judgment in accordance with the terms of the Final Order and

this Agreement, and further orders that the complaint is dismissed with prejudice as to

Defendants without fees or costs to any Party except as provided therein;

(l) declares this Agreement and the Final Order to be binding on and have res

judicata and preclusive effect in all pending and future lawsuits or other proceedings


encompassed by the Release maintained by or on behalf of Plaintiff and all other Class

Members, as well as their heirs, executors and administrators, successors, and assigns;

(m) provides that, upon the Effective Date, Plaintiff and all Class Members

who have not been excluded from the Class, whether or not they return a Claim Form

within the time and in the manner provided for, shall be barred from asserting any

Released Claims against Defendants, and any such Class Members shall have released

any and all Released Claims as against Defendants;

(n) bars and permanently enjoins all Class Members who have not properly

and timely excluded themselves from the Settlement from filing, commencing,

prosecuting, intervening in, continuing or participating as a plaintiff, claimant, or class

member in any other lawsuit or administrative, regulatory, arbitration, or other

proceeding in any jurisdiction based on, relating to, or arising out of the Released Claims

or the claims, causes of action, facts, or circumstances alleged or that could have been

alleged in the Goodman Action;

(o) declares that Defendants and Defendants’ counsel shall have no liability

whatsoever for any acts or omissions of the Settlement Administrator or Class Counsel

other than to pay for the costs and expenses of the Settlement Administrator in

disseminating the Class Notice and administering the Settlement as set forth, and subject

to the limitations, herein;

(p) addresses Class Counsel’s and Plaintiff’s application for an award of

attorneys’ fees and costs to Class Counsel and an Incentive Award to Plaintiff and

provides that the payment for such awards shall be separate from and not affect the


payments available to Class Members who submit timely and proper Claim Forms in

accordance with the requirements of this Agreement;

(q) determines that this Agreement and the Settlement provided for herein,

and any proceedings taken pursuant thereto, are not, and should not in any event be

offered or received as evidence of, a presumption, a concession, or an admission of

liability or of any allegation made against Defendants, provided, however, that reference

may be made to this Agreement and the Settlement provided for herein in such

proceedings as may be necessary to effectuate the provisions of this Agreement;

(r) designates a cy pres recipient to receive any funds remaining in Settlement

Fund after all payments are made under this Agreement; and

(s) without affecting the finality of the Final Order for purposes of appeal,

reserves jurisdiction over Defendants, the Plaintiff, and the Class as to all matters relating

to the administration, consummation, enforcement, and interpretation of the Final Order,

and for any other necessary purposes.

2. Appearance at Final Approval Hearing. Any Class Member who wishes to appear

at the Final Approval Hearing, whether in person or through counsel, must file a notice of

appearance with the Court and provide such notice to the Settlement Administrator (who shall

forward it to Class Counsel and counsel for Defendants) no later than twenty (20) days before the

Final Approval Hearing or as the Court may otherwise direct. Any Class Member who fails to

comply with this Section, the Agreement, the Class Notice, or as otherwise ordered by the Court

shall not be permitted to appear at the Final Approval Hearing.

B. Injunction and Prohibition of Further Litigation


3. Preliminary Injunction. The Parties agree that a stipulated preliminary injunction

shall be entered by the Court as part of the Preliminary Approval Order that enjoins all Class

Members who have not timely excluded themselves from the Settlement from: (i) filing,

commencing, prosecuting, intervening in, or participating as a plaintiff, claimant, or class

member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any

jurisdiction based on, relating to, or arising out of the claims and causes of action, or the facts

and circumstances alleged in the Goodman Action and/or relating to the Released Claims;

(ii) filing, commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration, or

other proceeding as a class action on behalf of any Class Members (including by seeking to

amend a pending complaint to include class allegations or seeking class certification in a pending

action), based on, relating to, or arising out of the claims and causes of action, or the facts and

circumstances relating thereto, in the Goodman Action and/or the Released Claims; and

(iii) attempting to effect a mass opt-out of Class Members or a class of individuals for claims and

causes of action included within the Released Claims.

4. Permanent Injunction. The Parties agree that a stipulated permanent injunction

shall be entered by the Court as part of the Final Order that bars and permanently enjoins all

Class Members who have not properly and timely excluded themselves from the Settlement from

filing, commencing, prosecuting, intervening in, continuing, or participating as a plaintiff,

claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other

proceeding in any jurisdiction based on, relating to, or arising out of the claims and causes of

action, or the facts and circumstances alleged in the Goodman Action and/or relating to the

Released Claims.


5. Prohibition of Future Claims. Plaintiff, on behalf of herself and the Class, and

Class Counsel agree not to initiate or to prosecute any additional litigation against Defendants

relating to the Released Claims as defined in Sections 18 and 19 below.

C. Release of Claims by the Class and Dismissal of Actions

6. Release of Claims. As used in this Agreement, the term “Release” means the

agreements and obligations set forth in this Section of this Agreement. As of the Effective Date

of this Agreement (as defined in Section VIII., ¶4), Plaintiff, and all other Class Members hereby

expressly release and forever discharge the Released Parties, as defined below, of and from any

and all Released Claims (as defined below) and agree that they shall not now or hereafter initiate,

maintain, or assert against any of the Releasees any causes of action, claims, rights, demands, or

claims for equitable, legal, and/or administrative relief connected with, arising out of, or related

to the Released Claims in any court or before any administrative body (including any state

department, regulatory agency, or organization), tribunal, arbitration panel, or other adjudicating

body.

(a) With regard to Plaintiff Goodman, the term “Released Claims” means all

claims that were, or that could have been, asserted in the Goodman Action, including any

claim arising from or relating to:

i. any alleged representations or nondisclosures by any Defendant

relating to the Plan;

ii. any action or omission by any Defendant relating to the Plan;

iii. any medical services provided to Goodman or her family members

before September 12, 2014; and,


iv. her employment with the Hospital and separation therefrom,

including but not limited to claims under all federal, state and local laws including

the WARN Act.

(b) With regard to Class Members, the term “Released Claims” means all

claims each Class Member has arising from or relating to the Plan, including, without

limitation, any claim relating to:

i. any alleged representations or nondisclosures by any Defendant

relating to the Plan;

ii. any action or omission by any Defendant relating to the Plan;

iii. any medical services provided to the Class Member before

September 1, 2014; and,

iv. their respective employment with CHA and separation therefrom

including but not limited to claims under all federal, state and local laws including the

WARN Act.

(c) Without in any way limiting the scope of the Release, the term “Released

Claims” includes, without limitation, any and all claims for attorneys’ fees, costs, or

disbursements incurred by Class Counsel or any other counsel representing Plaintiff or

any Class Members, or by Plaintiff or Class Members, or any of them, in connection with

or related in any manner to the Goodman Action, the settlement of the Goodman Action,

the administration of such settlement, and/or any claim arising from or relating to:

i. any alleged representations or nondisclosures by any Defendant relating to

the Plan;

ii. any action or omission by any Defendant relating to the Plan; and


iii. any medical services provided to Goodman or her family members before

September 12, 2014.

(d) The Plaintiff and the Class expressly acknowledge that they are familiar

with principles of law such as Section 1542 of the Civil Code of the State of California,

which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Plaintiff and Class Members knowingly and voluntarily waive and relinquish the

provisions, rights, and benefits of Section 1542 of the Civil Code of the State of

California and all similar applicable federal or State laws, rights, rules, or legal principles

to the fullest extent permitted by law. Plaintiff and Class Members acknowledge that

they are aware that they may later discover claims presently unknown or unsuspected or

facts in addition to or different from those which they now know or believe to be true

with respect to the Released Claims. Nevertheless, Plaintiff and Class Members

acknowledge that a portion of the consideration received herein is for a release of

unknown and unsuspected claims. Plaintiff and Class Members agree and acknowledge

that this is an essential term of this Release. It is the intention of the Plaintiff and Class

Members in executing this Release to settle and to release fully, finally, and forever all

matters, known or otherwise, and all claims relating thereto, which exist, hereafter may

exist, or might have existed (whether or not previously or currently asserted in any

action) constituting Released Claims.

(e) Nothing in this Release shall preclude any action to enforce the terms of

this Agreement, including participation in any of the processes detailed herein.


(f) Subject to Court approval, all Class Members shall be bound by this

Agreement, and all of their claims, as provided under this Agreement, shall be dismissed

with prejudice and released, even if they never received actual notice of the Goodman

Action or the Settlement.

7. Released Parties. The term “Released Parties” means each person and entity

named as a Defendant in the Goodman Action, Methodist Le Bonheur Healthcare, Simplifi,

Donna Lanier, Carol McCormack, and A. Jan Thomas, along with the respective officers,

employees, directors, agents, attorneys, insurers, successors, predecessors, parent corporations,

subsidiaries, and affiliates of each of them, including but not limited to Cigna Corporation,

Connecticut General Life Insurance Company, Cigna Healthcare of Arkansas, Inc., Cigna

Healthcare of Tennessee, Inc., Federal Insurance Company, The Chubb Corporation (and its

subsidiaries and affiliates), ACE Limited (and its subsidiaries and affiliates), and Arch Insurance

Company (and its subsidiaries and affiliates).

8. Dismissal of Claims with Prejudice. On behalf of herself and Class Members,

Plaintiff stipulates and agrees to dismiss the Goodman Action with prejudice and the Parties will

include the dismissal of the Goodman Action with prejudice in the Final Order described in

Section VI. of this Agreement.

9. Memorialization of the Releases. The releases granted by Goodman and the Class

members will be set forth in the final approval order and the class settlement agreement.

VII. General Representations and Warranties

1. Plaintiff and Class Counsel warrant and represent that they shall take no action to

defeat the jurisdiction of the Court; shall take all appropriate action, at their own costs, to oppose

and to prevent the prosecution of any competing litigation in which a Class Member seeks to


undermine, thwart, overturn, frustrate, or avoid the Settlement; use their best efforts to cause the

Court to grant the Preliminary Approval Order and Final Order as promptly as possible; shall use

their best efforts to respond to any and all non-meritorious objections to the Settlement ; and

shall take or join in such other reasonable steps as may be necessary to implement this

Agreement and to effectuate the Settlement. Without limiting the foregoing, Plaintiff and Class

Counsel represent and warrant that they shall: (a) seek preliminary and final approval of the

Settlement by the Court; (b) move for entry of the Preliminary Approval Order and Final Order;

and (c) join in the entry of such other orders or revisions of orders or notices necessary to

effectuate the Settlement.

2. Plaintiff and Class Counsel warrant and represent that Plaintiff owns her own

claims at issue in the Goodman Action and has authority on behalf of herself and on behalf of

Class Members to settle those claims on the terms set forth in this Agreement.

3. Plaintiff and Class Counsel warrant and represent that they shall not disparage

Defendants.

4. Plaintiff and Class Counsel warrant and represent that any motion and/or

application that they file requesting an award of attorneys’ fees and costs to Class Counsel and

for approval of the Incentive Award shall include within its scope all attorneys and law firms

with a financial interest in such award with respect to the Action.

5. Plaintiff and Class Counsel represent and warrant that they have not and will not:

(a) solicit, encourage, or assist, in any fashion, Class Members to object to the Settlement; or (b)

appeal from or seek review of any order that approves the Settlement. Nothing in this provision

shall prevent Class Counsel from advising a Class Member of his or her individual right to object

to the Settlement.


6. Defendants warrant and represent that, for so long as this Agreement is valid and

no Defendant has withdrawn from the Agreement pursuant to Section VIII. Defendants shall take

no action to defeat the jurisdiction of the Court; shall take all appropriate action to oppose and

prevent the prosecution of competing litigation in which a Class Member seeks to undermine, to

overturn, or to avoid the Settlement; shall support and not oppose efforts to cause the Court to

grant the Preliminary Approval Order and Final Approval Order as promptly as possible; and

shall take or join in such other reasonable steps as may be necessary to implement this

Agreement and to effectuate the Settlement. Without limiting the foregoing, Defendants warrant

and represent that each of them shall: (a) not oppose entry of the Preliminary Approval Order

and Final Order; and (b) join in the entry of such other orders or revisions of orders or notices

necessary to effectuate the Settlement.

7. Plaintiff, Defendants, and Class Counsel acknowledge and agree that Defendants’

sole responsibility related to settlement administration is to cause the amounts described in this

Agreement to be paid into the Settlement Fund. Defendants shall not be liable to any Class

Member for any claim decision made by the Settlement Administrator or any claim that the

Settlement Fund was improperly administered.

8. Plaintiff, Defendants, and Class Counsel represent and warrant that they are fully

authorized to enter into this Agreement and to carry out the obligations provided for herein. All

persons executing this Agreement on behalf of a Party represent and warrant that they are and

have been fully authorized to do so by such Party.

VIII. Right to Withdraw From Agreement and Other Terms


1. Failure to Obtain Court Approval. Within fifteen (15) days of the occurrence of

any of the following events, and upon written notice to counsel for all Parties, any Party shall

have the right to withdraw from the settlement:

(a) if the Court fails to approve this Agreement or if, on appeal, the Court’s

approval is reversed or materially modified; or

(b) if the Court materially alters any of the terms of this Agreement, including

but not limited to the Release, the definition of the Settlement Class, or the terms

governing benefits to be provided by Defendants to Class Members pursuant to this

Agreement; or

(c) if the Preliminary Approval Order, or the Final Order, is not entered by the

Court, or is reversed or materially modified on appeal, or otherwise fails for any reason.

In the event of a withdrawal pursuant to this Section, this Agreement will be vacated

without prejudice to any Party’s position on any of the issues in the Goodman Action as of and

the Parties shall be restored to their litigation positions existing on July 21, 2016, the facts and

terms of this Agreement shall not be used by the Parties in any way or admissible in any

subsequent proceedings in the Goodman Action or in any other action, and Defendants will

retain all rights to oppose, appeal, or otherwise challenge, legally or procedurally, class

certification or any other issue in this case.

2. Objections Sustained. If the Court sustains any objection to the Settlement or to

the Agreement, then the Parties may withdraw from this Agreement. In order to withdraw from

this Agreement, the withdrawing Party(ies) must provide notice to all counsel of their withdrawal

within ten (10) days of the Court sustaining an objection. In that event, this Agreement will be

vacated without prejudice to any Party’s position on any of the issues in the Goodman Action


and the Parties shall be restored to their litigation positions existing on July 21, 2016, the facts

and terms of this Agreement shall not be used by the Parties in any way or admissible in any

subsequent proceedings in the Goodman Action or in any other action, and Defendants will

retain all rights to oppose, appeal, or otherwise challenge, legally or procedurally, class

certification or any other issue in this case.

3. No Binding Agreement Until Court Approval. The Parties agree that no binding

and enforceable agreement as to the subject matter of this memorandum will exist until the Court

grants final approval of the Class Settlement. Upon final approval, all litigation by Plaintiff

against Defendants in any court shall be dismissed with prejudice.

4. Effective Date. The “Effective Date” of this Agreement shall be the date when

the event described in ¶4(a) below has occurred and one of the events in ¶4(b) has occurred:

a. the Court’s entry of the Final Order in the form of Exhibit E:

(1) approving this Agreement as fair, reasonable, and adequate

to the Class Members;

(2) finding that this Agreement is fair and made in good faith;

(3) finding that the notice provided to the Settlement Class was

the best notice practicable under the circumstances, that it

was the only notice required, and that it satisfied the

requirements of due process and Fed. R. Civ. P.

23(c)(2)(B);

(4) finally certifying the Settlement Class; and

(5) dismissing the claims of Plaintiff and the Class Members

against Defendants with prejudice.

b. either:

(1) if no appeal of the final order has been sought, the

expiration of five (5) days from the time that the final order

becomes a final, non-appealable order under 28 U.S.C. §

1291; or

(2) if an appeal has been sought, the expiration of five (5) days

after the appeal is disposed of in an order that: (i) affirms

the final approval order and approves this Agreement as


fair, reasonable, and adequate; (ii) orders the

consummation of the settlement in accordance with the

terms and provisions of this Agreement; and (iii) is not

subject to further appellate review and does not remand the

case to the trial court.

IX. Miscellaneous Provisions

1. Communications with Media Regarding Settlement. Plaintiff and Class Counsel

hereby agree not to engage in any communications with the media or press, on the Internet, or in

any public forum, orally or in writing, that relate to this Settlement or the Goodman Action, other

than statements that are the same or substantially similar to the statements in the Class Notice.

Specifically, Plaintiff and her counsel shall refrain from disparaging any Defendant or taking any

action designed to harm the public perception of any Defendant regarding any issue related to the

Settlement or the Goodman Action. All such counsel agree that all extra-judicial statements in

regard to the Settlement will comport with the Arkansas Rules of Professional Conduct.

Plaintiff’s counsel may respond to direct communications from any client or potential client.

Inquiries made to Plaintiff’s counsel, other than those from Settlement Class Members seeking

legal advice, may be responded to only by reference to information contained in the public

record and/or agreed upon by the Parties.

2. No Admission of Fault, Federal Rule of Evidence 408. The Parties enter into

this Class Action Settlement without prejudice to their claims, defenses, and positions in the

Action. Defendants expressly deny that they engaged in the wrongful actions and inactions that

Goodman attributes to them and further deny that they are liable to Goodman or the Class

Members for any form of relief or damages.

3. Headings and Captions. The headings and captions contained in this Agreement

are for reference purposes only and in no way define, extend, limit, describe, or affect the scope,

intent, meaning, or interpretation of this Agreement.


4. Choice of Law. For purposes of the Settlement only, this Agreement shall be

construed, enforced, and administered in accordance with the laws of the State of Arkansas.

5. Retained Jurisdiction of the Court. The Court shall retain jurisdiction with respect

to implementation and enforcement of the terms of this Agreement, and the Parties hereto submit

to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement

embodied in this Agreement.

6. Entire Agreement. Except as otherwise stated herein, this Agreement and its

Exhibits constitute the entire agreement between and among the Parties with respect to the

settlement of the Goodman Action. This Agreement shall not be construed more strictly against

one Party than another merely because of the fact that it may have been prepared by counsel for

one of the Parties, it being recognized that, because of the arm’s-length negotiations resulting in

the Agreement, all Parties hereto have contributed substantially and materially to the preparation

of this Agreement. This Agreement supersedes all prior negotiations and agreements (except as

otherwise stated herein) and may not be modified or amended except by a writing signed by the

Parties and their respective counsel. This Section does not apply to any agreement with the

Settlement Administrator.

7. Execution in Counterparts. This Agreement may be executed in counterparts each

of which shall be deemed to be an original, but all of which together shall constitute one and the

same instrument.

8. Integration of Exhibits. The Exhibits to this Agreement are an integral part of the

Settlement and are hereby incorporated and made part of this Agreement.

9. Execution of Additional Necessary Documents. The Parties hereto shall execute

all documents and perform all acts necessary and proper to effectuate the terms of this


Agreement. The executing of documents must take place prior to the date scheduled for the

Final Approval Hearing.

10. Independent Judgment. Each Party to this Agreement warrants that he, she, or it

is acting upon his, her, or its independent judgment and upon the advice of his, her, or its counsel

and not in reliance upon any warranty or representation, express or implied, of any nature or kind

by any other party, other than the warranties and representations expressly made in this

Agreement.

CONSENTED AND AGREED TO AS OF

November ___, 2016:

CLASS COUNSEL

On behalf of Plaintiff and all Class Members:

WATSON BURNS, PLLC

____________________________________

Frank L. Watson, III (Tenn. Bar No. 15073)

William F. Burns (Tenn. Bar No. 17908)

253 Adams Avenue

Memphis, Tennessee 38103

BALLIN, BALLIN & FISHMAN, P.C.

_____________________________________

John Timothy Edwards, Esq.

Kevin McCormack, Esq.

200 Jefferson Avenue, Suite 1250

Memphis, TN 38103

901-525-6278

On Behalf of and as Counsel for Defendant CIGNA Health

and Life Insurance Company:


HINSHAW & CULBERTSON, LLP

_____________________________________

Daniel K. Ryan, Esq. (admitted pro hac vice)

Peter E. Pederson, Esq. (admitted pro hac vice)

222 N. LaSalle Street, Suite 300

Chicago, Illinois 60601

(312) 704-3000 Phone

On Behalf of and as Counsel for Defendants Crittenden

Hospital Association, Inc.; W. Brad McCormick; Jamie R.

Carter,Jr.; David Raines, Jr.; Jason W. Collard; Herschel F.

Owens; Andrew Luttrell; Donna B. Lanier; Carol C.

McCormack; Keith M. Ingram; Randall Catt; William

Johnson; Lannie L. Lancaster; Julio P. Ruiz; Sherry L.

London; Ness S. Sechrest; Randy R. Sullivan; and Leven

Williams:

WALLER LANSDEN DORTCH & DAVIS, LLP

_____________________________________

Mark W. Peters, Esq.

John E. B. Gerth, Esq.

511 Union Street, Suite 2700

Nashville, TN 37219

615-244-6380

On Behalf of and as Counsel for Defendants Eugene K.

Cashman, III and David G. Baytos:

GLANKLER Brown, PLLC

_____________________________________

John I. Houseal, Jr., Esq.

Don L. Hearn, Esq.

6000 Poplar Avenue, Suite 400

Memphis, TN 38119

901-525-1322

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN ...chalawsuit.com/crittenden settlement...

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