Kevin Hart et al v. Nancy A. Berryhill, No. 3:2015cv00623 - Document 90 (N.D. Cal. 2017)
Court Description: STIPULATION AND ORDER re 89 STIPULATION WITH PROPOSED ORDER re 88 Order on Motion for Settlement TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Nancy A. Berryhill. Signed by Judge Jon S. Tigar on April 25, 2017. (wsn, COURT STAFF) (Filed on 4/25/2017)
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Kevin Hart et al v. Nancy A. Berryhill 1 2 3 4 5 6 7 8 9 10 11 12 Doc. 90 CHAD A. READLER Acting Assistant Attorney General JUDRY L. SUBAR Assistant Director Federal Programs Branch M. ANDREW ZEE (CA Bar No. 272510) United States Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Avenue, Room 7-5395 San Francisco, CA 94102 T: (415) 436-6646 / F: (415) 436-6632 Email: m.andrew.zee@usdoj.gov GERALD A. McINTYRE (SBN 181746) gmcintyre@justiceinaging.org JUSTICE IN AGING 3660 Wilshire Blvd., Suite 718 Los Angeles, CA 90010 T: (213) 674-2900 / F: (213) 550-0501 ANNA RICH (SBN 230195) arich@justiceinaging.org TRINH PHAN (SBN 267288) tphan@justiceinaging.org JUSTICE IN AGING 1330 Broadway, Suite 525 Oakland, CA 94612 T: (510) 663-1055 / F: (213) 550-0501 Attorneys for Defendant Attorneys for Plaintiffs (Additional Counsel listed on next page) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 13 14 15 16 17 KEVIN HART, NINA SILVA-COLLINS, and LEE HARRIS, on behalf of themselves and all others similarly situated, 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, in her official capacity, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:15-cv-00623-JST STIPULATED REQUEST TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND [PROPOSED] ORDER Hon. Jon S. Tigar Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 WILLIAM L. STERN (SBN 96105) WStern@mofo.com CLAUDIA M. VETESI (SBN 233485) CVetesi@mofo.com ROBERT T. PETRAGLIA (SBN 264849) RPetraglia@mofo.com ELIZABETH BALASSONE (SBN 280563) EBalassone@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 T: (415) 268-7000 / F: (415) 268-7522 HOPE NAKAMURA (SBN 126901) hnakamura@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY 330 Twin Dolphin Drive, Suite 123 Redwood City, CA 94065 T: (650) 558-0915 / F: (650) 517-8973 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 1 Plaintiffs, Kevin Hart, Nina Silva-Collins, and Lee Harris, on behalf of themselves and all 2 others similarly situated, and Defendant, Nancy A. Berryhill, Acting Commissioner of Social 3 Security, sued solely in her official capacity (“SSA”), submit this Stipulated Request to Amend 4 the Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement (“Order”) 5 [ECF No. 88] to comport with the terms of the parties’ Amended Settlement Agreement 6 (“Agreement”) [ECF No. 79-1]. The April 17, 2017 Order differs from the Agreement in the 7 following four material respects. First, on page 1, line 19, the Order recites that the case involves 8 “evidence used by Administrative Law Judges (‘ALJs’),” but the case involved adjudications at 9 all levels, not just at the ALJ stage, so Plaintiff would request that “Administrative Law Judges 10 (‘ALJs’)” be replaced with “Social Security Administration (‘SSA’)”; and at page 1, line 20-21, 11 instead of saying “The evidence ALJs consider when making a disability benefits determination 12 includes consultative evaluations,” this should be re[placed with “The evidence the agency 13 considers when making a disability benefits determination often includes consultative evaluations 14 … . “ Second, the Order sets the date for mailing Request Forms as May 19, 2017, but under the 15 Agreement that the Court was approving, the deadline for mailing the Request Forms is later, 16 namely, ninety days (for most forms) and twenty days (for another form) after the time for any 17 appeals from the approval order has elapsed. Third, the Order contains language that might create 18 confusion concerning the enforcement mechanism negotiated and agreed upon by the parties. 19 Fourth, the parties had requested that the Court grant final approval to the amended class 20 definition, which was omitted from the Court’s Order Granting Final Approval. Respectfully, 21 therefore, the parties request that the Court amend its April 17, 2017 Order in the manner 22 described below. Alternatively, the parties request that the Court withdraw the Order and enter 23 the Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in 24 connection with Plaintiffs’ Motion for Final Approval. 25 Request for Amendment of the Order 26 The Conclusion of the Order provides as follows: 27 28 CONCLUSION Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 1 The Court finds the settlement agreement fair, adequate, and reasonable and GRANTS Plaintiffs motion for final approval of the settlement. The parties shall distribute the Request Forms by May 19, 2017. Defendant will pay $490,000 in attorneys’ fees and costs to Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San Mateo County. The Court finds that this award is fair and reasonable in light of the nature of this Action, counsel’s experience and efforts in prosecuting and resolving this action, and the benefits obtained for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has agreed to waive its fees and costs. The Court reserves exclusive and continuing jurisdiction over the Action, the Class Representatives, the Class members, and Defendants for the purposes of supervising the implementation, enforcement, and construction of the Settlement and this Judgment. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order 5. The parties request that the Order be amended to remove the second and fourth paragraphs of this Conclusion, and to include a term that the parties had requested that the Court include. Second Paragraph: In the Agreement, the parties did not establish a date certain (such as May 19, 2017) by which SSA would send claimants the agreed-upon notices and claim forms (referred to by the Court as “Request Forms” in the Order). Instead, the deadline to send such forms is to be established in relation to the “date on which the Settlement becomes effective.” See Agreement 18, 20, 27, 28, 31 (providing that SSA will send Notices A, A2, B, and B2 within ninety days after the effective date and Notice C within twenty days after the effective date). Pursuant to the agreed definition, the “date on which the Settlement becomes effective” will not be known until either (1) any timely appeal of the approval order is resolved; or (2) no timely appeal is filed. Agreement 4 (defining “date on which the Settlement becomes effective”). A May 19, 2017 deadline to distribute the Request Forms is therefore at odds with the terms of the Agreement. Further, counsel have been informed that SSA is not in a position to meet a May 19, 2017 deadline (which would in any event come before the deadline for an appeal from the April 17, 2017 Order). Therefore, the parties respectfully request that the second paragraph of the Conclusion be stricken. Otherwise, the parties will be in the difficult position of having an Order Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 2 1 granting final approval of a Settlement Agreement that deviates from the negotiated terms of the 2 Settlement Agreement (and which, as a practical matter, cannot be performed). 3 Fourth Paragraph: In the Agreement, the parties identified specific pre-dispute resolution 4 procedures in an Enforcement provision. Agreement 33-35. Without noting the Enforcement 5 provision, the April 17, 2017 Order states that the Court “reserves exclusive and continuing 6 jurisdiction over the Action, the Class Representatives, the Class members, and Defendants for 7 the purposes of supervising the implementation, enforcement, and construction of the Settlement 8 and this Judgment.” Order 5. 9 process for remedying alleged violations of this Agreement.” Agreement 33. The parties “further 10 agree[d] that no other litigation action in the Case, including but not limited to the filing of any 11 motions or pleadings, may be taken except as set forth in this Section VI [concerning 12 Enforcement].” Id. In order to avoid potential confusion from the language in the Order (which 13 does not expressly reference the Enforcement provision), the parties respectfully request that the 14 fourth paragraph of the Conclusion be stricken.1 In the Agreement, however, the parties agreed to an “exclusive 15 Final Approval of Amended Class Definition: In the Agreement, the parties agreed, for 16 settlement purposes, to amend the definition of the class and to request that the Court amend the 17 certified class so that the plaintiff class is defined as consisting of “all persons whose SSI or SSDI 18 benefits were either denied or terminated and for whom a consultative examination was prepared 19 by Dr. Frank Chen, and all persons who received a partially favorable decision or determination 20 on their claim for SSI or SSDI benefits and for whom a consultative examination was prepared 21 by Dr. Chen.” Agreement 6-7. Although the Court preliminarily approved this modification of 22 the class definition, see Order Granting Mot. for Prelim. Approval, ECF No. 81, at 6-7, it did not 23 expressly grant final approval to this modification. To ensure that proper notice is given of the 24 25 26 27 28 1 It appears that the fourth paragraph of the Conclusion may have been drawn from the original proposed order submitted by Plaintiffs in connection with their Motion for Final Approval. See Proposed Order, ECF No. 82-3, at 5, ¶ 10 (using same language as fourth paragraph of the Conclusion). Following submission of this proposed order, SSA registered its objections to this language with Plaintiffs’ counsel, and the parties then agreed to submit an Amended Proposed Order, in which this language does not appear. See Notice of Am. Proposed Order, ECF No. 85-1; see also Def.’s Mem. Supp. Final Approval, ECF No. 83, at 1 n.2. Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 3 1 amended class definition, and out of an abundance of caution, the parties respectfully request that 2 the Court add a new paragraph to the Conclusion granting final approval to the amended class 3 definition. See also Notice of Am. Proposed Order, ECF No. 85-1, at 1-2, ¶ 5. * 4 * * 5 In summary, the parties respectfully request that the Court amend page 1, line 19 to replace 6 “Administrative Law Judges (‘ALJs’)” with “Social Security Administration (‘SSA’)”; and at 7 page 1, line 20-21, instead of saying “The evidence ALJs consider when making a disability 8 benefits determination includes consultative evaluations,” this should be replaced with “The 9 evidence the agency considers when making a disability benefits determination often includes 10 consultative evaluations … . “ The Conclusion of the Order should be amended so that it provides 11 as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CONCLUSION The Court finds the settlement agreement fair, adequate, and reasonable and GRANTS Plaintiffs motion for final approval of the settlement. This Court gives its final approval of the Settlement to the amended class definition as approved in its Order Granting Motion for Preliminary Approval of Class Action Settlement: [A]ll persons whose SSI or SSDI benefits were either denied or terminated and for whom a consultative examination was prepared by Dr. Frank Chen, and all persons who received a partially favorable decision or determination on their claim for SSI or SSDI benefits and for whom a consultative examination was prepared by Dr. Chen. (ECF No. 81 at 6-7.) Defendant will pay $490,000 in attorneys’ fees and costs to Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San Mateo County. The Court finds that this award is fair and reasonable in light of the nature of this Action, counsel’s experience and efforts in prosecuting and resolving this action, and the benefits obtained for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has agreed to waive its fees and costs. 26 Alternatively, the parties request that the Court withdraw the Order in its entirety and enter the 27 Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in 28 connection with Plaintiffs’ Motion for Final Approval. A proposed order is attached. Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 4 1 2 Dated: April 21, 2017 3 4 5 6 WILLIAM L. STERN CLAUDIA M. VETESI ROBERT T. PETRAGLIA ELIZABETH BALASSONE MORRISON & FOERSTER LLP 7 By: /s/ William L. Stern WILLIAM L. STERN 8 Attorney for Plaintiffs 9 10 11 12 13 14 Dated: April 21, 2017 U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION CHAD A. READLER Acting Assistant Attorney General JUDRY L. SUBAR Assistant Director M. ANDREW ZEE (CA Bar # 272510) Attorney 15 16 17 18 By: /s/ Andrew Zee M. ANDREW ZEE Attorneys for Defendant 19 20 21 22 23 24 25 26 27 28 Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 5 [PROPOSED] ORDER 1 2 Upon stipulation of the parties, and good cause appearing, the Court hereby orders that: 3 The Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement is 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amended by Replacing, at page 1, line 19, “Administrative Law Judges (‘ALJs’)” with “Social Security Administration (‘SSA’)”; Replacing, at page 1, line 20-21, “The evidence ALJs consider when making a disability benefits determination includes consultative evaluations,” with “The evidence the agency considers when making a disability benefits determination often includes consultative evaluations,“; and Striking the Conclusion section appearing at lines 2 through 12 of page 5, and replacing it with the following text: CONCLUSION The Court finds the settlement agreement fair, adequate, and reasonable and GRANTS Plaintiffs motion for final approval of the settlement. This Court gives its final approval of the Settlement to the amended class definition as approved in its Order Granting Motion for Preliminary Approval of Class Action Settlement: [A]ll persons whose SSI or SSDI benefits were either denied or terminated and for whom a consultative examination was prepared by Dr. Frank Chen, and all persons who received a partially favorable decision or determination on their claim for SSI or SSDI benefits and for whom a consultative examination was prepared by Dr. Chen. (ECF No. 81 at 6-7.) Defendant will pay $490,000 in attorneys’ fees and costs to Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San Mateo County. The Court finds that this award is fair and reasonable in light of the nature of this Action, counsel’s experience and efforts in prosecuting and resolving this action, and the benefits obtained for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has agreed to waive its fees and costs. Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 6 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 4 5 6 7 Dated: April 25, 2017 HON. JON S. TIGAR United States District Court Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval 7 1 2 ATTESTATION Pursuant to Local Rule 5-1(i)(3), I attest that I am the ECF user whose user ID and 3 password are being used in the electronic filing of this document, and further attest that I have 4 obtained the concurrence in the filing of the document from the other signatory. 5 6 /s/ Andrew Zee 7 M. ANDREW ZEE 8 9 10 11 CERTIFICATE OF SERVICE I hereby certify that on the 21st day of April, 2017, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing. 12 13 14 /s/ Andrew Zee M. ANDREW ZEE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST Stipulated Request to Amend Order Granting Final Approval
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